[HISTORY: Adopted by the Common Council of the City of Cortland as indicated in article histories. Amendments noted where applicable.]
Article I Engineering, Legal and Consulting Fees
[Adopted 10-7-2008 by L.L. No. 3-2008]
Where the Common Council, Planning Commission or the Zoning Board of Appeals use 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 use permit approvals, site plan approvals, subdivision approvals, use or area variances, appeals of determinations, applications for rezoning of parcels to accommodate site-specific land development proposals or otherwise, applications for permits to extract topsoil or natural resources, or any other principal or ancillary land use or development permits or approvals required under the Code of the City of Cortland, 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 City of such engineering, legal or other consulting costs.
The Common Council, Planning Commission, or Zoning Board of Appeals, through or with the assistance of the City of Cortland staff, shall require advance periodic monetary deposits, to be held on account of the applicant or landowner, by the City of Cortland to secure the reimbursement of the City's consultant expenses. The initial deposit shall be in the sum as set forth in and determined in § 134-6 hereunder. The City may make payments from the deposited funds, for engineering, legal or consulting services, after audit and approval by the Common Council of itemized vouchers for such services. The City shall supply copies of such vouchers to the applicant, appropriately redacted where necessary to shield legally privileged communications between City officers or employees and the City's consultants. When it appears that there may be insufficient funds in the account established for the applicant or landowner by the City to pay current or anticipated vouchers, the applicant or landowner shall deposit additional sums to meet such expenses or anticipated expenses.
The Director of Administration and Finance shall review and audit all vouchers and shall approve payment only of such engineering, legal and consultant expenses as are reasonable in amount and necessarily incurred by the City in connection with the review and consideration of applications for land use or development approvals, appeals of determinations 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 City for services performed in connection with similar applications and, in this regard, the Director of Administration and Finance 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 considerations as the Director of Administration and Finance may reasonably deem relevant. A fee for service which was rendered in order to protect or promote the health, safety, or other vital interests of the residents of the City, protect public or private property from damage from uncontrolled surface water run-off, and other environmental factors, assure the proper and timely construction of highways, drainage facilities, utilities and parks, protect the legal interests of the City, including receipt by the City of good and proper title to dedicated highways and other facilities and the avoidance of claims and liability and such other interests as the Director of Administration and Finance may deem relevant.
The owner(s) of the subject real property, if different from the applicant, shall be jointly and severally responsible to pay the City of Cortland for funds expended to compensate for services rendered to the City 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 City. In the event of failure to pay the City for such fees, the following shall apply:
The City may seek recovery of unpaid 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 City in prosecuting such action.
Alternatively, and at the sole discretion of the City, a default in payment of such engineering, legal and consulting fees expended by the City 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 City. Such charges shall be levied and collected at the same time and in the same manner as City assessed taxes and shall be paid to the Director of Administration and Finance, 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 City Assessor to the proposed real property assessment, at a date to be designated in the notice, which shall be no less than 30 days after it is mailed.
The costs imposed by the permitting authority (i.e., the Common Council, Planning Commission or Zoning Board of Appeals) on the applicant under authority of this article must be paid in full to the City, with reasonable written proof of such payment delivered to the Code Enforcement Office, or an adequate escrow account must exist to pay such fees and costs, prior to any final approvals and permits being issued by the Code Enforcement Office.
Escrow funds may be refunded to the applicant when the applicant formally withdraws the application from consideration by the permitting authority, and all actual reimbursable fees and reimbursable costs incurred by the City are first deducted from the escrow account, leaving an unencumbered balance that is not required by the permitting authority to pay consulting costs or fees attributable to the application being withdrawn or being finally acted on.
The imposition of fees authorized in this article are in addition to and not in place of such other fee schedules currently in force; provided, however, the fees shall not duplicate consultant fees reimbursed under the State Environmental Quality Review Act.
This article shall not apply to an area variance application for a residential use for a single-family home located entirely in a residential zone.
The Director of Administration and Finance or his designee shall set up escrow funds as part of a trust and agency fund item whereby consultant fees incurred by the City pursuant to this article shall be audited and paid from such special fund and not the general fund. The Director of Administration and Finance is empowered to delegate to the Planning Commission Secretary, the Zoning Board Secretary, the Deputy Director of Administration and Finance or the City Clerk the functions of having custody of escrow account records.
This article shall apply to all land use permit applications, requests for interpretation and appeals of determinations pending before the Common Council, Planning Commission or Zoning Board of Appeals at the time when this article is filed with the Secretary of State. All consulting fees incurred by the City thereafter shall be paid as provided herein.
The minimum escrow deposit shall be set by resolution of the Common Council. The escrow account shall be replenished by the applicant as needed until all expenses incurred by the City are paid.