[HISTORY: Adopted by the Town Board of the Town of North
East as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-14-2005 by L.L. No. 2-2005 (Ch. 51, Art. I, of
the 1979 Code)]
The Town Board enacts this article to provide a mechanism for
the reimbursement of fees and expenses which would otherwise be paid
by the assessment of the taxpayers of the Town of North East to defray
the cost to the Town for the retention of competent engineering, planning,
legal, and other consultants to review projects before the Town of
North East Planning Board, and/or Zoning Board of Appeals for which
special permit, variance, site plan review and approval and/or subdivision
review and approval is sought by an applicant. The Town Board finds
that it is essential for the Town to be able to retain the services
of competent engineers, planners, lawyers and other professional consultants
to assist the boards in the review of such applications. The Town
also finds that it is necessary and proper to establish a procedure
to be followed requiring the deposit of those funds in a separate
account and requiring that payments from that account be made only
upon receipt and approval by the Town Board of itemized vouchers from
its consultants, and that such fees of the consultants be reasonable
and necessary.
A.
The North East planning and zoning boards, in the review of any applications
pending before said boards, may retain such engineering, planning,
legal, technical or environmental consultant(s) or professional(s)
("consultant services") as such boards shall deem reasonably necessary
to assist the Board in its review of such application.
B.
The applicant shall reimburse the Town of North East for the cost
of such consultant services.
C.
The Town Board shall review and audit all vouchers submitted by such
consultants and shall approve payment only if such consulting fees
and disbursements are reasonable in amount and necessarily incurred
by the Town in connection with the review, consideration and approval
of the proposed project. For purposes of the foregoing, a fee, or
part thereof, shall be deemed a reasonable 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 similar projects
in the Town, and if there are no similar projects in the Town, then
for similar projects located in Columbia and Dutchess Counties and
the surrounding area, to the extent that such similar projects may
exist. The Town Board may take into consideration the size, type and
nature of the project, together with such special features, including,
but not limited to, topography, soil conditions, water, drainage conditions
and any special conditions or considerations as the Town Board may
consider relevant.
D.
A fee or expense, or part thereof, is necessarily incurred if it
was charged by the engineer, attorney, planner or other professional
consultant for a service which was rendered in order to assist in
the protection or promotion of the health, safety or welfare of the
Town or its residents; to assist in the protection of public or private
property or the environment from potential damage which otherwise
may be caused by the proposed land use or development; to insure or
assist in compliance with laws, regulations, standards or codes which
govern land use and development; to insure or assist in the orderly
development and sound planning of a land use or development; to insure
the proper and timely construction of public improvements, parks,
and other facilities which affect the public welfare; to protect the
legal interests of the Town; to avoid claims against, and liability
of, the Town; or to promote such other interest that the Town Board
may specify as relevant.
E.
At such time as the application is approved or denied by the Board, the Town shall refund to the applicant the deposit required pursuant to § 92-3, less any sums expended by the Town to engage services of attorneys, engineers, planners and other qualified professional consultants to provide assistance to said board relating to said project. A copy of the computation of said sums so expended shall be provided to the applicant at the time that the Town shall calculate the refund, if any, due the applicant.
A.
At the time of submission of any application, or thereafter, an escrow
account shall be established, from which withdrawals shall be made
to reimburse the Town for the costs of consultant services. The applicant
shall then provide funds to the Town for deposit into such account
in an amount to be determined by the Board with the advice and recommendation
of the Town's engineer, attorney and/or planner based on their evaluation
of the nature and complexity of the application, using the following
schedule as a general guideline, with the decision of the reviewing
board to be final and conclusive on the applicant:
(1)
For residential projects, the total project value shall be calculated
based on the actual purchase price of the land or the fair market
value of the land, whichever is higher, plus the cost of all required
site improvements. In the case of such projects, the escrow deposit
shall be no more than 2% of the total project value.
(2)
For commercial and industrial projects, the total project cost shall
be calculated on the actual purchase price of the land or the fair
market value of the land, whichever is higher, plus the cost of supplying
utility service to the project, the cost of site preparation and the
cost of labor and material as determined with reference to a current
cost data publication in common use. In the case of such projects,
the escrow deposit shall be no more than 1% of the total project value.
(3)
For projects involving the extraction of minerals, the total project
value shall be calculated on the cost of site preparation for mining.
"Site preparation cost" means the cost of clearing and grubbing and
removal of overburden for the entire area to be mined plus the cost
of utility services and construction of access roads. Such costs are
determined with reference to a current cost data publication in common
use. The escrow deposit shall be 2% of the total project value. For
those costs to be incurred for phases occurring three or more years
after issuance of a permit, the project value shall be determined
using a present value calculation.
B.
The applicant shall be provided with copies of vouchers submitted
for payment by the consultants for such services as they are submitted
to the Town.
C.
All sums paid by the applicant shall be deposited in a separate account
by the Town from which withdrawals as provided in this article shall
be made.
D.
When the balance in such escrow account is reduced to 1/3 of its
initial amount, the Town shall advise the applicant and the applicant
shall deposit additional funds into such account to bring its balance
up to the amount of the initial deposit. If such account is not replenished
within 10 business days after the applicant is notified, in writing,
of the requirement for such additional deposit, the reviewing board
may suspend its review of the application. An application shall be
deemed incomplete if any amount shall be outstanding.
E.
A building permit or other permit being sought shall not be issued
unless all professional review fees charged in connection with the
applicant's project have been reimbursed to the Town by the applicant.
F.
All fees required pursuant to this article shall be collected by
the Town.
G.
This article shall be applicable to applications pending at the time
it shall become effective unless a prior agreement concerning such
fees between the applicant and the Town has been executed.
This article is enacted under the authority of Subdivision 1(ii)d(3)
of Municipal Home Rule Law § 10, and Municipal Home Rule
Law § 22. To the extent that §§ 274-a, 276
and 277 of the Town Law are inconsistent with this article, it is
the intent of the Town Board to supersede these sections of the Town
Law by virtue of this article.
In the event that a positive declaration is made in accordance
with the New York State Environmental Quality Review Act (SEQRA),
all subsequent consultant review fees that are necessary for the preparation
or review of an EIS shall be reimbursed to the Town in accordance
with the procedures established under SEQRA. The applicant shall maintain
the basic escrow account for the continued review of the application
that is not directly related to the preparation or review of an EIS.
The Town may require the applicant to establish a separate escrow
account for the consultant services costs necessary for the preparation
or review of an EIS. All deposits, reimbursements and refunds shall
be made in accordance with the provisions of this article.
