[Added 1-9-2003 by L.L. No. 1-2003]
The Town Board hereby finds and determines that,
in order to protect and safeguard the Town of Avon, 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, Zoning Board of Appeals 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 relative to such development;
and that the cost of retaining such competent engineers and attorneys
and other professional 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 State Municipal Home Rule Law § 22.
To the extent Town Law §§ 274-a, 276 and 277 do not
authorize the Town Board, Zoning Board of Appeals or Town Planning
Board to require the reimbursement to the Town of legal and engineering
and other professional 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 meanings indicated:
Any person, firm, partnership, association, corporation,
company, limited liability company 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 review or approval of site plans,
special use permits, conditional use permits or special permits pursuant
to relevant provisions of the Code of the Town of Avon.
Zoning Board of Appeals approval of variances,
special use permits under relevant provisions of the Code of the Town
of Avon.
Rezoning of real property in the Town by the
Town Board.
The establishment of any improvement district
in the Town, pursuant to Article 12, 12-A or 12-C of the New York
State Town Law.
A certificate of occupancy from the Code Enforcement
Officer in connection with a development within the Town.
Any other application that shall require the
review of an attorney or an engineer or other professional retained
by 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 G 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 company 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, conditional
use permit, special permit or variance for which approval is required
under the Code of the Town of Avon 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, parking area,
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 Avon, the Town Planning Board, Assessor, 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 in Subsections A through G of the definition of "applicant" in § 130-66, shall reimburse the Town for all reasonable and necessary engineering, legal and other reasonable 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, parks, communications
towers, antennas or accessory communications structures within or
in conjunction with any development in the Town shall reimburse the
Town for all reasonable and necessary legal, engineering and other
expenses incurred by the Town in connection with the inspection and
acceptance by the Town of such highways, drainage facilities, utilities,
parks, communications towers, antennas or accessory communications
structures and the dedication of same to the Town, where applicable.
C.
Notwithstanding anything to the contrary contained
in this article, an applicant, as that term is defined in this article,
shall reimburse the Town for all reasonable and necessary costs of
publication.
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, engineering or other reasonable
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.
Except as otherwise provided herein, 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 Clerk a sum of money, as determined in § 130-67 of this article, which such sum shall be used to pay the costs incurred by the Town for engineering and legal services and the services of other professionals as described in § 130-65 of this article.
[Amended 9-8-2005 by L.L. No. 3-2005]
B.
The applicant shall pay all engineering fees associated
with an application for subdivision approval as follows:
(1)
For concept approval: together with the application
for preliminary subdivision approval or within 90 days of disposition
of the application for concept approval, whichever is sooner.
(2)
For preliminary subdivision approval: together with
the application for final subdivision approval or within 90 days of
the disposition of the application for preliminary subdivision approval,
whichever is sooner.
(3)
For final subdivision approval: prior to signature
of the final subdivision plot by the Chairman of the Planning Board
or within 90 days of the disposition of the application for final
subdivision approval, whichever is sooner.
C.
Payment of all engineering and legal fees and the
fees of other professionals associated with an application for zoning
variance or other relief from the Zoning Board of Appeals or the Planning
Board (other than subdivision) shall be a condition of such application
and/or approval and shall be charged to and paid by the applicant
prior to the final filing of the resolution granting the relief sought
or within 90 days of final disposition of the application, whichever
is sooner.
D.
Payment of all engineering and legal fees and the
fees of other professionals associated with an application for a building
permit shall be a condition of such application and/or approval and
shall be charged to and paid by the applicant prior to the issuance
of any certificate of occupancy or within 90 days of final disposition
of the application, whichever is sooner.
E.
Payment for engineering and legal costs and the costs
of other professionals associated with inspection and sign-off on
all improvements secured by a letter of credit shall be secured by
said letter of credit by provision of additional security in the sum
of 4% of the proposed improvement, secured for the Town's engineering
and legal costs and the costs of other professionals, and 4% to secure
the services of applicant's engineer for site inspection purposes.
This security shall not serve as a limit upon the obligation of the
applicant for the entire cost of the Town's engineering and legal
costs and the costs of other professionals, which shall be fully payable,
with or without recourse to the letter of credit, within 30 days of
the inspection or sign-off, whichever is sooner.
F.
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.
G.
Upon receipt and approval by the Town Board of itemized
vouchers from an engineer and/or attorney and other professional 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.
H.
The Town Board shall review and audit all such vouchers
and shall approve payment of only such engineering and legal fees
and other professional 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
or other professionals 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 is was charged
by the engineer or attorney or other professional 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 proper and timely construction
of highway, drainage facilities, utilities and parks and protect the
legal interest 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.
I.
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 moneys 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.
J.
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 moneys are deposited.
K.
The issuance of a final certificate of occupancy or
certificate of compliance shall not occur unless and until all fees
incurred hereunder have been paid in full.
L.
After final approval, acceptance and/or the issuance
of a certificate of occupancy or certificate of compliance 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.
Unless otherwise provided herein, the amount
of the initial deposit for the various developments covered by this
article shall be 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 for development and shall not be used to offset
the Town's general expenses for legal and engineering services and
other professional services for the several boards of the Town, nor
its general administration expenses.
The provisions of this chapter shall be effective
regarding engineering and legal fees and other professional fees incurred
from this date forward on pending applications, after due notice to
all pending applicants.
All resolutions or decisions disposing of municipal
approval applications shall address the fees imposed in this chapter;
provided, however, that the failure to do so does not constitute a
waiver of the Town's right to charge and collect said fees or relieve
the applicant from the obligation to pay said fees.
Upon proper application to the Town Board, the
Board may, in its sole discretion, upon good cause shown, waive any
or all of said fees, which waiver shall be effective only by resolution
duly adopted by the Board.
