[HISTORY: Adopted by the Town Board of the Town of East Fishkill as indicated in article histories. Amendments noted where applicable.]
Article I Professional Consultant Expenses
[Adopted 8-23-2012 by L.L. No. 5-2012]
Editor's Note: This local law also repealed former Art. I, Professional Consultant Expenses, adopted 1-11-1996 by L.L. No. 1-1996, as amended. This local law provided for an effective date of 10-1-2012.
Compensation required. In order to conduct a reasonable, full and proper review of an application for a subdivision, site plan, special permit, use variance, zoning interpretation, zoning amendment or rezoning, the reviewing board before which the application is pending shall, pursuant to this article, require the applicant to compensate the Town for the actual cost of professional consultant reviews reasonably necessary to complete the review of the project. The reviews governed by this article shall include review of all land use applications, and all environmental reviews pursuant to law, including review of the proposed action under the State Environmental Quality Review Act (SEQR).
Review fees covered. The fees governed by this article include those of the professional consultant reviews, including:
Those by the engineer to the Town, the planner to the Town and the attorney to the Town;
Those by any other professional consultants, as required under the circumstances of a particular application; and
Those costs incurred by professional employees of the Town (Engineer, Attorney and Planner) for time incurred in reviewing an application.
Exclusion of administrative fees. The professional fees provided for herein are in addition to application or administrative fees required pursuant to other sections of the East Fishkill Code.
Avoiding duplication. Review fees attributable to environmental reviews under SEQR shall in no event exceed the maximum amounts to be charged pursuant to the SEQR Regulations, 16 NYCRR 617.17 (after January 1, 1996, renumbered to Section 617.13). SEQR reviews and underlying permit reviews shall be combined wherever practicable.
As used in this article, the following terms shall have the meanings indicated:
- LAND USE APPLICATION
- Any application for a subdivision, site plan, specific permit, use variance, zoning amendment, rezoning or zoning interpretation. The application shall also be deemed to include the SEQR-related environmental documents submitted to evaluate the proposed action.
- PROFESSIONAL CONSULTANT
- The Town's planning, engineering and legal consultants or employees. The term also includes other specialized consultants in land use and environmental matters retained in individual cases, including title examiners, traffic consultants, and other technical and environmental experts.
- PROFESSIONAL REVIEW EXPENSES
- All actual expenses incurred by the Town relating to the professional consultant review of the application, as well as any escrow established by the Supervisor or Town Engineer to cover the expenses incurred in unique individual situations and applications.
- REVIEWING BOARD/AGENCY
- The Town Board, Planning Board or Zoning Board as the case may be.
Escrow required. No land use application or other request for Town review shall be considered complete for review purposes, and no professional reviews shall commence, until this article is complied with and, where required, an escrow account is established and funded.
Contracts required. The fees to be paid to the consultants shall be established pursuant to contract authorized by the Town Board, pursuant to the provisions of Town Board shall ensure that such contractual fees to be charged are consistent with fees for services then prevailing in the surrounding geographical area.
Employee fees will be in accord with the hourly rates upon which the employee's actual salary is based, fringe benefits and reasonable overhead.
Sketch plan, discussion or conceptual review. When an applicant files an application for a sketch plan or conceptual review, the applicant shall fund an escrow account in the amount of $250 prior to commencement of review. This amount is intended to cover an informal Board review, which is often requested even prior to the submission of a formal application of the paying of any application fees. The informal sketch, discussion or conceptual review shall not include any formal engineering or other professional review unless the applicant establishes an escrow as set by the Town Board.
Preliminary plat or site plan review. When an applicant for preliminary subdivision plat or site plan review. When an applicant files an application for preliminary subdivision plat or site plan approval, the applicant shall fund an escrow account in an amount as set by the Town Board, prior to the commencement of review.
Custody of accounts. The escrow amount shall be placed in an account established for such purpose. All review fees required pursuant to this article shall be collected by the Clerk/Secretary of the Planning and Zoning Boards. The Town Comptroller shall set up escrow funds as part of a trust and agency fund where consultant fees incurred by the Town pursuant to this section shall be audited and paid from such special fund and not the general fund. The Clerk/Secretary of the Planning Board and Zoning Board shall have custody of escrow account records.
Adjustment in the required escrow amounts. The Town Board will, by resolution, establish the amounts of any required escrows and set all fees required herein. These amounts can be adjusted by the Town Board from time to time.
Audit of vouchers. All vouchers submitted by professional consultants shall be reviewed and audited by Town officials in the same manner as all other charges. The Town shall approve payment of only such fees as are reasonable in amount and are necessarily incurred by the Town in connection with the review. A fee shall be considered reasonable in amount if it bears a reasonable relationship to fees prevailing in the surrounding geographical area for similar services in similar projects. In determining similarity of services and projects, the Town may consider the size of the project, the topography, soil conditions, drainage conditions, surface water conditions, other site constraints, and the nature of the improvements to be constructed, the nature of the planning, engineering or legal issues arising in the factual context of the application. In determining whether the fees were necessarily incurred, the Town may consider, in addition to the factors listed above, the nature of the materials provided by the applicants, the manner in which the service relates to the issues which must be decided by the Town in reviewing the application, whether the service provided reasonably assists the Board in performing a function required by law or regulation and such other factors as may be relevant in the factual context of the application. Records shall be maintained showing all amounts deposited, and all amounts paid from the escrow account and all bills and vouchers submitted by the Town professional consultants. The applicant shall in no case be billed for more than the Town has actually expended for consultant/employee review fees.
Payment of audited vouchers. The Town Comptroller shall make withdrawals from the escrow account to pay the cost of consultant review services, as established by itemized voucher to the Town. In no case shall an applicant make direct payment to any of the Town's professional consultants.
Town Board review. Within 30 days of receiving any voucher for professional consultant fees, whether it has been paid or not, an applicant may file a written request to the Town Board seeking review of the charges therein, to determine whether such fees are reasonable in amount and are necessarily incurred by the Town in connection with the review, under the standards set forth in this article.
When the balance in such escrow account is reduced to 1/3 of the required fee, the applicant shall replenish the amount of the escrow account to the full amount required.
If the applicant fails to make the escrow deposit, or fails to promptly replenish the amount in the escrow account within 15 days of the Town's request, professional reviews shall not begin or continue, as the case may be, until such time as the escrow account is funded or replenished. The Board may also consider an application abandoned if nonpayment of escrow fees continues for more than two months, and the Board may deny an application based upon such abandonment.
Payment by the applicant of professional fees actually incurred in the review of the application shall be required prior to:
Any approval of the application by the reviewing board. The Town Board, Planning Board or Zoning Board, as the case may be, shall not take any action or grant approval of any kind on any application until the Clerk/Secretary has certified to the Board that review fees actually incurred to the date of approval under this article have been fully paid and/or reimbursed, and that sufficient escrow amounts remain to cover any costs for professional reviews which will be incurred thereafter until the conclusion of the matter, including time spent, but not yet billed, as of the date of final Planning Board action, costs for review of proposed deeds and offers of cession, and similar matters.
Any administrative action in furtherance of an approval. In the event that any approval is granted and professional review fees remain to be paid, the reviewing board shall not take any further administrative action in furtherance of the approval until sufficient provision is made for the payment of these fees. For example, no rezoning amendment at the request of an applicant shall be forwarded for filing with the Secretary of State until the Clerk/Secretary of the Planning Board has certified in writing to the Town Clerk that all professional review fees actually incurred to date have been fully paid and/or reimbursed, and that sufficient escrow amounts remain to cover any professional review costs which will be incurred thereafter until the conclusion of the matter. Similarly, no site plan or subdivision plat approved by the Planning Board shall be signed unless the Clerk/Secretary has certified in writing to the Chair that all professional review fees actually incurred to date have been fully paid and/or reimbursed, and that sufficient escrow amounts remain to cover any costs for professional reviews which will be incurred thereafter until the conclusion of the matter.
Issuance of building permits and certificates of occupancy. No building permits or certificate of occupancy or use shall be issued unless all professional review fees charged in connection with the project have been paid and reimbursed.
Any balance remaining in the escrow account shall be refunded within a reasonable time upon applicant's request, upon completion of project review, or upon withdrawal of an application, after all fees already incurred by the Town are first paid and deducted from the escrow account.
In the event the applicant fails to reimburse to the Town funds expended to consultants as provide herein, the following remedies may apply:
The Town may seek recovery of billed and unpaid fees by bringing an action venued in a court appropriate jurisdiction, and the applicant shall pay the Town's reasonable attorney fees in prosecuting such action in addition to any judgment.
Alternatively, and at the sole discretion of the Town Board, an applicant's failure to comply with this article by paying professional review fees by escrow, or in failing to reimburse the Town for fees expended by the Town for professional review fees, may be remedied by charging such sums, together with any legal or other professional fees incurred in collection efforts, against the real property that is subject to the permit application and by adding that charge to and making it part of the next annual real property tax assessment roll of the Town. Prior to charging such assessments, the real property owners shall be provided with written notice to the applicant, at its last known address as contained in the permit application and to the property owner, if other than the applicant, at the owner's address of record as contained in the current assessment roll. Such written notice shall be sent certified mail, return receipt requested. Such notice shall inform the owner and applicant of the delinquent amount of fees owed to the Town and shall provide an opportunity to be heard and object, before the Town Board, to the proposed additional real property assessment, at a date to be designated in the notice which shall be not less than 30 days after the mailing. If and when imposed, such charges shall be levied and collected at the same time and in the same manner as general Town taxes, and such fees shall be applied to reimbursing the account from which the professional review fees were paid.