Agenda - Planning Commission - 07/10/2008

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Zoning Bulletin Upton appealed. DECISION: Affirmed. The court concluded that the town could condition approval of Upton's proposed subdivision on his payment of one-third of the cost , to improve the Turnpike. The court said this was because the need for improvements to the Turnpike was reasonably related to the pro- posed subdivision. The court acknowledged the language in New Hampshire Revised Statutes Annotated ~ 674:21, V(a) and the town's ordinance that Up- ton had cited. Upton had argued that language prohibited municipal- ities from imposing impact fees to pay for needed upgrades that were not created by new development. The court disagreed with Upton's interpretation. The court said that the words in the statute could not be read in isolation, but had to be read in the context of the entire statute. The court noted that ~ 674:21, V(j) allowed municipalities to require "developers to pay an exaction for the cost of off-site im- provement needs determined . . . to be necessary for . . . a develop- ment." Section 674:21, V(j) further provided that the amount of an exaction should be a "proportional share of municipal improvement costs . . . reasonably related to the benefits accruing to the develop- ment from improvements financed by the exaction." Thus, the court found, in the context of the entire statute, the prohibition cited by Upton applied only when the need for such upgrades was not "rea- sonably related" to the new development. The court said that as long as the need for the upgrade was "reasonably related" to the new de- velopment, both the statute and the town's ordinance allowed the town to assess an impact fee to help pay for it. The court further found that where the improvements were not required solely because of the development, the town could require the subdivider to bear a proportional share of their cost. Only where the need for improve- ments bore no reasonable relationship to the proposed development was the municipality prohibited from requiring the subdivider to pay for a portion of the cost of the improvements. The court found that the need for improvements to the Turnpike was reasonably related to Upton's proposed development. The court said it was proper for the board to consider current as well as an- ticipated realities. Although the Turnpike's condition existed prior to Upton's subdivision application, it was reasonable for the board to conclude that the subdivision would make improvements necessary. The addition of four more residences on the Turnpike made upgrades necessary. Also, exposing more households to the risk that emergency 8 68