ANDREW W.

NEGRO
First Deputy County Attorney
SANDRA M. FUSCO
Senior Deputy County Attorne)
ADRIENNE L. SPADACCINI
Senior Deputy County Attorney
For Risk and Compliance
DANIELLE M. HARRIS
Deputy County Attorney
ROBERT A. NOAH
Senior Deputy County Attorney
JONATHAN ENGEL
Deputy County Attorney
County Attorney
DEPARTMENT OF LAW
REVISED MEMORANDUM:
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TO: Sam Oliverio, Jr./Legislator
Donald B. Smith/Sheriff
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Fred Pena/Commissioner of Highways and Facilities
FROM: Jonathan T. Engel
DATE: April 12, 2013
RE: Highway Commissioner's ability to regulate traffic on county highways.
This office has been requested to provide an opinion as to whether Putnam County has
the ability to regulate road traffic on county roads through the imposition of weight limits.
First, the federal commerce clause vests Congress with the power "to regulate Commerce
with foreign Nations, and among the several States, and with the Indian Tribes." U.S.C.A.
Const. Art. I 8, cl. 3. The commerce clause has long been seen as a limitation on state
regulatory powers, as well as an affirmative grant of congressional authority. Fulton Corp. v.
Faulkner, 116 S.Ct. 848,516 U.S. 325 (1996). The purpose ofthe commerce clause was not
merely to empower Congress with the negative authority to legislate against state regulations of
commerce deemed inimical to the national interest, but the power granted is a positive power and
includes the power to legislate concerning transactions which, reaching across state boundaries,
affect the people of more states than one, and to govern affairs which the individual states with
their limited territorial jurisdictions are not fully capable of governing. U.S. v. South-Eastern
Underwriters Ass'n, 64 S.Ct. 1162, 322 U.S. 533 (1944).
The commerce clause gives Congress power to regulate three types of activity, in this
regard: ( 1) the use of channels of interstate commerce; (2) the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat may come only
from intrastate activities; and (3) those activities having a substantial relation to interstate
commerce, i.e., those activities that substantially affect interstate commerce. U.S. v. Tykarsky,
C.A.3 (Pa.) 2006, 446 F.3d 458, appeal after new sentencing hearing 295 Fed.Appx. 498, 2008
48 GLENEIDA AVENUE, CARMEL, NEW YORK 10512
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Page -2-
April 12, 2013
Re: Highway Commissioner's ability to regulate traffic on county highways.
'
WL 4492626, certiorari denied 129 S.Ct. 1929. See, e.g., Pierce County, Wash. v. Guillen, 123
S.Ct. 720, 537 U.S. 129 (2003). "Channels of interstate commerce" are interstate transportation
routes through which persons and goods move, including highways, railroads, navigable waters,
and airspace. Vanguard Car Rental USA, Inc. v. Drouin, S.D.Fla.2007, 521 F.Supp.2d 1343,
vacated and remanded 2009 WL 995141. "Instrumentalities of interstate commerce" are the
people and things themselves moving in commerce, including automobiles, airplanes, boats,
pagers, telephones, mobile phones, and shipments of goods. U.S. v. Ballinger, C.A.1I (Ga.)
2005,395 FJd 1218, certiorari denied 126 S.Ct. 368,546 U.S. 829.
While the Supreme Court has been most reluctant to invalidate state regulations that
touch upon safety, especially highway safety, constitutionality of such regulations nevertheless
depends upon sensitive consideration of weight and nature of state regulatory concern in light of
extent of burden imposed on course of interstate commerce. (Per Justice Powell, with three
Justices concurring and two Justices concurring in the result.) Kassel v. Consolidated
Freightways Corp. of Delaware, 101 S.Ct. 1309,450 U.S. 662 (1981).
For instance, a city ordinance limiting the weight of trucks to below the limit set forth in
federal statute did not impose unreasonable burden on interstate commerce in violation of the
commerce clause. Ruiz v. Commissioner of Dept. ofTransp. of City of New York, S.D.N. Y.1988,
679 F.Supp. 341, re-argument denied 687 F.Supp. 888, affirmed 858 F.2d 898. See Lattavo
Bros., Inc. v. Hudock, M.D.Pa.1953, 119 F.Supp. 587, affirmed74 S.Ct. 478,347 U.S. 910 (A
state, in exercise of its police power and in absence of Congressional action, may impose
reasonable restrictions upon weight and size of vehicles traveling over its highways, equally
applicable to intrastate and interstate commerce, without running afoul of this clause or due
process clauses of the 14th Amendment); in evaluating a Commerce Clause challenge to a local
safety regulation that does not discriminate between local and out-of-state interests, the federal
courts are to apply a balancing test, weighing the local safety interest served against the degree
of interference with interstate commerce. Nat'! Tank Truck Carriers, Inc. v. City ofNew York,
677 F.2d 270,273 (2d Cir.1982) (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct.
844, 847 (1970)).
Where the statute regulates even-handedly to effectuate a legitimate local public
interest, and its effects on interstate commerce are only incidental, it will be
upheld unless the burden imposed on such commerce is clearly excessive in
relation to the putative local benefits.
!d. (emphasis added). In no field is the deference to local regulation greater than in the area of
highway safety, and highway safety regulations enjoy a strong presumption of validity. !d.
(citing Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 443, 444 & n. 18, 98 S.Ct. 787, 795,
795 & n. 18 (1978)). See also, e.g., Kassel v. Canso/. Freightways Corp., 450 U.S. 662,670, 101
S.Ct. 1309, 1316 (1981).
In Ruiz v. Commissioner of Dept. ofTransp. of City of New York, 679 F.Supp. 341
(S.D.N. Y.1988), Plaintiffs failed to meet their burden of showing that the New York City
ordinance at issue imposed an unreasonable burden on interstate commerce. The Court reasoned
ANDREW W. NEGRO
First Deputy County Attorney
ADRIENNE L. SPADACCINI
>enior Deputy County Attorney
For Risk and Compliance
ROBERT A. NOAH
enior Deputy County Attorney
Page -3-
Aprill2, 2013
JENNIFER S. BUMGARNER
County Attorney
DEPARTMENT OF LAW
Re: Highway Commissioner's ability to regulate traffic on county highways.
as follows:
SANDRA M. FUSCO
Senior Deputy County Attorney
DANIELLE M. HARRIS
Deputy County Attorney
JONATHAN ENGEL
Deputy County Attorney
The hazards caused by overweight trucks are well known, not only because of the
greater damage they cause when involved in accidents and the greater likelihood
of an accident when a truck is overloaded, but also because of the added wear
heavy trucks cause to highways on which they travel. Plaintiffs do not challenge
the 73,280 pound weight limitation on City streets, and former section 211 (1 0), as
enforced, was entirely consistent with the uniform 80,000 limit that Congress
intended to impose on the federal highway system. Any burden that former
section 211 (1 0) placed on interstate commerce was not clearly excessive in
relation to its local benefits. Accordingly, plaintiffs' Commerce Clause argument
must fail.
Ruiz v. Commissioner of Dept. ofTransp. of City of New York, 679 F.Supp. 341 (S.D.N.Y.1988).
A potential conflict could exist between local and federal law, however, for preemption
purposes, if it is physically impossible to comply with federal and state law, or if state law stands
as an obstacle to accomplishment and execution ofthe full purposes and objectives of Congress.
Ruiz v. Commissioner of Dept. ofTransp. of City of New York, 679 F.Supp. 341 (S.D.N.Y.l988).
Here, a preemption issue does not exist as Congress has permitted the states to regulate highway
safety pursuant to their police power, as long as the regulation does not substantially burden
interstate commerce.
The New York Constitution grants local governments the power to adopt local laws
relating to "the acquisition, care, management and use of its highways, roads, streets, avenues
and property," to the extent not restricted by the state Legislature, and provided that such laws
are not inconsistent with the provisions of the Constitution or any general law. N.Y. Const. Art.
9, 2(c)(ii)(6). See also Municipal Home Rule Law 10(1)(ii)(a)(6); 2004 N.Y. Op. Atty. Gen.
No. I 0 (2004). As part of their home rule powers, municipalities are also authorized to provide
for the punishment of violations of their local laws by civil penalty, fine, forfeiture or
imprisonment, or by a combination of these punishments. See Municipal Home Rule 1 0( 4 )(b);
48 GLENEIDA AVENUE, CARMEL, NEW YORK 10512
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Page -4-
Aprill2,2013
Re: Highway Commissioner's ability to regulate traffic on county highways.
Op. Atty. Gen. (Inf.) 88-22.
The regulation and control of public highways is a matter of state concern exclusively
within the power of the State, except to the extent that the Legislature has delegated such power
to political subdivisions and municipal corporations. See People v. Grant, 306 N.Y. 258, 260
(1954). The provisions of the Vehicle and Traffic Law (hereinafter "VTL") are deemed
"applicable and uniform throughout this state and in all political subdivisions and municipalities
therein." VTL 1600. Local governments may not "enact or enforce any local law, ordinance,
order, rule or regulation in conflict with the provisions of' the VTL unless "expressly
authorized" to do so by statute. Id, see also, VTL 1604 ("[e]xcept as otherwise provided in this
chapter, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or
regulation ... excluding any such owner [of a motor vehicle] ... from the free use of such public
highways ... or in any other way restricting motor vehicles or motorcycles or their speed upon or
use of the public highways").
The VTL restricts the weight and dimensions of motor vehicles on all public highways in
the State
1
VTL 385 contains a broad and detailed regulatory scheme, establishing specific
maximum limits on vehicle width, height, length and weight, providing for certain exceptions
from the restrictions. See 2004 N.Y. Op. Atty. Gen. No. 10 (2004).
As stated above, VTL 1600 provides that local government may not "enact or enforce
any local law, ordinance, order, rule or regulation in conflict with the provisions of' the VTL
unless "expressly authorized" to do so. VTL 1650 enumerates specific areas in which the State
has delegated to the county superintendent of highways with respect to county roads. In
particular, section 1650 authorizes the county superintendent ofhighways, by order, rule or
regulation to "[ e ]xclude trucks, commercial vehicles, tractors, tractor-trailer combinations, or
tractor-trailer-semitrailer combinations in excess of any designated weight, designated length,
designated height, or eight feet in width, from county highways, except for qualifying or access
highways or set limits on hours of operation of such vehicles." VTL 1650(a)( 4-a). VTL
1650(a)(4-a) further provides that '[s]uch exclusion shall not be construed to prevent the
delivery or pickup of merchandise or other property along the highways from which such
vehicles or combinations are otherwise excluded." See Troy Sand & Gravel Co. Inc. v.
Rensselaer County, 235 A.D. 2d 813 (3rd Dept. 1997) (VTL 1650(a)( 4-a) vests a county
superintendent of highways with the authority to, inter alia, impose weight limit restrictions
upon county roads, the statute requires that such action be accomplished by "order, rule or
regulation."). This delegation to permit exclusion of heavy trucks from county highways does
not reference state-wide limitations on truck weight and dimensions specified in 385, or
specifically permit counties to enact local laws inconsistent with the state standards. Cf VTL
1630(1), 1642(a)(authorizing certain state and local public authorities and cities having a
population in excess of one million to enact laws that supersede provisions of the VTL with
respect to certain enumerated subjects, including weights and dimensions of vehicles).
Accordingly, VTL 1650(a)(4-a) must be read in relation to and consistent with the provisions of
1
Provisions of federal law also govern the maximum weight and dimensions of vehicles on interstate highways. See 23 U .S.C. I:
Section 385 of the VTL contains a provision intended to ensure that state and local restrictions are neither in violation of nor
inconsistent with the federal standards. See VTL 385(20).
ANDREW W. NEGRO
First Deputy County Attorney
ADRIENNE L. SPADACCINI
Senior Deputy County Attorney
For Risk and Compliance
ROBERT A. NOAH
Senior Deputy County Attorney
Page -5-
April 12, 2013
JENNIFER S. BUMGARNER
County Attorney
DEPARTMENT OF LAW
Re: Highway Commissioner's ability to regulate traffic on county highways.
VTL 385.
SANDRA M. FUSCO
Senior Deputy County Attorne
DANIELLE M. HARRIS
Deputy County Attorney
JONATHAN ENGEL
Deputy County Attorney
As noted, the provisions of the VTL are intended to be uniform and applicable
throughout the State, and local governments are specifically prohibited from enacting provisions
that duplicate any provision of the VTL. VTL 1600. This rule effectuates the Legislature's
intent to prevent "the existence of two sets of enactments, under either of which there could be a
prosecution for violation of the provisions thereof." People v. President & Trustees of Village of
Ossining, 238 A.D. 684 (1st Dept. 1933)(construing predecessor to VTL 1600), ajf'd, 264 N.Y.
574 (1934). To avoid duplication and conflict with VTL 385, the delegation to exclude heavy
trucks in 1650(a)(4-a) is most reasonably interpreted as delegating authority to exclude trucks
that weigh less than the maximum weight permitted under 385, rather than as delegating
authority to regulate and punish conduct that otherwise violates the maximum weight limits
already established by 385. See 2004 N.Y. Op. Atty. Gen No. 10 (2004).
Further, in light of the Legislature's clear intent to preempt inconsistent local laws and
prohibit duplication of state VTL provisions, see VTL 300 and 1600, as well as the
comprehensive nature of the regulatory scheme set forth in VTL 385, it is apparent that the
Legislature intended to deny local municipalities authority to establish penalties for conduct as to
which VTL 385 already prescribes fines. 2004 N.Y. Op. Atty. Gen No. 10 (2004). Thus,
where a local enactment prohibits conduct that is also prohibited by a provision of the VTL,
conduct that violates the local law alone may be prosecuted as a local law violation and subject
to the penalties imposed by the local provision. See People v. Hunter, 190 N.Y. 315, 320-21
(1907)(where violator was driving in excess of both lower NYC speed limit and higher state
limit, violation was one of state law subject to the higher state law penalties); see also People v.
President & Trustees of Village ofOssining, 238 A.D. at 688 (intent of state-wide uniformity as
set forth in predecessor VTL 1600 and 1604 was to "prevent two sets of enactments, under
either of which there could be a prosecution for a violation ofthe provision thereof'). Attorney
General Opinions have reached this same conclusion. See 2004 N.Y. Op. Atty. Gen No. 10
(2004); 1951 Op. Atty. Gen. (Inf.) ("Where ever the facts disclose a violation of a specific
section of the State statute, any prosecution thereunder should be based solely upon a violation of
such law. While a local ordinance might well supplement a State statute, it could hardly be
48 GLENEIDA A VENUE, CARMEL, NEW YORK 10512
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. -o- -
April 12, 2013
Re: Highway Commissioner's ability to regulate traffic on county highways.
presumed that a local parking ordinance was intended to be a substitute for such generally
applicable rule of law."); 1930 Op. Atty. Gen. 327 (in absence of state speed limit, speeding
convictions were properly considered local law violations for purposes of distribution of fines,
while convictions for driving in reckless manner should be considered state law violations
regardless of driver's speed).
Thus, conduct that violates VTL 385's maximum weight limits for vehicles on any
public highway would need to be prosecuted under that section, subject to the schedule of fines
prescribed therein, even ifthe same conduct would also violate a local municipality's local
enactment excluding overweight trucks from specified local highways. See 2004 N.Y. Op. Atty.
Gen No. 10 (2004). However, conduct violating only the lower weight limits established by the
local enactment, and thus not implicating the provisions ofVTL 385, could be prosecuted under
the local enactment and would be subject to the penalties prescribed therein
2
See 2004 N.Y. Op.
Atty. Gen No. 10 (2004).
The Commissioner, pursuant to the Charter of Putnam County, shall:
(a) Have all the powers and duties of a County Engineer and County Superintendent
of Highways pursuant to the Highway Law, Town Law or other applicable laws;
(b) Have charge and supervision of the design, construction, improvement,
maintenance, repair, cleaning and lighting of all highways, roads, streets, bridges
and grade separation structures under jurisdiction of the County. Put. Cty.
Charter 9 .02(a)-(b ).
Here, the Commissioner has the ability to regulate traffic on county highways for the
purposes of highway safety. In fact, highway safety regulations enjoy a great deal of deference,
and also enjoy a strong presumption of validity. See, e.g., Raymond Motor Transp., Inc. v. Rice,
434 U.S. 429, 443, 444 & n. 18, 98 S.Ct. 787, 795, 795 & n. 18 (1978)); Kassel v. Consol.
Freightways Corp., 450 U.S. 662, 670, 101 S.Ct. 1309, 1316 (1981); Ruiz v. Commissioner of
Dept. ofTransp. of City of New York, 679 F.Supp. 341 (S.D.N.Y.l988). First, the proposed local
highway safety regulation would have to regulate even-handedly; meaning that the regulation
could not discriminate between local and out-of-state interests. Nat'! Tank Truck Carriers, Inc.
v. City of New York, 677 F.2d 270,273 (2d Cir.1982) (citing Pike v. Bruce Church, Inc., 397
U.S. 137, 142,90 S.Ct. 844,847 (1970)); Ruiz v. Commissioner of Dept. ofTransp. ofCity of
New York, 679 F.Supp. 341 (S.D.N.Y.1988). Second, any proposed highway safety regulation
would have to pass a balancing test, which would require weighing the local safety interest
served against the degree of interference with interstate commerce. See Nat'! Tank Truck
Carriers, Inc. v. City of New York, 677 F.2d 270, 273 (2d Cir.1982) (citing Pike v. Bruce Church,
Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847 (1970)).
If the Commissioner, in the instant matter, were to propose a safety regulation pertaining
to a big/heavy truck's weight, it would have to comply with the above legal requirements in
Fines and other penalties for violations of local traffic regulations (defined as traffic infractions) must also be consistent with the
parameters set forth in VTL 1800, must bear a reasonable relationship to the severity of the offense and not be abhorrent to a sense
justice or shocking to the conscience, see Op. Atty. Gen. (In f.) No. 88-30.
ANDREW W. NEGRO
First Deputy County Attorney
ADRIENNE L. SPADACCINI
Senior Deputy County Attorney
For Risk and Compliance
ROBERT A. NOAH
Senior Deputy County Attorney
Page -7-
April12, 2013
JENNIFER S. BUMGARNER
County Attorney
DEPARTMENT OF LAW
Re: Highway Commissioner's ability to regulate traffic on county highways.
SANDRA M. FUSCO
Senior Deputy County Attorney
DANIELLE M. HARRIS
Deputy County Attorney
JONATHAN ENGEL
Deputy County Attorney
order not to violate the commerce clause, to wit: the proposed safety regulation would have to
regulate even-handedly (it cannot discriminate between local and out-of-state interests), the
proposed regulation would have to regulate county highways only as they are under the
Commissioner's jurisdiction, and the regulation would have to regulate a local safety interest
which would not pose a clearly excessive burden on interstate commerce. For example,
proposing an ordinance which imposes a weight restriction on bridges and viaducts to ensure
structural integrity and safety. Given the court's ruling and rationale in, Ruiz v. Commissioner of
Dept. ofTransp. ofCity of New York, 679 F.Supp. 341 (S.D.N.Y.l988), a proposed highway
safety regulation regulating weight limits on county highways stands a good chance of being
upheld as valid, if challenged. However, a proposed highway safety regulation cannot be passed
to limit, or restrict, big/heavy trucks from county highways due to complaints from residents
about noise, etc ...
New York State law, which comports with federal law, permits a county superintendent
of highways to impose weight restrictions upon county roads. See Troy Sand & Gravel Co. Inc.
v. Rensselaer County, 235 A.D. 2d 813 (3rd Dept. 1997) (VTL 1650(a)(4-a) vests a county
superintendent of highways with the authority to, inter alia, impose weight limit restrictions
upon county roads, the statute requires that such action be accomplished by "order, rule or
regulation."). However, imposing a weight limit restriction on a county highway requires a
safety interest pertaining to road structures, such as bridges, viaducts, and the roadway itself.
Therefore, the Commissioner has the ability to regulate road traffic on county roads in
regards to large/heavy trucks, as long as the regulation(s) do not violate the commerce clause.
In order not to violate the commerce clause, a proposed regulation would have to regulate even-
handedly (it cannot discriminate between local and out-of-state interests), the proposed
regulation would have to regulate county highways only as they are under the Commissioner's
jurisdiction, and the regulation would have to regulate a local safety interest which would not
pose a clearly excessive burden on interstate commerce.
48 GLENEIDA AVENUE, CARMEL, NEW YORK 10512
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*This office will not accept service via facsimile