New York State Local Technical Assistance Program

Who is responsible for clearing brush at an intersection owned by two different municipalities?

There are overlapping jurisdictions for Town and County Highway Departments in the state law. As such, it is recommended that the two jurisdictions set up a simple intermunicipal agreement regarding maintenance of intersections. A single agreement could be used for all conflicting intersections and could be more comprehensive than just brush. If desired, the agreement could cover who does what at the intersection including paving, signing, vegetation and even snow removal.

Several NYSDOT workers clearing brush on a roadside from

As a simple rule of thumb, the agreement should define where each agency’s responsibilities stop and start. Generally, the higher level highway (collector or arterial) should be maintained by a single jurisdiction if possible. Common locations to stop maintenance by the higher level agency include:

The town and the county need to work with their respective attorneys, highway superintendents/commissioners and governing boards to enter into said agreement. Any agreement should also address liability and cost (General Municipal Law, article 5-g).  

Review of Legal Issues

The case law, agency opinions and statues governing this are not always consistent. For example, there appears to be overlapping jurisdiction between town and county intersections regarding signage (Town Law, §64[16]; Vehicle and Traffic Law §§1660 (a)(5); 1651; 1652–a), grading and paving (Highway Law, §§140; 117), as well as brush removal (Highway Law, §§140 (11); 135; 102). Both town and county highway departments have a statutory responsibility to clear noxious weeds, briers and brush growing within the bounds of their respective roads (Highway Law, §§102 (11); 140 (7)). In addition, the County Board of Supervisors or Legislators may annually appropriate money for the removal of noxious weeds, briers and brush within the bounds of county roads and town highways improved by county aid (Highway §135). This requirement has been ruled to be for health reasons rather than for improving driver visibility (see cf Sylor v. Irwin, 62 Misc.2d 469, 308 N.Y.S.2d 932 (Sup. Ct. Allegheny County, 1970)). Although there does not appear to be a statutory requirement for town and county highway departments to remove brush and vegetation to improve driver visibility at intersections, there is a common law duty to keep roads in reasonably safe condition for the safety of the traveling public. (Federoff v. Camperlengo, 215 A.D.2d 806, 626 N.Y.S.2d 301 [3rd Dept.,1995] citing  Lopes v. Rostad, 45 N.Y.2d 617, 623, 412 N.Y.S.2d 127, 384 N.E.2d 673; Nurek v. Town of Vestal, 115 A.D.2d 116,  494 N.Y.S.2d 920 [3rd Dept., 1985]). This common law duty encompasses an obligation by towns and counties to trim growth within the right-of-way to assure visibility of stop signs and other traffic (Nurek v. Town of Vestal, 115 A.D.2d 116, 494 N.Y.S.2d 920, [3rd Dept., 1985]). The courts have further determined that liability rests with the municipality that owns the highway unless another municipality has assumed control (Federoff v. Camperlengo, 215 A.D.2d 806, 626 N.Y.S.2d 301 [3rd Dept 1995];  Mattice v. Town of Wilton, 160 A.D.2d 1195, 555 N.Y.S.2d 461 [3rd Dept 1990]). 

Thank you to Lori Mithen-DeMasi with the Association of Towns of the State of New York for providing the legal review of this situation.

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