Charles V. Martabano, Esq. Village Attorney Mount Kisco
We received a request from your predecessor, Mr. Pieragostini, for an opinion whether your village may enter into a contract to provide snow and ice removal and apply salt and sand to private streets in the village, those private streets being owned by the owners of a condominium. Some additional questions were asked but our response to the above disposes of them.
It is a fundamental of municipal law that municipalities have only the powers specifically conferred upon them by the Constitution or statute or those powers which are necessarily implied therefrom (Seaman v Fedourich, 16 N.Y.2d 94 [1965]; Wells v Town of Salina, 119 N.Y. 280, 287 [1890]; Scarborough Properties Corp. v Village of Briarcliffe Manor, 278 N.Y. 370 [1938]; Marine Midland Trust Co. v Village of Waverly, 42 Misc.2d 704, 706 [Sup Ct, Broome Co, 1963], affd without opn 21 A.D.2d 753 [3d Dept, 1964]).
Entering into the private business sector is not one of the powers granted to municipalities either specifically or by necessary implication except in rare instances such as the establishment of a municipal electric utility company. There are grants of power to municipalities scattered throughout the statutes, but the broadest grant is contained in Municipal Home Rule Law § 10 which, in subdivision 1, paragraph (i), grants local law powers relating to the "property, affairs or government" of municipalities and, in paragraph (ii), relating to a long list of subjects whether or not those subjects relate to a municipality's "property, affairs or government". One of the listed subjects is "The acquisition, care, management and use of its highways, roads, streets, avenues and property" (id. ii [a (6)]). Note that the power is in relation to "its" highways, etc. Highways, etc., of others, which happen to be within its boundaries, are not "its" highways. Doing such work and providing such services within the private sector is not a municipal function.
In our opinion, a village has no authority to provide snow and ice removal from or to apply salt and sand to private streets even though the owner of the streets is willing to pay the village to do this.
If the owners of the private streets want public maintenance of the streets, they may offer to dedicate, or even convey the fee title, of the streets to the village. If the private streets meet the minimum standards set by law and are satisfactory to the village, then the village, in its sound discretion, may accept them. Traditionally, most village streets have been created by dedication, which is the setting apart of private property to the public use, the owner reserving only such rights as are compatible with the full exercise and enjoyment of the public uses to which the property has been devoted. More recently, many villages have been taking fee title to the streets. This is a matter that the village and the owners of the private streets could decide if they are to be changed to public streets.