The Supreme Court ruled that the planning board’s assessment of impact fees was erroneous where the developer had established a statutory reliance interest in the lower .91 cent rate, which was in place when both of the subdivision plans were recorded. This statutory reliance interest derives, of course, from RSA 674:39, which allows developers to rely on the status quo of zoning ordinances for four years if they have begun “active and substantial development” within 12 months of approval. The developer is thus, save a few public health related exceptions, exempt from zoning changes for the four years following the recording of his/her plan. The Court clearly stated in its opinion that the town’s authority to revise an impact fee constitutes an amendment to a zoning ordinance and is derived from its zoning power, not from a general police or taxation power. Thus, impact fees do not escape the protections of RSA 674:39.
The town argued that the developer could not have a vested interest in the lower impact fee because the fee had not and could not be assessed until the building permit was issued. The Court disagreed, stating, “Any developer would likely take the existing impact fee schedule into account when proposing its site plan.” The town also argued that the “zoning change” actually took place before the recording of the Brookview subdivision. The Court disagreed, finding that the only change that took place prior to the recording was the town vote to authorize the planning board to make the change. The actual change did not occur until August 22, one week after the recording of the Brookview subdivision, when the protections of RSA 674:39 attached.