Baiting Hollow community sues to require town to maintain and repair its roads

A Baiting Hollow community at odds with the Town of Riverhead over road maintenance since 2014 has filed suit in State Supreme Court seeking a judgment declaring the town legally responsible for the 11 roads in the wooded north shore neighborhood.

The lawsuit brought by the Oak Hills Association claims that the town’s attempt to accept limited responsibility for the roads conferred upon them legal status as public highways.

After a December 2014 public hearing on the historical use and care of the town’s numerous “private” roads, the town board determined that the roads within Oak Hills, laid out as private roads many decades ago, would be plowed by the highway department and patched if necessary, but would not receive any other services.

“Private” roads are roads that were not “dedicated” to and are not owned by the town. They are often not built to town specifications concerning pavement width and drainage appurtenances. However, homeowners who live on private roads still pay highway district taxes.

The town invoked section 189 of the N.Y. State Highway Law, which speaks to the legal status of “highways by use.” The statute says all roads used by the public for at least 10 years shall be considered public highways.

The town decided to adopt a code modeled on one in the Westchester County Town of Cortland, which specifies which limited municipal services, such as snow-plowing, will be provided to specified private roads within the town. That approach has the town plowing private roads without assuming liability for other — much more expensive — responsibilities like repaving or making drainage improvements.

But the town has misinterpreted and misapplied the statute, according to the complaint.

“After admitting those roads under section 189, the town now has the responsibility to treat them as all other town roads,” the plaintiff’s attorney David Antwork said in an interview Tuesday.

“The town said they were public roads under section 189. The town now has a responsibility to treat them as all other town roads,” Antwork said. “There are statutory requirements. They can’t go back and say they’re entitled to only limited services.”

At stake is the cost of resurfacing, drainage system repairs, maintenance and more — in addition to snow and ice removal.

In 2014, Highway Superintendent George Woodson wrote to Oak Hills homeowners to advise them that the department would no longer provide snow-plowing services. His letter sparked an uproar in the community of 85 homes. Residents descended on town hall to complain.

Woodson said the practice of plowing private roads began under his predecessor in office, Mark Kwasna and, he said, violates the state constitution, which prohibits the expenditure of town highway funds on non-town roads.

But since the time when the initial dispute erupted, Town Supervisor Sean Walter countered that the “highways by use” section of the state highway law mandates that a private road used by the public becomes a highway “by use.”

Woodson disagreed. Private roads are generally not through-roads, he said. “The public doesn’t use them to get from one place to another. They’re used by the residents who live there and the people they invite to use them,” he said.

Adopting section 189 status for the limited purpose of providing snow clearing and emergency patching was a compromise that the plaintiffs argue the town had no authority to make.

Walter declined to comment for this story, saying he can’t discuss pending litigation.

The action does not seek a monetary award, but a declaratory judgment regarding the status of the roadways and the town’s legal obligations to maintain, plow and repair them, Antwork said.