[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:
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 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.
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 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.
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.
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.
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:
[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.
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.
