[HISTORY: Adopted by the Town Board of the Town of Walworth 9-1-2016 by L.L. No. 4-2016.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law adopted these provisions as
Ch. 135, but the provisions were renumbered to maintain the organization
of the Code.
A.
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 Walworth, 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 improvements; and other services or technical
assistance as the Town deems necessary for its review of such applications,
and the Town may incur costs and fees in connection therewith.
B.
Any such reasonable costs and fees incurred as a result of the review
and consideration of an application by a professional, consultant
or agent to the Town (referred to herein as "consultant fees" or "costs")
shall be borne by the applicant as set forth herein, except that up
to one hour of such consulting fees and costs per filed application
will be borne by the Town.
[Amended 10-20-2022 by L.L. No. 4-2022]
[Amended 10-20-2022 by L.L. No. 4-2022; 7-6-2023 by L.L. No. 8-2023]
Consultant fees incurred for the consulting, professional or
other related services described herein shall be borne by the applicant.
A deposit to be held in escrow in addition to the application fee
may be required in advance to cover the estimated costs. Should no
escrow be required, the costs will be billed to the applicant as required.
A.
Escrow requirement and amount. In accordance and consistent with
the Town of Walworth Fee Schedule (where minimum initial escrow amounts
based on the estimated cost to the Town of reviewing the particular
type of application may be set forth) to the extent addressed therein,
the Department of the Building Inspector and Code Enforcement will
determine whether an escrow deposit will be required in advance and
the amount required to be initially deposited. The amount shall be
based on the estimated cost to the Town of reviewing the particular
type of application. The Department may consider the consultant and
professional review expenses incurred by neighboring municipalities
in reviewing similar applications and 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.
[Amended 7-6-2023 by L.L. No. 8-2023]
B.
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 or the Department
of the Building Inspector and Code Enforcement that such monies will
be insufficient to meet anticipated costs, the Town shall cause the
applicant to deposit additional sums deemed necessary or advisable
in order to meet such costs or anticipated costs.
[Amended 7-6-2023 by L.L. No. 8-2023]
C.
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.
D.
Administration of escrow. Where an escrow account is required, the
applicant shall deposit the required amount with the Town Comptroller
or agent thereof in the form of a certified check made payable to
the Town of Walworth. Upon receipt, the Town Comptroller or agent
thereof 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 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 costs shall thereafter be billed on a monthly
basis and paid by the applicant within 30 days. Upon request by the
applicant, the Town shall make copies of all vouchers available within
a reasonable period of time; copies of the vouchers may be redacted
to protect proprietary information and/ or legally privileged communications
between the Town officials and the consultants.
[Amended 7-6-2023 by L.L. No. 8-2023]
B.
Incurring of consultant fees. The Town Board shall review and audit
all such vouchers and shall approve payment of only such consultant
fees as are reasonable in amount and necessarily incurred by the Town
in connection with the review and consideration of the applications.
A consultant fee 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, general welfare
or other interests of the Town, and/or to protect public or private
property.
C.
Payment to Town only. In no event shall an applicant make direct
payment to any Town consultant.
D.
Return of unused escrow funds. Unused escrow funds shall be returned
so long as the reviewing board has rendered its decision on an application
and no unsatisfied conditions remain. Where a decision has been rendered
but conditions remain (including but not limited to dedication of
facilities), escrow funding sufficient to address remaining conditions
shall be retained until such conditions are fully addressed.
[Amended 10-20-2022 by L.L. No. 4-2022]
E.
Additional fees. The review costs and fees required to be reimbursed
by this chapter are in addition to application and other fees required
pursuant to other applicable provisions of the Town of Walworth's
laws, rules and regulations, including those fees set forth on the
Town of Walworth Fee Schedule.[1]
[1]
Editor's Note: Former Subsection F, regarding de minimis review
costs, which immediately followed, was repealed 7-6-2023 by L.L. No. 8-2023
A.
Suspension of review. In the event the applicant fails to deposit
or timely pay the requested costs with the Town, any application review,
approval, permit or certificates 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.
B.
Liability of applicant. The owner(s) of the subject real property,
if different from the applicant, shall be jointly and severally responsible
to reimburse the Town of Walworth 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 chapter for engineering, legal
and other consulting costs 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 costs, the following shall apply:
(1)
The Town may seek recovery of unreimbursed engineering, legal and
other consulting costs 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
costs 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.
