Agenda - Planning Commission - 07/10/2008

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June 10, 2008\ Volume 2 I No. 11 : Fee Assessment-Town conditions approval of subdivision on developer's payment of one- third of cost of road improvements '. Developer argues condition is illegal because the need for road improvements predated the subdivision Citation: Upton v. Town of Hopkinton, 2008 WL 942633 (N.H. 2008) NEW HAMJ>SfIIRE (04/08/08)-Barry Upton owned a 21.1 acre parcel on Branch Londonderry Turnpike (Turnpike) in the town. In August 2006, Upton applied to the town's planning board (the board) for subdivision approval. He proposed replacing the existing single- family residence on his property and creating four new residential lots. At the time of Upton's application, there were five single-family resi- dences along the Turnpike, including Upton's. Also, the Turnpike in the area of Upton's parcel was a gravel road surrounded by wetlands. During the board's consideration of Upton's application, concerns were raised about the issue of safety as a result of the condition of the Turnpike. The Turnpike had been closed for flooding three times in 2005 and three times in 2006. It was estimated that flooding would oc- cur approximately 500 feet from Upton's proposed development. The fire. department voiced concern about responding to an emergency if the Tun:lpike was closed. There was also concern about school bus ac- cess to the proposed subdivision in the event the Turnpike was closed. The public works director informed the Board that a box culvert or bridge was needed to rectify the flooding situation on the Turn- pike. The installation of a box culvert was estimated to cost betWeen $250,000 and $300,000. Ultimately, the board voted to approve Upton's proposed subdivi- sion with the condition that Upton bear one-third of the cost of in- stalling a box culvert. Upt~m appealed the board's decision to the superior court. New Hampshire Revised Statutes Annotated S 674:21, V(a) pro- vided: "Upgrading of existing facilities and infrastructures, the need for which is not created by new development, shall not be paid for by impact fees." Upton argued the fee imposed on him by the tovvn as a condition of the approval of his proposed subdivision violated this statute, as well as an identical provision in the town's zoning or- dinance. He said the fee was illegal because the need to upgrade the Turnpike was not created by his proposed project. The trial court found to the contrary and for the town. 7 67