[Adopted 1-11-1988 by L.L. No. 1-1988]
A.
The Board of Trustees of the Village of Maybrook hereby
finds and determines that the existing system of performance and maintenance
bonds provided to the municipality as an alternative to the prior
completion of public improvements in a subdivision is deficient in
providing for and protecting the public health, safety and welfare.
Inflation, inadequate estimates, incomplete and/or inadequate description
of improvements in bonds, unmeritorious defenses to enforcement of
bonds and the high cost of enforcing performance and maintenance bonds
have resulted in failure to properly complete public improvements,
hardship to purchasers of lots in the subdivisions and to the general
public and unjust enrichment of owners, subdividers and developers
of subdivisions.
B.
It is the intent of this Part 2 to provide clarity
and definition to the established method of guaranteeing the proper
completion of public improvements in subdivisions, to nullify the
imposition of unmeritorious defenses and to eliminate the costs of
enforcement of performance and maintenance bonds so as to protect
purchasers of lots in subdivisions and the general public and to advance
the intent of the Village Law that public improvements in subdivision
be completed at the expense of the owner, subdivider or developer.
As used in this Part 2, the following terms
shall have the meanings indicated:
A declaration by the Board of at any time subsequent to the
expiration of the term of a performance or maintenance bond that the
development of the subdivision has advanced to a stage where the public
improvements shall be completed forthwith.
Full cost of completing public improvements shall include,
without limitation, the cost of preparation and review of plans, reports,
specifications and documents, the cost of enforcement of performance
or maintenance bonds and/or the obligation of owners to complete the
public improvements and the cost of municipal compliance with prevailing
wage and bidding requirements.
A bond, collateral to the principal obligation of the owner,
to secure or guarantee the proper maintenance of public improvements
in a subdivision, which bond remains in full force and effect for
a period of time after completion of said improvements or the bond
is released by resolution of the Board of Trustees with the concurrence
of the Planning Board.
The person or entity which undertakes to subdivide land and
whose responsibility it is to properly complete public improvements
in subdivisions. The term "owner" shall include the terms "principal"
and "subdivider" and "developer" and the term "coprincipal" as used
in a performance or maintenance bond.
A bond, collateral to the principal obligation of the owner,
to secure or guarantee the proper completion of public improvements
in a subdivision, which bond remains in full force and effect until
all public improvements are complete, the subdivision is abandoned
without the sale of lots or the bond is released by resolution of
the Board of Trustees with the concurrence of the Planning Board.
Those improvements which are to be used in common by residents
of the subdivision or by the public, whether or not such improvements
are offered for dedication. "Public improvements" shall include, without
limitation, improvements referenced in the Village Law, improvements
depicted or referenced on the plat, improvements required by law,
code, rule or regulation and improvements agreed to by the owner.[1]
The term of a performance or maintenance bond is the period
during which the municipality may not declare a default.
Prior to the final approval of any subdivision
plat and filing of the plat, the owner shall either complete all public
improvements or post a performance bond in an amount sufficient to
cover the full cost of completing the public improvements which are
not completed. No building permits shall be issued in a subdivision
prior to final approval of the subdivision plat.
Prior to the acceptance of any public improvement,
the owner shall post a maintenance bond in an amount sufficient to
cover the cost of maintaining, repairing or replacing public improvements
which are improperly installed, defective in design, damaged during
construction in the subdivision or otherwise unsuitable for the purposes
intended.
All performance and maintenance bonds posted
subsequent to the effective date of this Part 2 shall be in a standard
form approved by the Board of Trustees. The Board of Trustees, with
the advice of the Attorney, shall from time to time adopt by resolution
standard form bonds of the following types:
No performance or maintenance bond nor any increase
or reduction thereof shall be deemed approved until the following
are entered into the minutes of the Board of Trustees:
A.
Approval by the Planning Board of the bond amount
or the increase or reduction of such amount.
B.
Approval by the Attorney of the form, sufficiency
and execution of the bond or the increase or reduction thereof.
C.
Approval by the Board of Trustees of the security
or surety. The Board of Trustees may in particular cases require a
particular form of bond.
Estimates of performance and maintenance bond
amounts shall be based upon the full cost of properly completing the
public improvements. Allowance shall be made for inflation during
the term of the bond, the cost of compliance with bidding and public
works laws and for the expense of enforcement of the bond. Underestimation
of the bond amount shall not stop the Village of Maybrook in an action
against the owner on the obligation to complete the improvements.
A.
Whenever warranted by changed circumstances and upon
approval of the Board of Trustees, the Planning Board may, upon due
notice and public hearing, modify the requirements for public improvements
or increase or reduce the amount of the performance or maintenance
bond.
B.
Whenever the amount of a performance or maintenance
bond is increased and the owner fails within a reasonable time thereafter,
as determined by the Board of Trustees, to post such increased amount,
the Board of Trustees may declare a default, whether or not the term
of any existing bond has expired.
C.
No decrease or reduction in the quantity or quality
of public improvements in a subdivision shall be effective until an
amendment to the plat is duly recorded in the County Clerk's office.
A.
The public improvements in a subdivision shall not
be deemed complete unless the Municipal Engineer certifies that all
the public improvements are complete. Nor shall any portion of such
public improvements be deemed complete unless the Municipal Engineer
certifies that particularly specified improvements are complete. A
certification by the Municipal Engineer which is incorrect shall be
void.
B.
The Municipal Engineer shall issue the certification required by Subsection A above upon written demand by the owner or his authorized agent if, in fact, the public improvements are properly completed. Should the Municipal Engineer fail to issue the required certification, he may be compelled to issue such certification in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided, however, that the petition is supported by a certification under the seal of a competent engineer duly licensed by the State of New York.
C.
The public improvements in a subdivision shall not
be deemed complete unless acceptance of the certification of such
completion or partial completion as required by this section is made
by resolution of the Board of Trustees, and said acceptance shall
not be effective unless said resolution is recorded in the minutes
of the Board of Trustees.
A.
The obligation of the owner to complete all the public
improvements is not limited by the posting of a performance and maintenance
bond, and such obligation may be enforced independently of the obligation
on the performance and maintenance bond.
B.
The obligation of the owner to protect accepted improvements
during construction shall not be limited by the posting of a maintenance
bond. The obligation of the owner to protect against damage to such
public improvements shall extend through the entire period of construction
within the subdivision. The owner shall be jointly and severally liable,
along with such builders or contractors who actually cause such damage.
C.
No defense against enforcement which alleges that
the public improvements have been completed shall be effective against
judgment or a motion for summary judgment unless the minutes of the
Board of Trustees and Planning Board, wherein the certification required
above is entered, are presented as proof of such defense.
This Part 2 is intended to be consistent with § 7-730 of the Village Law and is intended to clarify and more clearly define the provisions of such section so as to aid in the implementation of the intent of such section that public improvements in subdivisions be properly completed at the owner's expense. Any part of this Part 2 which may be determined to be inconsistent with § 7-730 of the Village Law shall supersede such section pursuant to Municipal Home Rule Law § 10. That portion of Village Law § 7-730 which permits the posting of surety performance bonds is specifically superseded.
This Part 2 shall be applicable to all subdivisions hereafter approved and to all subdivisions which have been heretofore approved but in which public improvements have not been completed pursuant to the provisions of this Part 2, except that provisions of this Part 2 which are determined to be inconsistent with Village Law § 7-730 shall be applicable to subdivisions heretofore approved three years after the date of such approval.
The duties of the Village of Maybrook, its officers,
agents and employees pursuant to this Part 2 are general duties of
the Village of Maybrook to protect the public health, safety and welfare.
No person is authorized to create or imply a special relationship
pursuant to this Part 2.
A.
This Part 2 shall be interpreted so as to most fully
implement the intent that public improvements in a subdivision be
properly completed at the owner's expense. If any provision, sentence,
word or phrase of this Part 2 is judicially determined to be invalid,
illegal or unconstitutional, such invalidity, illegality or unconstitutionality
shall be confined to the particular part which is so determined and
shall not affect the validity of the remainder of this Part 2, which
shall be interpreted so as to most fully implement the intent of this
Part 2.
B.
No action or proceeding to challenge the consistency,
validity, legality or constitutionality of any part of this Part 2
shall be commenced or prosecuted unless the Zoning Board of Appeals
of the Village of Maybrook has rendered an interpretation of such
part of this Part 2.
