The Turnpike in this case is a gravel road surrounded by wetlands. The petitioner owns a 21.1-acre parcel on the Turnpike and proposed to replace the existing single-family residence on the property with four new residential lots. There are currently five single-family residences along the Turnpike, including the petitioner’s. Following public hearings, a site inspection and review of comments from a number of sources (e.g., engineer, fire chief, public works director and the road committee), among the concerns raised was access to the development in the event of flooding on the Turnpike. Apparently, the road was forced to close three times each in the last two years as it cannot handle more than two inches of rain. This raised other public safety concerns related to access to the homes. Ultimately, the board voted to approve the subdivision with the condition that the petitioner bear one-third of the cost of installing a box culvert in an effort to alleviate flooding. The total cost of the box culvert was between $250,000 and $300,000. The petitioner appealed to the superior court, arguing that the condition did not bear a rational nexus to his proposed subdivision because he believed that the proposed project has no relationship to the area of the road in need of repair. Further, the petitioner argued that the exaction was illegal because the need for improving the turnpike predated his subdivision application. The trial court disagreed, and the petitioner appealed to the Supreme Court.
The Supreme Court held that where the need for an upgrade is “reasonably related” to the new development, state statute and the town ordinance allow the Town to assess an impact fee to help pay for it. Where the improvements are necessitated solely because of the new development, the Court said it may be permissible for a municipality to require the subdivider to bear the total cost of the improvements. In this case, the Court said that the improvements were not required solely because of the new development, therefore the Town may require the subdivider to pay a “proportional share” of the cost. The Court continued, “Only when the need for the improvement bears no reasonable relationship to the proposed development is the municipality prohibited from requiring the subdivider to pay for a portion of the cost of the improvements.” The Court found that the record supported the board’s determination that the need for the Turnpike improvement was reasonably related to the petitioner’s proposed development, and that the board had authority to require the petitioner to pay a portion of the cost of the improvement.
As to the petitioner’s argument that the assessment of one-third of the cost of the improvement was not a proportional share, the Court noted that there are a number of factors that determine proportional share including, but not limited to: “(1) the standard to which the town currently maintains the road; (2) the frontage of the proposed subdivision; (3) the potential traffic increase necessitated by the proposed subdivision; (4) the character and potential for development of the neighborhood served by the road; and (5) the number of residences presently fronting on or normally trafficking these roads.” The Court found evidence in the record to support the board’s conclusion that one-third of the cost was in fact a proportional share of the cost.
Upton v. Town of Hopkinton, 2008 WL 942633 (N.H. 4/8/2008).
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/upton036.pdf
