Agenda - Planning Commission - 08/07/2008

Home

Zoning Bulletin identical provision in the town's zoning ordinance. 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. 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 proposed subdivision. . The court acknowledged the language in New Hampshire Revised Statutes Annotated 5 674:21, V(a) and the town's ordinance that Up- ton had cited. Upton had argued that language prohibited municipali- ties from imposing impact fees to pay for needed upgrades that were not created by new development. The court disagreed with Upton's interpre- tation. 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 5 674:21, V(j) allowed municipalities to require "devel- opers to pay an exaction for the cost of off-site improvement needs de- termined ... to be necessary for ... a development." Section 674:21, V(j) further provided that the amount of an exaction should, be a "propor- tional share of municipal improvement costs ... reasonably related to the. benefits accruing to the development 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 "reasonably related" to the new development. The. court said that as long as the need for the upgrade was "reasonably related" tothe new development, 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 de- velopment, the town could require the subdivider to bear a proportional share of their cost. Only where the need for improvements bore no rea- sonable 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 anticipated re- alities. Although the Turnpike's condition existed prior to Upton's sub- division 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, expos- ing more households to the risk that emergency vehicles would be unable 8 @ 2008 Thomson Reuters/West 32 ~_.-. I I I 1 I I I