[HISTORY: Adopted by the Board of Trustees of the Village of Horseheads 10-28-2010 by L.L. No. 2-2010. Amendments noted where applicable.]
The title of this local law shall be the "Professional Services Reimbursement Local Law."
The Village Board of Trustees hereby finds and determines that to protect and safeguard the Village, its residents and their property with respect to land development within the Village, all buildings, structures, streets, highways, drainage facilities, sanitary facilities, water supply facilities, utilities, parks and the like within the Village should be designed and constructed in a competent and workmanlike manner, and in conformity with all applicable local, state and federal governmental laws, codes, rules and regulations. To assure the foregoing, it is essential that the Village have available to it all necessary professional expertise in the form of but not limited to consultants, planners, engineers and attorneys to assist in the review of plans, designs and applications and to make recommendations to the Village Board, Planning Board, Zoning Board of Appeals, and Village staff. The Village takes great pride in the skill and professionalism of its Land Use and Zoning Boards and review staff; however, from time to time the boards and staff are called upon to review and evaluate matters outside the range of their training and their expertise. These situations may require the Village to seek out skills not possessed by Village officials and staff, but which are not required frequently enough to justify the hiring of new specialized staff. At the same time, the cost of retaining such outside expertise should not be borne by the taxpayers of the Village, but rather by those who seek to profit from the decisions of the Village and its boards and staff. Therefore it is the intent of this law to establish a mechanism whereby the Village may utilize necessary expertise for a particular project without imposing the cost on its taxpayers.
This law is enacted under the authority of the New York State Municipal Home Rule. To the extent that Village Law §§ 7-708, 7-712, 7-712-a, 7-712-b, 7-725-a, 7-725-b, 7-728, and 7-730 do not authorize the Village Board, Planning Board or Zoning Board of Appeals to require reimbursement to the Village of expenses incurred by the Village in connection with the professional review of applications for land use approvals, permits and other approvals described in these statutes, it is the expressed intent of the Village Board of Trustees 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 Village. It is the expressed intent of the Village Board to change and supersede these provisions of the Village Law and any other provisions of New York State law to empower the Village to require such payment as part of the review or approval process.
As used in this law, the following terms shall have the meanings indicated:
APPLICANT
Any person, firm, partnership, association, corporation, company, or organization of any kind, who or which request the Village Board, Planning Board or Zoning Board of Appeals to review or approve a land use application.
LAND USE APPLICATION
Any application for subdivision approval, site plan approval, area variance, use variance, special permit, special use permit, zoning amendment and any additional review for those as needed to comply with NYS Environmental Quality Review Act, Environmental Conservation Law, rules and regulations adopted pursuant thereto, and the Village Code, as amended from time to time.
REVIEWING BOARD
The Village Board, Village Planning Board or Village Zoning Board of Appeals, as the case may be; the Village Board or Boards which review or approve a land use application.
A. 
Applicability. In connection with any application for a special permit, site plan or subdivision approval, zoning amendment and/or variance or planned use application or other appeal, the reviewing board may, with the approval of the Village Board, employ consultants, legal counsel, professional engineers, professional planners, and/or other qualified professionals to provide assistance and advice in the review of any application including on-site investigation, evaluation and inspection, verification of accuracy of information submitted, evaluation of the adequacy of plans and the sufficiency of submitted reports, study of the impact of proposals upon the resources and environment of the Village, preparation and/or review of environmental impact statements, review of the design and layout of improvements, inspection of the installed improvements and other services or technical assistance as the reviewing board deems necessary for its review of the application.
B. 
Escrow deposit. All costs incurred for the consulting services enumerated in § 178-5A shall be borne by the applicant.
(1) 
A deposit shall be required in advance to cover the estimated cost of these services. The amount of money initially deposited shall be based on the estimated cost to the Village of reviewing the particular type of application. The initial deposit shall be fixed by the Village Manager who may consider the professional review expenses by neighboring municipalities, the Village's past costs in reviewing similar applications, the size, type and number of buildings and/or improvements to be constructed, the number of lots proposed, the topography, soil conditions and other environmental conditions at the site, the infrastructure proposed by the applicant, and any special conditions the reviewing board may deem relevant.
(2) 
If at any time during the processing of an application there should be insufficient monies on hand to the credit of an applicant to pay incurred costs, or if it shall reasonably appear to the Village Manager that such monies may be insufficient to meet the anticipated costs, the Village Manager shall cause the applicant to deposit additional sums as the Manager deems necessary or advisable in order to meet such expenses or anticipated expenses.
(3) 
The review expenses provided for herein are in addition to the application and other fees required pursuant to other applicable provisions of the Village Code, rules and regulations.
(4) 
Monies deposited by the applicant pursuant to this section shall not be used to offset the Village's general expenses for the several boards or its general administrative expenses. Staff costs are not reimbursable. In no event shall the applicant's required responsibility be greater than the actual cost to the Village of such engineering, planning, legal or other professional and/or consulting services.
(5) 
Fees charges as a result of a SEQR review shall in no event exceed the maximum amounts that can be charged pursuant to SEQR regulations (6 NYCRR Part 617).
C. 
Administration of escrow account.
(1) 
The applicant shall deposit the required amount with the Village Clerk-Treasurer in a form acceptable to the Clerk-Treasurer. Upon receipt the Village Clerk-Treasurer shall cause such monies to be placed in a separate non-interest-bearing account in the name of the Village and shall keep a separate record of all such monies deposited and the name of the applicant and the project for which such sums were deposited.
(2) 
Upon receipt and approval by the Village Manager of itemized vouchers from consultants for services rendered on behalf of the Village regarding a particular application, the Village Manager shall cause such vouchers to be paid out of the monies so deposited. The record of such account shall be debited accordingly. The consultant shall make copies of all vouchers available to the applicant at the same time the vouchers are submitted to the Village. Copies of the vouchers may be redacted to protect proprietary information and/or legally privileged communications between the Village officials and the consultants.
(3) 
The Village Manager shall review and audit all such vouchers and shall approve payment of only such consultant charges as are reasonable in amount and are necessarily incurred by the Village in connection of the review and consideration of the application. A charge or part thereof is reasonable in amount if there is a reasonable relationship to the average charge by consultants to the Village for services performed in connection with the review of a similar application. A charge or part thereof is necessarily incurred if it was charged by the consultant for a service which was rendered in order to protect or promote the health, safety and other vital interest of the residents of the Village and/or to protect public or private property from damage.
(4) 
In no event shall an applicant make direct payment to any Village consultant.
(5) 
After the reviewing board has rendered its decision on an application and same is no longer subject to appeal, or upon the withdrawal of an application by the applicant, the remaining balance of the deposit in excess of actual incurred costs, if any, shall be returned to the applicant without payment of interest within 60 days of the final decision which is no longer subject to appeal or date of the withdrawal. The Village will also provide a statement of the costs paid from the escrow account.
D. 
Failure to comply.
(1) 
In the event the applicant fails to deposit the required consultant review costs with the Village, any application review, approval, permit or certificates of occupancy shall be withheld or suspended by the reviewing board, officer or employee of the Village until such monies are deposited in full with the Village Clerk-Treasurer.
(2) 
The owner(s) of the subject real property, if different than the applicant, shall be jointly and severally responsible to reimburse the Village for costs associated with the consultant review pursuant to this law. In order for an application to be complete, the applicant shall provide the written consent of all owners of the subject real property, authorizing the applicant to file and pursue a land use application and acknowledging potential landowner responsibility under this law for engineering, legal, consulting and other professional services incurred by the Village for the review of the application.
(3) 
In the event of failure to reimburse the Village for such costs, the following shall apply:
(a) 
The Village may seek recovery of unreimbursed engineering, legal, consulting or other professional services by an action in a court of appropriate jurisdiction and the defendant shall be responsible for the reasonable and necessary attorneys' fees expended by the Village in prosecuting such action if the Village is successful.
(b) 
Alternatively, and at the sole discretion of the Village Board, a default in reimbursement of such engineering, legal, consulting or other professional fees expended by the Village shall be remedied by charging such sums against the real property which 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 Village assessed taxes and shall be applied in reimbursing the fund in which the costs for engineering, legal, consulting and other professional services were defrayed. Prior to charging such assessment, 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 Village Board to the proposed real property assessment at a time to be designated in the notice which shall be no less than 30 days after its mailing.
E. 
Hardship review. In the event that any fee or deposit established in this law creates an economic or other hardship, application may be made to the Village Board which is hereby authorized to modify such fee and/or deposit in its legislative discretion after appropriate public hearing.
This law shall be applicable to applications pending at the time it shall become effective unless the Village Manager shall determine that its application would be impractical, unfair or unjust in the particular circumstances. Where this local law shall be applicable to a pending application, it shall in such event require an applicant only to pay for professional service fees for the services rendered after it shall have become effective.