Wilson Town City Zoning Code
ARTICLE XII
Development Fee for Engineers and Attorneys
[Added 3-21-2007 by L.L. No. 4-2007]
§ 127-68 Legislative findings, intent and purpose.
The Town Board hereby finds and determines that in order to protect and safeguard the Town of Wilson, 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 ensure 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 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 ensure the Town is obtaining good and proper title and to generally represent the Town with respect to any issues involving such development, and that the cost of retaining such competent engineers and attorneys 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 or Town Planning Board to require the reimbursement to the Town of legal and engineering expenses incurred by the Town in connection with the review and consideration of any of the applications for the p 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.
§ 127-69 Definitions.
As used in this article, the following terms shall have the meaning indicated:
APPLICANT
Any person, firm, partnership, association, corporation, company, limited liability or entity or organization of any kind that applies for a permit or approval for any of the following:
A.
Acceptance by the Town Board for the dedication of sidewalks, highways, public rights-of-way, drainage facilities, parks or utilities.
B.
Planning Board approval of site plans, special use permits or special permits pursuant to § 127-52 of the Town Code, and any other similar provisions.
C.
Zoning Board of Appeals approval of variances under §§ 127-46 and 127-47 of the Town Code, and any other similar provisions.
D.
Rezoning of real property in the Town by the Town Board.
E.
The establishment of any improvement district in the Town, pursuant to Articles 12, 12A or 12C of the New York State Town Law.
F.
A certificate of occupancy from the Zoning/Code Enforcement Officer in connection with a development within the Town.
APPLICATION
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 Zoning/Code Enforcement Officer for the items set forth hereinabove in Subsections A through F 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).
DEVELOPER
Any person, firm, partnership, association, corporation, company, limited liability 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.
DEVELOPMENT
Includes a subdivision, site plan, special use permit, special permit or variance for which approval is required under Chapter 127 of the Town Code and any construction of buildings, structures, drainage facilities, highways, parks, or utilities to be undertaken in connection with any of the foregoing.
DRAINAGE FACILITY
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.
HIGHWAY
Includes a street, avenue, road, square, place, 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.
PARK
An area of land located within a development which is open to the public and devoted to active or passive recreation.
TOWN
The Town of Wilson, the Town Planning Board, Zoning Board of Appeals, Zoning/Code Enforcement Officer or Town Board.
UTILITIES
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.
§ 127-70 Reimbursement of fees and expenses.
A.
The applicant, for approval of any items set forth hereinabove at Subsections A through F of the definition of "applicant" in § 127-69, shall reimburse the Town for all reasonable and necessary engineering and legal 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 or parks within or in conjunction with any development in the Town shall reimburse the Town for all reasonable and necessary legal and engineering expenses incurred by the Town in connection with the inspection and acceptance by the Town of such highways, drainage facilities, utilities and parks and the dedication of same to the Town.
§ 127-71 Exceptions.
A.
The following developments are hereby excepted from the application of this article:
(1)
Any development of land of one acre or less abutting an existing public highway.
(2)
Any subdivision of land into no more than two lots abutting an existing public highway.
B.
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 or engineering 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.
§ 127-72 Deposit and payment of fees.
A.
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 Supervisor a sum of money, as determined in § 127-73 of this article, which sum shall be used to pay the costs incurred by the Town for engineering and legal services as described in § 127-70 of this article.
B.
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.
C.
Upon receipt and approval by the Town Board of itemized vouchers from an engineer and/or attorney 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.
D.
The Town Board shall review and audit all such vouchers and shall approve payment of only such engineering and legal 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 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 was charged by the engineer or attorney 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 ensure the facilities, utilities and parks and 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 Board may deem relevant.
E.
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 monies 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.
F.
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 Zoning/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 monies are deposited.
G.
The issuance of a final certificate of occupancy shall not occur unless and until all fees incurred hereunder have been paid in full.
H.
After final approval, acceptance and/or the issuance of a certificate of occupancy 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.
§ 127-73 Deposit amounts.
The amount of the initial deposit for the various developments covered by this article shall be as 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.
§ 127-74 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 or development and shall not be used to offset the Town's general expenses of legal and engineering services for the several Boards of the Town nor its general administration expenses.