2007-574, BARRY O. UPTON v. TOWN OF HOPKINTON

Cronin & Bisson, P.C.

No. 2007-574

Merrimack

Superior Court (Conboy DUGGAN, J. The petitioner, Barry O. Upton, appeals the order of the

Upton & Hatfield, LLP

portion of Branch Londonderry Turnpike (Turnpike). We affirm. of his subdivision plan upon his paying one-third of the cost to improve a (board) for the respondent, Town of Hopkinton (Town), to condition its approval

Serge THE SUPREME COURT OF NEW HAMPSHIRE on the brief, and Mr. Hilliard orally), for the respondent.

Cronin on the brief, and Mr. Cronin orally), for the petitioner.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as improve the Turnpike. The public works director stated that while he planned

p. 2 At the December hearing, the board considered what was needed to

perhaps by paying for a portion of the cost of improving the road. address “the issue of safety as a result of the condition of [the] . . . Turnpike,” Given this, a majority of the board believed that the petitioner needed to public funds for the supply of such services.” RSA 674:36, II (Supp. 2007). protection, or other public services, or necessitate the excessive expenditure of prosperity by reason of the lack of . . . . drainage, transportation, schools, fire subdivision . . . as would involve danger or injury to public health, safety or found that the application would result in a “scattered or premature would be on the outskirts of town, the board could deny the application if it proposed development would double the number of homes on the Turnpike and

At the November hearing, board members observed that because the

center Hopkinton or Contoocook.” may be along [the] . . . Turnpike heading generally northerly towards I-89 or to destinations of trips from the subdivision’s residents, . . . the majority of trips Hopkinton.” The commission observed that “based on the origins and eight to forty vehicle trips per day, which might “warrant road upgradings in opined that the petitioner’s development would result in an additional thirty- Additionally, the Central New Hampshire Regional Planning Commission

that this particular location “has one of the furthest response times.” Even when the Turnpike is not closed, the chief of the fire department noted residents must travel through Bow and Concord to access their properties. elevation and its location through a wetland.” When the Turnpike is closed, receive[s] 2-inches of rain the road needs to be closed temporarily due to its times in 2006. The public works director estimated that “anytime [the town] that the Turnpike had been closed for flooding three times in 2005 and three subdivision in the event that the Turnpike was closed. The board was informed Turnpike be closed. There was also concern about school bus access to the for instance, was concerned about responding to an emergency should the approximately 500 feet from the petitioner’s development. The fire department, . . . Turnpike be closed due to flooding.” The flooding was estimated to occur

Among the concerns raised was “access to the development should [the]

Concord, and the Central New Hampshire Regional Planning Commission. director and road committee, as well as from the Town of Bow, the City of comments from the Town’s consultant engineer, fire chief, public works 2006. In addition, the board took a site walk of the property, and reviewed application at public hearings in September, October, November and December property and creating four new residential lots. The board considered the approval. He proposed replacing the existing single-family residence on his In August 2006, the petitioner applied to the board for subdivision which we review de p. 3 The interpretation and application of statutes present questions of law,

Superior court review of planning board decisions is limited. Summa an identical provision. fees.” He contends that it also violated the Town’s ordinance, which contains for which is not created by new development, shall not be paid for by impact in pertinent part: “Upgrading of existing facilities and infrastructures, the need Imposing this condition, he asserts, violated RSA 674:21, V(a), which provides, 3 lawfully require him to pay one-third of the cost of improving the Turnpike. Turnpike was not “created” by his proposed development, the board could not The petitioner first argues that because the need to upgrade the novo. Babiarz v. Town of Grafton, 155 N.H. 757, 759

reasonably based. Summa Humma Enters. need of repair.” The trial court found to the contrary, and this appeal followed. contended, “the proposed project has no relationship to the area of the road in did not bear a rational nexus to his proposed subdivision. “In this case,” he improvement costs to developers,” but he asserted that the costs in this case that RSA 674:21, V gave the board the “authority to assess off-site violated RSA 674:21, V (Supp. 2007). In his petition, the petitioner conceded The petitioner appealed to the superior court, arguing that this condition

on appeal unless it is unsupported by the evidence or legally erroneous. Id. superior court’s decision is equally deferential. Id. We will uphold the decision

determine whether there is evidence upon which they could have been determine whether it agrees with the planning board’s findings, but to 151 N.H. at 79; see RSA 677:15. The review by the superior court is not to probabilities, the board’s decision was unreasonable. Summa Humma Enters., bears the burden of persuading the trial court that, by the balance of identified error of law. Id.; see RSA 677:15 (Supp. 2007). The appealing party reasonable and cannot set aside its decision absent unreasonableness or an must treat the factual findings of the planning board as prima facie lawful and Humma Enters. v. Town of Tilton, 151 N.H. 75, 79 (2004). The superior court

culvert. the condition that the petitioner bear one-third of the cost of installing a box higher priority.” Ultimately, the board voted to approve the subdivision with schedule “as there are other roads that are more heavily traveled that [are] of a informed the board that the Turnpike was not on the ten-year improvement culvert was between $250,000 and $300,000. The public works director Town’s consultant engineer concurred. The estimated cost of installing a box require the raising of the road along with the dredging of the brook.” The box culvert or bridge [was] needed to rectify the situation. The work would alleviate the flooding. The petitioner’s surveyor and engineer opined that “a to rebuild a culvert along the Turnpike, he did not believe that this alone would project. Loughlin, supra p. 4 amount of any exaction must bear a rational nexus to the needs created by the any portion of a development.” RSA 674:21, V(j). Like an impact fee, the needs determined by the planning board to be necessary for the occupancy of may require “developers to pay an exaction for the cost of off-site improvement Even if a municipality does not have an impact fee ordinance, however, it

landowner.” Id is necessitated by the development, and which is reasonably related to the ‘rational nexus’ to the needs created by the project being constructed by the Impact fees “can only be required to the extent that [they] bear[ ] a improvement costs not previously assessed against other developments, which the amount of an exaction “shall be a proportional share of municipal

145 N.H. 382, 386-87 (2000). residents.” 15 P. Loughlin, New Hampshire Practice, Land Use Planning and capital improvements necessitated by a development to the developer and new an impact fee ordinance may assess an impact fee. Simonsen v. Town of Derry, Impact fees “are charges assessed by a municipality to shift the cost for (decided before RSA 674:21 was enacted). Only a municipality that has passed nexus to the needs created by and special benefits conferred upon subdivision) subdivider could be compelled to bear that portion of cost that bore a rational Inc. v. Town of Plainfield, 117 N.H. 817, 823 (1977) (under common law, incorporates rational nexus test developed at common law); Land/Vest Props., capital improvements financed by the fee.” See id. § 17.05, at 227-28 (statute the development, and to the benefits accruing to the development from the improvement costs which is reasonably related to the capital needs created by amount of an impact fee must be “a proportional share of municipal capital

. § 17.04, at 225. Thus, RSA 674:21, V(a) provides that the

municipality, including . . . public road systems.” construction or improvement of capital facilities owned or operated by the . . . , in order to help meet the needs occasioned by that development for the imposed upon development, including subdivision [or] building construction process.” Id. RSA 674:21, V defines an impact fee as “a fee or assessment developer exactions traditionally made as part of the subdivision or site review Zoning § 17.01, at 221 (3d ed. 2000). They are “functionally the same as the

715, 719 (2007). Greenland, 151 N.H. 600, 605 (2004); see Feins v. Town of Wilmot, 154 N.H. same rules of construction apply to zoning ordinances. Fox v. Town of said or add language that the legislature did not see fit to include. Id. These the statute as written and will not consider what the legislature might have ordinary meaning to the words used. Id. We interpret legislative intent from whole. Id. When examining the language of a statute, we ascribe the plain and legislature’s intent as expressed in the words of the statute considered as a (2007). In matters of statutory interpretation, we are the final arbiters of the that the Turnpike be improved now. Zukis v. Town of Fitzwilliam p. 5 required” magnified the Turnpike’s existing hazard, and made it imperative

emergency vehicles would be unable to respond when their services were reasonably have determined that “[e]xposing more households to the risk that on the Turnpike made it necessary to upgrade it now. The board could board reasonably could have found that the addition of four more residences petitioner’s proposed development. Based upon the evidence before it, the the need for the improvements to the Turnpike was reasonably related to the In the instant case, the record supports the board’s determination that

improving the Turnpike. cost of improvements. See Town’s ordinance, to require the petitioner to pay a portion of the cost of may be permissible for a municipality to require the subdivider to bear the total hold that the board had the authority, under both RSA 674:21, V and the Where the improvements are required solely because of the development, it subdivision approval.” Id. (quotation and brackets omitted). Accordingly, we the Town’s ordinance allow the Town to assess an impact fee to help pay for it. consider current as well as anticipated realities when ruling on a request for upgrade is “reasonably related” to the new development, both the statute and petitioner submitted his subdivision application, “a planning board must “reasonably related” to the new development. As long as the need for the 384, 389 (1992). Although the Turnpike’s condition existed before the infrastructures applies only when the need for such upgrades is not, 135 N.H. against imposing impact fees to pay for upgrades to existing facilities and In context, the prohibition in RSA 674:21, V and the Town’s ordinance

rather in the context of the entire statute.” Appeal of Kaplan subdivision application. “We do not read words or phrases in isolation, but Turnpike because the need for improving the Turnpike predated his for the board to require him to pay a portion of the cost of improving the for a portion of the cost of the improvements. V, and its identical analog in the Town’s ordinance, argues that it was illegal development is the municipality prohibited from requiring the subdivider to pay The petitioner, focusing exclusively on a single sentence in RSA 674:21, the improvements bears no reasonable relationship to the proposed proportional share” of their cost. RSA 674:21, V(a). Only when the need for the development, the Town may only require the subdivider to bear “a (1975). Where, as here, the improvements are not required solely because of

construing isolated words and phrases). meaning of zoning ordinance from its construction as a whole, not by 299 (2006) (quotation omitted); see Feins, 154 N.H. at 719 (we determine

exaction.” benefits accruing to the development from the improvements financed by the p. 6 Affirmed Turnpike. petitioner’s subdivision upon his paying one-third of the cost to improve the not err when it upheld the board’s decision to condition its approval of the For all of the above reasons, therefore, we hold that the trial court did

BRODERICK, C.J.