[HISTORY: Adopted by the Town Board of the Town of Poughkeepsie 2-15-2006 by L.L. No. 2-2006; amended in its entirety 12-16-2009 by L.L. No. 43-2009. Subsequent amendments noted where applicable.]
All applicants for special use permit approvals, site plan approvals, subdivision approvals, use or area variances, appeals of determinations, applications for a Zoning Map amendment, applications for a zoning text amendment, applications for permits to extract topsoil or natural resources, and applications for any other principal or ancillary land use or development permits or approvals required under the Town Code shall be responsible for payment of the actual cost to the Town to review said applications.
Where the Town Board, Planning Board or the Zoning Board of Appeals is engaged in the review of an application for land development under which permit(s) or approval(s) pursuant to the Town Code are required, said Board or Boards may, from time to time, use or call upon the services of Town employees and staff, and the services of consulting professional engineers, attorneys, planners, scientists, or other consultants for purposes of assisting said Board or Boards in the engineering, scientific, land planning, environmental, and legal review of the adequacy or substantive details of such applications, or issues raised during the course of review of such applications, or any other principal 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 any of such permits or approvals and any conditions thereof. In such case, 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 for the services of Town employees and staff, and for the cost of consulting professional engineers, attorneys, planners, scientists or other consultants and related costs.
The Town Board, Planning Board, or Zoning Board of Appeals, through or with the assistance of the Director of Development and Town Comptroller, may require advance periodic monetary deposits, to be held on account of the applicant or landowner by the Town of Poughkeepsie, to secure the reimbursement of the Town's consultant expenses. When required, an applicant shall deposit with the Town funds as follows:
Fees to be collected at the time of submission of an application for Town Board, Planning Board, or Zoning Board of Appeals approval. No application will be placed on an agenda, and no action will be taken to review or to approve or deny said application, until the required fee has been paid. The Director of Development is hereby authorized to increase or decrease the amount of the required review fee deposit based on his or her assessment of the potential actual cost of any required review:
Chapter 94, Environmental Quality Review.
Environmental impact statement review/preparation.
For the review or the preparation of the lead agency's actual costs expended for the preparation of a site-specific or a generic EIS and any related scoping prepared pursuant to section 6 NYCRR 617. The chargeback shall be as follows:
For residential projects, the total project value shall be calculated on the actual purchase price of the land or the fair market value of the land (determined by assessed valuation divided by equalization rate), whichever is higher, plus the cost of all required site improvements, not including the cost of buildings and structures, as determined with reference to a current cost data publication in common use. In the case of such projects, the fee charged by the lead agency shall not exceed 2% of the total project value.
For nonresidential construction projects, the total project value shall be calculated on the actual purchase price of the land or the fair market value of the land (determined by the assessed valuation divided by equalization rate), whichever is higher, plus the cost of supplying utility service to the project, the cost of site preparation and the cost of labor and material as determined with reference to a current cost data publication in common use. In the case of such projects, the fee charged shall not exceed 1/2 of 1% of the total project value.
For projects involving the extraction of minerals, the total project value shall be calculated on the cost of site preparation for mining. Site preparation cost means the cost of clearing and grubbing and removal of overburden for the entire area to be mined plus the cost of utility services and construction of access roads. Such costs shall be determined with reference to a current cost data publication in common use. The fee charged by the lead agency shall not exceed 1/2 of 1% of the total project value. For those costs to be incurred for phases occurring three or more years after issuance of a permit, the total project value shall be determined using a present value calculation.
Where an applicant chooses not to prepare a draft EIS, the lead agency shall provide the applicant with an estimate of the costs for preparing the draft EIS calculated on the total value of the project for which funding or approval is sought. In such case the applicant shall be responsible for all costs associated with the preparation of a draft and final EIS, including any associated scoping.
The Town may make payments from the deposited funds, for planning, engineering, legal and other review whether conducted by Town employees and staff or by consulting services. In the case of payment for consulting services, such payment shall only be made after audit and approval by the Comptroller or the Town Board of itemized vouchers for such services. In the case of the cost of review by Town employees and staff, funds may be drawn from the account established by the Comptroller after audit and approval by the Comptroller of the amounts so charged. The Town shall supply copies of vouchers and records of payments to the applicant, 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 the 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 Comptroller shall review and audit all vouchers and claims for payment and shall approve payment only of such employee, staff and consultant 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, appeals of determinations 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, planners, attorneys or other consultants to the Town for services performed in connection with similar applications, and, in this regard, the Town Comptroller 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 topography 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 considerations as the Town Comptroller may reasonably deem relevant. A fee for service which was rendered in order to protect or promote the health, safety, or other vital interests of the residents of the Town, protect public or private property from damage from uncontrolled surface water runoff and 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 and the avoidance of claims and liability, and such other interests as the Town Comptroller may deem relevant.
The owner(s) of the subject real property, if different from the applicant, shall be jointly and severally responsible for reimbursing the Town of Poughkeepsie 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, 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:
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 attorneys' fees expended by the Town in prosecuting such action.
Alternatively, and at the sole discretion of the Town, a default in 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 paid to the Town Comptroller, to 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 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 30 days after it is mailed.
Any applicant having received approval from any Town agency, board, or department for land development pursuant to chapters 97, 113, 116, 135, 173, 177, and 210 of the Town Code shall, as an express condition of any such approval, be responsible for the payment of fees to the Town to inspect the land development for compliance with the Town Code and with the approval, and to pay the cost of review and approval of field changes. The Director of Development is hereby authorized to increase or decrease the amount of the required inspection fee deposit based on his or her assessment of the potential actual cost of any required inspection:
Site plan postapproval inspection fee, initial deposit:
Subdivision postapproval inspection fee (minor subdivision), initial deposit: $1,000.
Subdivision postapproval inspection fee (major subdivision), initial deposit: $750 per lot.
Stormwater and erosion control postapproval inspection fee, initial deposit:
The Town Board, the Planning Board or the Zoning Board of Appeals, as applicable, shall not make any final determination in a matter pending before it until all applicable fees and reimbursable costs imposed by the permitting authority on the applicant under authority of this chapter have been paid to the Town Comptroller with reasonable written proof of such payment delivered to the Chairman, Secretary or Clerk of the permitting authority or the Town Comptroller, or an adequate escrow account exists to pay such fees and reimbursable costs.
Unexpended fees may be refunded to the applicant when the applicant formally withdraws the application from consideration by the permitting authority and all actual reimbursable fees and reimbursable costs incurred by the Town are first deducted from the escrow account leaving an unencumbered balance that is not required by the permitting authority to pay consulting costs or fees attributable to the application being withdrawn or being finally acted on.
The Town Comptroller shall set up escrow funds as part of a trust and agency fund item whereby consultant fees incurred by the Town pursuant to this chapter shall be audited and paid from such special fund and not the general fund. The Comptroller is empowered to delegate to the Planning Board Secretary, the Zoning Board Secretary, the Bookkeeper or the Town Clerk, the functions of having custody of escrow account records.
This chapter shall apply to all land use permit applications, requests for interpretation and appeals of determinations pending before the Town Board, Planning Board or Zoning Board of Appeals at the time when this chapter is filed with the Secretary of State. All fees incurred by the Town thereafter shall be paid as provided herein.