[HISTORY: Adopted by the Town Board of the Town of Kent 2-25-2002 by L.L. No. 1-2002. Amendments noted where applicable.]
Building administration and construction — See Ch. 27.
Fees — See Ch. 36.
Zoning — See Ch. 77.
Subdivision of land — See Ch. A81.
Editor's Note: This local law also superseded former Ch. 55, Professional Consultant Expenses, adopted 4-18-1996 by L.L. No. 2-1996.
Where the Town Board, Planning Board or the Zoning Board of Appeals uses 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 permit approvals, site plan approvals, subdivision approvals, use or area variances, applications for rezoning of parcels to accommodate site-specific land development proposals or otherwise, applications for permits to extract topsoil or natural resources, or for any other or ancillary land use or development permits or approvals required under the Town Code, 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 Town of such engineering, legal or other consulting services.
The Town Board, Planning Board, or Zoning Board of Appeals, through or with the assistance of Town (planning staff), may require advance periodic monetary deposits, to be held on account of the applicant or landowner, by the Town of Kent to secure the reimbursement of the Town's consultant expenses. When an initial deposit is required upon the filing of an application, that deposit shall not exceed 50% of the average cost of such services for applications of similar type, size and complexity based upon the Town's experience over the preceding period of three years. The Town may make payments from the deposited funds for engineering, legal or consulting services, after audit and approval by the Town Board of itemized vouchers for such services. The Town shall supply copies of such vouchers to applicant and/or landowner, appropriately redacted where necessary to shield legally privileged communications between Town officers or employees and the Town's consultants. When it appears that there may be insufficient funds in the account established for applicant or landowner by the Town to pay current or anticipated vouchers, the Town shall cause the applicant or landowner to deposit additional sums to meet such expenses or anticipated expenses.
The Town Board shall review and audit all vouchers and shall approve payment only of such engineering, legal and consulting expenses as are reasonable in amount and necessarily incurred by the Town in connection with the review and consideration of applications for land use or development approvals, 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 Town for services performed in connection with similar applications and, in this regard, the Town Board 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 typography 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 conditions or considerations as the Town Board may deem relevant. A fee or part thereof is necessarily incurred if it was charged by the engineer, attorney, or consultant for a service which was rendered in order to protect or promote the health, safety, welfare or other vital interests of the residents of the Town, protect public or private property from damage from uncontrolled surface water runoff an other environmental 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 proper title to dedicated highways and other facilities, the correction of defects arising during any post-dedication maintenance period and the avoidance of claims and liability and such other interests as the Board may deem relevant.
The owner(s) of the subject real property, if different from the applicant, shall be jointly and severally responsible to reimburse the Town of Kent for funds expended to compensate for services rendered to the Town under this section by private engineers, attorneys or other consultants. In order for a land use application to be complete and/or to continue to be reviewed, 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 Town. In the event of failure to reimburse the Town for such fees, the following shall apply:
The Town may seek recovery of unreimbursed 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 Town in prosecuting such action.
Alternatively, and at the sole discretion of the Town, a default of reimbursement of such engineering, legal and consulting fees expended by the Town 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 were defrayed for the engineering, legal and consulting fees. Prior to charging such assessments, the owner(s) 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 30 days after its mailing.
The provisions of this chapter shall apply to all engineering, legal and/or consulting fees incurred by the Town with regard to applications or matters pending on or after the effective date of this chapter.
This chapter is enacted under the authority of subparagraphs a(12) and d(3) of Municipal Home Rule Law § 10, Subdivision 1(ii), and Municipal Home Rule Law § 22. This chapter is intended to be in furtherance of the Town's authority to enter into contracts, to impose fees to offset the operations of government services, and to administer the regulation of land use in the community. It is the Town Board's judgment that this chapter is in furtherance of lawful authority already given to Town Boards in existing statutes. However, to the extent that any provision of this chapter may be deemed inconsistent with any provisions of Town Law, including §§ 267, 267-a, 271, 274-a or 274-b, 276 and 277, or any other provision of Article 16, of Environmental Conservation Law Article 8, § 8-0109, Subdivision 7, and regulations thereunder, it is the expressed intent of the Town Board in this chapter to change and supersede such statutes. The Board finds that these matters are of particular local concern and fall within the legislative powers vested under Municipal Home Rule Law § 10, Subdivision 1(ii)a(9-a)(11),(12), and (14).