[Added 11-24-2001 by L.L. No. 2-2001]
[Amended 8-28-2019 by L.L. No. 2-2019]
A. 
The Town Board hereby finds and determines that in order to protect and safeguard the Town of Rush, its residents and their property, with respect to certain land developments within the Town, all buildings, highways, drainage facilities, sanitary sewer facilities, other utilities and parks within said development should be designed and constructed in a competent and workmanlike manner and in conformity with all applicable governmental codes, rules and regulations and dedicated and conveyed to the Town in a legally sufficient manner, that in order to assure the foregoing, it is essential for Town to have qualified and competent engineers, consultants, professionals and attorneys retained by the Town to review and approve applications, plans and designs, make recommendations to the Town Board, Planning Board and Zoning Board of Appeals, inspect the construction of highways, drainage, sewer, other facilities and parks to be dedicated to the Town to negotiate and draft appropriate agreements with developers, obtain, review and approve necessary securities, 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 legal disputes and issues with respect to developments, and that the cost of retaining such competent engineers, consultants, professionals 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 paid by taxpayers of the Town. The purpose of this article shall be to provide to the Town of Rush the authority to recoup and be reimbursed for such expenses incurred in the processing of municipal applications. The Town shall be authorized to impose such expenses as are reasonably necessary to process such applications.
B. 
This article is enacted under the authority of Subdivisions (a)(12) and (d)(3) of the Municipal Home Rule Law § 10(1)(ii) and Municipal Home Rule Law § 22. To the extent §§ 265, 267-b, 274-a, 274-b, 276, 277 and 278 of the Town Law do not authorize the Town Board, Town Planning Board and Zoning Board of Appeals to require the reimbursement to the Town of administrative, legal and engineering expenses incurred by the Town in connection with the review and consideration of building and/or development applications, including but not limited to, applications for subdivision, site plan, special permit, variance and rezoning approval and for the approval, amendment or extension of planned districts under the Town's zoning ordinance, 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 §§ 265, 267-b, 274-a, 274-b, 276, 277 and 278 of the Town Law to empower the Town to require such payment as a condition of such approvals.
As used in this article, the following terms shall have the meanings indicated:
ADMINISTRATIVE EXPENSES
[Added 8-28-2019 by L.L. No. 2-2019]
A. 
Those charges incurred by the Town in proceeding and reviewing municipal applications within the Town of Rush, including but not limited to:
(1) 
Appraisal fees.
(2) 
Municipal finances fees.
(3) 
Surveying fees.
(4) 
Fees associated with the study of the impact of proposals upon the resources and environment of the Town (including reviews under SEQRA).
(5) 
Any other services or technical assistance as the Town deems necessary for its review of such municipal applications.
B. 
The administrative costs provided herein are in addition to application and other fees required pursuant to other application provisions of the Town Code.
APPLICANT
Any person, firm, partnership, association, corporation, company or organization of any kind, who or which requests the Town Planning Board, Town Board or Zoning Board of Appeals to approve a development.
DEVELOPER
Any person, firm, partnership, association, corporation, company or organization of any kind who or which constructs or proposes to construct one or more buildings, highways, drainage facilities, utilities or parks within or in conjunction with a development and whether or not the same is conveyed or dedicated to the Town.
DRAINAGE FACILITY
All surface water drainage facilities including, but not limited to, detention and retention 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.
ENGINEERING EXPENSES
Those fees billed to the Town by its Town Engineer or any consultant, professional or engineer as paid, approved and audited by the Town Board and adopted by Town Board resolution.
[Added 8-28-2019 by L.L. No. 2-2019]
HIGHWAY
The term "highway" includes a street, avenue, road, square, place, alley, lane, boulevard, concourse, parkway, driveway, overpass and underpass 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.
LEGAL EXPENSES
Those fees billed to the Town by its Town Attorney or any special counsel as paid, approved and audited by the Town Board and adopted by Town Board resolution.
[Added 8-28-2019 by L.L. No. 2-2019]
MUNICIPAL APPLICATIONS
Any application to the Town, including but not limited to an application for a special use permit, site plan approval, subdivision approval, zoning amendment, variance request, rezoning or overlay district application, or any other permit, licenses, or approval granted by the Town.
[Added 8-28-2019 by L.L. No. 2-2019]
PARK
An area of land located within a development which is open to the public and devoted to active or passive recreation.
PLANNED DISTRICT
A planned district established under Chapter 120, Zoning, of the Code of the Town of Rush, including any site plan review pursuant thereto or environmental review pursuant to the New York State Environmental Quality Review Act (Environmental Conservation Law § 8-0105 et seq.)
[1]
TOWN
The Town of Rush.
UTILITIES
All water, sanitary sewer, gas, electric, telephone, cable television facilities and any easement through or over which said facilities may be constructed or installed in or in connection with a development.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
[Amended 8-28-2019 by L.L. No. 2-2019]
A. 
Municipal applications.
(1) 
The applicant, for approval of municipal applications in the Town, shall reimburse the Town for all reasonable and necessary administrative, legal and engineering expenses incurred by the Town in connection with the review and consideration of such projects.
(2) 
A developer who constructs, or proposes to construct, one or more highways, drainage facilities, utilities or parks within or in conjunction with an approved subdivision in the Town shall reimburse the Town for all reasonable and necessary administrative, 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. 
Planned districts.
(1) 
An applicant for the approval, amendment or extension of a planned district in the Town shall reimburse the Town for all reasonable and necessary administrative, legal and engineering expenses incurred by the Town in connection with the review and consideration of said application.
(2) 
A developer who constructs or proposes to construct one or more buildings, highway, drainage facilities, utilities or parks within or in conjunction with a planned district in the Town shall reimburse the Town for all reasonable and necessary administrative, legal and engineering expenses incurred by the Town in connection with the granting of any building permit and 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.
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 including, but not limited to, those resulting from complaints by third parties, as to which the Town Board determines the applicant or developer had no responsibility or was beyond the reasonable control of the applicant or developer.
[Amended 8-28-2019 by L.L. No. 2-2019]
A. 
Payment and escrow.
(1) 
Costs to be borne by the applicant. All administrative costs incurred by the Town which are reasonably necessary in the review and processing of municipal applications shall be charged back to the applicant as a fee related to the application submitted. A deposit may be required in advance to cover the estimated cost of these services. As a condition to any application, the property owner, applicant, agent and representative of said property shall acknowledge in writing their obligations of fee reimbursement consistent with this article. Monies charged back to the applicant or otherwise deposited by the applicant shall not be used to offset the Town's general expenses for the several boards or its general administrative expenses. Employee costs are not reimbursable.
(2) 
Funding of escrow. Where the Town requires an escrow, if at any time during the review and processing of an application there shall be insufficient monies on hand to the credit of an applicant to pay incurred costs, or if it shall reasonably appear to the reviewing board that such monies will be insufficient to meet anticipated costs, the Town shall cause the applicant to deposit additional sums as the board deems necessary or advisable in order to meet such expenses or anticipated expenses.
(3) 
Escrow administration. Where an escrow account is required, the applicant shall submit the required amount made payable to the Town of Rush. Upon receipt, the Town Supervisor shall cause such monies to be deposited in the general fund in a deferred revenue account and shall keep a separate record of all such monies deposited and the name of the applicant and project for which such sums were deposited.
[Amended 9-13-2023 by L.L. No. 6-2023]
B. 
The Town Board shall review and audit all such vouchers and shall approve payment of only such administrative, engineering and legal fees as are reasonable in amount and necessarily incurred by the Town in connection with the review, consideration and approval of development and the inspection and acceptance of highways, drainage facilities, utilities and parks within or in conjunction with such developments. 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 and in this regard the Town Board may take into consideration the size, type and number of buildings 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 as the Town Board may deem relevant; and 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, protect public or private property from damage from uncontrolled surface runoff and other factors, assure the proper and timely construction of highways, drainage facilities, utilities and parks, protect the legal interests of the Town including receipt by the Town of good and property title to dedicated highways and other facilities and the avoidance of claims and liability and such other interest as the Town Board may deem relevant.
C. 
Where an escrow is established, the Supervisor shall cause vouchers to be paid out of the monies so deposited. The record of such account shall be debited accordingly. Where there is no escrow requirement, the fees shall thereafter be billed on a monthly basis and paid by the applicant within 30 days. All payments shall be made directly to the Town. After the reviewing board has rendered its decision on an application, 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 date of the decision or date of the withdrawal. The Town will also provide a statement of the costs paid from the escrow account.
[Added 8-28-2019 by L.L. No. 2-2019]
A. 
Suspension of review. In the event the applicant fails to deposit or timely pay the requested professional and consultant review costs with the Town, any application review, approval, permit or certificate of occupancy shall be withheld or suspended by the reviewing board, officer or employee of the Town until such monies are deposited or paid in full with the Town Clerk.
B. 
Failure to reimburse. In the event that the Town is required to refer for collection any outstanding cost or charge for any reimbursement as set forth in this chapter, the applicant and/or property owner or property owner's agent shall, in addition to the reimbursements, be obligated to pay a reasonable attorney's fee and costs incident to any action commenced by the Town to collect such fees. Reasonable attorney's fees shall also include any disbursements that may result from the commencement of litigation.
C. 
Levy against real property. Alternatively, and at the sole discretion of the Town Board, a default in reimbursement of administrative costs 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 Town. Such charges shall be levied and collected at the same time and in the same manner as Town-assessed taxes and shall be applied in reimbursing the fund from which the costs for the engineering, legal, professional and consulting fees were defrayed. 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 Town Board to the proposed real property assessment, at a date to be designated in the notice, which shall be no less than 15 days after its mailing.