K.L.N. Construction Company, Inc. & a.
Town of Pelham
Argued March 5, 2014
Hillsborough-southern judicial district.
Cronin, Bisson & Zalinsky, P.C., of Manchester ( John G. Cronin and Daniel D. Muller, Jr. on the joint brief, and Mr. Cronin orally), for the petitioners.
Beaumont & Campbell, P.A., of Salem ( Bernard H. Campbell on the joint brief), for the intervenor.
Donahue, Tucker & Ciandella, PLLC, of Exeter ( Katherine B. Miller on the brief and orally), for the respondent.
BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
The petitioners, K.L.N. Construction Company, Inc., Cormier & Saurman, LLC, and Brian Soucy, and the intervenor, Gerald Gagnon Sr. (collectively, the petitioners), appeal an order of the Superior Court ( Nicolosi, J.) dismissing their petition for declaratory judgment and writ of mandamus seeking the return of impact fees paid to the respondent, [167 N.H. 182] the Town of Pelham (Town). In its order, the trial court ruled that it was within the Town's statutory authority to adopt an ordinance that allows current property owners to seek a refund of unencumbered impact fees. The trial court ruled that the petitioners had no standing to seek the return of the impact fees. We affirm.
The record establishes the following facts. In 1999, the Town adopted an impact fee ordinance pursuant to RSA 674:16 (2008) and RSA 674:21, V (2008) (amended 2012). The ordinance allowed the Town to assess fees on new development in order to pay for capital improvements necessitated by the development. The ordinance also provided that, if the Town had not spent or otherwise encumbered the impact fees within six years, " [t]he current owners of property on which impact fees have been paid may apply for a full or partial refund of such fees, together with any accrued interest." Pelham, N.H., Impact Fee Ordinance § 1002.00(a) (1999), superseded by Pelham, N.H., Impact Fees for Public Facilities Ordinance § K(1) (2006).
Subsequent to the enactment of the 1999 ordinance, the Town required certain residential real estate developers, including the petitioners, to pay impact fees to the Town. After paying the fees, the petitioners sold the properties to individual homeowners. The Town imposed these fees to partially fund the construction of a new fire station. The balance of the construction costs was to be borne by the Town. Between 2002 and 2010, the Town spent some of the impact fees paid by the developers, including the petitioners, on feasibility studies, architectural drawings, and construction estimates relating to the fire station. On several occasions between 2006 and 2010, the voters in the Town turned down proposals to appropriate the additional funds needed to construct the fire station. In March 2012, the voters approved a warrant article for the construction of the fire station.
In March 2012, the petitioners filed an action in the superior court seeking a declaratory judgment and writ of mandamus. The petitioners sought the refund of impact fees that they had paid more than six years earlier. The petition sought a declaration that the Town's expenditure of the funds for pre-construction activity violated both the impact fee statute, RSA 674:21, V(e), and the Town ordinance. It further alleged that, because the Town had failed to lawfully use the impact fees within six years, the petitioners were entitled to a refund. A short time later, Gerald Gagnon, Sr. intervened in the matter, arguing that, as successor-in-interest to Woodview Development Corporation, he was entitled to a refund of impact fees that the corporation had paid prior to selling its properties.
In its answer, the Town denied the petitioners' claim that using the impact fees for feasibility studies and to pay for architectural drawings and construction ...