Can a New York village pass a local law impounding any motor vehicle parked on a public street or village parking area for more than 24 hours, when state law defines an 'abandoned' vehicle differently?

Plain-English summary

Section 319-55 of the Port Chester Village Code prohibited parking on any public street or parking area for more than 24 consecutive hours, and authorized the village to remove and impound any vehicle that overstayed. The owner bore the removal cost. The village attorney asked the AG whether the local law conflicted with Vehicle and Traffic Law § 1224, which defines a vehicle as "abandoned" only after 48 hours when initially parked legally.

The AG concluded the local law was enforceable, with limits.

On the abandonment question, the AG agreed that treating a 24-hour overstay as "abandoned" within the meaning of § 1224 would conflict with state law. § 1224 has a precise definition (24 hours for vehicles initially parked illegally; 48 hours for vehicles initially parked legally), and the local law could not redefine that term. § 1224 also governs transfer of ownership and disposition. But the Port Chester ordinance did not call its impounded vehicles "abandoned"; it just impounded them temporarily. Impoundment is custody, not ownership transfer. So the local law and § 1224 occupy different doctrinal spaces.

On affirmative authority, the AG noted that VTL §§ 1204(b) and 1640(a)(14) authorize villages to remove vehicles parked or abandoned during emergencies, obstructing traffic, or "where stopping, standing or parking is prohibited." The 24-hour overstay isn't a "prohibited" parking violation in the strict statutory sense (it's a "restricted" or "limited" parking violation). So the express delegations don't cover it. But the broader grants in § 1640(a)(6) (villages may "prohibit, restrict or limit the stopping, standing or parking of vehicles") and § 1640(a)(16) (additional reasonable traffic rules as local conditions require) do. The AG had relied on these broader grants before for parking-meter delinquency removal (1977 Op. Att'y Gen. (Inf.) 245) and boot-attachment laws (Op. Atty. Gen. (Inf.) No. 81-87).

On due process, the AG cited Op. Atty. Gen. (Inf.) No. 93-34 and No. 81-87, plus the recent Supreme Court decision in City of Los Angeles v. David (which upheld a 30-day post-seizure hearing). The local law's enforceability depends on (a) local conditions warranting prompt removal (a determination for local officials familiar with parking conditions), (b) reasonable post-seizure procedures, and (c) the opportunity to reclaim the vehicle on payment of fees.

The opinion flagged but did not resolve an internal drafting inconsistency in the local law: subdivision B says "no motor vehicle may be parked . . . for more than twenty-four (24) consecutive hours" but also authorizes impoundment at exactly 24 hours. The AG assumed this was a drafting error.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why does the abandoned-vehicle definition matter so much?
A: Because § 1224 controls when a local government can take ownership of a vehicle and dispose of it. The 24-hour and 48-hour clocks in § 1224 are state-set. A local law cannot accelerate them. As long as the local law stops at impoundment (temporary custody), it doesn't touch the § 1224 ownership framework.

Q: What's the difference between parking being "prohibited" and being "restricted"?
A: A prohibition under § 1200(c) means parking isn't allowed under any circumstances. A restriction or limitation is more nuanced. § 1640(a)(6) authorizes villages to "prohibit, restrict or limit" parking, distinguishing the three. The AG read the impoundment delegation in § 1640(a)(14) as covering prohibited parking only, not restricted parking. The broader authority comes from § 1640(a)(6) and § 1640(a)(16).

Q: What due process protections does the Constitution require?
A: At minimum, reasonable conditions justifying prompt removal, a post-seizure hearing within a reasonable time, and the ability to reclaim the vehicle on payment of fees. City of Los Angeles v. David (2003) upheld a 30-day post-seizure timeframe under those conditions.

Q: Does the village have to enforce this on state highways?
A: No. The AG flagged in a footnote that under VTL § 1640(a) and § 1684, a village can't regulate traffic on state highways within its borders without written approval from the Department of Transportation.

Q: Why isn't there a direct conflict between the village's 24-hour impoundment and § 1224's abandonment definition?
A: Because the two regimes do different things. § 1224 defines when a vehicle is "abandoned" and authorizes ownership transfer. The village ordinance addresses temporary impoundment for violations of a 24-hour parking limit. As long as the village doesn't try to convert impoundment to abandonment under § 1224's accelerated terms, there's no overlap.

Q: What was the drafting issue the AG flagged?
A: Subdivision B says no vehicle may be parked "for more than twenty-four (24) consecutive hours" but authorizes impoundment "for twenty-four (24) consecutive hours or more." A vehicle parked exactly 24 hours is not yet illegally parked but could be impounded. The AG noted this and assumed it was a drafting error.

Background and statutory framework

The Vehicle and Traffic Law has a fairly elaborate scheme. § 1600 makes the VTL applicable and uniform throughout the state, preempting inconsistent local laws unless expressly authorized. § 1640 delegates specific traffic authority to villages, with subdivision (a)(6) covering parking prohibitions and limitations, subdivision (a)(14) covering removal of unattended vehicles in emergencies or where parking is prohibited, and subdivision (a)(16) authorizing "additional reasonable traffic rules as local conditions require."

§ 1224 is the abandoned vehicle statute. It defines abandonment, regulates disposition, sets penalties for causing abandonment, and provides for transfer of ownership under specified conditions. § 1630(19) and § 1642(20) explicitly authorize some entities (certain public authorities, commissions, agencies, and cities with population over 1 million) to supersede § 1224's timing rules, but villages are not on the list.

The AG's analysis treats the local law as a parking-restriction enforcement mechanism rather than an abandonment redefinition. People v. Grant (1954) construed the predecessor to § 1640(a)(16) and supplied the rule that the reasonableness of additional traffic rules is measured against the express delegations.

For due process, the seminal AG opinion was No. 81-87 (boot attachment); No. 93-34 reinforced it. The 2003 Supreme Court decision in City of Los Angeles v. David is the recent constitutional benchmark.

Citations and references

Statutes and constitutional provisions:

• N.Y. Const. art. IX, § 2(c)(ii)(6) (village authority over highways and property)
• Municipal Home Rule Law § 10(1)(ii)(a)(6)
• Vehicle and Traffic Law § 1200(c) (parking prohibition definition)
• Vehicle and Traffic Law § 1204(b)(1) (police removal authority)
• Vehicle and Traffic Law § 1224 (abandoned vehicles)
• Vehicle and Traffic Law § 1600 (uniform application of VTL)
• Vehicle and Traffic Law § 1630(19) (entities authorized to supersede § 1224 timing)
• Vehicle and Traffic Law § 1640(a) (village traffic authority)
• Vehicle and Traffic Law § 1640(a)(6) (prohibit, restrict, or limit parking)
• Vehicle and Traffic Law § 1640(a)(14) (removal of vehicles in emergencies)
• Vehicle and Traffic Law § 1640(a)(16) (additional reasonable traffic rules)
• Vehicle and Traffic Law § 1642(20) (cities over 1 million may supersede § 1224)
• Vehicle and Traffic Law § 1684 (state highway DOT approval)
• 15 N.Y.C.R.R. Part 18 (Commissioner regulations supplementing § 1224)

Cases:

• People v. Grant, 306 N.Y. 258 (1954) (construction of § 1640(a)(16) predecessor)
• People v. Familio, 135 Misc. 2d 623 (City Ct. 1987) (§ 1224 abandonment proof)
• Robin v. Incorporated Village of Hempstead, 30 N.Y.2d 347 (1972) (implied preemption framework)
• Riley v. County of Broome, 95 N.Y.2d 455 (2000) (statutory construction across sections)
• City of Los Angeles v. David, 123 S. Ct. 1895 (2003) (due process; 30-day post-seizure hearing)
• Goichman v. Aspen, 859 F.2d 1466 (10th Cir. 1988) (due process; impoundment)

Prior AG opinions:

• 1977 Op. Att'y Gen. (Inf.) 245 (parking-meter delinquency removal)
• Op. Atty. Gen. (Inf.) No. 81-47 (§ 1224 conflict)
• Op. Atty. Gen. (Inf.) No. 81-87 (boot attachment, due process)
• Op. Atty. Gen. (Inf.) No. 83-12 (booting fees)
• Op. Atty. Gen. (Inf.) No. 85-4 (VTL uniform application)
• Op. Atty. Gen. (Inf.) No. 93-34 (impoundment due process)

Other:

• Black's Law Dictionary 760 (7th ed. 1999) (impoundment definition)
• Memorandum of Dept. of Motor Vehicles on Bill before the Governor, Bill Jacket for ch. 829 (1969)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2003-9_pw.pdf

Original opinion text

N.Y. CONST., ART IX, § 2(C)(II)(6); VEHICLE AND TRAFFIC LAW §§ 1204(b), 1224, 1640(a), 1640(b)(6), 1640(b)(14), 1640(b)(16).

A Village law providing for the removal and impoundment of motor vehicles that remain parked for more than 24-hours in violation of a local parking limitation does not conflict with the Vehicle and Traffic Law and may be enforced, as long as the Village does not treat such vehicles as "abandoned" within the meaning of Vehicle and Traffic Law § 1224 and assuming local conditions warrant the prompt removal of such vehicles and the local law otherwise complies with due process requisites.

September 4, 2003

Anthony M. Cerreto, Esq.
Village Attorney
Village of Port Chester
10 Pearl Street
Port Chester, New York 10573

Informal Opinion
No. 2003-9

Dear Mr. Cerreto,

You have requested an opinion as to whether the Village of Port Chester may properly enforce subdivision B of section 319.55 of the Village Code, which provides that no motor vehicles may be parked on any public street or parking area for more than twenty-four (24) consecutive hours, and that any vehicle parked on any public street or parking area for twenty-four (24) consecutive hours or more may be removed by the Village and impounded, with such removal to be paid by the vehicle owner, his agent or representative. You have indicated that the local law appears to conflict with Vehicle and Traffic Law § 1224, which provides that a vehicle, initially parked legally, is deemed abandoned only when it remains parked for more than forty-eight (48) hours after such parking becomes illegal. We agree that treating vehicles impounded pursuant to this local law as abandoned, merely because they have remained parked on a public street for more than 24 consecutive hours, would conflict with the definition of abandoned vehicles in section 1224. However, as long as the Village does not treat such vehicles as "abandoned" within the meaning of section 1224, we conclude that a local law providing for the removal and impoundment of motor vehicles illegally parked for more than 24 hours does not conflict with the Vehicle and Traffic Law and may be enforced, assuming local circumstances warrant the seizure of such vehicles and due process standards are met.

BACKGROUND

Section 319-55 of the Village Code of the Village of Port Chester governs the impoundment of abandoned or unattended vehicles. Subdivision A of that section provides authority for the Village Police Department to remove a vehicle that is parked or abandoned during a snowstorm, flood, fire or other public emergency, found unattended where the vehicle obstructs traffic, or parked or abandoned where stopping, standing or parking is prohibited. Subdivision B provides that it is unlawful for a motor vehicle to be parked on any public street or parking area for more than twenty-four (24) consecutive hours and that any automobile found parked on any public street or parking area for twenty-four (24) consecutive hours or more may be removed by the Village and impounded, with removal paid by the owner, the owner's agent or representative. In a subsequent telephone call, you explained that "parking area" within the meaning of this subdivision refers to parking areas owned and maintained by the Village for public parking.

ANALYSIS

The Vehicle and Traffic Law is deemed applicable and uniform throughout the State; local governments may not enact any local law, ordinance, rule or regulation that conflicts with the Vehicle and Traffic Law unless expressly authorized by statute. Vehicle and Traffic Law § 1600; see generally People v. Grant, 306 N.Y. 258, 260 (1954); Op. Att'y Gen. (Inf.) No. 85-4. Thus, although a village may adopt local laws relating to the "acquisition, care, management and use of its highways, roads, streets, avenues and property," such laws must be consistent with the Vehicle and Traffic Law and the specific delegations contained therein. See N.Y. Const. art. 9, § 2(c)(ii)(6); Municipal Home Rule § 10(1)(ii)(a)(6).

A. Conflict with Vehicle and Traffic Law § 1224

You have specifically asked whether subdivision B of section 319.55 of the Village Code conflicts with section 1224 of the Vehicle and Traffic Law.

Section 1224 of the Vehicle and Traffic Law defines abandoned vehicles and regulates their disposition. In relevant part, this section provides that a motor vehicle is deemed abandoned if it is left unattended for more than 24 hours on any highway or public place where parking is not legally permitted, or if it is left for more than 48 hours after the parking of such vehicle becomes illegal, when left where parking is permitted. Vehicle and Traffic Law § 1224(1)(b),(c). It is illegal to cause a vehicle to be an abandoned vehicle, and a violation is punishable by a fine of between $240 and $1,000. Id. § 1224(7)(a). Generally, the city, town or village in which the vehicle was abandoned is entitled to custody of the vehicle and may recover the costs of removal and storage of the vehicle from its last owner. Id. § 1224(4),(9). Section 1224 specifies the manner and under what circumstances ownership in an abandoned vehicle vests in the local authority, and the notification procedures required. Id. § 1224(2), (3), (4). This statute further specifies how the local authority may dispose of an abandoned vehicle and under what circumstances it may convert such a vehicle to its own use. Id. § 1224(5), (6). Regulations of the Commissioner of Motor Vehicles supplement these statutory provisions. See id. § 1224(10); 15 N.Y.C.R.R. Part 18. Section 1224's legislative history confirms that this provision was intended to establish both a clear definition of abandoned vehicles and guidelines governing their disposition. See Memorandum of Dept. of Motor Vehicles on Bill before the Governor for Executive Action (May 12, 1969), reprinted in Bill Jacket for ch. 829 (1969), at 5-6.

To the extent the Village law is viewed as an "abandonment" provision, it directly conflicts with Vehicle and Traffic Law § 1224 and is therefore unauthorized. Under section 1224, a vehicle is considered abandoned after 24 hours only if it is parked illegally in the first instance; and a vehicle initially parked legally is considered abandoned only if it remains for more than 48 hours after such parking becomes illegal. Vehicle and Traffic Law § 1224(1)(b),(c); see People v. Familio, 135 Misc. 2d 623 (City Ct. 1987). Subdivision B of the local law, to the extent it suggests or is construed as defining a vehicle as abandoned after only 24 hours where that vehicle was initially parked legally would be in direct conflict with section 1224. Unless expressly authorized, local laws conflicting with section 1224 are not permitted. See Op. Att'y Gen. (Inf.) No. 81-47. There is no authority in the Vehicle and Traffic Law for villages to supersede the definitions of abandoned vehicles in section 1224. Cf. Vehicle and Traffic Law § 1630(19); id. § 1642(20).

Subdivision B of Village Code 319-55, however, does not expressly define a vehicle left on a public street or municipal parking area for more than 24 consecutive hours as "abandoned"; it merely states that such vehicle will be considered to be parked unlawfully and removed and impounded, and that the cost of such removal is to be paid by the vehicle's owner or representative. While section 1224 governs transfer of ownership and disposition of abandoned vehicles, your local law governs only the removal and impoundment of vehicles. Impoundment connotes temporary custody by a government authority, Black's Law Dictionary 760 (7th ed. 1999), rather than transfer of ownership as permitted under section 1224. Thus, as long as the Village does not treat vehicles impounded pursuant to this local law as "abandoned" within the meaning of section 1224, it does not conflict with that provision.

B. Delegated Authority under Other Provisions of the Vehicle and Traffic Law

Although we have concluded that the Village law as written does not conflict with section 1224, it must still be consistent with other provisions of the Vehicle and Traffic Law, including the provisions governing traffic regulation by villages. While provisions of the Vehicle and Traffic Law authorize the impoundment of illegally parked vehicles under specific circumstances not present here, such provisions do not appear to preempt the Village law. Moreover, we believe a local law providing for the removal and impoundment of vehicles parked in violation of a local parking restriction falls within a village's general authority to regulate parking, and will be authorized as long as local conditions justify the prompt removal of such vehicles.

The Vehicle and Traffic Law expressly delegates to the legislative body of a village authority to provide for the removal and storage of unattended vehicles when they are "parked or abandoned on highways during snowstorms, floods, fires or other public emergencies, or found unattended where they constitute an obstruction to traffic or any place where stopping, standing or parking is prohibited, and for the payment of reasonable charges for such removal and storage by the owner or operator of any such vehicle." Vehicle and Traffic Law § 1640(a)(14); see id. § 1204(b)(1). We conclude that a local providing for the removal of a motor vehicle that remains parked on a public street or parking areas for more than 24 hours in violation of a local parking restriction neither conflicts with nor is expressly authorized by these specific impoundment provisions.

Although sections 1204 and 1640 speak of the removal of vehicles found unattended "where . . . parking is prohibited," we believe the statutory reference to places where parking is prohibited refers to places where parking is not allowed, rather than to places where parking is permitted for a limited time period. In the absence of legislative history indicating a different meaning, the phrase "where . . . parking is prohibited" should be construed consistent with the use of these terms in other provisions of the Vehicle and Traffic Law. See Riley v. County of Broome, 95 N.Y.2d 455, 466 (2000); Statutes § 236, 1 McKinney's Cons. Laws of N.Y. at 401 (1971). In the Vehicle and Traffic Law, a prohibition on parking refers to circumstances in which parking is not allowed under any circumstances; it is distinct from a restriction or limitation on parking, which the Village law imposes. See Vehicle and Traffic Law § 1200(c); id. § 1640(a)(6). Therefore, the specific authority to remove and store unattended vehicles that are parked where parking is prohibited is not applicable here.

The absence of specific authority to remove vehicles under the circumstances governed by your local law does not, however, mean that the Village law is unauthorized. First, since your local law provides for the removal and impoundment of parked vehicles under circumstances not addressed by sections 1204 and 1640 of the Vehicle and Traffic Law, there is no direct conflict. Moreover, we do not believe the fact that these provisions specifically authorizing the removal and storage of certain illegally parked vehicles, i.e. those parked where parking is prohibited, preclude a village from providing for the impoundment of other illegally parked vehicles. These impoundment provisions are not sufficiently detailed and comprehensive so as to evince an intent to "occupy the entire field so as to prohibit additional regulation by local authorities in the same area." Robin v. Incorporated Village of Hempstead, 30 N.Y.2d 347, 350 (1972). Moreover, the specific authority to impound certain vehicles must be read in conjunction with a village's broad delegated authority to prohibit, restrict or limit the parking of vehicles on village highways, Vehicle and Traffic Law § 1640(a)(6), and to adopt additional reasonable traffic rules as local conditions require, id. § 1640(a)(16).

Importantly, we have previously relied upon these broad grants of authority as authorizing a village to provide for the removal of vehicles under circumstances not specifically addressed in the statutory delegations contained in section 1640. See 1977 Op. Att'y Gen. (Inf.) 245; see also Op. Att'y Gen. (Inf.) No. 81-87. We believe these grants of authority, along with the delegation to villages under Vehicle and Traffic Law § 1640(b) to regulate parking on village property, similarly authorize your local law. The authority to impound illegally parked vehicles logically flows from a village's authority to restrict, limit and prohibit parking. And, as we have previously recognized, a village may fix a reasonable fee to assess the cost of regulation against the owner or agent. See Op. Att'y Gen. (Inf.) No. 83-12. With respect to the omnibus grant of authority to adopt additional reasonable traffic rules as local conditions require, "the reasonableness of such additional local enactments or directives may be evaluated and measured by comparing them with the particular powers that were delegated expressly by the other subdivisions." People v. Grant, 306 N.Y. 258, 263 (1954). A local law authorizing the removal of vehicles parked for more than 24 consecutive hours does not appear appreciably different from the express delegation to impound vehicles left unattended where parking is prohibited. Therefore, if the Village determines that local conditions justify the removal of vehicles parked for more than 24 hours, the local law, insofar as it applies to village highways and parking areas, appears to fall within these Vehicle and Traffic Law delegations.

C. Due Process Limitations

Although the Village law may be consistent with state law, we have previously noted that a local law providing for the removal and impoundment of motor vehicles must also be consistent with principles of procedural due process. See Op. Att'y Gen. (Inf.) No. 93-34; Op. Att'y Gen. (Inf.) No. 81-87. While the seizure of a vehicle serves a significant government interest by assisting in the enforcement of traffic regulations, because impoundment interferes with the vehicle owner's property interests, public safety and convenience must warrant the prompt removal of the illegally parked vehicles subject to the local law. See Op. Att'y Gen. (Inf.) No. 81-87. This is a determination that must be made by local officials familiar with local parking conditions. Moreover, we note that vehicle impoundment provisions have been upheld where the owner was able to reclaim the vehicle upon paying a fee and a reasonably prompt post-seizure hearing was available to contest the underlying parking violation. See City of Los Angeles v. David, 123 S. Ct. 1895 (2003); Goichman v. Aspen, 859 F.2d 1466 (10th Cir. 1988); see also Op. Att'y Gen. (Inf.) No. 81-87.

In sum, to the extent that the 24-hour provision of subdivision B of section 319.55 of the Village Code is construed as an "abandonment" provision, it is preempted by Vehicle and Traffic Law § 1224. To the extent that it may be otherwise viewed as a valid parking restriction, it may be enforced, so long as the local law complies with due process requisites.

The Attorney General renders formal opinions only to officers and departments of state government. This perforce is an informal opinion and unofficial expression of the views of this office.

Very truly yours,

LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions

By:_____
DENISE A. HARTMAN
Assistant Solicitor General