Harry T. Shaw, Esq. Village Attorney, Westport

I am writing in response to your request for an opinion as to whether the Village of Westport can enact a local law permitting the maintenance of certain encroachments into village rights of way.

As stated in your letter, and in other correspondence included with your request, the encroachment consists of the wall of a building built in the 1870s, along with a wooden deck and a fence added in later years. Neither the wall nor the later additions intrude on the street which runs through the right of way. The encroachment was only discovered last year after a survey conducted by the property owner. The owner is seeking to sell the property, but is concerned about the effect the encroachment will have on the marketability of the property's title. The owner has asked the village board to enact a local law permitting the maintenance of the encroachments. You, in turn, have asked whether the village has the authority to do so.

Section 6-632 of the Village Law establishes an abbreviated statute of limitations for an action by a village to compel removal of an encroachment not greater than six inches. According to the survey submitted with your request, the encroachment in this situation appears to be upwards of seventeen feet in certain areas. Section 6-632, which apparently was intended for minor encroachments into a right of way, is inapplicable to the immediate situation.^*

Under section 1-102 of the Village Law, incorporated villages have the power to "take, purchase, hold, lease, sell and convey such real and personal property" as the purposes of the village require. (For a discussion of the procedures involved in a sale of village properties, see 1981 Op Atty Gen [Inf] 149.) Accordingly, if the village were to determine that allowing the encroachment would not interfere with the operation and maintenance of the village street and was in the best interests of the village, it could do so by easement or whatever means are appropriate to the particular situation.

We conclude that a village has the authority to allow by appropriate means an encroachment in excess of six inches into a village right of way.

^* Section 6-632 became law in 1973 (L 1973, ch 976). The statute provides that any actions to compel removal of such an encroachment must be commenced within one year of the statute's enactment.