Court Declares Provision of Clarkstown Code Unconstitutional

By Joel Grossbarth

An appeals Court in Brooklyn has declared a section of the Town of Clarkstown Code null and void and beyond the scope of legal authority for enactment. The Appellate Division, Second Department reversed a Rockland County Supreme Court Judge’s order upholding the legality of the Town of Clarkstown Subdivision of Lands code provisions.

Joy Builders, Inc. is a developer building two separate subdivisions, the 22 lot Highlands Vista Estates and the 55 Little Tor Homes subdivisions. When the Town of Clarkstown Planning Board approved both subdivisions, it conditioned the approvals upon Joy Builders building infrastructure including roads, curbs, sidewalks, street signs, light poles and monuments. The builder was also required to post performance bonds that expired after two years as well as letters of credit. The Town Planning Board also, pursuant to Town Code Section 254-18B, authorized the Town to withhold the issuance of building permits for 10% of each subdivision until the builder completed all required infrastructure and then they were dedicated to the Town.

Clarkstown Town Code Section 254-18B states “Ten-percent restriction of building permits pending dedication of improvements in subdivisions. Building permits shall be restricted…until all required improvements have been completed to the satisfaction of the Department of Environmental Control and shall have been dedicated to the town, unless waived by the Planning Board.” After the Town refused to issue three building permits in Highland Vista and six in Little Tor, the builder sued the Town seeking a judgment the Town Code provision was unconstitutional.

The Appeals Court ruled this section null and void and beyond the scope of legislative authority. The Court noted that towns and municipal governments lack the inherent power to enact zoning or land use regulations. Any authority the Town of Clarkstown had to enact planning and zoning regulations stems for New York State Town Law. The relevant provisions of New York State Law provide that the Town had no express authority to enact or enforce any “hold back” provisions or building permits for Joy Builders. Accordingly, the Court struck down Section 254-18B of the Clarkstown Town Code as null and void and ultra vires, a legislative determination beyond The Town Board’s legal power or authority.

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