Highway superintendent says he may sue town board over vote to make private roads in Oak Hills public highways

Following a town board vote yesterday to incorporate as town highways a dozen private roads in the Oak Hills community in Baiting Hollow, Highway Superintendent George Woodson said today he’s hiring an attorney and may sue the town board.

“I’m not doing this,” Woodson said in an interview. “I’m not spending town taxpayer dollars on private roads. It’s illegal.”

The Oak Hills Association already has a lawsuit pending against the town, the town board and Woodson, seeking a judgment declaring the town legally responsible for the maintenance and repairs of the roads in the wooded Soundfront neighborhood.

The town board has been discussing settlement of that lawsuit and met in executive session last week — without the highway superintendent – to discuss settlement terms that, according to Councilwoman Jodi Giglio, would require the town to assume legal responsibility for the roads.

Giglio objected to the settlement and yesterday voted against the resolution incorporating the Oak Hills roads as town roads. Councilman John Dunleavy also voted no. The resolution was not on the agenda or in the resolution packet distributed to the public and posted on the town website prior to yesterday afternoon’s meeting. It was taken “off the floor” by board members at the end of the other votes on resolutions.

“This was not discussed in a public meeting and it should have been,” Giglio said, adding that she had not seen the measure before yesterday.

“Also, there is no settlement yet,” Giglio said. “This sets a terrible precedent and leaves the town open to every other community with private roads asking for the same thing.”

Dunleavy concurred. “It would open up a big can of worms,” he said. “A lot of these roads are driveways — they’re as wide as a driveway.”

In 2014, 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.

Supervisor Sean Walter took an opposing point of view from the outset. He said 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.”

The town adopted a local law that allowed the town board to declare private roads “highways by use” for the limited purpose of providing snow clearing and emergency patching.

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.

The Oak Hills Association brought suit, claiming the town had misinterpreted and misapplied the statute. The association argues that the town’s attempt to accept limited responsibility for the roads conferred upon them legal status as public highways entitled to all services provided to all public highways, including repaving and drainage repair work.

The resolution adopted yesterday does exactly what the association sought.

Woodson was angered by the board’s action. In an unusual move, he took the podium to criticize the board for “being secretive” in its deliberations about the Oak Hills roads.

“I didn’t know anything about it,” Woodson said. “I’m an elected official just like you are. Where’s the money coming from to take care of these roads?” Woodson asked. “I’m not spending taxpayer money on private roads.”

Councilman James Wooten said the dispute over the roads in Oak Hills was “spurned out of malice,” after a highway department plow damaged a driveway apron and the homeowner sued the town.

Woodson said when that homeowner threatened to sue, he went to town attorney Bob Kozakiewicz who told him the highway department should not be plowing those roads to begin with because they are private roads.

The highway department always plows private roads for emergency vehicle access, Woodson said.

In order to be incorporated as town “highways by use” under state Highway Law section 189, the roads must have been open to public use and used by the public for at least 10 years and regularly maintained and repaired by the town for at least 10 years.

That’s not the case with the roads in Oak Hills, Woodson said.

“It’s not a through road. It’s a dead-end road that leads to a private beach,” he said.

The phrase “used by the public” has been interpreted by the courts to mean used like every other public road, Giglio said.

She quoted from an opinion of the New York State attorney general provided to her by the town attorney.

“A private way opened by the owners of the land through which it passes for their own uses does not become a public highway merely because the public are also permitted for many years to travel on it,” the July 1999 attorney general’s opinion said, citing a New York Court of Appeals decision.

“Use by residents and their guests is not sufficient because such is not opening a road to the general public like any other highway,” the AG opinion continued. Also, “isolated acts of maintenance, irregular snowplowing, policing of the area and acts done merely for the accommodation of a portion of the public do not constitute the continuous maintenance required to make t road a public highway,” the opinion states.

“This is being done for political purposes — for votes,” Giglio said. “In the end it’s going to cost the taxpayers a lot of money.

Walter said in an interview last week incorporating private roads as public roads is “good for the whole town” because “ultimately it raises everyone’s property values.”