2009-158, Michael Clare, Trustee of Horizon Realty Trust v. Town of Hudson

The plaintiff, Michael Clare, appeals a decision of the

orally), for the defendant. Hage Hodes, P.A., of Manchester (Stephen C. Buckley on the brief and

David M. Groff, of Pelham, on the brief and orally, for the plaintiff. to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. MICHAEL CLARE, TRUSTEE OF HORIZON REALTY TRUST

No. 2009-158 editorial errors in order that corrections may be made before the opinion goes Hillsborough-southern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the relocation of a utility pole. p. 2 general area.” The timing of the Bush Hill Road improvements was subject to

Any remaining funds will be used for some paving and resurfacing in that

with the description: 2007, showed a deduction of $89,153.95 from the Bush Hill Road account, Paving Project.” The purchase order to Brox Industries, also dated July 17,

from the developer of Thurston’s West, a requirement of the planning process. financing for these improvements, the selectmen noted: “Funding is available that area, so they can elevate that by approximately ½-1 foot.” As to the

third-party delays in the utility work.

Hill Road, that “[t]he Highway Department is going to be grinding and repaving

that the Town’s Engineering Division execute a purchase order “for the Bush from the Bush Hill Road account, “which was paid by the Thurstons [ vehicle speed on Bush Hill Road.” Sommers noted that funding was available BUSH HILL ROAD PAVEMENT COMPLE [sic] 2005 but postponed to 2006, would be completed in the spring of 2007 due to BUSH HILL ROAD IMPROVEMENTS. THURSTONS [sic] LANDING WEST BOND selectmen noted, in connection with the proposal to raise the section of Bush

An email sent by Road Agent Kevin Burns on July 17, 2007, requested

in the northerly direction looking from Flying Rock Road without increasing the

intersection.” The letter explained that the project, originally scheduled for that the bond was “being used to complete improvements to the subject area” and slightly raising Bush Hill Road at its lowest section. The board of performance bond. The Town responded, by letter dated November 15, 2006, the improvements. 2005. The improvements included smoothing down a “knob in the right of way At some point in 2006, Clare inquired about the status of his unanimously approved the proposed improvements at a meeting on March 22,

improvements to address “a less than adequate sight distance most specifically

drill tests on Bush Hill Road to determine the subsurface materials needed for paid ABB-Kin & Sons, Inc. $1,500 from the Bush Hill Road account to conduct had grown to $86,910 due to accrued interest. The board of selectmen Town account (the Bush Hill Road account). On February 7, 2005, the Town Landing developer and specifically marked for this improvement,” and which

On March 4, 2005, Town Engineer Tom Sommers proposed certain

Trust paid the Town $81,705, which was used to create and fund a separate intersection with Flying Rock Road. On September 8, 2000, Horizon Realty declined to review the appeal.

p. 3 zoning board of adjustment. Both the department and the zoning board

scheduled for planning board review. Clare’s counsel again wrote to the Town Planner requesting that the matter be

response to the Hudson Community Development Department and to the expenditure of my client’s money.” Clare appealed the Town’s August 24, 2007 improvements to the Bush Hill Road/Flying Rock Road intersection,” and that Unfortunately, you did not provide me with any accounting of the Town’s

return to him any bond funds and accrued interest. On August 23, 2007,

application, he asserted that “[t]he Town did not perform the proposed including the recent paving done by Brox Industries in July, 2007.

requested that the planning board review the matter at its next meeting and include impact fees).

account was dated August 8, 2007. release of his performance bond. In a memorandum in support of his 2007] indicates that the bond funds were spent on general road maintenance,

used for improvements to the intersection for which they were allocated.” Clare adjustment); RSA 674:21, I(m) (Supp. 2009) (“innovative land use controls” repaved Bush Hill Road. It does not appear that any of my client’s funds were have now passed since my client posted this bond. The Town has recently

from the Bush Hill Road account. The check exhausting the Bush Hill Road On October 1, 2007, Clare formally applied to the planning board for binder. Of the $251,686.55 paid by the Town for the work, $89,153.95 came disagreement with the Town’s position, writing, “Your letter [of August 24, $55,014.06 for reclaiming and grading, and $196,672.49 for placement of

to construct road improvements to Bush Hill Road.” innovative land use controls may not be appealed to the zoning board of

By letter dated August 27, 2007, Clare’s counsel expressed his indicated that the cost for the Bush Hill Road paving work consisted of

Town of Hudson contracted with Brox Industries in the amount [of] $89,153.95 2005 ABB-Kin drill tests, with the remainder spent in July 2007, when “the status of the performance bond posted “for improvements to the Flying Rock funds had been encumbered in February 2005, and were spent in part for the The Town responded by letter dated August 24, 2007, reporting that the

the same location on July 12, 13, and 16, 2007. Brox Industries’ paperwork July 5 and July 12, 2007, and the second reporting, “PLACED ¾” Binder” at graded” on Bush Hill Road as part of the town-wide paving project between

In a letter dated August 6, 2007, Clare’s attorney inquired about the

reporting, “Reclaimed and grade[d] 33,1 p. 4 41 Square Yards of pavement & fine This payment was supported by two field reports from Brox Industries, one 4 Road/Flying Rock Road intersection.

needs occasioned by that development for the construction or

requirements. RSA 67 p. 4 4:21, V provides:

bond. rather than the sight distance improvement project at the Bush Hill fund was spent to underwrite the Town’s annual road maintenance work, improvement for which it was collected. Specifically, he asserts that the bond construction or other land use change, in order to help meet the imposed upon development, including subdivision, building As used in this section “impact fee” means a fee or assessment erroneous.”

reasonably based.” We therefore address Clare’s arguments regarding impact fee accounting

waived his argument as to the timeliness of the Town’s action to encumber his from the date it was paid, as required by RSA 67 p. 4 4:21, V(e).” He has therefore encumbered for the purpose for which it had been collected within six years V(c) and (e) by expending the bond fund for a purpose other than the capital We note first that Clare concedes in his brief that his “bond fund was

Wilmot, 15 p. 4 4 N.H. 715, 717 (2007) (quotations omitted). probabilities that the board’s decision was unreasonable.” Feins v. Town of board’s decision in an order dated February 2, 2009. decision on appeal unless it is unsupported by the evidence or legally of law was committed or must persuade the trial court by the balance of

determine whether there is evidence upon which they could have been determine whether it agrees with the planning board’s findings, but to 159 N.H. at 226 (citation omitted). “The review by the superior court is not to decision absent unreasonableness or an identified error of law.” Ferson-Lake, planning board as prima facie lawful and reasonable and cannot set aside its limited. The superior court is obligated to treat the factual findings of the order the return of his bond fund, arguing that the Town violated RSA 67 p. 4 4:21, 75, 79 (2004). “Superior court review of planning board decisions is equally (citations omitted); see also Summa Humma Enters. v. Town of Tilton, 151 N.H.

Ferson-Lake, LLC v. City of Nashua, 159 N.H. 52 p. 4 4, 526 (2009)

provisions of the zoning ordinance. The superior court upheld the planning “Our review of the trial court’s decision is deferential. We will uphold its properly encumbered and properly spent in accordance with the relevant the planning board voted to deny his application, finding that the bond was

On appeal, Clare contends that the superior court erred in declining to

that it was posted, as required by RSA 67 p. 4 4:21(IV)(e).” On October 10, 2007, his “bond was not used for its intended purpose within 6 years from the date been used solely for the capital improvement for which it had been collected.” development, shall not be paid for by impact fees. p. 5 planning board reasonably concluded that [Clare’s] performance bond had

payment occurred August 8, 2007. the payment, however, where the paving work took place in July 2007 and the

he argues, he is entitled to return of his bond fund.

infrastructures, the need for which is not created by new Bush Hill Road, specifically by reclaiming and paving it, and, therefore, “the financed by the fee. Upgrading of existing facilities and accruing to the development from the capital improvements

the Town. We cannot say that the trial court acted unreasonably in upholding

and infrastructures”; that is, upgrading the surface of Bush Hill Road. Thus,

used for its specified purpose. He asserts that the fund was used for town- Second, Clare disputes the trial court’s finding that the bond fund was

supported the planning board’s finding that the bond fund was used to improve the capital needs created by the development, and to the benefits

his fund and approximately seven years after he had deposited the fund with Industries, which occurred two days after he reiterated his request for return of for which it was collected,” but rather for the “[u]pgrading of existing facilities he questions the timing of the Town’s payment of the impact fee fund to Brox Clare contests the trial court’s findings in two principal respects. First,

the needs which the fee was collected to meet. recoup the cost of capital improvements made in anticipation of

The trial court concluded otherwise, finding that the certified record municipal capital improvement costs which is reasonably related to

Clare asserts that his bond fund was not used for the “capital improvements

solely for the capital improvements for which it was collected, or to

The amount of any [impact] fee shall be a proportional share of provides: provides: The limitations on impact fees are set forth in RSA 674:21, V(a), which

upon order of the municipal governing body, . . . and shall be used segregated from the municipality’s general fund, may be spent Any impact fee shall be accounted for separately, shall be

RSA 674:21, V(c), the provision upon which Clare principally relies, further

municipality, including . . . public road systems and rights-of-way. improvement of capital facilities owned or operated by the exhaustion of the bond fund, indicates that the Town paid Brox Industries only

p. 6 documentation, produced after the filing of Clare’s lawsuit and after the Town’s

and equipment costs expended in the road repaving. Thus, the Town’s own “included with the intent of this project,” a cost exclusive of the Town’s labor additional 1,700 feet of Bush Hill Road, which the Town considered to be

that $53,997.05 was paid to Brox Industries for reclaiming and repaving an our analysis, we consider it.

Hill Road and twenty-five feet of Flying Rock Road. The letter further indicates before the trial court for its consideration, and both parties deem it relevant to to reclaim, fine grade, compact and pave a section limited to 650 feet of Bush Bush Hill Road account in 2005); and a payment to Brox Industries of $21,440

appendices to their briefs on appeal. In view of the fact that the document was to expand the record, both parties have included the document in the ABB-Kin and Sons for test drilling (presumably the amount paid out of the neither party appeals the trial court’s initial denial of the parties’ joint request

gravel; the cost of painting traffic lines in the intersection; a $1,500 payment to appendix to the Town’s request for findings of fact and rulings of law. Although amount includes: labor costs; equipment costs; paving materials, such as the Town’s cost for work at the intersection itself was $62,585.54. This

include this document, but subsequently acknowledged its submission as an initially denied the parties’ joint motion to expand the certified record to May 1, 2008. It reports total expenditures in excess of $116,582.59. Of this, the Flying Rock Road intersection improvement project.” The trial court

costs related to the subject improvements, is marked “REVISED” and dated breakdown of the Highway Department’s cost related to the Bush Hill Road and

The document, a letter from Burns to Town counsel detailing the Town’s and submitted to the trial court outside of the certified record, in a “detailed

estimated cost of an additional $100,000.

The unknown costs cited in this memorandum were subsequently calculated fund after the subject work had been completed. it,” and that it would be nonsensical to require the Town to refund Clare’s bond had been collected, despite the Town’s “admittedly not correctly accounting for of finish pavement that will [be] completed in July 2008 at an and site [sic] distance improvements. Nor does it include the cost house labor, equipment and material cost for the road realignment only the money paid to Brox. It does not cover [the Town’s] in This price [including the $89,153.95 from the bond fund] so far is

from Kevin Burns, the Town’s Road Agent, to the Town’s counsel, explaining: The certified record contains a memorandum dated October 3, 2007,

ultimately received the sight distance improvement for which his impact fee wide road improvements. The Town argued before the trial court that Clare conclusions. p. 7 evaluate whether there was evidence to support the planning board’s for the specific project for which they had been paid to the Town,” but rather to

the relevant work amounts to $13,716.90.

novo conclusion on whether the collected impact exaction funds had been used

ordinary meaning to the words used.” whole. When examining the language of a statute, we ascribe the plain and the sum the Town paid out of the bond fund and the amount Brox earned for fit to include.” consider what the legislature might have said nor add words that it did not see review the Planning Board’s Certified Records with an eye towards making a de

or object to accomplish.” out of the dictionary; but to remember that statutes always have some purpose

ordinances. Upton, 157 N.H. at 119. legislature’s intent as expressed in the words of the statute considered as a 771 (2002) (citation omitted). These same rules of construction apply to zoning Hill Road and its intersection with Flying Rock Road. The difference between Monahan-Fortin Properties v. Town of Hudson, 148 N.H. 769, actually attributable to Brox Industries’ work on the relevant portion of Bush which we review Industries. The Town’s own records, however, reflect that only $75,437.05 was will not examine legislative history. In construing a statute, we will neither benefit. On appeal, the Town argues that “[i]t was not the trial [c]ourt’s job to (quotations omitted). “Unless we find statutory language to be ambiguous, we far more than $13,716.90 to complete the necessary improvements, to Clare’s Simonsen v. Town of Derry, 145 N.H. 382, 386 (2000) should not result in a windfall for him. The Town explained that it expended surest indexes of a mature and developed jurisprudence not to make a fortress we first look to the plain meaning of words to interpret statutes, it is one of the

(2008). “In matters of statutory interpretation, we are the final arbiters of the

de novo.” Upton v. Town of Hopkinton, 157 N.H. 115, 118

“The interpretation and application of statutes present questions of law, amount remaining in the account, $89,153.95, was transferred to Brox that the Town complied with the statutory accounting requirements. presented requires us to assess whether the record supports the conclusion benefit for which the bond fund was required, the Town’s improper accounting planning board’s factual findings. See RSA 677:15. Here, however, the issue The Town cites the correct legal standard for the trial court’s review of a

including deposits of interest, up until August 2007. At that time, the entire

Before the trial court, the Town argued that, since Clare had received the

The Town maintained accurate records of the petitioner’s account,

portion of Bush Hill Road. a total of $75,437.05 for work at the subject intersection and along the relevant return of $75,437.05.

p. 8 upholding the planning board to the extent that Clare is not entitled to the of Bush Hill Road. We accordingly affirm the decision of the trial court regrading to lower a knob in the right of way and to elevate the lowest portion

plans themselves described significant paving-related modifications, including

improvements funded by the use of the bond fund. Moreover, the approved proposed sight distance improvement plans, that paving would be among the collected.” The board of selectmen determined in 2005, when they adopted the

properly included within “capital improvements for which [the bond fund] was

the trial court and the planning board that the reclamation and paving work is planning board, which were affirmed by the trial court. Further, we agree with distance improvements occurred was rebutted by the factual findings of the

the work for which the impact fee was collected.

Hill Road and Flying Rock Road. We note that Clare’s assertion that no sight

account to Brox Industries, when only $75,437.05 was actually attributable to 8 Town was not authorized to pay the full $89,153.95 from the Bush Hill Road fungible. In view of these explicit statutory requirements, we conclude that the

in fact, attributable to Brox Industries’ work on the relevant portions of Bush

which they were collected.

This provision makes clear that the impact fee funds and Town funds are not

repayment of the entire fund to Clare. The record reflects that $75,437.05 was,

not entitled to collect and expend impact fees for purposes other than those for occasioned by the development, the legislature has established that towns are that the impact fee not be used for construction or improvements not 32 relative to limitation and expenditure of town moneys.” RSA 674:21, V(c). the municipal governing body, [and] shall be exempt from all provisions of RSA segregated from the municipality’s general fund, may be spent upon order of

The Town’s handling of the bond fund, however, does not require

By imposing this requirement, as well as the requirement in RSA 674:21, V(a)

for impact fees: “Any impact fee shall be accounted for separately, shall be Moreover, the legislature has mandated specific bookkeeping procedures

developer’s impact fees). between municipal improvements and the proportional cost to be borne by the

shall be used solely for the capital improvements for which it was collected.” for separately, shall be segregated from the municipality’s general fund . . . and at 386-87. RSA 674:21, V(c) requires that “[a]ny impact fee shall be accounted process, see RSA 674:21, V(f), and a waiver process, see RSA 674:21, V(g).” Id. and collecting such fees, see RSA 674:21, V(d), and provides for both an appeal and uses of such fees, see RSA 674:21, V(a), specifies procedures for assessing Simonsen, 145 N.H. at 386. “For example, the statute regulates the amount comprehensively regulates the municipality’s implementation of such fees.” “While [RSA 674:21] authorizes municipalities to impose impact fees, it p. 9 9

for further proceedings consistent with this opinion.

was spent for the purpose for which it was collected. Accordingly, we remand which the planning board could have found that this portion of the bond fund adequate accounting, required by statute, there was no reasonable basis upon

BRODERICK, C.J., and DUGGAN and HICKS, JJ., concurred.

15 p. 9 9 N.H. at 526.

Brox Industries, we reverse the trial court’s decision. Given the lack of As to the remaining $13,716. p. 9 90 of the bond fund that the Town paid to