The people of the State of New York have, in the New York State Constitution, Article 9, § 2, delegated responsibility to local governmental units to adopt regulations designed to promote the public health, safety and general welfare of its citizenry, and the Legislature of the State of New York has granted to said local governments, in Municipal Home Rule Law § 10, Subdivision 1(ii)d(3), the authority to supersede general legislation for said purposes. Therefore, be it enacted by the Town Board of the Town of Lima, County of Livingston, State of New York, as follows.
[HISTORY: Adopted by the Town Board of the Town of Lima as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-21-1988 by L.L. No. 2-1988]
It is the purpose of this article to promote the public health, safety and general welfare and to provide for parks and recreational facilities for the current citizenry of the Town of Lima and for the increased demand for parks and recreational facilities caused and occasioned by an expanding population.
[Amended 11-6-1997 by L.L. No. 3-1997]
It is intended that any provision of this article shall specifically amend and supersede any provision of Article 16 of the Town Law and particularly § 277, Subdivision 4, of the Town Law, which is or may be inconsistent herewith, so as to extend the required parkland recreation fee requirement to all single-family dwellings and other residential units.
Unless specifically defined below, words or phrases used in this article shall be interpreted so as to give them the meanings they have in common usage and to give this article its most reasonable application.
The ministerial approval required to be obtained prior to commencement of construction of a structure pursuant to the laws and regulations of the Town of Lima.
[Amended 11-6-1997 by L.L. No. 3-1997]
A.
A recreation fee shall be charged each applicant for a building permit for construction of a new single-family detached dwelling, payable at the time of application, and a recreation fee shall be charged each applicant for a building permit for construction of a residential structure or structures of two or more units, including duplexes, apartments, townhouses or condominiums, and both fees shall be set from time to time by resolution of the Town Board.[1]
[1]
Editor's Note: The fee schedule is on file in the Town offices.
B.
The Town Board may, by resolution, amend and change from time to time the fees set forth herein.
The Planning Board shall have the discretion to waive the above fees or portions of them when approving a subdivision of multifamily development if, in the discretion of said Board, it determines that adequate provisions for on-site recreational facilities have been made by the subdivider or developer. In addition, the Planning Board shall have the discretion to waive the above fees or portions of them upon application to said Board by a subdivider or developer of real property not otherwise subject to the jurisdiction of said Board.
[Adopted 9-3-2019 by L.L. No. 3-2019[1]]
[1]
Editor's Note: This local law also repealed former Art. II, Professional Consultants, adopted 11-3-1988 by L.L. No. 3-1988, as amended.
This article shall be known as the "Professional Consultant Fees Reimbursement Policy of the Town of Lima."
A.
The Town Board hereby finds and determines that, in order to protect and safeguard the Town of Lima, its residents and their property with respect to land development and redevelopment within the Town, all buildings, structures, highways, drainage facilities, sanitary sewer facilities, water supply utilities, other utilities and parks should be designed and constructed in a competent and workmanlike manner and in conformity with all applicable accepted industry standards, governmental codes, rules and regulations and, where applicable, dedicated and conveyed to the Town in a legally sufficient manner.
B.
In order to assure the foregoing, it is essential for the Town to have competent engineers retained by the Town to review and approve plans and designs, make recommendations to the Town Board, Zoning Board of Appeals and Planning Board, inspect the construction of highways, drainage, sewer, other facilities and parks to be dedicated to the Town and to recommend their acceptance by the Town for dedication. It is likewise essential for the Town to have competent attorneys retained by the Town to negotiate and draft appropriate agreements with developers, obtain, review and approve necessary security instruments, insurance and other legal documents, review proposed deeds and easements to assure the Town is obtaining good and proper title and to generally represent the Town with respect to any issues relative to such development or redevelopment, including at the Town Board, Zoning Board of Appeals and Planning Board. The Town Board further determines that the cost of retaining such competent engineers and attorneys and other professional consultants should ultimately be paid by those who seek to profit from such development or redevelopment rather than from general Town funds which are raised by assessments paid by taxpayers of the Town.
C.
This article is enacted under the authority of New York State Municipal Home Rule Law § 10, Subdivision 1, Paragraphs (ii)a.(12) and d.(3), and New York State Municipal Home Rule Law § 22. To the extent Town Law§§ 274-a, 276 and 277 do not authorize the Town Board, Zoning Board of Appeals or Town Planning Board to require the reimbursement to the Town of legal and engineering and other professional expenses incurred by the Town in connection with the review and consideration of any of the applications for the permits or approvals described herein, 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 Town Law §§ 274-a, 276 and 277 and any other provision of the New York State Town Law or General Municipal Law to empower the Town to require such payment as a condition to such approvals.
As used in this article, the following terms shall have the meanings indicated:
Any person, firm, partnership, association, corporation, company, limited liability company or entity or organization of any kind that applies for a permit or approval for any of the following:
Acceptance by the Town Board for the dedication of sidewalks, highways, public rights-of-way, drainage facilities, parks or utilities.
Planning Board review or approval of site plans, subdivisions, special use permits or special permits pursuant to relevant provisions of the Code of the Town of Lima.
Zoning Board of Appeals approval of variances or special use permits under relevant provisions of the Code of the Town of Lima.
Rezoning of real property in the Town by the Town Board.
A certificate of occupancy from the Code Enforcement Officer in connection with a development or redevelopment within the Town.
Any other application that shall require, at the discretion of the relevant Board, the review of an attorney or an engineer or other professional consultant retained by the Town.
The formal request by an applicant or developer, as those terms are defined herein, for any permit or approval by the Town Board, Planning Board, Zoning Board of Appeals or Code Enforcement Officer for the items set forth hereinabove in Subsections A through G of the definition of "applicant" in this section, along with the preparation of any and all plans and submittals submitted in connection therewith, including but not limited to any required review under the New York State Environmental Quality Review Act (SEQRA) or any other New York State or federal guidelines or requirements.
Any person, firm, partnership, association, corporation, company, limited liability company or entity or organization of any kind, whether or not an applicant, as defined hereinabove, that constructs or proposes to construct one or more highways, drainage facilities, utilities or parks within or in conjunction with a development and to convey or dedicate the same to the Town.
Includes a subdivision, site plan, special use permit, special permit or variance for which approval is required under the Code of the Town of Lima and any construction of buildings, structures, drainage facilities, highways, parks or utilities to be undertaken in connection with any of the foregoing.
All surface water drainage facilities, including but not limited to catch basins, detention and retention ponds or basins, storm sewers or other forms of water conveyance facilities and their appurtenances, drainage swales and ditches, and any easements through or over which said facilities may be constructed or installed in or in connection with a development.
Includes a street, avenue, road, square, place, parking area, alley, lane, boulevard, concourse, parkway, driveway, overpass and underpass, or other form of public right-of-way for motor vehicle travel, and also includes all items appurtenant thereto, including but not limited to bridges, culverts, ditches, shoulders and sidewalks in or in connection with a development.
An area of land located within a development which is open to the public and devoted to active or passive recreation, which may include dedicated open space.
The Town of Lima, the Town Planning Board, Assessor, Zoning Board of Appeals, Code Enforcement Officer or Town Board.
All water, sanitary sewer, gas, electric, telephone, cellular, cable television facilities, fiber optic, wind energy systems or solar energy systems and any easements through or over which said facilities may be constructed or installed in or in connection with a development.
A.
The applicant, for approval of any items set forth hereinabove in Subsections A through G of the definition of "applicant" in § 112-9, shall reimburse the Town for all reasonable and necessary engineering, legal, other professional consulting fees and reasonable expenses incurred by the Town in connection with the review and consideration of the application for such approval.
B.
A developer who constructs or proposes to construct one or more highways, drainage facilities, utilities, parks, communications towers, antennas or accessory communications structures within or in conjunction with any development in the Town shall reimburse the Town for all reasonable and necessary legal, engineering, other professional consulting fees and other expenses (which shall also include the costs of any necessary studies with regard to the same) incurred by the Town in connection with the inspection and acceptance by the Town of such highways, drainage facilities, utilities, parks, communications towers, antennas or accessory communications structures and the dedication of same to the Town, where applicable.
C.
Notwithstanding anything to the contrary contained in this article, an applicant shall reimburse the Town for all reasonable costs of publication(s) relating to the application.
Notwithstanding anything to the contrary contained in this article, an applicant or developer shall not be required to reimburse the Town for any part of a legal, engineering, other professional consulting fees or other expenses incurred by the Town for services performed in connection with legal action by a third party as to which the Town Board determines that the applicant and/or developer had no responsibility or which such legal action was beyond the reasonable control of the applicant or developer.
A.
Except as otherwise provided herein, simultaneously with the filing of an application as defined herein, and prior to the commencement of any review of such application and prior to the construction of buildings, highways, drainage facilities, utilities or parks therein, the applicant or developer, as the case may be, shall deposit with the Town Clerk a sum of money in furtherance of § 112-10 of this article, which such sum may be determined from time to time by the Town Board or on a case-by-case basis upon the recommendation of the Town Engineer or Attorney and which such sum of money shall be used to pay the costs incurred by the Town for engineering and legal services and the services of other professional consultants as described in § 112-8 of this article.
B.
The applicant shall pay all engineering fees associated with an application for subdivision approval as follows:
(1)
For concept approval: together with the application for preliminary subdivision approval or within 90 days of disposition of the application for concept approval, whichever is sooner.
(2)
For preliminary subdivision approval: together with the application for final subdivision approval or within 90 days of the disposition of the application for preliminary subdivision approval, whichever is sooner.
(3)
For final subdivision approval: prior to signature of the final subdivision plot by the Chairman of the Planning Board or within 90 days of the disposition of the application for final subdivision approval, whichever is sooner.
C.
Payment of all engineering and legal fees and the fees of other professionals associated with an application for zoning variance or other relief from the Zoning Board of Appeals or the Planning Board (other than subdivision) shall be a condition of such application and/or approval and shall be charged to and paid by the applicant prior to the final filing of the resolution granting the relief sought or within 90 days of final disposition of the application, whichever is sooner. Failure of the applicant to reimburse the Town for such fees as required hereby shall result in revocation of the conditioned variance approval granted by the Zoning Board of Appeals.
D.
Payment of all engineering and legal fees and the fees of other professional consultants associated with an application for a building permit shall be a condition of such application and/or approval and shall be charged to and paid by the applicant prior to the issuance of any certificate of occupancy or within 90 days of final disposition of the application, whichever is sooner.
E.
Payment for engineering and legal costs and the costs of other professional consultants associated with inspection and sign-off on all improvements secured by a letter of credit shall be secured by said letter of credit by provision of additional security in the sum of 4% of the proposed improvement, secured for the Town's engineering and legal costs and the costs of other professional consultants, and 4% to secure the services of applicant's engineer for site inspection purposes. This security shall not serve as a limit upon the obligation of the applicant for the entire cost of the Town's engineering and legal costs and the costs of other professionals, which shall be fully payable, with or without recourse to the letter of credit, within 30 days of the inspection or sign-off, whichever is sooner.
F.
Upon receipt of such sums, the Town Supervisor shall cause such moneys 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 moneys so deposited and the name of the applicant or developer and project for which such sums were deposited.
G.
Upon receipt and approval by the Town Board of itemized vouchers from an engineer and/or attorney and other professional consultants for services rendered on behalf of the Town pertaining to the application or development, the Town Supervisor shall cause such vouchers to be paid out of the moneys so deposited and shall furnish copies of such vouchers to the applicant or developer at the same time such vouchers are submitted to the Town.
H.
The Town Board shall review and audit all such vouchers and shall approve payment of only such engineering, legal fees and other professional consultant fees as are reasonable and necessarily incurred by the Town in connection with the review, consideration and approval of any application for development and the inspection of all construction and acceptance of highways, drainage facilities, utilities and parks within or in conjunction with such development. For purpose of the foregoing, a fee or part thereof is reasonable in amount if it bears a reasonable relationship to the average charge by engineers or attorneys or other professional consultants to the Town for services performed in connection with the approval or construction of a similar development. In this regard, the Town Board may take into consideration the duration of the review process, changes to any submitted plans and/or specifications, the size, type and number of buildings, structures or facilities to be constructed; the amount of time to complete the development; the topography of the land on which such development is located; soil conditions; surface water; drainage conditions; the nature and extent of highways, drainage facilities, utilities and parks to be constructed; and any special conditions or considerations that the Town Board may deem relevant. A fee or part thereof is necessarily incurred if it is was charged by the engineer or attorney or other professional consultant for a service which was rendered in order to protect or promote the health, safety, welfare, community character, compliance with the Comprehensive Plan or other vital interests of the residents of the Town or to protect public or private property from damage from uncontrolled surface water runoff and other factors and to assure the proper and timely construction of highway, drainage facilities, utilities and parks and protect the legal interest of the Town, including receipt by the Town of good and proper title to dedicated highways and other facilities and the avoidance of claims and liability, and such other interests as the Town Board may deem relevant.
I.
If at any time during or after the processing of such application or in the construction, inspection or acceptance of buildings, highways, drainage facilities, utilities or parks there shall be insufficient moneys on hand to the credit of such applicant or developer to pay the approved vouchers in full, or if it shall reasonably appear to the Town Supervisor that such moneys will be insufficient to meet vouchers yet to be submitted, the Town Supervisor shall cause the applicant or developer to deposit additional sums as the Supervisor deems necessary or advisable in order to meet such expenses or anticipated expenses.
J.
In the event that the applicant or developer fails to deposit such funds or such additional funds, the Town Supervisor shall notify, as applicable, the Chairman of the Planning Board, Town Board, Zoning Board of Appeals and/or the Town's Code Enforcement Officer of such failure, and any review, approval, building permit or certificates of occupancy may be withheld by the appropriate Board, officer or employee of the Town until such moneys are deposited.
K.
The issuance of a final certificate of occupancy or certificate of compliance shall not occur unless and until all fees incurred hereunder have been paid in full.
L.
After final approval, acceptance and/or the issuance of a certificate of occupancy or certificate of compliance relating to any specific development, and after payment of all approved vouchers submitted regarding such development, any sums remaining on account to the credit of such applicant or developer shall be returned to such applicant or developer, along with a statement of the vouchers so paid.
Unless otherwise provided herein, the amount of the initial deposit for the various developments covered by this article shall be set forth in a schedule of deposits established from time to time by resolution of the Town Board or, in the event of an unusual or particularly sophisticated application, on a case-by-case basis upon the recommendation of the Town Engineer or Attorney. Said schedule shall remain in effect and shall apply to all applicants and developers until amended or revised by subsequent resolution.
The deposits required by this article shall be in addition to any application fees as may be required by other laws, rules, regulations, or ordinances of the Town and shall only be used to offset the specific expenses of the Town in connection with the application for development and shall not be used to offset the Town's general expenses for legal and engineering services and other professional consultant services for the several boards of the Town, nor its general administration expenses.
The provisions of this article shall be effective regarding engineering and legal fees and other professional consultant fees incurred from this date forward on pending applications, after due notice to all pending applicants.
All resolutions or decisions disposing of municipal approval applications shall address the fees imposed in this article; provided, however, that the failure to do so does not constitute a waiver of the Town's right to charge and collect said fees or relieve the applicant from the obligation to pay said fees.
Upon proper application to the Town Board, the Board may, in its sole discretion, upon good cause shown, waive any or all of said fees, which waiver shall be effective only by resolution duly adopted by the Board.