2004-711, FRANK CAPARCO & a. v. TOWN OF DANVILLE; NORMA DROWNE & a. v. TOWN OF SANDOWN

Association, as amicus curiae. Nolan T. Koon, of Concord, by brief, for the New Hampshire Municipal

respondents. Loughlin and Mr. Eaton on the brief, and Mr. Loughlin orally), for the Peter J. Loughlin, of Portsmouth, and Robert G. Eaton, of Rye (Mr.

petitioners. and Sumner F. Kalma n on the brief, and Mr. Kalman orally), for the Sumner F. Kalman, Attorney at Law, P.C., of Plaistow (Thea S. Valvanis

No. 2004 - 711 R ockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the construction or improvement of capital facilities owned or order to help meet the needs occasioned by that development for subdivision, building construction or other land use change, in a fee or assessment imposed upon development, including

674: p. 2 21. Impact fees are defined as control methods, including impact fees. RSA 674:16 (Supp. 2004); RSA the community,” the legislature authorized towns to adopt innovative land use “For the purpose of prom oting the health, safety, or the general welfare of

ordinances involved. merits of the petitioners’ arguments, we first review the relevant statutes and Part I, Article p. 2 28 of the New Hampshire Constitution. Before addressing the They also argue that allo wing planning boards to adjust impact fees violates violation of the innovative land use controls statute, RSA 674:21 (Supp. 2004). because they permit planning boards to adjust impact fees periodically in T he petitioners argue that the ordinances usurp legislative authority

t his appeal followe d. adjust impact fees. The trial court ruled in favor of the respondent towns, and unlawfully delegated to the local planning boards the authority to periodically con solidated, seeking relief from the impact fee ordinances, arguing that they The petitioners filed separate equitable actions, which were later

Ordinance, art. XIV, app. A (Impact Fee Schedule). family detached” residence constructed. See Town of Danville Zoning required to pay a public school facility impact fee of $ p. 2 2,900 for each “single VIII(2)(C). For example, under the Danville ordinance, the petitioners are Zoning Ordinance, art. XIV(A); Town of Sandown Zoning Ordinance, art. proposed development. See RSA 674:21, I, V (Supp. 2004); Town of Danville building or improving public facilities, such as schools, to accommodate the development to reflect the costs that would be incurred by the towns in 1998, both towns enacted impact fee ordinances, which imposed fees upon new Danville, on which they s eek to construct numerous single family homes. In Realty Trust. They own property in the respondent towns of Sandown and Drowne, Gary Barnes & Sons, LLC, and Patricia Villella, Trustee, Montana Remodelers of New Hampshire, Norma Drowne, Richard Drowne, Dorothy Corporation, Mahogany Realty Enterprises, Inc., Home Builders and businesses and a trust; namely, Frank Caparco, Homeplate II, Inc., MDR The relevant facts are as follows. The petitioners are individuals,

the amount of impact fees charged. We affirm. respondent towns that grant authority to the local planni ng boards to adjust Court (Morrill, J.) upholding the impact fee ordinances adopted by the BRODERICK, C.J. The petitioners appeal a decision of the Superior p. 3 3

need is attributable to the pr oposed development. rational nexus to the proposed development, and for which the necessary to accommodate its impact on public facilities having a new development to contribute its proportionate share of funds

ordinance requires Town of Danville Zoning Ordinance, art. XIV(E)(1). Respon dent Sandown’s Schedules prepared and updated in accordance with [the Mayberry report].” “[t]he amount of each impact fee shall be as set forth in the Impact Fee District.” Town of Danville Zo ning Ordinance, art. XIV(B)(5). It requires that provide for partial funding of the capital costs of the [Timberlane School] of growth - related school facility costs to new residential development that will “represent s a reasonable, rational and proportional method for the assessment Respondent Danville’s ordinance states that the Mayberry methodology

their respective impact fee schedules. that the respondents adopted the Mayberry methodology when promulgating as “Mayberry report” or “Mayberry methodology”). The parties do not dispute financed by the fee” as required under RSA 674:21, V(a) (hereinafter referred to and to the benefits accruing to the development from the capital improvements which is reasonably related to the capital needs created by [new] development, that it represents “a proportional share of municipal capital improvement c osts identify and evaluate numerous factors for calculating an impact fee to ensure district. Mayberry issued a report providing a methodology that purports to methodology to calculate impact fee schedules for p ublic schools within the commissioned a planning consultant, Bruce C. Mayberry, to prepare a Both towns are part of the Timberlane Regional School District, which Th e respondent towns adopted impact fee ordinances at town meeting.

fee.” RSA 674:21, V(a). accruing to the development from the capital improvements financed by the related to the capital needs created by the development, and to the benefits prop ortional share of municipal capital improvement costs which is reasonably RSA 674:21, V(a) - (e). For example, the amount of the impact fee must “be a id. The imposition of impact fees, however, is restricted by statute. See, e.g., standards which shall guide the . . . board which administers the ordinance,” board,” RSA 674:21, II, and that the ordinance “shall contain within it the provides that it “may provide for [its] administration . . . by the planning RSA 674:21, V. Should a town adopt an impact fee ordinance, the statute

facilities. operated by the municipality, including . . . public school p. 4 4

constitute a “mathematical ‘formula’ where subs tituting different numerical because it incorporates a subjective standard of reasonableness and does not petitioners, the Mayberry methodology does not comply with RSA 67 p. 4 4:21, II, blanche to literally e stablish the amount of the ‘charges.’” According to the the ordinances as required by RSA 674:21, II, but give the boards “carte contain no standards to guide the planning boards in their administration of the amount of . . . impact fees.” They further contend that the ordinances “[t]here are no sections of [RSA 674:21] that allow planning boards to adjust We turn now to the petitioners’ statutory argument. They argue that

Town of Sandown Zoning Ordinance, art. VIII(VII)(D), (E).

projections to be reasonable and prudent. the next fiscal year(s), not to exceed six years. Such to such fees, as in paragraphs A, B and C of this section for 2. Projected increase of dwellings and excess bedrooms subject reasonable and prudent. exceed ten years. Such anticipated expenditures to be Facilities under Section XII for the next fiscal year (s), not to 1. Anticipated expenditures for improvements to Public Capital

and that the fee calculation shall be based upon: reviewed annually by the Planning Board and adjusted as deemed necessary,” provides, in part, that “[t]he amount of the fee charged shall b e calculated and Town of Danville Zoning Ordinance, art. XIV(L). The Sandown ordinance

schedule shall not be modified more frequently than annually. Board of Selectmen. The methodology and the impact fee Board noticed in accordance with RSA 675:7, and approved by th e have been the subject of a public hearing before the Planning in the impact fee schedules shall become effective until it shall construction cost information. No change in the methodology or most recent data as may be available including curren t recommended adjustments in one or more of the fees based on the within the [Mayberry report]. Such review may result in by the Planning Board, according to the methodologies established The Impact Fee Assessment Schedule shall be re viewed annually

similar but not identical. T he Danville ordinance provides: boards to periodically adjust the amount of the impact fee. The provisions are Bot h ordinances also contain provisions authorizing the local planning

is to be calculated. Town of Sandown Zoning Ordinance, art. VIII(VII)(B). schedule references the Mayberry method ology as the means by which the fee Town of Sandown Zoning Ordinance, art. VIII(2)(C). The ordinance’s impact fee p. 5 5

“administration” to purely ministerial acts, but incorporate the exerc ise of some Notably, these common definitions do not restrict “administer” and

International Dictionary, supra at 27. use, or conduct of . . . to mete out : DISPENSE.” Webster’s Third New includes “to manage the affairs of . . . to direct or superintend the execu tion, Black’s Law Dictionary 46 (8th ed. 2004). Further, the term “administer”

department and its agencies. the practical management and direction of the executive of a government, institution, or business. 2. In public law, 1. The management or performance of the executive duties

another source, “administration” includes: Webster’s Third New International Dictionary 28 (unabridged ed. 2002). Under

or aims of an organization. and rationalized techniques employed in achieving the obje ctives or political function of policy making . . . the principles, practices, management of public affairs as distinguished from the executive legislative, judicial and executive departments . . . the exercise of its political powers including the action of t he formula . . . a meting out . . . the total activity of a state in the a furnishing or tendering according to a prescribed rite or Common definitions of the term “administration” include:

fee charge. See In re Juvenile 2003 - 187, 1 p. 5 51 N.H. 14, 16 (2004). delegate to a planning board the authority to adjust the amount of an impact definitions for guidance, to determine whether the statute allows a town to in the statute. We look, there fore, to their common usage, using dictionary ordinance.” Id. The terms “administration” and “administers” are not defined the standards which shall guide the person or board which administers the board.” RSA 674:21, II. Such an ordinance, however, must “contain within it impact fee ordinance “may provide for administration . . . by the planning The innovative land use controls statute expressly provides that an

decision de novo. See Crowley v. Frazier, 147 N.H. 387, 389 (2001). interpretation of a statute is a question of law, we review the trial court’s ascribe the plain and ordinary meanings to the words used.” Id. Because the (2004). “We first examine the language of the statute, and, where possible, we words of the statute its elf. Sweeney v. Ragged Mt. Ski Area, 1 p. 5 51 N.H. 239, 241 We are the final arbiter of the intent of the legislature as expressed in the

with the application of the methodology.” quantities that reflect some change necessarily leads to a conclusion consistent p. 6 6

appeal was not granted, you would go to court. people have now, which would be an appeal process and if your SENATOR SHAHEEN: My assumption is the same recourse that

legislation. have, if they did not feel that it was a reasonable fee under this ones who determine the fee. What recourse would an individual impac t ordinance but in fact the planning board would be the SENATOR NELSON: The municipality would vote to have an

accountable to their local communities. town of Madbury and I feel like boards at a local level are very to say, by the way, that I happen to chair the zoning board in the zoning ordinances. It is the planning boards that do that. I have zoning board, right now, is not responsible for the implement of SENATOR SHAHEEN: That would be the planning board. The

zoning board be responsible for setting the fees ? municipality would adopt the impact fee ordinance, but would the SENATOR NELSON: [W]hat would happen would be this. The

impact fee ordinance, the following exchange occurred: dialogue between senators who were discussing the implementation of an (2003) (when statute ambiguou s, legislative history aids analysis). In a the legislative history is instructive. See State v. Whittey, 149 N.H. 4 p. 6 63, 467 To the extent the statute is ambiguous regarding the legislature’s intent,

in accord with RSA p. 6 6 p. 7 74:21. by statute, its exercise of some discreti onary authority in executing that task is sufficient standards to guide its periodic adjustment of impact fees as required conclude that so long as a town ordinance provides the planning board with terms of the o rdinance within circumscribed parameters. Accordingly, we exercise some measure of sound judgment and discretion to implement the administration includes an expectation that the administering entity will the statute’s requirement that an ordinance provide standards to guide its . . . .” Webster’s Third New International Dictionary, supra at 1009. Therefore, supervise [especially] toward some desirable end, course, way, or development added). The term “guide” includes “to regulate and manage . . . direct or person or board which administers th e ordinance.” RSA 674:21, II (emphasis that an ordinance “contain within it the standards which shall guide the numbers into a mathematical formula. In particular, the statute commands like a planning board, extends beyond purely ministerial acts such as inputting charged with the administration of an innovative land use controls ordinance, language within RSA 674:21, II itself implies that the authority of an entity circumscribed discretion or judgment to effectuate identified goals. Contextual 7

the planning boards without the consent of the people or authority derived the New Hampshire Constitution by permitting “charges” to be established by the impact fee ordinances of the respondent towns violate Part I, Article 28 of We next address the petitioners’ constitutional claim. They argue that

granted to towns in the enactment o f impact fee ordinances under RSA 6 p. 7 74:21. adjustment of the fees. Accordingly, the ordinances comport with the authority their respective planning boards in the administration of the periodic ordin ances that include methodology with circumscribed parameters to guide planning boards with guiding standards. The respondent towns enacted enact impact fee ordinances and provide for their administration by local In short, the innovative land use controls statute empowers towns to

requiring them to compile and assess the underlying data. they direct the boards to adjust the fees based upon certain factual variables, boards with unfettered discretion to adjust the amount of impact fees; rather, Ordi nance, art. VIII(VII)(E). Neither town ordinance provides the planning projected increase of dwellings and excess bedrooms. Town of Sandown Zoning anticipated expenditures for improvements to public capital facilities and the the planning board to base its fee adjustment calculation upon two key factors: implicitly imposes this requirement. Further, Sandown’s ordi nance requires utilize the Mayberry methodology, the petitioners accept that the ordinance Sandown’s ordinance does not expressly state that the planning board must impact fee schedule. Town of Da nville Zoning Ordinance, art. XIV(L). While approval of the board of selectmen before implementing any change in the board’s discretion by requiring that it conduct a public hearing and secure the planning board to follow the Mayberry methodology, and further limits the or construction costs per square foot.” Danville’s ordinance expressly compels factual variables to be periodically updated, such as “school replacement costs Ordinance, art. VII(B). The Mayberry methodology itself identifies eight specific Danville Zoning Ordinance, art. XIV, app. A; Town of Sando wn Zoning Mayberry methodology as the source for calculating those fees. Town of establish impact fees to be charged for each housing unit type and refer to the periodic adjustment of the amoun t of the impact fee charged. Both ordinances planning boards with standards in accordance with RSA 6 p. 7 74:21 to guide the We further conclude that the town ordinances provide the respective

required by RSA 6 p. 7 74:21. accordance with suf ficient standards identified within a town ordinance as a planning board may adjust the amount of the fee provided it does so in conclude that pursuant to its authority to administer an impact fee ordinance, ordinance, would determine the amount of the impact fee. Accordingly, we legislature’s expectation that a planning board, as the entity adminis tering the N.H.S. Jour. 1504 (1991) (emphasis added). This exchange demonstrates the p. 8 8

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

v. Blackmer, 149 N.H. 47, 49 (2003). decline to address it as insufficiently developed for appellate review. See State legislature improperly delegated to planning boards its power to enact laws, we To the extent the petitioners advance some distinct argument that the

fails. local planning boards. Accordingly, the petitioners’ constitutional argument of the respon dent towns have consented to the impact fees as adjusted by the constitute “charges” under Part I, Article 2 p. 8 8, the legislature and the residents implement such adjustment s. Therefore, even assuming that impact fees outlined in the ordinances and for their respective planning boards to respondent towns voted both to accept the method for ad justing impact fees administration of impact fee ordinances. At town meeting, the residents of the discretion, under proper standards, in adjusting impact fees in their authorized towns to delegate to planning board s the authority to exercise some derived from that body.” We have already concluded that the legislature consent of the people, or their representatives in the legislature, or authority estab lished, fixed, laid, or levied, under any pretext whatsoever, without the Constitution provides that: “No subsidy, charge, tax, impost, or duty, shall be from the legislature. Specifically, Part I, Article 28 of the New Hampshire