[Adopted 5-11-1987 by L.L. No. 4-1987]
A. 
The Town Board of the Town of Blooming Grove 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 article 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 Town Law that public improvements in subdivision be completed at the expense of the owner, subdividers or developer.
As used in this article, the following terms shall have the meanings indicated:
DEFAULT
A declaration by the Town Board 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
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.
OWNER
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.
MAINTENANCE BOND
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 Town Board with the concurrence of the Planning Board.
PERFORMANCE 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 Town Board with the concurrence of the Planning Board.
PUBLIC IMPROVEMENTS
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 Town Law, improvements depicted or referenced on the plat, improvements required by law, code, ordinance, rule or regulation and improvements agreed to by the owner.
TERM
The term of a performance or maintenance bond is the period during which the municipality may not declare a default.
[Amended 7-9-1990 by L.L. No. 2-1990]
A. 
Prior to the final approval of any subdivision plat or section thereof, the owner shall either complete all public improvements within the subdivision or section, respectively, or post a performance bond in an amount sufficient to cover the full cost of completing the said public improvements which are not completed. No building permit shall be issued in a subdivision or section thereof prior to final approval of the respective plat or section.
B. 
Where a subdivision is approved in sections pursuant to Article III of this chapter, the performance bond amount shall be sufficient to cover the full cost of all public improvements and of other improvements and/or requirements relating to said section(s) imposed by the Planning Board pursuant to § 290-19B of this chapter.
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 or otherwise unsuitable for the purposes intended.
[Amended 7-9-1990 by L.L. No. 2-1990; 8-13-1990 by L.L. No. 3-1990]
All performance and maintenance bonds posted subsequent to the effective date of this article shall be in a standard form approved by the Town Board. The Town Board, with the advice of the Attorney, shall from time to time adopt, by resolution, standard form bonds of the following types:
A. 
Irrevocable letter of credit.
B. 
Cash bond.
[Amended 8-13-1990 by L.L. No. 3-1990]
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 Town Board:
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 of the form, sufficiency and execution of the increase or reduction thereof.
C. 
Approval by the Town Board of the security or surety. The Town Board may in particular cases require a particular form of bond.
D. 
Certification by the owner's engineer that the amount of the bond would be sufficient to fully compensate the municipality for the cost of constructing all required improvements, including the costs of competitive bidding and compliance with public works laws.
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 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 estop the Town of Blooming Grove in an action against the owner on the obligation to complete the improvements.
A. 
Whenever warranted by changed circumstances and upon approval of the Town Board, 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 Town Board, to post such increased amount, the Town Board may declare a default whether or not the term of any existing bond has expired.
C. 
No decrease or reduction in the amount 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 and said certification has been accepted by resolution of the Town Board; nor shall any portion of such public improvements be deemed complete unless the Municipal Engineer certifies that particularly specified improvements are complete and said certification has been accepted by resolution of the Town Board. 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. The Municipal Engineer may require that the owner provide the certification of a competent engineer licensed in New York certifying to the Town of Blooming Grove either that all or a specified portion of the public improvements are properly complete. Such certification shall bear the seal of the Engineer.
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 Town Board, and said acceptance shall not be effective unless said resolution is recorded in the minutes of the Town Board.
[Amended 8-13-1990 by L.L. No. 3-1990]
If the full cost of completion of the public improvements by the Town of Blooming Grove is less than the amount of the bond paid over to the Town of Blooming Grove, the monies not expended shall be returned to the owner.
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 absence from the minutes of the Town Board of the certification of completion required above shall create a rebuttable presumption that the public improvements are not properly complete.
[Amended 2-11-1991 by L.L. No. 1-1991[1]]
This article 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 terms of this article, except that provisions of this article which are determined to be inconsistent with Town Law § 277 shall be applicable to subdivisions heretofore approved three years after the effective date of this article.
[1]
Editor's Note: This local law also provided that L.L. Nos. 2-1990 and 3-1990, which amended §§ 209-8, 209-9 and 209-13, superseded Town Law § 277.
The duties of the Town of Blooming Grove, its officers, agents and employees pursuant to this article are general duties of the Town of Blooming Grove to protect the public health, safety and welfare. No person is authorized to create or imply a special relationship pursuant to this article.
A. 
This article 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 article be 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 article, which shall be interpreted so as to most fully implement the intent of this article.
B. 
No action or proceeding to challenge the consistency, validity, legality or constitutionality of any part of this article shall be commenced or prosecuted unless the Zoning Board of Appeals of the Town of Blooming Grove has rendered an interpretation of such part of this article.