[HISTORY: Adopted by the Town Board of the
Town of Chili as indicated in article histories. Amendments noted
where applicable.]
[Adopted 11-5-2008 by L.L. No. 2-2008]
This article shall be known as "A Local Law
for the Town of Chili Providing for the Reimbursement of Consultant,
Engineering, and Attorney Fees."
A.
The Town Board of the Town of Chili, Monroe County,
New York, is concerned about the orderly development of land in the
Town of Chili. The Town Board hereby finds and determines that in
order to protect and safeguard the Town of Chili, its residents and
their property with respect to land development within the Town, all
buildings, structures, streets, highways, drainage facilities, sanitary
sewer facilities, water supply facilities, utilities, and parks within
the Town should be designed and constructed in a competent and workmanlike
manner and in conformity with all applicable governmental codes, rules
and regulations. In order to assure the foregoing, it is essential
for the Town to have competent consultants, planners, engineers and
attorneys, as appropriate, to review and analyze plans and designs
and to make recommendations to the Town Board, Planning Board, and
Zoning Board of Appeals. The Town Board further finds that the cost
of retaining such competent consultants, planners, engineers and attorneys
should be paid by those who seek to profit from such developments
rather than from general Town funds, which are raised by assessments
generally paid by taxpayers of the Town.
B.
This article is enacted under the authority of New
York State Municipal Home Rule Law, including without limitation,
Subparagraphs (a)(12) and (d)(3) of the Municipal Home Rule Law § 10(1)(ii)
and Municipal Home Rule Law § 22. To the extent Town Law
§§ 265, 267-b, 274-a, 274-b, 276, 277 and 278 do not
authorize the Town Board, Planning Board, or Zoning Board of Appeals
to require the reimbursement to the Town of consultant, legal and
engineering expenses incurred by the Town in connection with the review
and consideration of any of the applications for the permits or approvals
described in those statutes, it is the expressed intent of the Town
Board to change and supersede such statutes. More particularly, such
statutes do not authorize the deferral or withholding of such approvals
in the event such expenses are not paid to the Town. It is the expressed
intent of the Town Board to change and supersede these provisions
of New York State Town Law and any other provision of New York State
Town Law or General Municipal Law to empower the Town to require such
payment as a condition to such approvals.
A.
Applicability. In connection with any application
for a conditional use permit, site plan or subdivision approval, zoning
amendment, code interpretation and/or variance or other appeal, the
reviewing board may employ consultants, legal counsel, professional
engineers, professional planners, and/or other qualified professionals
to provide assistance and advice in the review of any application,
including on-site investigation, evaluation and inspection; verification
of the accuracy of information submitted; evaluation of the adequacy
of plans and the sufficiency of submitted reports; study of the impact
of proposals upon the resources and environment of the Town, preparation
and/or review of environmental impact statements; review of the design
and layout of improvements; inspection of installed improvement; and
other services or technical assistance as the reviewing board deems
necessary for its review of the application.
B.
Escrow deposit.
(1)
All costs incurred for the consulting services enumerated in § 266-3A shall be borne by the applicant. A deposit shall be required in advance to cover the estimated cost of these services.
(2)
The amount of money initially deposited shall be based
on the estimated cost to the Town of reviewing the particular type
of application. The reviewing board may consider the professional
review expenses incurred by neighboring municipalities in reviewing
similar applications. The reviewing board may also consider the Town's
past cost in reviewing similar applications. In establishing the amount
of the deposit, the reviewing board may take into consideration the
size, type and number of buildings to be constructed; the number of
lots proposed; the topography, soil conditions, and other environmental
conditions at such site; the infrastructure proposed in the application;
and any special conditions the reviewing board may deem relevant.
(3)
If at any time during the processing of an application
there shall be insufficient monies on hand to the credit of an applicant
to pay incurred costs, or if it shall reasonably appear to the reviewing
board that such monies will be insufficient to meet anticipated costs,
the reviewing board shall cause the applicant to deposit additional
sums as the board deems necessary or advisable in order to meet such
expenses or anticipated expenses.
(4)
The review expenses provided for herein are in addition
to application and other fees required pursuant to other applicable
provisions of the Town of Chili's laws, rules and regulations.
(5)
Monies deposited by applicant pursuant to this section
shall not be used to offset the Town's general expenses for the several
boards or its general administrative expenses. Staff costs are not
reimbursable. In no event shall the applicant's required responsibility
be greater than the actual cost to the Town of such engineering, planning,
legal or other consulting services.
(6)
Fees charged as a result of a SEQR review shall in
no event exceed the maximum amounts that can be charged pursuant to
SEQR regulations 6 NYCRR Part 617, adopted pursuant to Article 8 of
the Environmental Conservation Law.
C.
Administration of escrow account.
(1)
The applicant shall deposit the required amount with
the Town Clerk in the form of a certified check made payable to the
Town of Chili. Upon receipt, the Town Clerk shall cause such monies
to be placed in a separate non-interest-bearing account in the name
of the Town and shall keep a separate record of all such monies deposited
and the name of the applicant and project for which such sums were
deposited.
(2)
Upon receipt and approval by the Town Board of itemized
vouchers from consultants for services rendered on behalf of the Town
regarding a particular application, the Supervisor shall cause such
vouchers to be paid out of the monies so deposited. The record of
such account shall be debited accordingly. The consultant shall make
copies of all vouchers available to the applicant at the same time
the vouchers are submitted to the Town; copies of the vouchers may
be redacted to protect proprietary information and/or legally privileged
communications between the Town officials and the consultants.
(3)
The Town Board shall review and audit all such vouchers
and shall approve payment of only such consultant charges as are reasonable
in amount and necessarily incurred by the Town in connection with
the review and consideration of the applications. A charge or part
thereof is reasonable in amount if it bears a reasonable relationship
to the average charge by consultants to the Town for services performed
in connection with the review of a similar application. A charge or
part thereof is necessarily incurred if it was charged by the consultant
for a service which was rendered in order to protect or promote the
health, safety or other vital interests of the residents of the Town,
and/or to protect public or private property from damage.
(4)
In no event shall an applicant make direct payment
to any Town consultant.
(5)
After the reviewing board has rendered its decision
on an application, or upon the withdrawal of an application by the
applicant, the remaining balance of the deposit in excess of actual
incurred costs, if any, shall be returned to the applicant without
payment of interest within 60 days of the date of the decision or
date of the withdrawal. The Town will also provide a statement of
the costs paid from the escrow account.
D.
Failure to comply.
(1)
In the event the applicant fails to deposit or pay
the requested consultant review costs with the Town, any application
review, approval, permit or certificates of occupancy shall be withheld
or suspended by the reviewing board, officer or employee of the Town
until such monies are deposited or paid in full with the Town Clerk.
(2)
The owner(s) of the subject real property, if different
from the applicant, shall be jointly and severally responsible to
reimburse the Town of Chili for costs associated with consultant review
pursuant to this article. In order for an application to be complete,
the applicant shall provide the written consent of all owners of the
subject real property, authorizing the applicant to file and pursue
land development proposals and acknowledging potential landowner responsibility,
under this article, for engineering, legal and other consulting fees
incurred by the Town for the review of the application.
(3)
In the event of failure to reimburse the Town for
such fees, the following shall apply:
(a)
The Town may seek recovery of unreimbursed engineering,
legal and consulting fees by action venued in a court of appropriate
jurisdiction, and the defendants shall be responsible for the reasonable
and necessary attorney's fees expended by the Town in prosecuting
such action.
(b)
Alternatively, and at the sole discretion of
the Town Board, a default in reimbursement of such engineering, legal
and consulting fees expended by the Town shall be remedied by charging
such sums against the real property which is the subject of the land
development application, by adding that charge to, and making it a
part of, the next annual real property tax assessment roll of the
Town.
[1]
Such charges shall be levied and collected at
the same time and in the same manner as Town-assessed taxes and shall
be applied in reimbursing the fund from which the costs for the engineering,
legal and consulting fees were defrayed. Prior to charging such assessments,
the owners of the real property shall be provided written notice to
their last known address of record, by certified mail, return receipt
requested, of an opportunity to be heard and object before the Town
Board to the proposed real property assessment, at a date to be designated
in the notice, which shall be no less than 30 days after its mailing.
