Monahan-Fortin Props., LLC v. Town of Hudson

• Decision Date: 24 December 2002
• Docket Number: No. 2001–702.,2001–702.
• Citation: 813 A.2d 523,148 N.H. 769
• Court: New Hampshire Supreme Court
• Parties: MONAHAN–FORTIN PROPERTIES, LLC v. TOWN OF HUDSON.

148 N.H. 769

813 A.2d 523

MONAHAN–FORTIN PROPERTIES, LLC

v.TOWN OF HUDSON.

No. 2001–702.

Supreme Court of New Hampshire.

Argued Oct. 17, 2002.

Opinion Issued Dec. 24, 2002.

Prunier, Leonard & Prolman, P.A., of Nashua (Andrew A. Prolman on the brief and orally), for the plaintiff.

Bossie, Kelly, Hodes, Buckley & Wilson, P.A., of Manchester (Stephen C. Buckley on the brief and orally), for the defendant.

Kevin P. Chisholm, of Concord, by brief, for the New Hampshire Municipal Association, as amicus curiae.

Hebert & Uchida, P.L.L.C., of Concord (Donald F. Hebert on the brief), for the Home Builders & Remodelers Association of New Hampshire, as amicus curiae.

BRODERICK, J.

The defendant, Town of Hudson(town), appeals from a decision of the Superior Court(Hampsey , J.) barring it from applying its growth management ordinance to the plaintiff's condominium project on the basis that the project was also subject to the town's impact fee ordinance.SeeRSA 674:21, V(h)(1996).We reverse.

The record supports the following facts.The plaintiff, Monahan–Fortin Properties, LLC, owns property along the Merrimack River in Hudson for which it sought approval to construct a 101–unit elderly housing condominium project known as Riverwalk.It submitted a site plan application to the town's planning board for acceptance in mid-August 2000.

In the fall of 2000, the town planning board published a growth management ordinance upon which it then conducted public hearings.The first public notice of the proposed ordinance was published on November 3, 2000, and contained an elderly housing exception.A second version of the growth management ordinance, which eliminated the exception, was published on December 22, 2000.The revised ordinance was approved at a town meeting in March 2001.

After several public hearings, the planning board on December 20, 2000, refused to accept the site plan application on the basis that it violated a provision of the town's zoning ordinance.The plaintiff appealed the planning board's rejection of its site plan application to the superior court, seeRSA 677:15 (Supp.2002), arguing that the planning board erred in failing to accept the Riverwalk site plan application by December 20.Further, the plaintiff contended that the Riverwalk site plan was not subject to the growth management ordinance because the application was accepted prior to the publishing of the revised version of the growth management ordinance on December 22.In the alternative, the plaintiff argued that the site plan application was not subject to the growth management ordinance because impact fees, fees assessed by a municipality to shift the cost of capital improvements for a development from the municipality to the developer, would inevitably be assessed.SeeRSA 674:21, V(h).

After a hearing, the trial court ruled that the site plan application, regardless of any potential conflicts with the zoning ordinance, was sufficiently complete and should have been accepted by the planning board on November 29, the date of the second public hearing on the Riverwalk site plan.Although November 29 predated the publishing of the revised growth management ordinance on December 22, the trial court ruled that the Riverwalk project was not exempt from the growth management ordinance on that basis because the relevant date was November 3, the date the original version of the ordinance was published.The trial court concluded, however, that because impact fees would inevitably be assessed or had, in fact, been assessed against the plaintiff, the Riverwalk project was exempt from the growth management ordinance pursuant to RSA 674:21, V(h).The town's motion for reconsideration was denied.The only issue on appeal is whether the town may apply both the growth management ordinance and the impact fee ordinance to the Riverwalk project.

In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute.Appeal of Estate of Van Lunen,145 N.H. 82, 86, 750 A.2d 737(2000).When construing a statute's meaning, we first examine its language, and where possible, we ascribe the plain and ordinary meaning to words used.Id.We construe all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result.Id.Unless we find statutory language to be ambiguous, we will not examine legislative history.Union Leader Corp. v. Fenniman,136 N.H. 624, 626, 620 A.2d 1039(1993).In construing a statute, we will neither consider what the legislature might have said nor add words that it did not see fit to include.Appeal of City of Franklin,137 N.H. 723, 727–28, 634 A.2d 1000(1993).

We review the trial court's interpretation of the statutede novo .Crowley v. Frazier,147 N.H. 387, 389, 788 A.2d 263(2001).RSA 674:21, V(h) states:

The adoption of a growth management limitation or moratorium by a municipality shall not affect

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