Agenda - Planning Commission - 08/07/2008

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..~.... June 25, 20081 Volume 21 No. 12 .J 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 Hop kinton, 945 A.2d 670 (N.H. 2008) NEW HAMPSHIRE (04/08/08)-Barry Upton owned a 21.1 acre par- cel on Branch Londonderry Turnpike (Turnpike) in the town. In August 2006, Upton applied to the toWn's planning board (the board) for sub- division approval. He proposed replacing the existing single-family resi- dence 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 flood.in,g three times in 2005 and three times in 2006. It was estimated that flooding would occur ap- proximately 500 feet from Upton's proposed development. The :fire de- partment voiced concern about responding to an emergency if the Turn- pike was closed. There was also concern about school bus access 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 subdivision with the condition that Upton bear one-third of the cost of installing a box culvert. Upton appealed the board's decision to the superior court. New Hampshire Revised Statutes Annotated S 674:21, V(a) provi~ed: "Upgrading of existing facilities and infrastru.ctures, 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 town as a condition of the approval of his proposed subdivision violated this statute, as well as an @ 2008 Thomson Reuters/West 7 31