[HISTORY: Adopted by the Board of Trustees of the Village
of Spencerport as indicated in article histories. Amendments noted
where applicable.]
[Adopted 9-3-2020 by L.L.
No. 2-2020[1]]
This article shall be known as "A local law for the Village
of Spencerport providing for the reimbursement of consultant, engineering,
and attorney fees."
A.
The Village Board of Trustees of the Village of Spencerport, Monroe
County, New York, is concerned about the orderly development of land
in the Village of Spencerport. The Village Board hereby finds and
determines that in order to protect and safeguard the Village of Spencerport,
its residents and their property with respect to land development
within the Village, all buildings, structures, streets, highways,
drainage facilities, sanitary sewer facilities, water supply facilities,
utilities, and parks within the Village 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 Village to have competent consultants,
planners, engineers, architects and attorneys, as appropriate, to
review and analyze plans and designs and to make recommendations to
the Village Board of Trustees and Zoning Board of Appeals. The Village
Board further finds that the cost of retaining such competent consultants,
planners, engineers, architects and attorneys should be paid by those
who seek to profit from such developments rather than from general
Village funds, which are raised by assessments generally paid by taxpayers
of the Village.
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, Subdivision
1(ii), and Municipal Home Rule Law § 22. To the extent Village
Law §§ 7-708, 7-712, 7-712-a, 7-712-b, 7-725-a, 7-725-b,
7-728, and 7-730 do not authorize the Village Board or Zoning Board
of Appeals to require the reimbursement to the Village of consultant,
legal, architectural and engineering expenses incurred by the Village
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 Village Board of Trustees 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 Village. It is the expressed intent of the Village
Board to change and supersede these provisions of New York State Village
Law and any other provision of New York State Village Law or General
Municipal Law to empower the Village to require such payment as a
condition to such approvals.
In connection with any application for a special permit, site
plan or subdivision approval, architectural certificate of appropriateness,
zoning amendment, code interpretation and/or variance or other appeal,
the reviewing board may employ consultants, legal counsel, professional
engineers, professional planners, architects 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 Village, 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.
For those applications submitted by limited liability companies, corporations,
limited liability partnerships, general partnerships, limited partnerships
and other, similar, entities, a personal guarantee from the member(s),
partner(s), director(s), etc. shall be required to ensure payment.
A.
All costs incurred for the consulting services enumerated in § 153-3 shall be borne by the applicant. A deposit shall be required in advance to cover the estimated cost of these services.
B.
The amount of money initially deposited shall be based on the estimated
cost to the Village 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 Village'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.
C.
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.
D.
The review expenses provided for herein are in addition to application
and other fees required pursuant to other applicable provisions of
the Village of Spencerport's laws, rules and regulations.
E.
Monies deposited by the applicant pursuant to this section shall
not be used to offset the Village'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 Village of such
engineering, planning, legal or other consulting services.
F.
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.
A.
The applicant shall deposit the required amount with the Village
Clerk in the form of a certified check made payable to the Village
of Spencerport. Upon receipt, the Village Clerk shall cause such monies
to be placed in a separate non-interest-bearing account in the name
of the Village 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.
B.
Upon receipt and approval by the Village Board of itemized vouchers
from consultants for services rendered on behalf of the Village regarding
a particular application, the Mayor shall cause such vouchers to be
paid out of the monies so deposited. The record of such account shall
be debited accordingly. The Village shall make copies of all vouchers
available to the applicant at the same time the vouchers are submitted
to the Village; copies of the vouchers may be redacted to protect
proprietary information and/or legally privileged communications between
the Village officials and the consultants.
C.
The Village Board of Trustees 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 Village 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 Village 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 Village,
and/or to protect public or private property from damage.
D.
In no event shall an applicant make direct payment to any Village
consultant.
E.
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
Village will also provide a statement of the costs paid from the escrow
account.
A.
In the event the applicant fails to deposit or pay the requested
consultant review costs with the Village, any application review,
approval, or certificates of occupancy shall be withheld or suspended
by the reviewing board, officer or employee of the Village until such
monies are deposited or paid in full with the Village Clerk.
B.
The owner(s) of the subject real property, if different from the
applicant, shall be jointly and severally responsible to reimburse
the Village of Spencerport 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 Village for the review of the application. If a general
partnership, limited liability partnership, limited liability company,
corporation or other entity is the owner of the subject real property,
the Village may also require that the principal(s) of said entity
execute personal guarantees for the payment of costs associated with
consultant review pursuant to this article.
C.
Failure to reimburse Village for fees.
(1)
In the event of failure to reimburse the Village for such fees, the
following shall apply:
(a)
The Village may seek recovery of unreimbursed engineering, legal,
architectural 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 Village in prosecuting
such action.
(b)
Alternatively, and at the sole discretion of the Village Board,
a default in reimbursement of such engineering, legal and consulting
fees expended by the Village 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 Village.
(2)
Such charges shall be levied and collected at the same time and in
the same manner as Village-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 Village
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.
