[HISTORY: Adopted by the Town Board of the Town of Henrietta 6-17-2015 by L.L. No. 4-2015. Amendments noted where applicable.]
GENERAL REFERENCES
Fee schedules — See Ch. A301.
A.
This article is enacted under the authority of New York State Municipal
Home Rule Law, including, without limitation, Subparagraphs (a)(12)
and (d)(3) of the Municipal Home Rule Law § 10(1)(ii) and
Municipal Home Rule Law § 22.
B.
To the extent Town Law §§ 265, 267-b, 274-a, 274-b,
276, 277 and 278 do not directly authorize the Town Board, Planning
Board, or Zoning Board of Appeals to require the reimbursement to
the Town of consultant, professional, legal and engineering expenses
incurred by the Town in connection with the review and consideration
of any of the applications for the permits or approvals described
in those statutes, 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 these provisions
of New York State Town Law and any other provision of New York State
Town Law or General Municipal Law to empower the Town to require such
payment as a condition to such approvals.
This article shall be known as and may be cited as "Local Law
No. 4 of 2015, To Amend the Henrietta Town Code by Adding Provisions
Relating to the Reimbursement of Consultant and Professional Fees."
The Town Board of the Town of Henrietta, Monroe County, New
York, is concerned about the orderly development of land in the Town
of Henrietta. The Town Board hereby finds and determines that in order
to protect and safeguard the Town of Henrietta, its residents and
their property with respect to land development within the Town, all
buildings, structures, streets, highways, drainage facilities, sanitary
sewer facilities, water supply facilities, utilities, and parks within
the Town should be designed and constructed in a competent and workmanlike
manner and in conformity with all applicable governmental codes, rules,
regulations and laws. In order to assure the foregoing, it is essential
for the Town to have competent consultants, professionals, planners,
engineers and attorneys, as appropriate, to review and analyze plans
and designs and to make recommendations to the Town Board, Planning
Board, and Zoning Board of Appeals. The Town Board further finds that
the cost of retaining such competent consultants, planners, engineers
and attorneys should be paid by those who seek to profit or otherwise
gain from such developments rather than from general Town funds, which
are raised by assessments generally paid by taxpayers of the Town.
In connection with any application to the Town, including but
not limited to an application for a permit, including a special use
permit, site plan approval, subdivision approval, zoning amendment,
variance request, rezoning application, or any other application to
the Town of Henrietta, the Town may employ professional consultants,
legal counsel, professional engineers, professional planners, and/or
other qualified professionals to provide assistance and advice in
the review of any application, including, but not limited to, for
example, acquiring legal advice, traffic analysis, landscaping analysis,
historical analysis, architectural analysis, on-site investigation,
evaluation and inspection; verification of the 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 Town (including SEQR), preparation and/or review
of environmental impact statements; review of the design and layout
of improvements; inspection of installed improvement; and other services
or technical assistance as the Town deems necessary for its review
of such applications.
A.
Costs to be borne by applicant. All costs incurred for the consulting
services described herein shall be borne by the applicant. A deposit
may be required in advance to cover the estimated cost of these services.
B.
Escrow requirement and amount. Whether an escrow deposit will be
required in advance, and the amount of money initially deposited,
shall be based on the estimated cost to the Town of reviewing the
particular type of application. The reviewing board may consider the
consultant and professional review expenses incurred by neighboring
municipalities in reviewing similar applications. The reviewing board
may also consider the Town's past cost in reviewing similar applications.
In establishing whether a deposit shall be required, and the amount
thereof, the Town may take into consideration the size, type and number
of buildings to be constructed; the number of lots proposed; the topography,
soil conditions, and other environmental conditions at such site;
the infrastructure proposed in the application; any special conditions
the reviewing board may deem relevant; and any other factors the Town
may find relevant.
C.
Funding of escrow. Where an escrow is required, 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.
D.
Additional fees. The review expenses provided for herein are in addition
to application and other fees required pursuant to other applicable
provisions of the Town of Henrietta's laws, rules and regulations.
E.
Limitation on use of funds. Monies deposited by the applicant pursuant
to this section 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. In no event shall the applicant's required
responsibility be greater than the actual cost to the Town of such
engineering, planning, legal or other consulting or professional services,
which cost shall be reasonable such that it generally is comparable
to costs of such services in the open market for similar services
and projects.
F.
Administration of escrow. Where an escrow account is required, the
applicant shall deposit the required amount with the Town Clerk in
the form of a certified check made payable to the Town of Henrietta.
Upon receipt, the Town Clerk shall cause such monies 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 monies deposited and
the name of the applicant and project for which such sums were deposited.
A.
Vouchers and billings. Upon receipt and approval by the Town Board
of itemized invoices from consultants for services rendered on behalf
of the Town regarding a particular application, 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. The consultant shall make copies of all vouchers available
to the applicant at the same time the vouchers are submitted to the
Town; copies of the vouchers may be redacted to protect proprietary
information and/or legally privileged communications between the Town
officials and the consultants.
B.
Incurring of charges. The Town Board shall review and audit all such
vouchers and shall approve payment of only such professional and consultant
charges as are reasonable in amount and necessarily incurred by the
Town in connection with the review and consideration of the applications.
A charge or part thereof is reasonable in amount if it bears a reasonable
relationship to the average charge by consultants to the Town 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 or other vital interests of the residents
of the Town, and/or to protect public or private property from damage.
C.
Payment to Town only. In no event shall an applicant make direct
payment to any Town consultant.
D.
Return of unused escrow funds. 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.
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.
Liability of applicant. The owner(s) of the subject real property,
if different from the applicant, shall be jointly and severally responsible
for reimbursing the Town of Henrietta for costs associated with professional
and consultant review pursuant to this chapter. 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 land development proposals and acknowledging potential
landowner responsibility, under this article, for engineering, legal
and other consulting fees incurred by the Town for the review of the
application.
C.
Failure to reimburse. In the event of failure to reimburse the Town
for such fees, the following shall apply:
(1)
The Town may seek recovery of unreimbursed engineering, legal and
other consulting fees by action venued in a court of appropriate jurisdiction,
and the defendants shall be responsible for the reasonable and necessary
attorney's fees expended by the Town in prosecuting such action.
(2)
Alternatively, and at the sole discretion of the Town Board, a default
in reimbursement of such engineering, legal, professional 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 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.
