Agenda - Planning Commission - 03/03/2016

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Zoning Bulletin January 25, 2016 1 Volume 10 1 Issue 2 be paid to current property owners, the Developers lacked standing to pursue refunds. The appellate court, however, recognized that despite not having stand- ing to pursue a refund of surplus fees, the Developers were not limited to seeking a refund of surplus fees and could bring their counterclaims, alleg- ing improper assessment and expenditure of the impact fees. Under the counterclaims, the Developers asked the court to order the Town to return "all impact fees collected from new Development." Addressing the Developers' counterclaims of negligence, the appellate court found that they were properly dismissed by the superior court: Disagreeing with the Developers' contentions, the court found that RSA 674:21, V, did not designate the Town as an escrow agent to hold impact fees for the benefit of fee payors and did not impose upon the Town fidu- ciary duties owed to the Developers. The court explained that violations of the requirements of RSA 674:21, V,—requiring separate accounting and segregation of impact fees, and specifying that they can be used solely for the capital improvements for which they were collected— did not neces- sarily amount to a violation of fiduciary duty. "A fiduciary has a duty, cre- ated by his undertaking, to act primarily for another's benefit in matters connected with such undertaking," explained the court. Although RSA 674:21, V, imposed duties upon the Town, it did not impose them primarily for the Developers' benefit, said the court. Indeed, the court found that the statute did not require the Town to hold collected impact fees for the bene- fit of the original payors and return them to the payors if unspent. Rather, the statutory mandate to refund unspent fees could be satisfied by paying the funds to current property owners rather than to the original fee payors. The court also rejected the Developers' argument that the Town negligently breached the standard of care imposed by RSA 674:21, V, by arbitrarily establishing impact fee amounts which "failed to meet the express requirements of rational nexus, proportionality and special benefit to the fee payer." The court found that the Developers failed to identify a common law duty underlying the claim. The court said that "[a] municipal- ity does not assume a duty merely by virtue of having enacted regulations." And, here, the court found that with respect to the administration of the ordinance, the Developers had "articulated no common law duty owed to them by the Town, such that breach of that duty by the Town would entitle them to tort damages." In the absence of a common law duty, the court found that the Developers could not maintain their negligence action, even if the Town had actually violated a statutory duty. Accordingly, the appellate court concluded that the Developers failed to state a claim for negligence, and therefore affirmed the trial court's dis- missal of their counterclaims. The court remanded the matter back to the trial court. See also: K.L.N. Construction Company, Inc. v. Town of Pelham, 167 N.H. 180, 107A.3d 658 (2014). © 2016 Thomson Reuters 11