Posted by: Patricia Salkin | December 24, 2014

NH Supreme Court Upholds Town Ordinance Regarding Unspent Impact Fees

K.L.N. Construction Company and other developers sought to appeal an order of the trial court seeking a declaratory judgment and writ of mandamus seeking the return of impact fees paid to the Town. In 1999, the Town enacted an ordinance to assess fees on new development to pay for capital improvements necessitated by that development. The ordinance further provided that if the Town had not spent or otherwise encumbered the impact fees within six years, “[t]he current owners of property on which impact fees had been paid may apply for a full or partial refund of such fees, together with any accrued interest.” Subsequent to the enactment of the ordinance, the Town assessed impact fees on certain developers to partially fund the construction of a new fire station. Between 2002 and 2010 the Town spent some of the fees collected on feasibility studies, architectural drawings, and construction estimates for the fire station. It was not until March 2012 that the voters finally approved the construction of the fire station. That same month, the developers who paid the fees more than six years earlier, sought a refund of the unexpended fees pursuant to the ordinance.

The State Supreme Court held that the Town was within its authority to enact an ordinance directing that any refund of impact fees be paid to the current property owner. Further, the Court found that the petitioners lacked standing since they no longer own any of the properties for which they paid the impact fees at issue. Therefore, the Court held that the trial court did not err in dismissing the case.

K.L.N. Construction Company, Inc. v Town of Pelham, 2014 WL 6967664 (NH 12/10/2014)

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2014/2014108klnconstruction.pdf


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