Hon. David J. Gilmartin Town Attorney, Southampton

This is in response to your letter, wherein you asked whether, under section 171 (1) of the Highway Law, a town highway superintendent may file a written certificate of necessity thereby enabling the town to accept the dedication into the town highway system of a road less than three rods wide.

Insofar as relevant, Highway Law, § 171 (1), provides:

"Whenever land is dedicated to a town for highway purposes therein, the town superintendent may with the consent of the town board, either with or without a written application therefor, and without expense to the town, make an order laying out such highway, upon filing and recording in the town clerk's office with such order a release of the land from the owner thereof. A highway so laid out must not be less than three rods in width * * * provided, however, that upon certification in writing by the commissioner of transportation of the necessity therefor and the filing of such certification in the office of the town clerk of the town in which such highway is located, any such highway may be of such width, less than three rods, as the commissioner shall specify in such certificate. * * *." (Emphasis supplied.)

The commissioner of transportation referred to is the Commissioner of the New York State Department of Transportation (Highway Law, § 2 [1]), and it is his certification of necessity that is required.

Accordingly, it is our opinion that a town highway superintendent may not file a written certificate of necessity thereby enabling the town to accept the dedication into the town highway system of a road less than three rods in width.