[HISTORY: Adopted by the Town Board of the
Town of Kent 2-25-2002 by L.L. No. 1-2002.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Building administration and construction — See Ch. 27.
Fees — See Ch. 36.
Zoning — See Ch. 77.
Subdivision of land — See Ch.
A81.
[1]
Editor's Note: This local law also superseded former Ch. 55,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:
A.
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.
B.
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).
