[Added 11-24-2001 by L.L. No. 2-2001]
[Amended 8-28-2019 by L.L. No. 2-2019]
A.Â
The Town Board hereby finds and determines that in
order to protect and safeguard the Town of Rush, its residents and
their property, with respect to certain land developments within the
Town, all buildings, highways, drainage facilities, sanitary sewer
facilities, other utilities and parks within said development should
be designed and constructed in a competent and workmanlike manner
and in conformity with all applicable governmental codes, rules and
regulations and dedicated and conveyed to the Town in a legally sufficient
manner, that in order to assure the foregoing, it is essential for
Town to have qualified and competent engineers, consultants, professionals
and attorneys retained by the Town to review and approve applications,
plans and designs, make recommendations to the Town Board, Planning
Board and Zoning Board of Appeals, inspect the construction of highways,
drainage, sewer, other facilities and parks to be dedicated to the
Town to negotiate and draft appropriate agreements with developers,
obtain, review and approve necessary securities, insurance and other
legal documents, review proposed deeds and easements to assure the
Town is obtaining good and proper title and to generally represent
the Town with respect to legal disputes and issues with respect to
developments, and that the cost of retaining such competent engineers,
consultants, professionals and attorneys should ultimately be paid
by those who seek to profit from such developments rather than from
general Town funds which are raised by assessments paid by taxpayers
of the Town. The purpose of this article shall be to provide to the
Town of Rush the authority to recoup and be reimbursed for such expenses
incurred in the processing of municipal applications. The Town shall
be authorized to impose such expenses as are reasonably necessary
to process such applications.
B.Â
This article is enacted under the authority of Subdivisions
(a)(12) and (d)(3) of the Municipal Home Rule Law § 10(1)(ii)
and Municipal Home Rule Law § 22. To the extent §§ 265,
267-b, 274-a, 274-b, 276, 277 and 278 of the Town Law do not authorize
the Town Board, Town Planning Board and Zoning Board of Appeals to
require the reimbursement to the Town of administrative, legal and
engineering expenses incurred by the Town in connection with the review
and consideration of building and/or development applications, including
but not limited to, applications for subdivision, site plan, special
permit, variance and rezoning approval and for the approval, amendment
or extension of planned districts under the Town's zoning ordinance,
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 §§ 265, 267-b, 274-a, 274-b,
276, 277 and 278 of the Town Law to empower the Town to require such
payment as a condition of such approvals.
As used in this article, the following terms
shall have the meanings indicated:
[Added 8-28-2019 by L.L. No. 2-2019]
Those charges incurred by the Town in proceeding and reviewing
municipal applications within the Town of Rush, including but not
limited to:
Appraisal fees.
Municipal finances fees.
Surveying fees.
Fees associated with the study of the impact of proposals upon
the resources and environment of the Town (including reviews under
SEQRA).
Any other services or technical assistance as the Town deems
necessary for its review of such municipal applications.
The administrative costs provided herein are in addition to
application and other fees required pursuant to other application
provisions of the Town Code.
Any person, firm, partnership, association, corporation,
company or organization of any kind, who or which requests the Town
Planning Board, Town Board or Zoning Board of Appeals to approve a
development.
Any person, firm, partnership, association, corporation,
company or organization of any kind who or which constructs or proposes
to construct one or more buildings, highways, drainage facilities,
utilities or parks within or in conjunction with a development and
whether or not the same is conveyed or dedicated to the Town.
All surface water drainage facilities including, but not
limited to, detention and retention basins, storm sewers and their
appurtenances, drainage swales and ditches, and any easements through
or over which said facilities may be constructed or installed in or
in connection with a development.
Those fees billed to the Town by its Town Engineer or any
consultant, professional or engineer as paid, approved and audited
by the Town Board and adopted by Town Board resolution.
[Added 8-28-2019 by L.L.
No. 2-2019]
The term "highway" includes a street, avenue, road, square,
place, alley, lane, boulevard, concourse, parkway, driveway, overpass
and underpass and also includes all items appurtenant thereto including,
but not limited to, bridges, culverts, ditches, shoulders and sidewalks
in or in connection with a development.
Those fees billed to the Town by its Town Attorney or any
special counsel as paid, approved and audited by the Town Board and
adopted by Town Board resolution.
[Added 8-28-2019 by L.L.
No. 2-2019]
Any application to the Town, including but not limited to
an application for a special use permit, site plan approval, subdivision
approval, zoning amendment, variance request, rezoning or overlay
district application, or any other permit, licenses, or approval granted
by the Town.
[Added 8-28-2019 by L.L.
No. 2-2019]
An area of land located within a development which is open
to the public and devoted to active or passive recreation.
A planned district established under Chapter 120, Zoning, of the Code of the Town of Rush, including any site plan review pursuant thereto or environmental review pursuant to the New York State Environmental Quality Review Act (Environmental Conservation Law § 8-0105 et seq.)
[1]The Town of Rush.
All water, sanitary sewer, gas, electric, telephone, cable
television facilities and any easement through or over which said
facilities may be constructed or installed in or in connection with
a development.
[Amended 8-28-2019 by L.L. No. 2-2019]
A.Â
Municipal applications.
(1)Â
The applicant, for approval of municipal applications
in the Town, shall reimburse the Town for all reasonable and necessary
administrative, legal and engineering expenses incurred by the Town
in connection with the review and consideration of such projects.
(2)Â
A developer who constructs, or proposes to construct,
one or more highways, drainage facilities, utilities or parks within
or in conjunction with an approved subdivision in the Town shall reimburse
the Town for all reasonable and necessary administrative, legal and
engineering expenses incurred by the Town in connection with the inspection
and acceptance by the Town of such highways, drainage facilities,
utilities and parks and the dedication of same to the Town.
B.Â
Planned districts.
(1)Â
An applicant for the approval, amendment or extension
of a planned district in the Town shall reimburse the Town for all
reasonable and necessary administrative, legal and engineering expenses
incurred by the Town in connection with the review and consideration
of said application.
(2)Â
A developer who constructs or proposes to construct
one or more buildings, highway, drainage facilities, utilities or
parks within or in conjunction with a planned district in the Town
shall reimburse the Town for all reasonable and necessary administrative,
legal and engineering expenses incurred by the Town in connection
with the granting of any building permit and in connection with the
inspection and acceptance by the Town of such highways, drainage facilities,
utilities and parks and the dedication of same to the Town.
Notwithstanding anything to the contrary contained
in this article, an applicant or developer shall not be required to
reimburse the Town for any part of a legal or engineering fee incurred
by the Town for services performed in connection with matters including,
but not limited to, those resulting from complaints by third parties,
as to which the Town Board determines the applicant or developer had
no responsibility or was beyond the reasonable control of the applicant
or developer.
[Amended 8-28-2019 by L.L. No. 2-2019]
A.Â
Payment and escrow.
(1)Â
Costs
to be borne by the applicant. All administrative costs incurred by
the Town which are reasonably necessary in the review and processing
of municipal applications shall be charged back to the applicant as
a fee related to the application submitted. A deposit may be required
in advance to cover the estimated cost of these services. As a condition
to any application, the property owner, applicant, agent and representative
of said property shall acknowledge in writing their obligations of
fee reimbursement consistent with this article. Monies charged back
to the applicant or otherwise deposited by the applicant shall not
be used to offset the Town's general expenses for the several boards
or its general administrative expenses. Employee costs are not reimbursable.
(2)Â
Funding
of escrow. Where the Town requires an escrow, if at any time during
the review and 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 Town shall
cause the applicant to deposit additional sums as the board deems
necessary or advisable in order to meet such expenses or anticipated
expenses.
(3)Â
Escrow
administration. Where an escrow account is required, the applicant
shall submit the required amount made payable to the Town of Rush.
Upon receipt, the Town Supervisor shall cause such monies to be deposited
in the general fund in a deferred revenue account 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.
[Amended 9-13-2023 by L.L. No. 6-2023]
B.Â
The Town Board shall review and audit all such vouchers
and shall approve payment of only such administrative, engineering
and legal fees as are reasonable in amount and necessarily incurred
by the Town in connection with the review, consideration and approval
of development and the inspection and acceptance of highways, drainage
facilities, utilities and parks within or in conjunction with such
developments. For purpose of the foregoing, a fee or part thereof
is reasonable in amount if it bears a reasonable relationship to the
average charge by engineers or attorneys to the Town for services
performed in connection with the approval or construction of a similar
development and in this regard the Town Board may take into consideration
the size, type and number of buildings to be constructed, the amount
of time to complete the development, the topography of the land on
which such development is located, soil conditions, surface water,
drainage conditions, the nature and extent of highways, drainage facilities,
utilities and parks to be constructed and any special conditions or
considerations as the Town Board may deem relevant; and a fee or part
thereof is necessarily incurred if it was charged by the engineer
or attorney 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, protect public or private property from damage from uncontrolled
surface runoff and other factors, assure the proper and timely construction
of highways, drainage facilities, utilities and parks, protect the
legal interests of the Town including receipt by the Town of good
and property title to dedicated highways and other facilities and
the avoidance of claims and liability and such other interest as the
Town Board may deem relevant.
C.Â
Where an escrow is established, the Supervisor shall cause vouchers
to be paid out of the monies so deposited. The record of such account
shall be debited accordingly. Where there is no escrow requirement,
the fees shall thereafter be billed on a monthly basis and paid by
the applicant within 30 days. All payments shall be made directly
to the Town. 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.
[Added 8-28-2019 by L.L.
No. 2-2019]
A.Â
Suspension of review. In the event the applicant fails to deposit
or timely pay the requested professional and consultant review costs
with the Town, any application review, approval, permit or certificate
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.
B.Â
Failure to reimburse. In the event that the Town is required to refer
for collection any outstanding cost or charge for any reimbursement
as set forth in this chapter, the applicant and/or property owner
or property owner's agent shall, in addition to the reimbursements,
be obligated to pay a reasonable attorney's fee and costs incident
to any action commenced by the Town to collect such fees. Reasonable
attorney's fees shall also include any disbursements that may result
from the commencement of litigation.
C.Â
Levy against real property. Alternatively, and at the sole discretion
of the Town Board, a default in reimbursement of administrative costs
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. 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, professional 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 15 days after its mailing.
