Derry City Zoning Code
ARTICLE XVII
Impact Fees
§ 165-133 Statutory authority; purpose.
This article is enacted pursuant to RSA 674:16 and 674:21 and in order to:
A.
Promote public health, safety, convenience, welfare, and prosperity;
B.
Ensure that adequate and appropriate facilities are available to individuals who may come to be located in the Town of Derry, New Hampshire;
C.
Assess an equitable share of the growth-related cost of new and expanded capital facilities to all types of new development in proportion to the facility demands created by that development;
D.
Prevent scattered or premature development of land as would involve danger or injury to health, safety, or prosperity by reason of the lack of water supply, drainage, transportation, schools, fire protection, or other public services or necessitate the excessive expenditure of public funds for the supply of such services;
E.
Provide for the harmonious development of the municipality and its environs;
F.
Ensure the proper arrangement and coordination of streets; and
G.
Ensure streets of sufficient width to accommodate existing and prospective traffic.
§ 165-134 Authority of Planning Board; applicability.
A.
The Planning Board may, as a condition of approval of any new development, subdivision or site plan, and when consistent with applicable Board regulations, require a fee payer, as defined herein, to pay an impact fee for the fee payer's fair share of off-site improvements in order to help meet the need occasioned by that development for construction or improvement of capital facilities owned or operated by the Town or the Derry School District, including those facilities for which the Derry School District pays on a tuition basis, but which may be owned or operated by independent trustees.
B.
The Planning Board is authorized by this article to conduct studies and to adopt an impact fee schedule which sets forth the methodology and amount of the fee. The Planning Board is further authorized to periodically update the impact fee schedule.
C.
Nothing in this section shall be construed to limit the existing authority of the Planning Board to disapprove proposed development which is scattered or premature, or which would require an excessive expenditure of public funds, or which would otherwise violate the provisions of Article XIV, Growth Management, or other applicable ordinances and regulations.
D.
Nothing in this section shall be construed to limit the Planning Board's authority to require off-site work to be performed by the fee payer, in lieu of paying an impact fee, or the Board's authority to impose other conditions of approval. Nothing in this section shall be construed to affect fees, charges or impositions, other than impact fees, governed by or imposed by other statutes, Town ordinances or regulations.
E.
Nothing in this article shall be construed to limit the Planning Board's authority to require a fee payer to construct an off-site improvement that is:
(1)
Necessitated by the new development itself and which would not otherwise be constructed by the Town (e.g., streets, turning lanes, curbs, sidewalks, streetlights, street signs, traffic signals or other off-site improvements);
(2)
An off-site improvement which is necessitated by the proposed development but which would not be constructed by the Town, under its then-in-force capital improvement program, within six years of the date of the new development application; or
(3)
An off-site improvement which is required by the New Hampshire Department of Transportation to be constructed by a developer in connection with a driveway or other permit for access to a state highway.
F.
Applicability. The provisions of this article shall be applicable to applications for new developments filed after the effective date hereof as set forth below.
(1)
Impact fees may be required by the Planning Board as a condition of approval, as provided herein, for any application for new development that is exempt from the provisions of Article XIV, Growth Management; and
(2)
Impact fees may be required as a condition of approval, as provided herein, for applications for new development that are subject to Article XIV, Growth Management, but subject to the following limitations. These limitations are intended to preclude any imposition of an impact fee for any new development as to which the delayed availability of development points is tied to the same off-site improvement(s) pursuant to § 165-115C. Except as provided in Subsection E herein, impact fees may not be required for any off-site improvement(s) which must be completed before any special permits for the additional development rights are available to be issued.
§ 165-135 Definitions.
As used in this article, the following terms shall have the meanings indicated:
A person applying for the issuance of a building permit, subdivision or site plan approval, or other local land use decision which would create new development. The word "developer" may be used interchangeably with "fee payer" as the context requires.
A fee or assessment imposed upon development, including subdivision, building construction or other land use change, in order to help meet the needs occasioned by that development for the construction or improvement of capital facilities owned or operated by the municipality, including and limited to water treatment and distribution facilities; wastewater treatment and disposal facilities; sanitary sewers; stormwater, drainage and flood-control facilities; public road systems and rights-of-way; municipal office facilities; public school facilities; the municipality's proportional share of capital facilities of a cooperative or regional school district of which the municipality is a member; public safety facilities; solid waste collection, transfer, recycling, processing and disposal facilities; public library facilities; and public recreational facilities not including public open space.
The subdivision, building construction or other land use change which results in a requirement for new or expanded capital facilities or the use of excess capacity in an existing capital facility previously funded by the Town. "New development" shall include the conversion of a legal existing use or activity to another use or activity which results in a requirement for new or expanded capital facilities or the use of excess capacity in an existing capital facility previously funded by the Town.
A capital facility to be owned or operated by the municipality, whether or not constructed in whole or in part by impact fees or by the fee payer of a new development, or which is to be owned by the municipality upon completion, including and limited to water treatment and distribution facilities; wastewater treatment and disposal facilities; sanitary sewers; stormwater, drainage and flood-control facilities; public road systems and rights-of-way; municipal office facilities; public school facilities; the municipality's proportional share of capital facilities of a cooperative or regional school district of which the municipality is a member; public safety facilities; solid waste collection, transfer, recycling, processing and disposal facilities; public library facilities; and public recreational facilities not including public open space.
§ 165-136 Assessment methodology.
A.
Proportionality. The amount of the impact fee shall be calculated by the Planning Board to be a proportional share of municipal capital improvement costs which is reasonably related to the capital needs created by the development and to the benefits accruing to the development from the capital improvements financed by the fee.
(1)
As to off-site improvements required under § 165-134E, if the Planning Board shall determine that such section is applicable, the entire cost of the off-site improvement shall be the responsibility of the developer/development benefiting therefrom; provided, however, that if more than one development shall be benefited from such off-site improvement, the Planning Board may assess such other development part of the cost of such off-site improvement at the time such development shall come before the Planning Board for a permit or approval, based on the methodology of this section, and shall remit the same to the developer who has installed such off-site improvement at the time the impact fee so assessed is paid to the municipality, less any cost associated with making or collecting such assessment.
(2)
The Town of Derry's Master Plan and Capital Improvements Program have incorporated Town-wide plans for new or expanded capital facilities as defined in § 165-135. To the extent that a capital facility is provided for therein, impact fees shall be based upon the actual or anticipated costs of the capital facility for which it is intended. Such Master Plan and Capital Improvements Program and the provisions of this article and Article XIV, Growth Management, shall not, however, limit the ability of the Planning Board to require off-site improvements or impact fees where a need for capital facilities, not considered in such Master Plan and Capital Improvements Program, is necessitated in whole or in part by a new development.
(3)
Where an impact fee has been assessed, based on the implementation of a long-term program of improvements to or for capital facilities comprising a series of capital projects, and the municipality has appropriated, within six years of the collection of that impact fee, its proportionate share of the cost (not including impact fees assessed to other fee payers) of a component project or projects of that program, that impact fee payment shall be deemed to be encumbered and legally bound to be spent for said project or projects and shall not be refunded, even if the entire long-term program is not completed within the same six-year period.
B.
Computation methods.
(1)
To the extent that an impact fee is assessed pursuant to § 165-134E, the impact fee shall be determined according to the cost of the off-site improvement.
(2)
Until the Planning Board shall adopt an impact fee schedule pursuant to § 165-134B, the Planning Board may request such professional studies and other data of the fee payer, including data from experts retained by the Planning Board whose work shall be paid for by the fee payer, in order to determine the applicable impact fee to be assessed to the fee payer for any affected capital improvements described and the need for which is created for by the development in accordance with the proportionality computation described in Subsection A of this section.
(3)
After the Planning Board shall have adopted an impact fee schedule pursuant to § 165-134B, the impact fee to be assessed to any new development shall be determined in accordance with such impact fee schedule.
(4)
The impact fee schedule so adopted may include a standard assessment based upon an established measure of impact occasioned by the any new development or it may adopt a methodology by which an impact fee may be calculated for any new development.
C.
Existing deficiencies. Upgrading of existing facilities and infrastructures, the need for which is not created by new development, shall not be paid for by impact fees.
§ 165-137 Administration.
A.
Accounting. In accord with RSA 673:16, II and RSA 674:21, V(c), impact fees shall be accounted for separately, shall be segregated from the Town's general fund, may be spent upon order of the Town Council, 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 fee was collected to meet.
B.
Assessment. All impact fees imposed pursuant to this article shall be assessed to the fee payer prior to, or as a condition for, the issuance of a building permit or other appropriate permission to proceed with development, as determined by the Planning Board or its authorized agent. No building permit shall be issued until a fee payer provides adequate security in accordance with Subsection C of this section.
C.
Security. In the interim between assessment and collection, the Planning Board may require the fee payer to post bonds, issue letters of credit, accept liens, or otherwise provide suitable measures of security so as to guarantee future payment of assessed impact fees.
D.
Collection. Impact fees shall be collected as a condition for the issuance of a certificate of occupancy; provided, however, that in projects where off-site improvements are to be constructed simultaneously with a project's development, and where the Town has appropriated the necessary funds to cover such portions of the work for which it will be responsible, the Town of Derry may advance the time of collection of the impact fee to the issuance of a building permit. Nothing in this section shall prevent the Planning Board and the assessed party from establishing an alternate, mutually acceptable schedule of payment or prevent the assessed party from undertaking the work itself.
E.
Refund.
(1)
Any portion of an impact fee which has not become encumbered or otherwise legally bound to be spent for the purpose for which it was collected shall be refunded, with any accrued interest, to the assessed party or successor in interest:
(a)
When the subdivision or site plan approval expires under the respective rules of the Planning Board, or under the terms of the decision, without having become vested under RSA 674:39, and without any extension being granted by the Planning Board; or
(b)
When such approval is revoked under RSA 676:4-a; or
(c)
Six years after its collection or, if any extension of approval is granted by the Planning Board, six years after such extension is granted; or
(d)
Six years after its collection, whenever the calculation of an impact fee has been predicated upon some portion of capital improvement costs being borne by the Town and the Town Council has failed or refused to appropriate the Town's share of the capital improvement costs.
(2)
In the event of transfer of title to land from an owner who has paid an impact fee to a new owner, the parties to said conveyance shall be responsible for allocating any potential refund between themselves, as the Town shall only be responsible for paying over any statutorily required refund to the then-current property owner.
§ 165-138 Appeals.
In accordance with RSA 676:5, III, appeals of the decision of the Planning Board in administering this article may be made to Superior Court, as provided in RSA 677:15.
§ 165-139 Waiver.
A fee payer may request a full or partial waiver of impact fee payments from the Planning Board if the Board agrees to accept, as equivalent value, proposed contributions of land, easements or other improvements. The value of on-site improvements, or of any off-site improvements which are required by the Planning Board as a result of subdivision or site plan review under § 165-134E herein, shall not be considered eligible for waiver under this article.
§ 165-140 Effective date.
This article was adopted by the Town Council of the Town of Derry, New Hampshire, with an effective date of February 21, 2002.