[Added 3-21-2007 by L.L. No. 4-2007]
The Town Board hereby finds and determines that
in order to protect and safeguard the Town of Wilson, its residents
and their property, with respect to land development within the Town,
all buildings, structures, highways, drainage facilities, sanitary
sewer facilities, water supply utilities, other utilities and parks
within any such development should be designed and constructed in
a competent and workmanlike manner and in conformity with all applicable
governmental codes, rules and regulations and, where applicable, dedicated
and conveyed to the Town in a legally sufficient manner, that in order
to assure the foregoing, it is essential for the Town to have competent
engineers retained by the Town to review and approve plans and designs,
make recommendations to the Town Board and Planning Board, inspect
the construction of highways, drainage, sewer, other facilities and
parks to be dedicated to the Town and to recommend their acceptance
by the Town, and to have competent attorneys retained by the Town
to negotiate and draft appropriate agreements with developers, obtain,
review and approve necessary security instruments, 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 any issues involving such development, and
that the cost of retaining such competent engineers 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
generally paid by taxpayers of the Town. This article is enacted under
the authority of New York State Municipal Home Rule Law § 10,
Subdivision 1, Paragraphs (ii)a(12) and d(3), and New York Sate Municipal
Home Rule Law § 22. To the extent Town Law §§ 274-a,
276 and 277 do not authorize the Town Board or Town Planning Board
to require the reimbursement to the Town of legal and engineering
expenses incurred by the Town in connection with the review and consideration
of any of the applications for the permits or approvals described
hereinafter, 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 Town Law §§ 274-a,
276 and 277 and any other provision of the New York State Town Law
or General Municipal Law to empower the Town to require such payment
as a condition to such approvals.
As used in this article, the following terms
shall have the meaning indicated:
Any person, firm, partnership, association, corporation,
company, limited liability or entity or organization of any kind that
applies for a permit or approval for any of the following:
Acceptance by the Town Board for the dedication
of sidewalks, highways, public rights-of-way, drainage facilities,
parks or utilities.
Planning Board approval of site plans, special use permits or special permits pursuant to § 127-52 of the Town Code, and any other similar provisions.
Rezoning of real property in the Town by the
Town Board.
The establishment of any improvement district
in the Town, pursuant to Articles 12, 12A or 12C of the New York State
Town Law.
A certificate of occupancy from the Code Enforcement
Officer in connection with a development within the Town.
The formal request by an applicant or developer, as those
terms are defined herein, for any permit or approval by the Town Board,
Planning Board, Zoning Board of Appeals or Code Enforcement Officer
for the items set forth hereinabove in Subsections A through F of
the definition of "applicant" in this section, along with the preparation
of any and all plans and submittals submitted in connection therewith,
including, but not limited to, any required review under the New York
State Environmental Quality Review Act (SEQRA).
Any person, firm, partnership, association, corporation,
company, limited liability or entity or organization of any kind,
whether or not an applicant as defined hereinabove, that constructs
or proposes to construct one or more highways, drainage facilities,
utilities or parks within or in conjunction with a development and
to convey or dedicate same to the Town.
Includes a subdivision, site plan, special use permit, special
permit or variance for which approval is required under § 127
of the Town Code and any construction of buildings, structures, drainage
facilities, highways, parks, or utilities to be undertaken in connection
with any of the foregoing.
All surface water drainage facilities, including but not
limited to catch basins, detention and retention ponds or 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.
Includes a street, avenue, road, square, place, alley, lane,
boulevard, concourse, parkway, driveway, overpass and underpass, or
other form of public right-of-way, 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.
An area of land located within a development which is open
to the public and devoted to active or passive recreation.
The Town of Wilson, the Town Planning Board, Zoning Board
of Appeals, Code Enforcement Officer or Town Board.
All water, sanitary sewer, gas, electric, telephone, cable
television facilities and any easements through or over which said
facilities may be constructed or installed in or in connection with
a development.
A.
The applicant, for approval of any items set forth hereinabove at Subsections A through F of the definition of "applicant" in § 127-69, shall reimburse the Town for all reasonable and necessary engineering and legal expenses incurred by the Town in connection with the review and consideration of the application for such approval.
B.
A developer who constructs, or proposes to construct,
one or more highways, drainage facilities, utilities or parks within
or in conjunction with any development in the Town shall reimburse
the Town for all reasonable and necessary 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.
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 resulting
from complaints or legal action by third parties as to which the Town
Board determines that the applicant or developer had no responsibility
or was beyond the reasonable control of the applicant or developer.
A.
Simultaneously with the filing of an application as defined herein, and prior to the commencement of any construction of buildings, highways, drainage facilities, utilities or parks therein, the applicant or developer, as the case may be, shall deposit with the Town Supervisor a sum of money, as determined in § 127-73 of this article, which sum shall be used to pay the costs incurred by the Town for engineering and legal services as described in § 127-70 of this article.
B.
Upon receipt of such sums, the Town Supervisor shall
cause such moneys to be placed in a separate non-interest-bearing
account in the name of the Town and shall keep a separate record of
all such moneys so deposited and the name of the applicant or developer
and project for which such sums were deposited.
C.
Upon receipt and approval by the Town Board of itemized
vouchers from an engineer and/or attorney for services rendered on
behalf of the Town pertaining to the application or development, the
Town Supervisor shall cause such vouchers to be paid out of the moneys
so deposited and shall furnish copies of such vouchers to the applicant
or developer at the same time such vouchers are submitted to the Town.
D.
The Town Board shall review and audit all such vouchers
and shall approve payment of only such engineering and legal fees
as are reasonable and necessarily incurred by the Town in connection
with the review, consideration and approval of any application for
development and the inspection of all construction and acceptance
of highways, drainage facilities, utilities and parks within or in
conjunction with such development. 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. In this regard, the Town Board may take
into consideration the size, type and number of buildings, structures
or facilities 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
that the Town Board may deem relevant. 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 or to protect
public or private property from damage from uncontrolled surface water
runoff and other factors, and to assure the facilities, utilities
and parks and 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.
E.
If at any time during or after the processing of such
application or in the construction, inspection or acceptance of buildings,
highways, drainage facilities, utilities or parks there shall be insufficient
moneys on hand to the credit of such applicant or developer to pay
the approved vouchers in full, or if it shall reasonably appear to
the Town Supervisor that such monies will be insufficient to meet
vouchers yet to be submitted, the Town Supervisor shall cause the
applicant or developer to deposit additional sums as the Supervisor
deems necessary or advisable in order to meet such expenses or anticipated
expenses.
F.
In the event that the applicant or developer fails
to deposit such funds or such additional funds, the Town Supervisor
shall notify, as applicable, the Chairman of the Planning Board, Town
Board, Zoning Board of Appeals and/or the Town's Code Enforcement
Officer of such failure, and any review, approval, building permit
or certificates of occupancy may be withheld by the appropriate Board,
officer or employee of the Town until such monies are deposited.
G.
The issuance of a final certificate of occupancy shall
not occur unless and until all fees incurred hereunder have been paid
in full.
H.
After final approval, acceptance and/or the issuance
of a certificate of occupancy relating to any specific development,
and after payment of all approved vouchers submitted regarding such
development, any sums remaining on account to the credit of such applicant
or developer shall be returned to such applicant or developer, along
with a statement of the vouchers so paid.
The amount of the initial deposit for the various
developments covered by this article shall be as set forth in a schedule
of deposits established from time to time, by resolution of the Town
Board. Said schedule shall remain in effect and shall apply to all
applicants and developers until amended or revised by subsequent resolution.
The deposits required by this article shall
be in addition to any application fees as may be required by other
laws, rules, regulations or ordinances of the Town and shall only
be used to offset the specific expenses of the Town in connection
with the application or development and shall not be used to offset
the Town's general expenses of legal and engineering services for
the several Boards of the Town nor its general administration expenses.
