This chapter shall be known as the Town of Woodbury (herein
referred to as "Town") "Taxpayers Protection Act." This chapter involves
the allocation and payment of costs and expenses incurred in the Town
when reviewing certain land use matters. It is adopted pursuant to
the Municipal Home Rule Law.
Responsible government is reflected in responsible growth within
a responsible tax base. Where there are municipal expenses that are
nongeneral in nature as well as specific to a land use matter, the
specific applicant seeking certain permits or approvals should be
responsible for payment of those specific or other nongeneral expenses
incurred by the Town that would otherwise be paid by the taxpaying
public. To minimize the burden of government to the Town taxpayers
from such costs, expenses or other charges that the Town incurs in
specifically reviewing any applications or petitions or otherwise
enforcing the rights of the Town, all such specific and nongeneral
costs and expenses should be paid by the applicant (or other person
or entity responsible involved) in all situations except applications
or petitions for matters involving the construction of a one or two-family
residence only.
Any and all such specific and nongeneral costs or expenses incurred
by the Town in reviewing any application or petition for any license,
franchise agreement, amendments to any approved text of the Town Code,
as well as any other submissions to the Town Board or otherwise enforcing
the rights of the Town regarding a specific applicant or property
owner which require the use or employment of Town counsel, special
legal counsel, bond counsel, transactional counsel or other legal
advice or representation, consultants, engineers, experts, accountants,
appraisers or other professionals or persons that may be deemed reasonably
necessary by the Town to review, act upon or otherwise provide advice
on any such matter shall be charged to and paid solely by the applicant
or petitioner as well as property owner involved or other person seeking
relief or otherwise responsible to the Town that makes such specific
and nongeneral action or review by the Town appropriate or necessary.
Any such costs paid or incurred by the Town that are reasonable and
customary in the County of Orange regarding the foregoing shall be
charged to and paid by the applicant as well as property owner involved
provided the applicant as well as property owner involved is seeking
a benefit or other relief or approval from the Town and said costs
are necessary expenditures, and not expenditures for the convenience
of a Board in fulfillment of its own decision-making responsibilities.
Said legal cost shall be reasonable in amount and shall not exceed
5% percent of the cost of the fair market value of the estimated cost
of construction or the infrastructure and other site improvements
involved in said application. The payment of such costs shall be deducted
from an escrow account to be established for such application in amount
determined by the Town in accordance with the Town's fee schedule
or as determined by Town Board resolution. Such escrow account must
be maintained in an amount sufficient to pay such fees or costs at
the time they are incurred and must be replenished as directed by
the Town.
The person or entity required to pay said costs pursuant to
this chapter has a right to contest any obligation to pay any or all
of such costs or fees by notifying the Town in writing within 30 days
of being advised of such cost or the obligation to pay. The Town shall
properly supply written documentation to the person or entity from
whom such costs are sought to be paid. That person or entity has 30
days from the date of transmittal of such documentation to object
in writing to part or all of the costs or fees sought to be paid to
the Town. If within that 30 day period of time the entity or person
objects to payment of some or all of the cost or fees to be imposed,
the person or entity shall file in writing a detailed appeal to the
Town Board specifying the basis for any objection to said payment.
Within 90 days of the date of receipt of the appeal, the Town Board
shall determine the appeal and decide what costs or fees, if any,
shall be paid by the person or entity making the appeal. In the event
that the Town Board requires payment of some or all of the costs or
fees to be imposed, the person or entity shall have the right to file
an appeal to the Supreme Court for the County of Orange pursuant to
Article 78 to challenge any such determination by the Town Board.
Where a person or entity objects to any payment by the filing of an
Article 78 proceeding, such amount shall remain in, but not be deducted
from escrow until such time as the Supreme Court for the County of
Orange makes a determination regarding the same, if such an Article
78 proceeding is brought by the person or entity regarding said costs.
In the event the escrow is insufficient to cover any disputed amount,
the applicant must replenish the escrow account with an amount sufficient
to cover the disputed expense (in addition to any other ongoing expenses)
until such dispute is resolved or otherwise determined by the Supreme
Court for the County of Orange. After any review by the Orange County
Supreme Court, the applicant or other entity shall have a right to
pursue an appeal to the Appellate Division, Second Department. Notwithstanding
the same, the amount determined to be due from the applicant by the
Orange County Supreme Court shall be deducted from escrow, or paid
by the applicant if the escrow is insufficient, unless a stay from
a court of competent jurisdiction is issued restraining the Town from
regarding making such payment.
Nothing herein shall diminish or eliminate the right of the
Town to obtain reimbursement of costs or expenses as provided for
in any other law, rule or regulation. Nothing herein shall prohibit
the Town and any applicant from entering into an agreement as to the
payment of professional fees where such application is unique or otherwise
different and where the amount of an escrow for payment of reasonable
costs may be difficult to ascertain. If the parties do not mutually
assent to a written agreement concerning such fees in said situation,
then provisions of this chapter shall control.