“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).