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HomeMy WebLinkAboutLL 03 of 2016 Escrow Fees for PDZ Rezoning TOWN OF ITHACA LOCAL LAW NO. 3 OF THE YEAR 2016 A LOCAL LAW AMENDING TOWN OF ITHACA CODE CHAPTER 153,TITLED "FEES,"TO ADD ESCROW FEE PROCEDURES AND TO REQUIRE ESCROW FEES FOR APPLICATIONS TO REZONE TO PLANNED DEVELOPMENT ZONE Be it enacted by the Town Board of the Town of Ithaca as follows: Section 1. Chapter 153 (Fees) of the Town of Ithaca Code, Section 153-2 (Zoning, subdivision, SEQRA, Zoning Board of Appeals, and development application fees), subsection B (Application fees and public hearing fees), paragraph 11 is amended by adding the title "Rezoning applications" to paragraph 11, labeling the current language in paragraph 11 as subparagraph a, and adding a new subparagraph b reading as follows: "In addition to the other fees in this paragraph 11, when the application is for rezoning to a Planned Development Zone pursuant to Article XXI of Town Code Chapter 270, Zoning, the applicant shall also submit with the initial application an escrow fee as set forth in the Fee Schedule to cover reasonable and necessary attorney fees and attorney expenses incurred by the Town related to creation of the Planned Development Zone. Such attorney fees and expenses include those associated with the drafting and review of the local law to rezone the parcel(s) to Planned Development Zone, and attorney meetings with Town officials (including the Town Board Planning Committee), staff and/or the applicant to discuss the potential Planned Development Zone." Section 2. Chapter 153 (Fees) of the Town of Ithaca Code, Section 153-2 (Zoning, subdivision, SEQRA, Zoning Board of Appeals, and development application fees), is amended by adding a new subsection D reading as follows: "D. Escrow fees procedures. (1) The Town shall place escrow fees paid pursuant to Town Code requirements into a trust and agency account to fund the expenses incurred by the Town as described in the various Town Code provisions that require escrow fees. The Town shall keep a record of the name of the applicant and proposed project and of all such monies deposited and withdrawn. (2) Where consultant fees by attorneys, engineers or other professionals are to be paid out of escrow fees, the consultants shall submit monthly itemized bills to the Town reasonably setting forth the services performed and expenses incurred, and the amounts charged for such services and expenses. Adopted March 7, 2016 1 (3) Where Town employee costs are to be paid out of escrow fees, the Town shall prepare monthly itemized bills reasonably setting forth the employee services performed, the costs of such services, and expenses incurred. (4) Town staff shall transmit copies of said itemized consultant and/or Town bills to the applicant, together with a notice notifying the applicant that the failure to object, within 15 days of the sending of said notice, to payment of the charges out of the escrow fees shall constitute an agreement by the applicant that the charges are reasonable in amount and necessary in connection with the application. Notwithstanding any other provisions of this subsection D, in no event shall the total amount of the portion of all bills attributable to SEQRA-related fees (as described in subsection C above) exceed the amounts allowed to be charged by 6 NYCRR § 617.13. (5) An applicant's objection to payment of a bill or part thereof out of the escrow fees must be received by the Town Clerk within 15 days of the sending of the notice described in paragraph 4 above. The objection must state the specific services and amounts that are objected to, and the reasons why they are not reasonable in amount and necessary in connection with the application. (6) The following process shall apply to all objections except those associated with SEQRA-related fees. Within 45 days of the Town Clerk's receipt of a timely objection, the Town Board will review and audit the contested bill pursuant to New York Town Law §§ 118 and 119, consider the objection, and prepare a written response to the applicant setting forth reasons why the applicant's claims are valid or invalid. The written response shall include a determination of whether the fees, costs and expenses are reasonable in amount and necessarily incurred by the Town in connection with the application, and whether the amount to be paid out of the escrow fees should be adjusted downward. The Town Clerk will notify the applicant in writing of the Town Board's written decision within 5 days of the decision. Payment of the amount approved by the Town Board shall be made out of the escrow fees. (7) The following process shall apply to objections to SEQRA-related fees. Within 15 days of the Town Clerk's receipt of a timely objection, the Town Supervisor will review the contested bill, consider the objection, and prepare a written response to the applicant setting forth reasons why the applicant's claims are valid or invalid. The written response shall include a determination of whether the fees, costs and expenses are Adopted March 7, 2016 2 reasonable in amount and necessarily incurred by the Town, and whether the amount to be paid out of the escrow fees should be adjusted downward. The Town Clerk will notify the applicant in writing of the Town Supervisor's written decision within 5 days of the decision. The Town Board will audit the bill (which shall reflect any downward adjustments made by the Town Supervisor) pursuant to New York Town Law §§ 118 and 119, and payment of the amount approved by the Town Board shall be made out of the escrow fees. The appeal procedure for SEQRA-related fees shall not interfere with or cause delay in the environmental impact statement process or prohibit an action on the application from being undertaken. (8) For the purposes of this subsection D, a consultant's fee or expense or part thereof is reasonable in amount if it bears a reasonable relationship to the customary fee or expense charged by consultants in the relevant field within the region for services performed on behalf of municipalities in connection with the type of application at issue. The Town Board (or Town Supervisor, for SEQRA-related fee objections) may also take into account any special conditions or circumstances that the Town Board or Town Supervisor may deem relevant. An attorney's fee or expense is necessarily incurred if it was charged by the attorney for a service associated with the application for rezoning which was rendered in order to assure or assist in compliance with, or to draft, laws, regulations, standards or codes which govern land use and development; to assure or assist in the orderly development of a land use or development; to assure the proper and timely construction of public improvements, parks and other facilities which affect the public welfare; to protect the legal interests of the Town; to avoid claims against and liability of the Town; or to promote such other interests that the Town Board may specify as relevant. (9) If the Town Clerk does not receive a timely objection to a bill, the Town Board shall review and audit the bill pursuant to New York Town Law §§ 118 and 119 and shall authorize payment of the approved amount, which payment shall be made out of the escrow fees. (10) A positive escrow fee balance must be maintained as follows: (a) for applications for rezoning to a Planned Development Zone, until the local law accomplishing the rezoning becomes effective and all associated legal bills have been paid; (b) for all other types of applications, until the relevant board grants final approval and all associated bills have been paid; and Adopted March 7, 2016 3 (c) for applications where the Town is charging for SEQRA-related fees, the portion of the escrow fee balance attributable to SEQRA- related fees must remain positive until the lead agency accepts the final environmental impact statement as complete and all associated bills have been paid. (11) The Town will notify the applicant if the escrow fees are depleted or are reasonably expected to be depleted within a month, in which case the following shall apply: (a) For applications for rezoning to a Planned Development Zone, the Town Board's review of and actions related to the proposed rezoning local law will stop until the escrow fee is replenished in a reasonable amount as determined by the Town Board based on the Town's experience with legal work necessary to assist it with applications for a rezoning to a Planned Development Zone; (b) For all other applications, the applicant shall promptly replenish the escrow fee in a reasonable amount as determined by the Town official or board that has power to require payment or specify the amount of an escrow fee, or if no official or board is so identified in the Town Code, by the Town Planner. Where allowed by law, the relevant official or board will stop its review of and actions related to the application until the escrow fee is replenished. (12) All fees remaining in the trust and agency account related to a proposed Planned Development Zone rezoning project shall be returned to the applicant within 15 days after: (a) the rezoning local law is effective, or after the Town Board makes a final determination to deny the rezoning application, and all associated legal bills have been paid; or (b) the applicant notifies the Town Board in writing that it is withdrawing its request for rezoning to a Planned Development Zone, and all legal bills associated with its request have been paid. (13) Except for SEQRA-related fees, all fees remaining in the trust and agency account related to all other types of applications shall be returned to the applicant within 15 days after: (a) the relevant board grants final approval of, or denies, the Adopted March 7, 2016 4 application, and all associated bills have been paid; or (b) the applicant notifies the relevant board in writing that it is withdrawing its application, and all associated bills have been paid. (14) For applications where the Town is charging for SEQRA-related fees, the portion of the escrow fee balance attributable to SEQRA-related fees shall be returned to the applicant within 15 days after the lead agency accepts the final environmental impact statement as complete, and all associated bills have been paid." Section 3. Partial Invalidity. In the event that any portion of this law is declared invalid by a court of competent jurisdiction, the validity of the remaining portions shall not be affected by such declaration of invalidity. Section 4. Effective Date. This local law shall take effect immediately upon its filing with the New York Secretary of State. Adopted March 7, 2016 5