        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1296
CA 11-01428
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


A.J. BAYNES FREIGHT CONTRACTORS, LTD., AJAC
TRUCKING, LLC, AND LENNON WILLIAMS,
PLAINTIFFS-RESPONDENTS,

                    V                               MEMORANDUM AND ORDER

NORMAN L. POLANSKI, JR., AS MAYOR OF CITY OF
LACKAWANNA, CITY COUNCIL OF CITY OF LACKAWANNA,
JAMES L. MICHEL, AS CHIEF OF CITY OF LACKAWANNA
POLICE DEPARTMENT AND CITY OF LACKAWANNA,
DEFENDANTS-APPELLANTS.


HODGSON RUSS LLP, BUFFALO (DANIEL A. SPITZER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

PHILLIPS LYTLE LLP, BUFFALO (ALISA A. LUKASIEWICZ OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Erie County (Diane Y. Devlin, J.), entered October 5,
2010 in a declaratory judgment action. The judgment, among other
things, declared City of Lackawanna Municipal Code § 215.53, as
amended effective March 3, 2009, unconstitutional and invalid.

     It is hereby ORDERED that the judgment   so appealed from is
unanimously modified on the law by vacating   that part of the third
decretal paragraph declaring that defendant   City of Lackawanna
Municipal Code § 215.53 is unconstitutional   and as modified the
judgment is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking a
declaration that section 215.53 of the City of Lackawanna Municipal
Code, as amended on March 3, 2009 (hereafter, 2009 ordinance), is
invalid and unconstitutional. The 2009 ordinance established a truck
route system that prohibits heavy trucks, i.e, those having a gross
weight in excess of 10,000 pounds, from traveling on all but two
specified routes within defendant City of Lackawanna (City). The 2009
ordinance also contained an exception for local deliveries that the
parties agree is not relevant to this appeal. Prior to the 2009
amendment, the ordinance allowed heavy trucks to travel on a third
route as well, namely, South Park Avenue, but the 2009 ordinance
prohibited such trucks from traveling on that route. The 2009
ordinance allegedly caused a hardship for plaintiffs, all of whom are
involved in the delivery of milk to the Sorrento cheese manufacturing
                                 -2-                          1296
                                                         CA 11-01428

plant in the City of Buffalo, just north of the Lackawanna border.
Because their trucks could no longer travel on South Park Avenue,
plaintiffs had to take a longer and more circuitous route to reach the
Sorrento plant.

     We agree with plaintiffs that Supreme Court properly determined
that the 2009 ordinance is invalid under Vehicle and Traffic Law §
1640 (a) (10) to the extent that it prohibits heavy trucks to travel
on South Park Avenue, and thus properly issued a declaration that the
ordinance in question is invalid. Section 1640 (a) (10) provides that
any system of truck routes established by a city or village “shall
provide suitable connection with all [S]tate routes entering or
leaving such city or village.” The purpose of the statute is to
ensure that State thoroughfares “enable vehicles passing through to
proceed . . . to and from their destinations” (People v Grant, 306 NY
258, 266). Although the court erred in determining that South Park
Avenue is a State route within the City, there is no dispute that,
south of the City’s limits, it becomes U.S. Route 62 and is maintained
by the State. Thus, South Park Avenue is a State route as it
“enter[s] or leav[es]” the City within the meaning of section 1640 (a)
(10), and the truck route system established by the 2009 ordinance
fails to provide any connection between U.S. Route 62 as it enters the
City and the City’s truck route system. Contrary to defendants’
contention, the fact that the trucks may travel on other State routes
within the City to reach the Sorrento plant does not satisfy the
“suitable connection” requirement with respect to U.S. Route 62 (id.).
Indeed, the statute provides that the truck route system of a city or
village “shall provide suitable connection with all [S]tate routes”
(id. [emphasis added]), rather than merely some State routes.

     We also reject defendants’ contention that the 2009 ordinance is
authorized by Vehicle and Traffic Law § 1640 (a) (5), which provides
that a city or village may exclude trucks from its highways regardless
of weight, and/or by subdivision (a) (20) of section 1640, which
allows a city or village to exclude trucks “in excess of any
designated weight,” length, or height, or eight feet in width, from
its highways. Although neither of those statutory subdivisions
contains a “suitable connection” requirement for State routes, we
agree with plaintiffs that, because the three provisions are in pari
materia, they must be read together and harmonized. To interpret
paragraphs (5) and (20) of section 1640 (a) as defendants suggest
would effectively remove the “suitable connection” requirement of
paragraph (10) from the statute entirely. That interpretation would
not only defeat the purpose of the “suitable connection” requirement,
but it would also be contrary to the rule of interpretation directing
that “[e]very part of a statute must be given meaning and effect . .
., and the various parts of a statute must be construed so as to
harmonize with one another” (Heard v Cuomo, 80 NY2d 684, 689). In
sum, because the truck route system established by the 2009 ordinance
provides no suitable connection whatsoever for heavy trucks entering
the City on U.S. Route 62, we conclude that it is invalid under
section 1640 (a) (10).

     We further conclude in any event that the 2009 ordinance also is
                                 -3-                          1296
                                                         CA 11-01428

invalid under the “access highway” regulations of the Department of
Transportation (DOT) to the extent that it prohibits heavy truck
traffic on Ridge Road and South Park Avenue south of Ridge Road (see
17 NYCRR 8000.7 [a] [2]; 8114.00 [q], [ae]). Pursuant to Vehicle and
Traffic Law § 100-a, an access highway “provid[es] access between a
qualifying highway” and, inter alia, terminals and facilities for
food, fuel and repairs. Pursuant to Vehicle and Traffic Law § 134-a,
qualifying highways generally are those that, inter alia, make up the
interstate highway system, and DOT has mandated that heavy truck
traffic is generally allowed on access highways (see 17 NYCRR 8000.7
[a]). Contrary to defendants’ contention, the authority granted to
cities and villages under Vehicle and Traffic Law § 1640 does not
trump the authority of DOT over access highways. In fact, the
Legislature has specifically delegated to DOT the authority to
“designate public highways within the [S]tate as access highways” (§
1627 [b]). We conclude that the statutory scheme reflects the intent
of the Legislature that DOT’s authority to designate access highways
acts as a limitation on the authority of municipalities to regulate
truck traffic.

     We reject defendants’ further contention that DOT may only
designate highways that are part of the State highway system - which
would necessarily exclude Ridge Road and South Park Avenue within the
City - as access highways. Vehicle and Traffic Law § 1627 (b)
authorizes DOT to designate any “public highway[]” as an access
highway. While it is true that DOT’s own regulations refer to access
highways as “State highways” (17 NYCRR 8000.4), DOT has not
interpreted that reference to be a limitation on the authority granted
to it by section 1627 (b) to designate any “public highway[]” as an
access highway. Rather, it has consistently interpreted its own
regulation as allowing any public highway to be designated as an
access highway (see e.g. 17 NYCRR 8114.00, 8126.00), and does not
limit such designation to those roads that make up the State highway
system (see generally Highway Law § 341). “ ‘[T]he interpretation
given to a regulation by the agency which promulgated it and is
responsible for its administration is entitled to deference if that
interpretation is not irrational or unreasonable’ ” (Matter of
Fairport Baptist Homes v Daines, 60 AD3d 1356, 1357, lv denied 12 NY3d
714, quoting Matter of Gaines v New York State Div. of Hous. &
Community Renewal, 90 NY2d 545, 548-549), and, particularly in light
of the broad authority delegated to DOT under Vehicle and Traffic Law
§ 1627 (b), we conclude that DOT’s interpretation is neither
irrational nor unreasonable.

     We agree with defendants, however, that the court erred in
declaring that the 2009 ordinance is unconstitutional, and we
therefore modify the judgment accordingly. “Courts should not decide
constitutional questions when a case can be disposed of on a
nonconstitutional ground” (Matter of Beach v Shanley, 62 NY2d 241,
254). Because the court properly declared the 2009 ordinance invalid
on statutory grounds, the court should not have addressed plaintiffs’
constitutional challenge to the 2009 ordinance.
                               -4-                 1296
                                              CA 11-01428




Entered:   December 30, 2011         Frances E. Cafarell
                                     Clerk of the Court
