This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

STREETS AND HIGHWAYS -- Improvements (CHIPs moneys subject to section 284 agreement)

SUPERINTENDENT OF HIGHWAYS -- Relations With Town Board (CHIPs moneys subject to section 284 agreement)

MUNICIPAL FUNDS -- Highway Fund (CHIPs moneys subject to section 284 agreement)

HIGHWAY LAW, §§10-c, 284: Consolidated Local Highway Assistance ("CHIPs") moneys appropriated by the town board for the repair and improvement of highways may be expended only in accordance with an agreement entered into between the town board and the highway superintendent pursuant to section 284 of the Highway Law.

You ask whether moneys received pursuant to section 10-c of the Highway Law are subject to the agreement between the town board and town highway superintendent which is required by section 284 of the Highway Law.

Section 10-c of the Highway Law establishes a consolidated local highway assistance program ("CHIPs"), for the purpose of providing State-aid toward the construction, operation and/or maintenance of highways, bridges and highway-railroad crossings that are not on the State highway system (Highway Law, §10-c[1]). Subject to certain restrictions, CHIPs moneys may be used for the construction, reconstruction or improvement of local highways, bridges and/or highway-railroad crossings where the service life of the project is at least ten years or for any other highway purpose except debt service (see Highway Law, §§10-c[5]; L 1993, ch 53 [1993-94 Aid to Localities Budget, pp 230-231]; L 1993, ch 56, §§2-4, 13, 14; L 1993, ch 57, §§199, 200).

Highway Law, §284 requires the town board and the highway superintendent to determine, by agreement, how certain moneys for highway repairs and improvements are to be used. Section 284 provides, in part, that:

The moneys levied and collected for the repair and improvement of highways, . . . the moneys received from the state, as provided by [Highway Law, §§279 and 282], and such other moneys as the town board, by resolution, shall have transferred pursuant to [Town Law, §113 or Highway Law, §285-a] shall be expended for the repair and improvement of such highways . . . at such places and in such manner as may be agreed upon by the town board and the town superintendent of highways, and subject to the approval of the county superintendent of highways. Such agreement shall be written and signed in duplicate by a majority of the members of the town board, and by the town superintendent, and shall be approved by the county superintendent of highways, before the same shall take effect.

Thus, section 284 applies to moneys "levied and collected" for the repair and improvement of highways (see Highway Law, §141[1]; Town Law, §§107[1], 109[1]) and to any moneys transferred by the town board to the repair and improvement account of the highway fund from either the general fund or the other accounts within the highway fund (see Town Law, §113; Highway Law, §285-a). Although section 284 also states that moneys received from the State as provided by sections 279 and 282 of the Highway Law must be expended in accordance with the agreement, section 279 was repealed and section 282 rendered ineffective by the legislation which established the CHIPs program (see L 1981, ch 314, §§20, 21). The references to sections 279 and 282, however, were not replaced with a reference to the CHIPs program or section 10-c.

We believe the failure to substitute a reference to CHIPs was inadvertent. It is clear that the CHIPs program was enacted to take the place of the State-aid programs authorized by sections 279 and 282 as a source of State-aid funding (see Bill Jacket for L 1981, ch 314, letter of June 25, 1981 to Counsel to the Governor from the Commissioner of Transportation). Further, there is no indication that the Legislature intended to alter the statutory procedures pursuant to which town officials would determine the specific use of State-aid moneys applied to the repair and improvement of local highways.

Accordingly, it is our opinion that CHIPs moneys appropriated by the town board for the repair and improvement of highways may be expended only in accordance with an agreement entered into between the town board and the highway superintendent pursuant to section 284 of the Highway Law.

November 18, 1993
Thomas D. Mahar, Jr., Esq., Town Attorney
Town of Poughkeepsie