Town of Fishkill, NY
Dutchess County
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Table of Contents
Table of Contents
[Adopted 8-5-1991 by L.L. No. 6-1991]
[Amended 2-22-2001 by L.L. No. 2-2001]
Where the Town Board, Planning Board or the Zoning Board of Appeals uses the services of private engineers, attorneys or other consultants for purposes of engineering, scientific land use planning, environmental or legal reviews of the adequacy or substantive details of applications, or issues raised during the course of review of such applications, for special permit approvals under Articles VIII and IX of this chapter, site plan approvals under Article XI of this chapter, subdivision approvals under Chapter 132, Subdivision of Land, of the Town Code, review of sign permit applications under § 150-30 of this chapter, use or area variances under Article XVI of this chapter, applications for rezoning of parcels to accommodate site-specific land development proposals or otherwise, applications for permits to extract topsoil or natural resources under Chapter 128 of the Town Code, land development permits for the BH District, or for any other principal or ancillary land use or development permits or approvals required under the Town Code, as well as to assist in assuring or enforcing an applicant's compliance with the terms and conditions of all the aforementioned administrative and legislative permits or approvals, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs of such services. In no event shall that responsibility be greater than the actual cost to the Town of such engineering, legal or other consulting services.
[Amended 12-7-2005 by L.L. No. 15-2005; 12-30-2008 by L.L. No. 12-2008]
The Town Board, Planning Board, or Zoning Board of Appeals, through or with the assistance of Town planning staff, may require advance periodic monetary deposits, to be held on account of the applicant or landowner, by the Town of Fishkill to secure the reimbursement of the Town's consultant expenses. When an initial deposit is required upon the filing of the application, that deposit shall not exceed 50% of the average cost of such services for applications of similar type, size and complexity based upon the Town's experience over the preceding period of three years. The Town may make payments from the deposited funds, for engineering, legal or consulting services, after audit and approval by the Town Board of itemized vouchers for such services. The Town shall supply copies of such vouchers to the applicant, appropriately redacted where necessary to shield legally privileged communications between Town officers or employees and the Town's consultants. When it appears that there may be insufficient funds in the account established for the applicant or landowner by the Town to pay current or anticipated vouchers, the Town shall cause the applicant or landowner to deposit additional sums to meet such expenses or anticipated expenses.
The Town Board shall review and audit all vouchers and shall approve payment only of such engineering, legal and consulting expenses as are reasonable in amount and necessarily incurred by the Town in connection with the review and consideration of applications for land use or development approvals, or for the monitoring, inspection or enforcement of permits or approvals or the conditions attached thereto. For the purpose of this review and audit, a fee shall be reasonable in amount if it bears a reasonable relationship to the average charge by engineers, attorneys or other consultants to the Town for services performed in connection with similar applications and, in this regard, the Town Board may take into consideration the complexity both legal and physical of the project proposed, including the size, type, and number of buildings to be constructed, the amount of time to complete the project, the topography of the land on which such project is located, soil conditions, surface water, drainage conditions, the nature and extent of highways, drainage facilities, utilities or parks to be constructed and special conditions or considerations as the Town Board may deem relevant. A fee or part thereof is necessarily incurred if it was charged by the engineer, attorney, or 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, protect public or private property from damage from uncontrolled surface water runoff and other environmental 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 proper title to dedicated highways and other facilities and the avoidance of claims and liability and such other interests as the Town Board may deem relevant.
The owner(s) of the subject real property, if different from the applicant, shall be jointly and severally responsible to reimburse the Town of Fishkill for funds expended to compensate for services rendered to the Town under this section by private engineers, attorneys or other consultants. In order for a land use application to be complete, the applicant shall provide the written consent of all owners of the subject real property, both authorizing the applicant to file and pursue land development proposals and acknowledging potential landowner responsibility, under this section, for engineering, legal and other consulting fees incurred by the Town. In the event of failure to reimburse the Town for such fees, the following shall apply:
The Town may seek recovery of unreimbursed engineering, legal and consulting fees by action venued in a court of appropriate jurisdiction, and the defendant(s) shall be responsible for the reasonable and necessary attorney's fees expended by the Town in prosecuting such action.
Alternatively, and at the sole discretion of the Town, 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. Such charges shall be levied and collected at the same time and in the same manner as Town-assessed taxes and shall be paid to the Town Comptroller, to be applied in reimbursing the fund from which the costs were defrayed for the engineering, legal and consulting fees. 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.[1]
Editor's Note: Former Art. XXI, Interim Regulations for Beacon Hills, as amended, which immediately followed, was superseded 12-30-2008 by L.L. No. 12-2008. Additionally, the provisions of this article have since expired. For current provisions, see Art. IXD, Beacon Hills District.