2013-0374, K.L.N. Construction Company, Inc. & a. v. Town of Pelham

Gagnon Sr. (collectively, the petitioners), appeal an order of the Superior Court Cormier & Saurman, LLC, and Brian Soucy, and the intervenor, Gerald BASSETT, J. The p etitioner s, K.L.N. Construction Company, Inc.,

the brief and orally), for the respondent. Donahue, Tucker & Ciandella, PLLC, of Exeter (Katherine B. Miller on

brief), for the intervenor. Beaumont & Campbell, P.A., of Salem (Bernard H. Campbell on the joint

petitioner s. Daniel D. Muller, Jr. on the joint brief, and Mr. Cronin orally), for the Cronin, Bisson & Zalinsky, P.C., of Manchester (John G. Cronin and

K.L.N. CONSTRUCTION COMPANY, INC. & a.

No. 2013 - 374 Hillsborough - southern judicial district

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, Concor d, 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 p. 2 22 as 2

impact fees for feasibility studies and to pay for architectural drawings and In its answer, the Town denied the petitioners ’ claim that using the

selling its properties. he was entitled to a refund of impact fees that the corporation had paid prior to arguing that, as successor - in - interest to Woodview Development Corporation, a refund. A short time later, Gerald Gag n on, Sr. intervened in the matter, to lawfully use the impact fees within six years, the petitioners were entitled to and the Town ordinance. It further alleged that, because the Town had failed construction activity violated both the impact fee statute, RSA 674: p. 2 21, V(e), petition sought a declaration that the Town’s expenditure of the funds for pre the refund of impact fees that they had paid more than six years earlier. The seeking a decla ra tory judgment and writ of mandamus. The petitioners sought In March 2012, the petitioners filed an action in the superior court

article for the construction of the fire station. construct the fire station. I n March p. 2 2012, the voters approved a warrant the Town turned down proposals to appropriate the additional funds needed to to the fire station. On several occasions b etween 2006 and 2010, the voters in feasi bility studies, architectural drawings, and construction estimates relating some of the impact fees paid by the developers, including the petitioners, on costs was to be borne by the Town. Between 2002 and 2010, the Town spent fund the construction of a new fire station. The balance of the construction properties to individual homeowners. The Town imposed the se fees to partially impact fees to the Town. After paying the fees, the petitioners sold the certain residential real estate developers, including the petitioners, to pay Subsequent to the enactm ent of the 1999 ordinance, the Town required

for Public Facilities Ordinance § K(1) ( p. 2 2006). Fee Ordinance § 1002.00(a) (1999), superseded by Pelham, N.H., Impact Fee s refund of such fees, together with any accrued interest.” Pelham, N.H., Impact property on which impact fees have been paid may apply for a full or partial otherwise encumbered the impact fees within six years, “[t]he current owners of development. The ordinance also provided that, if the Town had not spent or development in order to pa y for capital improvements necessitated by the (amended 2012). The ordinance allowed the Town to assess fees on new impact fee ordinance pursuant to RSA 674: 16 (2008) and RSA 674:21, V (2008) The record establishes the following facts. In 1999, the Town adopted an

affirm. that the petitioner s had no standing to seek the return of the impact fees. We owner s to seek a refund of unencumbered impact fees. The trial court ruled Town ’s statutory authority to adopt an ordinance that allows current property of Pelham (Town). In its order, the trial court ruled that it was within the mandamus seeking the return of impact fees paid to the respondent, the Town (Nicolosi, J.) dismissing their petition for declaratory judgment and writ of p. 3 3

“This enables us to better discern the legislature’s intent and to interpret statutes in the context of the overall statutory scheme and not in isolation.” Id. acco rding to its plain and ordinary meaning.” Id. “Furthermore, we interpret the language of the statute itself, and, if possible, construe that language statute considered as a whole.” Id. “In interpreting a statute, we first look to the final arbiter of the intent of the legislature as expressed in the words of a EnergyNorth Natural Gas v. City of Concord, 164 N.H. 14, 16 (2012). “We are statute. “Statutory interpretation is a question of law that we review de novo.” Deciding the issue before us requires that we interpret the impact fee

established by the legislature. court correctly ruled that the Town ordinance falls within the parameters impact fees to the current property owners. The Town counters that the trial “refund” as used in RSA 674:21, V(e) to allow payment of the une ncumbered On appeal, the petitioners argue that the trial court erred in interpreting

dispute, we review the trial court’s determination on standing de novo.” Id. of standing is such a defense.” Id. at 607. “Since the relevant facts are not in (quotation and brackets omitted). “A jurisdictional challenge based upon lack petitioner s have sufficiently demo nstrated their right to claim relief.” Id. unsubstantiated allegations and determine, based on the facts, whether the certain defenses, the trial court must look beyond the petitioner s ’ not challenge th e sufficiency of the petitioner s ’ legal claim but, instead, raises them most favorably to the petitioner s.” Id. “When the motion to dismiss does court would normally accept all facts pled by the petitioner s as true, construing Dep’t of Educ., 162 N.H. 604, 606 (2011). “To make this determination, the sufficient to state a basis upon which relief may be granted.” Avery v. N.H. to determine whether the allegati ons contained in the petitioner s ’ pleadings are “Generally, in ruling upon a motion to dismiss, the trial court is required

seek a refund and granted the Town’s motion to dismiss. This appeal followed. court ruled that, under the ordinance, the petitioners did not have standing to that the fees b e returned to the entity that paid them. Accordingly, t he trial reasoning that the term “refun d” as used in RSA 674:21, V(e) did not require property owners. The court concluded that the ordinance was not ultra vires, not prevent municipalities from choosing to direct refunds to the current The trial court agreed with the Town. It found that RSA 674:21, V(e) did

an ordinance directing refunds to be paid to the current property own er s. the ground that the Town lacked the authority under RSA 67 p. 4 4:21, V(e) to enact refund of the impact fees. T he petitioners objected to the motion to dismiss on been develope d, the Town argued that the petitioners lacked standing to seek a impact fees. Because the petitioners no longer own the properties w hich had under the ordinance, only a current property owner is entitled to a refund of ordinance. The Town also filed a motion to dism iss. The Town argued that, construction estimates was contrary to the impact fee statute and Town 4

entity. returned to the entity that paid them, or whether they may be paid to another 67 p. 4 4:21, V(e) explicitly address whether the unencumbered impact fees must be statute. See generally RSA ch. 674 (2008 & Supp. 2013). Nor does RSA RSA 674:21, V(e) (e mphase s added). The term “refund” is not defined in the

reasonable hereunder shall be 6 years. reasonable time. The maximum time which shall be considered municipality’ s share of the capital improvement costs wit hin a be made upon the failure of the legislative body to appropriate the improvement costs being borne by the municipality, a refund shall o f an impact fee has been predicated upon some portion of capital be refunded, with any accrued interest. Whenever the calculation bound to be spent for the purpose for which it was collected shall impact fee which has not become encumbered or otherwise legally shall establish reasonable times after which any portion of an

ordinance: The statutory provision at issue here states that a municipal impact fee

omitted). residents.” Upton v. Town of Hopkinton, 157 N.H. 115, 119 (2008) (quotation improvements neces sitated by a development to the developer and new 67 p. 4 4:21, V, thereby enabling “a municipality to shift the cost for capital development for the construction or improvement of c apital facilities,” RSA imposed upon development “in order to help meet the needs occasioned by [a] enabling statute. S ee RSA 674:21, I(m) (2008). Impa ct fees are assessments among the types of innovative land use controls specifically identified in the adopt innovative land use controls under RSA 674:16, II. Impact fees are The Town enacted the ordinance at i ssue pursuant to its authority to

delegated authority. Id. (quotation omitted). will be held invalid . . . as an ultra vires enactment” beyond the scope of the ordinance “for considerations or purposes not embodied in an enabling act, it municipality’s zoning power under RSA 67 p. 4 4:16, I). If a t own enacts an Manchester, 154 N.H. 748, 754 (2007) (quotation omitted) (addressing a conformance with the enabling legislation.” Cmty. Res. for Justice v. City of authority by the legislature, “the municipality must exercise [its] power in When a municipality enacts an ordinance pursuant to a grant of

N.H. 7 p. 4 42, 74 p. 5 5 (2013) (quotation omitted). language that the legislature did not see fit to include.” Eaton v. Eaton, 165 as written and will not consider wha t the legislature might have said or add 8, 2014) (quotation omitted). “We interpret legislative intent from the statute the statutory scheme.” Petition of Eskeland, 166 N.H. _ __, _ __ (decided August statutory language in light of the policy or purpose sought to be advanced by 5

we observe that th e mandatory refund language in the exaction fee statute – successor. Assuming without deciding that this is the proper interpretation, exaction statute means anything othe r than the developer’s business On appeal, neither side argues that “successor in interest” as used in the collected exaction shall be made to the payo r or payor’s successor in interest.” fails to appropriate its share of the cost within six years, “a refund of any municipality paying a portion of the improvement’s cost, and the municipality Under RSA 674:21, V(j), when an exaction is predicated upon a

N.H. at 119. only if a municipality has adopted an impact fee ordinance. See Upton, 1 p. 5 57 lawfully collect exactions. See id. In contrast, i mpact fees may be imposed requi rement that a municipality adopt an exaction fee ordinance in order to under state law; although they are levied by municipalities, there is no development. See RSA 674:21, V(j). Exaction fees exist and are regulated charged to a developer for off - site improvements needed for the occupancy of a in connection with unused exactions in RSA 674:21, V(j). Exactions are fees Fis her Scientific, 160 N.H. 670, 672 - 73 (2010). T he term “refund” is also used “refund” is informed by its use elsewhere in the statute. Appeal of Thermo together with all associated sections,” and consequently our interpretation of We construe the meaning of statutory language “not in isolation, but

eligible to receive a “refund.” definitions explicitly states that the original payor is the only entity that is earnings.” Black’s Law Dictionary 1472 (10th ed. 2014). N either of these overestimated tax liability or whose employer withheld too much tax from return of money to a person who overpaid, such as a taxpayer who (unabridged ed. 2002). Black’s Law Dictionary provides that a “refund” is “[t]he or balancing of accounts.” Webster’s Third New Internati onal Dictionary 1910 as either “to give or put back” or “to return (money) in restitu tion, repayment, 722, 726 (200 p. 5 5). Webster’s Third New International Dictionary defines “refund” using the dictionary for guidance. See Caparco v. Town of Danville, 152 N.H. When a term is not defined in the statute, we look to its common usage,

“refund.” contend that the legislative history supports their interpretation of the term history supports a broad definition of “refund.” In contrast, t he petitioner s creates an ambigu ity that allows us to look to the legislative history, that extent that the silence in the statute reg arding who may receive a refund of refunds to the original payor. Alternatively, the Town argues that, to the whole, compels the conclusion that the legislature chose not to limit payment its successor in inter est. The Town counters that the statute, when read as a that the unencumbered fees must necessarily be paid to the original payor or which they suggest is “to pay back or to reimburse.” Consequently, they assert unencumbered or unspent fees, “refund” must be given its plain meaning, T he petitioners argue that, in the absence of a stated recipient for p. 6 6

share with in six years, the developer would be re lieved of its obligation to pay that, under such circumstances, in the event that the T own fail s to pay its until the T own first pays its share of the capital expense. The petitioners argue an agreement under which a developer is not obligated to pay the impact fee agree upon a payment schedule f or impact fees, and posit that there could be petitioners cite RSA p. 6 674:21, V (d), which allows a municipality and developer to 674: 21, V(e) would lead to an inconsistent treatment of developers. The The p etitioners also argue that the trial court’s interpretat ion of RSA

overpayment against payor’s future tax obligations). (construing “refund” to allow a county to offset its obligation to repay tax Bd. of R ev. v. Prop. Tax App. Bd., 519 N.E.2d 459, 4 p. 6 61 - 62 (Ill. 1988) 2008) (allowing insuran ce premium refunds to go to a non - payor); Lake Cty. Southern County Mut. Ins. v. Surety Bank, 270 S.W.3d 684, 688 - 89 (Tex. App. because such an interpretation “would do violence to the statutory scheme”); to interpret refund as requiring payment to “the one who is out of pocket” Corp. v. Federal Power Com’ n, 414 F.2d 344, 348 - 49 (5th Cir. 1969) (decli ning the word ‘refund’ to describe the transaction.”); Texas Eastern Transmission amounts in the refunds to the refunding party should no t preclude the use of (“The fac t that the party receiving the ‘refund’ never actually overpaid the Washington Urban League v. F.E.R.C., 886 F.2d 1381, 1386 (3d Cir. 1989) “refunded” fee can be paid to an entity other than the original payor. See, e.g., We also observe that courts in other jurisdictions have held that a

legislature intended something di fferent.” (quotation omitted)). legislature uses different language in related statutes, we assume that the N.H. v. N.H. Div. o f Personnel, 158 N.H. 338, 345 (2009) (“[W]here the the two sections to have identical meanings. See State Employe es Assoc. of addressed exactions supports the conclusion that the legislature did not intend fact that the legisla ture used different l anguage when it subsequently than a decade later, in 2004. See Laws 1991, 283:2; Laws 2004, 199:3. The 1991, and that the exaction language in RSA p. 6 674:21, V(j) was enacted more We note that the impact fee statute, RSA 674:21, V(e), was enacted in

did not enact superfluous or redundant words.” (quotation omitted)). (“We must give effect to all words in a statute, and presume that the legislature unnecessary. See State v. Collyns, 1 p. 6 66 N.H. _ __, _ __, 99 A.3d 300, 303 (2014) to the “payor or payor’s successor in int erest” would be redundant and interest, then the explicit directive in the exaction statute that refunds be made mean payment by the municipality to the payor or the payor’s successor in omitted). More over, if, as the petitioners argue, the term “refund” can only the legislature did not see fit to include.” Eaton, 165 N.H. at p. 7 745 (quotation the impact fee statute. This we decline to do. Such would “add language that petitioners ar gue, in effect, that this refund language should be imported into interest” – is absent from the impact fee statute, RSA 674:21, V(e). The directing that a refund “shall be made to the payor or payor’s successor in 7

DALIANIS, C.J.