New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Growth Management Ordinance Effective Where No Impact Fee Assessed

Monahan-Fortin Properties, LLC v. Town of Hudson
No. 2001-702, 12/24/2002

Despite the number of issues and web of dates and filings that marked this case, the Court reviewed and concisely decided one issue on appeal: whether the town may apply both a growth management ordinance and an impact fee ordinance to the project at issue. The relevant statute states in pertinent part that:

“The adoption of a growth management limitation or moratorium by a municipality shall not affect any development with respect to which an impact fee has been assessed as part of the approval for that development.” RSA 674:21,V(h).

The relevant facts of this case are as follows. The developer submitted a site plan application for a 101-unit elderly housing condominium. The town subsequently posted notice for a public hearing on a growth management ordinance that originally contained an exemption that would have allowed the developer’s plan, but upon revision and adoption, materially limited the project. The trial court ruled that the project was not exempt from the growth management ordinance where acceptance by the planning board of site plan was subsequent to the posting of the original ordinance. However, the trial court found that, because impact fees had been or would be assessed, the developer was exempt from the growth management ordinance pursuant to RSA 674:21, V(h).

The Supreme Court found that the record only supported the conclusion that impact fees had at best been estimated by the town and/or proposed by the developer as part of the submitted plan. The Court found that estimates or proposals did not constitute an “assessment” by the municipality, nor had the developer actually “paid” any impact fee. Where there is no fee actually due based on an assessment nor has any fee, as a consequence, been paid, the developer is not entitled to the exemption allowed under RSA 674:21, V(h).

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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