The Appellate Division found that a local law providing that ten percent of building permits could be withheld pending completion of infrastructure required for a subdivision was ultra vires and void. In Joy Builders v. Town of Clarkstown, the Second Department reversed the lower court and granted summary judgment to the Plaintiff holding that ” Town of Clarkstown Code § 254-18B is null and void as ultra vires”.
The case arises out of two subdivision approvals obtained by the Plaintiff. In each instance, the Town utilized the provisions of §254-18B to require that, before building permits were issued for a portion of the lots, the Plaintiff was required to complete all construction of required infrastructure. Here the builder was required to install roads, sidewalks, street lights and other infrastructure, which were to be completed and dedicated to the Town. While the Plaintiff was made to post bonds and letters of credit to ensure completion of the infrastructure work, the Town also used the provisions of §254-18B, which provided that up to ten percent of the building permits in each subdivision could be withheld pending completion and dedication of the infrastructure. Plaintiff challenged that provision of the local law.