Lampert v. Town of Hudson, 91-290
| Decision Date | 01 September 1992 |
| Docket Number | No. 91-290,91-290 |
| Citation | 136 N.H. 196,612 A.2d 920 |
| Parties | Alan G. LAMPERT and Alan V. Ligouri, Trustees, Unicorn Park Realty Trust v. TOWN OF HUDSON. |
| Court | New Hampshire Supreme Court |
Prunier & Leonard P.A., Nashua, (Thomas J. Leonard on the brief and orally), for plaintiffs.
John J. Ratigan, Hudson, by brief and orally, for defendant.
The Town of Hudson (town) appeals the Superior Court's (Murphy, J.) grant of the plaintiffs' motion for summary judgment. The superior court reversed a decision of the Hudson planning board (board). The board had approved the plaintiffs' site plan subject to the condition that the plaintiffs pay a "corridor allocation procedure fee," also known as an impact fee, designed to allocate the predicted expense of improvements and increased services resulting from the applicants' development. For the reasons set forth below, we reverse and remand.
The plaintiffs, Alan G. Lampert and Alan V. Ligouri, Trustees of the Unicorn Park Realty Trust, own a parcel of land in the town of Hudson which has been approved as an industrial subdivision. They applied to the board for site plan review of newly proposed buildings on three of the lots in the subdivision. In July 1990, the board approved the site plan subject to the plaintiffs paying an impact fee. The fee was to be computed by the town's traffic engineering consulting firm based on the results of traffic corridor studies completed by the firm at the board's request. The plaintiffs appealed the board's decision to the superior court pursuant to RSA 677:15, challenging its authority to condition site plan approval on payment of the fee. The court reversed the decision, ruling that the town's site plan review regulations have no specific provision authorizing the board to assess an impact fee as a condition of site plan approval.
On appeal, the town argues that, in light of our decision in New England Brickmaster, Inc. v. Town of Salem, 133 N.H. 655, 582 A.2d 601 (1990), the trial court erred as a matter of law by failing to construe the town's site plan regulations as authorizing the board to assess impact fees. In the alternative, the town claims that, absent an explicit site plan regulation, it can assess impact fees pursuant to RSA 674:44 so long as there exists a rational nexus between the benefit conferred and the burden assessed.
In Brickmaster, we held that RSA 674:44 allows municipalities to authorize local planning boards to condition the approval of site plans on payment for off-site improvements. Brickmaster, 133 N.H. at 663-64, 582 A.2d at 606. We reasoned that "the legislature intended to give municipalities a tool for controlling their expenditures without jeopardizing the safety of the public, by allowing them to require those who would change the use of the land to make contributions towards the costs of any required increase in services." Id. at 663, 582 A.2d at 605. We then considered whether the Town of Salem had adopted specific site plan review regulations allowing the Salem planning board to require applicants to pay such fees. We found that it had, based on language in the regulations providing that the board was able to condition approval Brickmaster, 133 N.H. at 664, 582 A.2d at 606 (alterations in original).
The plaintiffs attempt to distinguish this case from Brickmaster on several grounds. They assert that while the Salem regulations expressly authorized the Salem board to impose conditions to achieve the installation of "public improvements ... at the expense of the applicants," Salem Code § 268-8, A(6), the Hudson regulations do not contain similar express language. Although apparently conceding that the Hudson regulations authorize the board to require applicants to complete off-site improvements, they argue that the regulations are silent as to whether the board may impose impact fees or otherwise accept money in lieu of improvements. Applying rules of statutory construction, the plaintiffs conclude that because the regulations do not contain express authority, they do not authorize the board to assess impact fees.
The plaintiffs essentially confine their statutory analysis to section 275-12(E) of the Hudson Code. This section, although cited in the town's brief as one source of authority to assess impact fees, is not the linchpin of the town's claim. Consequently, the plaintiffs' argument is too narrowly focused. Section 275-12(E) provides:
"As part of the approval of any application, the Planning Board may vote to require the posting of a bond or escrow agreement in such amount and in such form as may be determined and approved by the Planning Board as being reasonably necessary to ensure adherence and completion of all improvements required as conditions of approval of such plan.... The Planning Board may stipulate, as a condition precedent to the approval of the plat, the extent to which and the manner in which streets shall be graded and improved and to which water, sewer and other utility mains, piping, connections or other facilities shall be installed.... These regulations provide:
....
(2) That, in lieu of the completion of street work and utility installations prior to the final approval of the plat, the Planning Board may accept a bond or other security in an amount and with surety and conditions satisfactory to it providing for and securing to the municipality the actual construction and installation of such improvements and utilities within a period specified by the Planning Board and expressed in the bond or other security; and, further, that the Town of Hudson is granted the power to enforce such bonds or other securities by all appropriate legal and equitable remedies."
The plaintiffs argue that the language in this provision must be strictly construed, and, as such, the provision only authorizes the board to require an applicant to post a bond or escrow funds as a means to ensure that the improvements will be completed by the applicant.
We agree with the plaintiffs on this point; however, it does not avail their cause. We acknowledge that if the applicant is to complete required improvements, § 275-12(E) limits the town's form of security to a bond or an escrow fund. Nevertheless, we do not read § 275-12(E) to limit, or even address, the means by which the town itself may complete the required...
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