Requestor: Bruce W. Musacchio, Esq., Town Attorney Town of Otto P.O. Box 230 Gowanda, New York 14070
Written by: Patrick Barnett-Mulligan, Assistant Attorney General
You have asked whether a town may impose a surcharge to a building permit fee when the applicant has already begun building the structure.
Your letter notes that in the past the Town of Otto has received applications for building permits after work on the project has begun. The late application can result in added expense and effort on the part of the town's code enforcement officer, who is now required to inspect a building that is partially complete.
Your question is whether the town can impose a surcharge — in addition to the normal building permit fee — to reflect the extra expense incurred by the code enforcement officer in instances where the use is permitted under the town's land use regulations and a building permit could otherwise have been issued pursuant to a timely application.
We assume that issuance of a building permit under these circumstances will cause no prejudice to the municipality and note that failure to obtain the permit in a timely fashion remains punishable under local regulations.
It is well established that a local government, as part of its regulatory authority, may impose fees for the payment of the expenses of a regulatory program. City of Buffalo v Stevenson, 207 N.Y. 258 (1913); Town Law §§ 130, 272; 1983 Op Atty Gen (Inf) 97; 1982 Op Atty Gen (Inf) 151. Furthermore, the amount of fees charged by the town should reflect what is reasonably necessary to undertake the regulatory review.Jewish Reconstructionist Synagogue of the North Shore, Inc. v Inc.Village of Roslyn Harbor, 40 N.Y.2d 158 (1976); 1983 Op Atty Gen (Inf) 97.
Section 130 of the Town Law authorizes the town to impose permit fees for any of the permits and licenses issued by the town, including building permits:
"In order to accomplish the regulation and control of such purposes, the town board may include in any such ordinance, rule or regulation provision for the issuance and revocation of a permit or permits, for the appointment of any town officers or employees to enforce such ordinance, rule or regulation and/or the terms and conditions of any permit issued thereunder, and for the collection of any reasonable uniform fee in connection therewith." Town Law § 130.
It follows that if the town incurs extra costs as a result of inspecting a building where construction has already begun, the Town Law authorizes the imposition of an additional charge, as long as the charge reasonably reflects the additional expenses incurred by the town as a result of the late application for the building permit.
We conclude that a town may charge an additional fee for the issuance of a building permit after construction has begun.
The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.