ARTICLE 16. IMPACT FEES
16.1 Declaration of Purpose and Intent – The purpose of this Article is to authorize the Planning Board, as a condition of subdivision or site plan approval, to require a developer to pay reasonable fees and exactions for off-site improvements occasioned by the proposed development, as authorized by the New Hampshire Supreme Court in cases such as Land-Vest Properties, Inc. v. Town of Plainfield, 117 N.H. 817 (1977) and N.E. Brickmaster, Inc. v. Town of Salem, 133 N.H. 655 (1990). In addition, this Article is intended to comply with the Court’s ruling in Simonsen v. Town of Derry, No. 98-153 (November 15, 2000) that such fees and exactions cannot lawfully be imposed in the absence of an impact fee ordinance enacted pursuant to RSA 674:21, V.
16.2 Authority of Planning Board – The Planning Board may, as a condition of approval of any subdivision or site plan application, require an applicant to pay an impact fee representing the applicant’s fair share of off-site improvements to existing or future public facilities affected or required by the proposed development. Nothing in this section shall be construed to:
(a) Limit the existing authority of the Planning Board to disapprove proposed development which is scattered or premature;
(b) Limit the existing authority of the Planning Board to disapprove proposed development which would require an excessive expenditure of public funds;
(c) Limit the existing authority of the Planning Board to disapprove proposed development which would otherwise violate any applicable ordinance or regulation;
(d) Limit the existing authority of the Planning Board to require off-site work to be performed by an applicant in lieu of paying an impact fee;
(e) Limit the existing authority of the Planning Board to impose other types of conditions of approval; or
(f) Affect or alter in any way fees governed by any other statute, ordinance or regulation.
16.3 Amount of Impact Fee – The amount of any impact fee shall be calculated by the Planning Board to be a proportional share of the costs of municipal capital improvements reasonably related to the capital needs created by the proposed development, and to the benefits accruing to the development from the capital improvements financed by the fee. Upgrading of existing facilities and infrastructures, the need for which is not created by new development, shall not be paid for by impact fees.
16.4 Accounting – Pursuant to RSA 673:16, II and RSA 674:21,V(c ), impact fees shall be held in a separate, non lapsing account, shall not be commingled with other town funds, and shall be used solely for the capital improvements for which they were collected, or to recoup the cost of capital improvements made in anticipation of the needs which the fees were collected to meet. Such fees shall be paid out only upon order of the Planning Board or its designated agent.
16.5 Assessment and Payment – Impact fees imposed under this Article shall be assessed prior to, or as a condition for, final subdivision or site plan approval, and shall be paid prior to the issuance of any building permit, or at such other time as may be specified by the Planning Board. In the interim between assessment and payment, the Planning Board may require a developer to provide a bond, letter of credit or other suitable security to guarantee the future payment of assessed impact fees.
16.6 Refund – Any portion of an impact fee which has not been expended or legally bound to be expended for the purpose for which it was collected shall be refunded with accrued interest, if any:
(a) When the subdivision or site plan approval expires under the rules of the Planning Board, or under the terms of a decision of the Planning Board, where such approval has not become vested under RSA 674:39 and no extension of approval has been granted by the Planning Board;
(b) When the approval is revoked under RSA 674:4-a;
(c) When the approval is reversed by a final, unappealable judgment of a court of competent jurisdiction; or
(d) Six years after the impact fee is paid, or six years after the date any extension of approval is granted by the Planning Board, whichever occurs last.
16.7 Appeals – Pursuant to RSA 674:21, V(f) and RSA 676:5, III, the assessment of any impact fee under the authority delegated to the Planning Board by this Article cannot be appealed to the Gilford Zoning Board of Adjustment, but may be appealed only to the Superior Court as provided by RSA 677:15. Notwithstanding Article 12, the Gilford Zoning Board of Adjustment shall not have the authority to hear appeals of, or grant a variance from, the assessment of any impact fee.
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