Avon City Zoning Code
ARTICLE XIII
Development Fee Structure for Engineers, Attorneys and Other Professionals
§ 130-65 Legislative findings; intent and purpose; statutory authority.
The Town Board hereby finds and determines that, in order to protect and safeguard the Town of Avon, its residents and their property with respect to land development within the Town, all buildings, structures, highways, drainage facilities, sanitary sewer facilities, water supply utilities, other utilities and parks within any such development should be designed and constructed in a competent and workmanlike manner and in conformity with all applicable governmental codes, rules and regulations and, where applicable, dedicated and conveyed to the Town in a legally sufficient manner; that 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, and 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; and that the cost of retaining such competent engineers and attorneys and other professional should ultimately be paid by those who seek to profit from such developments rather than from general Town funds which are raised by assessments generally paid by taxpayers of the Town. 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 hereinafter, 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.
§ 130-66 Definitions.
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, special use permits, conditional use permits or special permits pursuant to relevant provisions of the Code of the Town of Avon.
Zoning Board of Appeals approval of variances, special use permits under relevant provisions of the Code of the Town of Avon.
Rezoning of real property in the Town by the Town Board.
The establishment of any improvement district in the Town, pursuant to Article 12, 12-A or 12-C of the New York State Town Law.
A certificate of occupancy from the Code Enforcement Officer in connection with a development within the Town.
Any other application that shall require the review of an attorney or an engineer or other professional 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).
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 same to the Town.
Includes a subdivision, site plan, special use permit, conditional use permit, special permit or variance for which approval is required under the Code of the Town of Avon 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 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, 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.
The Town of Avon, the Town Planning Board, Assessor, Zoning Board of Appeals, Code Enforcement Officer or Town Board.
All water, sanitary sewer, gas, electric, telephone, cable television facilities and any easements through or over which said facilities may be constructed or installed in or in connection with a development.
§ 130-67 Reimbursement of fees and expenses.
A.
The applicant, for approval of any items set forth hereinabove in Subsections A through G of the definition of "applicant" in § 130-66, shall reimburse the Town for all reasonable and necessary engineering, legal and other 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 and other expenses 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, as that term is defined in this article, shall reimburse the Town for all reasonable and necessary costs of publication.
§ 130-68 Exceptions.
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 or other reasonable fee incurred by the Town for services performed in connection with matters resulting from complaints or legal action by third parties as to which the Town Board determines that the applicant or developer had no responsibility or was beyond the reasonable control of the applicant or developer.
§ 130-69 Deposit and payment of fees.
A.
Except as otherwise provided herein, simultaneously with the filing of an application as defined herein, and prior to the commencement of any 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, as determined in § 130-67 of this article, which such sum shall be used to pay the costs incurred by the Town for engineering and legal services and the services of other professionals as described in § 130-65 of this article.
[Amended 9-8-2005 by L.L. No. 3-2005]
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.
D.
Payment of all engineering and legal fees and the fees of other professionals 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 professionals 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 professionals, 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 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 and legal fees and other professional 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 professionals 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 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 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 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.
§ 130-70 Deposit amounts.
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. Said schedule shall remain in effect and shall apply to all applicants and developers until amended or revised by subsequent resolution.
§ 130-71 Application fees.
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 services for the several boards of the Town, nor its general administration expenses.
§ 130-72 Applicability to pending applications.
The provisions of this chapter shall be effective regarding engineering and legal fees and other professional fees incurred from this date forward on pending applications, after due notice to all pending applicants.
§ 130-73 Municipal approval to address fees.
All resolutions or decisions disposing of municipal approval applications shall address the fees imposed in this chapter; 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.
§ 130-74 Waiver of fees by Town Board.
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.