[HISTORY: Adopted by the Board of Trustees
of the Village of Head-of-the-Harbor as indicated in article histories.
Amendments noted where applicable.]
[Adopted 2-15-2005 by L.L. No. 5-2005; amended in its entirety 5-20-2020 by L.L. No. 2-2020]
[Amended 8-2-2023 by L.L. No. 1-2023]
The Board of Trustees of the Village of Head of the Harbor finds
that the Village incurs costs and expenses as part of the consideration
of certain land developments and construction projects submitted to
the various boards of the Village. These costs and expenses include
routine administrative costs, such as for mailing and publication
of legal notices and decisions. The Village also incurs costs and
expenses for the services of an attorney to provide legal advice with
respect to issues raised by a particular application and, when necessary,
to negotiate and draft agreements with applicants, to obtain, review
and approve necessary securities, insurance and other legal documents,
to review and record deeds, easements and covenants required as a
condition to the approval of an application. The Village may also
incur costs and expenses for the other services, including stenographic
services, or the services of an engineer, planner or other professional
consultant for purposes of engineering, scientific, land use planning,
environmental, or similar professional reviews of the adequacy or
substantive aspects of applications, or of issues raised during the
course of review of applications for special permit approvals, site
plan approvals, subdivision approvals, use or area variances, appeals
to and requests for interpretation by the Zoning Board of Appeals,
applications for the rezoning of parcels to accommodate site-specific
land development proposals, or for any other or ancillary land use
or development permits or approvals required under the Village Code.
The Board of Trustees further finds that the costs and expenses associated
with the processing of these applications should ultimately be paid
by those who seek to benefit from such developments and construction
projects, rather than by general Village funds which are raised by
assessments and/or general taxes paid by taxpayers of the Village.
[Amended 8-2-2023 by L.L. No. 1-2023]
All applications seeking a discretionary land use approval from
the Board of Trustees, Zoning Board of Appeals, Planning Board, Architectural
Review Board or Joint Village Coastal Management Commission shall
be accompanied by a nonrefundable filing fee in an amount established
by resolution of the Board of Trustees and amended from time to time.
Said filing fee shall cover the Village's routine administrative costs, including
mailing and publication of legal notices and decisions, which are
necessary to fulfill the reviewing board's statutory charge, and shall
bear a reasonable relationship to the customary fee charged by villages
in the New York metropolitan region in connection with comparable
applications for land use or development.
A.Â
Simultaneously with the filing of an application for a discretionary
land use approval from the Board of Trustees, Zoning Board of Appeals,
Planning Board, Architectural Review Board or Joint Management Coastal
Commission, the applicant shall deposit with the Village Clerk a refundable
deposit of an amount established by resolution of the Board of Trustees,
and amended from time to time, which shall be used as an advance against
which withdrawals shall be made to reimburse the Village for the cost
of legal, engineering, planning and other professional consulting
services in accordance with this article. No application shall be
considered complete for review purposes until said deposit is made.
B.Â
The fees charged for such professional consultants shall relate only
to those services rendered in connection with a specific land use
or development application, and which are necessary to the reviewing
board's statutory charge and decision-making function, and not for
services performed for the mere convenience of the reviewing board.
Attendance by professional consultants at a public hearing before
the reviewing body to consider a specific application shall be deemed
necessary to the reviewing board's statutory charge and decision-making
function. Said fees shall bear a reasonable relationship to the customary
fees charged by similar professional consultants in the New York metropolitan
region on behalf of applicants or reviewing boards in connection with
comparable applications for land use or development, and pursuant
to a contractual agreement between the Village and such professional
consultant. In assessing such fees, the Village may also take into
account any special conditions or considerations as it may deem relevant,
including but not limited to the quality and timeliness of submissions
on behalf of the applicant and the cooperation of the applicant and
its agents during the review process.
C.Â
Notwithstanding the foregoing, the fees charged for legal services
under this article shall in no event exceed $7,500, unless it is in
connection with a subdivision of real property, change of zone, or
any nonresidential use, in which case legal fees shall not exceed
$25,000.
D.Â
The Village Clerk shall review all vouchers for professional consultant
services and shall determine whether such fees are a reasonable and
necessary expense that can be reimbursed to the Village. Upon request,
the applicant or landowner shall be provided with copies of vouchers
for such professional consultant services as they are submitted to
the Village. An applicant or landowner may direct any questions relating
to fees for reimbursement of professional consultant services to the
Village Clerk, who may adjust such fees as may be appropriate or refer
the matter to the reviewing board.
E.Â
Upon request by the applicant or landowner, the Village shall provide
copies of statements indicating the cost of professional consultant
services paid out of the initial deposit or owing in the event the
initial deposit has been depleted.
F.Â
Upon request by the applicant or landowner, the Board of Trustees
shall review and audit all vouchers for professional consultant fees
and shall determine whether such fees are reasonable in amount and
necessarily incurred by the reviewing board in accordance with the
standards for "reasonableness" and "necessity" and the limitations
on legal fees as set forth herein. In the event of such request, the
applicant or landowner shall be entitled to be heard by the Board
of Trustees on reasonable advance notice.
G.Â
The payment of fees for professional consulting services shall be
a condition of any approval and shall be set forth in any resolution
of approval and shall be required in addition to any and all other
fees required in connection with the review of the application as
set forth in any chapter of the Village Code or any Village fee schedule.
H.Â
Proof of payment of all professional consultant fees shall be obtained
by the applicant from the Village Treasurer and presented to the clerk
of the reviewing board.
I.Â
In the event that an application is required to be reviewed by more
than one reviewing board, then in such event and to the extent applicable,
each such reviewing board shall use the same consultant who shall
in such case prepare one report providing the data, information and
recommendations requested. In all instances, duplication of consultant's
reports shall be avoided wherever possible in order to minimize the
cost of such consultant's reports to the applicant.
A.Â
If an initial deposit is depleted, the reviewing board may suspend
its review of the application if any outstanding fees are not paid
by the applicant within 30 days of the Village Clerk's issuance of
a request for an additional deposit.
B.Â
The reviewing board shall not be obligated to comply with any time
periods for review of applications pursuant to state and/or local
law if the applicant fails to pay the fees as aforesaid. Any such
time periods shall begin to accrue again upon receipt of the required
payment.
C.Â
In the event that the applicant fails to comply with a request for
an additional deposit, the Village Clerk shall notify the chair of
the reviewing body and the Building Inspector of such failure, and
any approval, building permit or certificates of occupancy shall be
withheld by the reviewing board, officer or employee of the Village
until such monies are deposited and all professional consultant fees
charged in connection with the applicant's project have been reimbursed
to the Village.
A.Â
The applicant, and the owner(s) of the subject real property if different
from the applicant, shall be jointly and severally responsible to
reimburse the Village for funds expended to compensate for the services
rendered by professional consultants under this article.
B.Â
In the event of failure to reimburse the Village for such fees, the
Village may:
(1)Â
Seek recovery of unreimbursed professional 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 Village in prosecuting such action.
(2)Â
Alternatively, and at the sole discretion of the Board of Trustees,
a default in reimbursement of such professional consulting fees expended
by the Village shall be remedied by charging such sums against the
real property that is the subject of the land use application by adding
that charge to, and making it a part of, the next annual real property
tax assessment roll of the Village. Such charges shall be levied and
collected at the same time and in the same manner as the assessed
taxes and shall be applied in reimbursing the fund from which the
costs were defrayed for the professional 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 Board of Trustees 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.
After all pertinent charges have been paid, and upon final approval
or denial by the reviewing board or formal withdrawal of the application
by the applicant, any sums remaining on account to the credit of such
applicant shall be returned to such applicant along with a statement
of the vouchers paid.
In the event that any fee or deposit established by this article
creates an economic or other hardship, application may be made to
the Board of Trustees, which is hereby authorized to modify such fee
and/or deposit in its discretion after appropriate public hearing.
This article is enacted by local law pursuant to Municipal Home
Rule Law §§ 10(1)(i), 10(1)(ii)(a)(14) and 22, and
Statute of Local Governments § 10(6). To the extent that
Village Law §§ 7-712-a, 7-712-b, 7-725-a, 7-725-b,
7-728, 7-730 and 7-738 do not authorize the Board of Trustees, Planning
Board or Zoning Board of Appeals, or other boards and commissions
of the Village to require that applications for special permit approvals,
site plan approvals, subdivision approvals, use or area variances,
appeals to and requests for interpretation by the Zoning Board of
Appeals, applications for the rezoning of parcels to accommodate site-specific
land development proposals, or for any other or ancillary land use
or development permits or approvals required under the Village Code
be accompanied by filing fees and the deposit of funds that can be
used to reimburse the Village for reasonable engineering, legal, planning
and other professional consulting fees incurred by a reviewing board
in order to fulfill its statutory charge and decision-making function,
it is the expressed intent of the Board of Trustees to amend and supersede
such statutes in their application to the Village. Moreover, to the
extent that such statutes do not authorize the suspension of a reviewing
board's consideration and review of an application, or the withholding
of a final decision with respect to said application in the event
that such reimbursement is not made to the Village, it is the expressed
intent of the Board of Trustees to amend and supersede Village Law
§§ 7-712-a, 7-712-b, 7-725-a, 7-725-b, 7-728, 7-730
and 7-738 to empower the Village to require such reimbursement as
a condition to such consideration, review or approvals.
