Town of Bow
Municipal Office Building
10 Grandview Road
Bow, NH 03034

1. Article 16 Impact Fee Ordinance. Revise the article to clarify that the Planning Board has the authority to suspend impact fees that it adopted under the article and to add authority for the Planning Board to grant waivers.

dated 11-29-10

ARTICLE 16. IMPACT FEES

16.01 Impact Fee Ordinance

A. Applicability of Article

The Town of Bow (the Town) has developed a methodology for the assessment of impact fees for capital facilities of the Town and Bow School District (the District). On the basis of this methodology, new development in Bow shall be assessed an impact fee that represents its proportional share of demand on the capacity of the capital facilities of the Town or District. The following regulations shall govern the assessment of impact fees for public facilities in order to accommodate increased demand on the capacity of these facilities due to new development . These regulations are authorized by RSA 674:21, V, and other pertinent state law, as an innovative land use control. The administration of these regulations shall be the responsibility of the Board of Selectmen.

B. Findings

In view of its school enrollment growth, the public school capacity available to Bow from the District, and its anticipated growth in population and economic activity, the Town of Bow hereby finds that:

1. Each type of new residential development in Bow, with the exception of those having lawfully restricted occupancy that will exclude school age children, will create a need for the construction, equipping, or expansion of the public capital facilities of the District to provide adequate public education for Bow pupils.
   
   
2. Recent and anticipated growth rates in the Town of Bow and associated improvement and renovation costs would necessitate an excessive expenditure of public funds in order to maintain adequate facility standards and to promote and protect the public health, safety, and welfare.
   
   
3. Recent and anticipated growth rates in public school enrollment and associated improvement and renovation costs would necessitate an excessive expenditure of public funds in order to maintain adequate school facility standards and to promote and protect the public health, safety, and welfare.
   
   
4. The assessment of impact fees is one of the methods available to ensure that public expenditures are not excessive and that new development will bear a proportionate share of the cost of public capital facility costs necessary to accommodate such development.
   
   
5. The impact fee methodology entitled Methodology for the Calculation of School Impact Fees in the Town of Bow, NH (dated September 27, 2000, and as amended) prepared for the Town of Bow, represents a reasonable, rational and proportional method for the assessment of growth-related school facility costs to new residential development that will provide for partial funding of the capital costs of the District. Based on this methodology, school impact fees will not exceed the costs of:
   
   
   1. Providing additional, improved, or expanded public capital facilities necessitated by new residential development in Bow; and/or
   2. Compensating the District for school facility capacity that it provided in anticipation of new residential growth and development in Bow.
      
      
6. An impact fee methodology for the calculation of other impact fees in the Town of Bow, NH, to be prepared for the Town of Bow under the supervision of the Planning Board, may establish a reasonable, rational, and proportional method for the assessment of growth-related facility costs to new development that will provide for partial funding of the capital costs of the Town. Based on such future methodology, other public facility impact fees will not exceed the costs of:
   
   
   1. Providing additional public capital facilities necessitated by new development in Bow; and/or
   2. Compensating the Town for public facility capacity that it provided in anticipation of new growth and development in Bow.
      
      
7. An impact fee ordinance for capital facilities is consistent with the goals and objectives of the Master Plan and the Capital Improvements Program of the Town of Bow.
   

C. Definitions

District: The Bow School District.

Feepayer: The applicant for the issuance of a building permit, Subdivision approval, or Site Plan Review approval, which could create new development.

New Development: An activity which results in:

1. The creation of a new dwelling unit or units; or
2. The conversion of a legally existing use, or additions thereto, which would result in a net increase in the number of dwelling units.
3. The construction of new non-residential facilities, additions to existing non-residential facilities, or changes to existing facilities which affect capital facilities for which an impact fee methodology has been prepared and adopted by the Planning Board.
4. Subdivisions and site plans.

Capital Facilities. Any equipment, structures, and related durable items used to deliver or support public services including water treatment and distribution; wastewater collection, treatment, and disposal; storm water, drainage, and flood control; public road systems, rights of way; municipal administrative or maintenance services; public schools; public safety services; solid waste collection, transfer, recycling, processing, and disposal; public libraries; public recreation; and a proportionate share of cooperative or regional services. Initial training of personnel may be included in capital facilities, but public open space may not be included.

D. Assessment of Impact Fees

1. Impact fees shall be assessed to new development to compensate the Town of Bow for the proportional share of the capital facility costs of the District or Town generated by new development in Bow, including public school or other capital facilities to be constructed, or which were constructed in anticipation of new development.
   
   
2. Any person who seeks a building permit for new development is hereby required to pay a public school capital facility impact fee upon adoption of this article in the manner set forth herein.
   
   
3. Any person who seeks a building permit for other new development is hereby required to pay a public capital facility impact fee upon adoption of this article in the manner set forth herein.
   
   
4. Any person who pays an impact fee based on a school exaction fee imposed prior to the adoption of this Ordinance pursuant to a condition of approval that appears on the plat of record for a subdivision or site plan shall be entitled to request and receive an exemption from the impact fee imposed by this Ordinance upon payment of said fee. Such requests for exemption shall be made to the building inspector.
   
   
5. A person may request a full or partial waiver of school facility impact fees for the number of residential units that are lawfully restricted to occupancy by senior citizens age 62 or over, or to households with at least one person age 55 and over, as applicable, where such units are maintained in compliance with the provisions of RSA 354-A:15, Housing For Older Persons. School impact fees may, in the discretion of the Board of Selectmen, be partially or fully waived for such units within a complying development where the units are restricted by age for a period of at least 20 years.
   
   A person may request a full or partial waiver of school facility impact fees for the number of subsidized, affordable residential units that are lawfully restricted to occupancy by persons of limited income and qualify as affordable housing. School impact fees may, in the discretion of the Board of Selectmen, be partially or fully waived for such units within a complying development where the units are so restricted for a period of at least 20 years.
   
   Upon request and presentation of documentation approved by the Planning Director, the Building Inspector shall grant a full waiver of school facility impact fees for subsidized, affordable residential units that are lawfully restricted to occupancy by senior citizens of limited income, age 62 or over, where occupancy of such units are restricted to qualified persons for a period of at least 20 years.
   
   If after 20 years, such units are occupied by non-qualified persons, school facility impact fees shall be immediately due and payable in accordance with the regulations then in effect.
   
   For purposes of this section, subsidy or subsidized shall refer to grants, low income loans, or other financial assistance provided by the Town of Bow, New Hampshire state agencies, or US Government agencies. “Affordable residential units” shall mean housing which meets standards of affordability for persons or families at or below 80% of the county median income as recognized by the US Department of Housing and Urban Development.
   
   
6. Prior to acting on a request for waiver of impact fees under the provisions of paragraphs 4 or 5 of this section, the Board of Selectmen shall submit a copy of the waiver request to the Planning Board for its review and comment.
   
   Prior to granting a waiver of school impact fees for Housing for Older Persons, the Board of Selectmen shall find that the amount of the reduction of impact fees is proportionate to the projected reduction of school age children. Prior to granting a waiver of school impact fees for affordable residential units, the Board of Selectmen shall find that the waiver is a financial necessity and that the housing proposed is in the public interest.
   
   
7. Waivers of other impact fees. For impact fees assessed in accordance with methodologies adopted in accordance with 16.01 B. 6. and 16.01 E. 3, the Planning Board is granted the authority of RSA 674:21, V (g) to grant a waiver of other impact fees. A person may request a waiver or partial waiver of other impact fees.
   
   The Planning Board may grant such waiver or partial waiver where it determines that:
   
   
   1. the waiver is in the best interests of the Town and
      
      
   2. the Board determines that at least one of the following apply to the subject development:
      
      
      1. the credits included in the methodology inadequately represent future tax payments related to the development;
         
         
      2. the methodology overstates the capital impact of the proposed development;
         
         
      3. the proposed development is of such benefit to the Town that the benefit alone sufficiently compensates the Town for capital impacts as determined by the Impact Fee Ordinance;
         
         
      4. the value of off-site improvements to be constructed and / or dedicated to the Town that are in excess of improvements required to serve the development or in excess of the proportional share related to the development adequately compensate the Town for capital impacts as determined by the Impact Fee Ordinance. The value of such off-site improvements shall not be credited toward another type of Impact Fee.

E. Computation of Impact Fee

1. The amount of each school facility impact fee shall be assessed in accordance with the report, in effect at the time the building permit is requested, entitled Methodology for the Calculation of School Impact Fees in the Town of Bow, NH (dated September 27, 2000, and as amended), prepared for the Town of Bow and as adopted for the purposes of impact fee assessment by the Planning Board.
   
   
2. In case of new development created by conversion or modification of an existing use, the impact fee shall be based upon the net increase in the impact fee assessment for the new use as compared to the highest impact fee that was, or would have been, assessed for the previous use in existence on or after the effective date of this Ordinance.
   
   
3. The amount of other public facility impact fees shall be assessed in accordance with the report, in effect at the time the building permit is requested, for the calculation of other impact fees in the Town of Bow, NH, to be prepared for the Town of Bow under the supervision of the Planning Board, to establish a reasonable, rational, and proportional method for the assessment of growth-related facility costs to new development. Such report shall be adopted for the purposes of impact fee assessment by the Planning Board after a public hearing, noticed in accordance with RSA 675:7.

F. Payment of Impact Fee

No building permit shall be issued for new development until the impact fee has been assessed and the applicant has acknowledged his or her obligation to pay the impact fee.  No certificate of occupancy shall be issued for new construction, nor shall such new construction be occupied, until the impact fee has been paid in full.

G. Appeals

1. If a feepayer elects to appeal the amount of the impact fee, the appeal shall be made to the Zoning Board of Adjustment. In support of such appeal, the feepayer shall prepare and submit to the Zoning Board of Adjustment an independent fee calculation or other relevant study for the new development activity which is proposed. The independent study by the feepayer shall set forth the specific reasons for departing from the adopted schedules and methodologies of the Town. The Zoning Board of Adjustment shall review such study and render its decision. All costs incurred by the Town for the review of such study, including consultant and counsel fees, shall be paid by the feepayer. The Planning Board shall prepare a policy to guide the Zoning Board of Adjustment in considering such appeals.
   
   
2. Prior to acting on an appeal of the assessment of an impact fee, the Zoning Board of Adjustment shall submit a copy of the appeal to the Planning Board for its review and comment.
   
   
3. The decision of the Zoning Board of Adjustment may be appealed to the Superior Court as provided by RSA 677:2-14.
   

H. Administration of Funds Collected

1. All funds collected shall be properly identified and promptly transferred for deposit into a separate impact fee account for public school facilities or other public facility capital improvements for which they were collected. This impact fee account shall be a non-lapsing special revenue fund account and under no circumstances shall such revenues accrue to the General Fund.
   
   
2. The Town Treasurer shall record all fees paid, by date of payment and the name of the person making payment, and shall maintain an updated record of the current ownership, tax map and lot reference number of properties for which fees have been paid under this Article for each building permit so affected for a period of at least nine (9) years from the date of receipt of the impact fee payment associated with the issuance of each permit.
   
   
3. Impact fees collected may be spent from time to time by order of the Board of Selectmen and shall be used solely for the reimbursement of the District or the Town for the cost of public school or other public facility capital improvements for which they were collected, or to recoup the cost of capital improvements made by the District or the Town in anticipation of the needs for which the impact fee was collected.
   
   
4. In the event that bonds or similar debt instruments have been or will be issued by the District or the Town for the funding of capacity-related improvements to public schools or other public capital facilities, impact fees may be used to pay debt service on such bonds or similar debt instruments.
   
   
5. At the end of each fiscal year, the Town Treasurer shall make a report to the Board of Selectmen, School Board, and Planning Board giving a particular account of all impact fee transactions during the year.
   

Refund of Fees Paid

1. The current owner of record of property for which an impact fee has been paid shall be entitled to a refund of that fee, plus accrued interest where:
   
   
   1. The impact fee has not been encumbered or legally bound to be spent for the purpose for which it was collected within a period of six (6) years from the date of the full and final payment of the fee; or
      
      
   2. The District and / or the Town has failed, within the period of six (6) years from the date of the full and final payment of such fee, to appropriate any of the non-impact fee share of related capital improvement costs thereby permitting the capital improvement or capital improvement program for which the impact fee was collected to be commenced. If any capital improvement or capital improvement program for which an impact fee is collected has been commenced either prior to, or within six years from the date of final collection of an impact fee, that impact fee payment shall be deemed to be encumbered and legally bound to be spent for said capital improvement or capital improvement program and shall not be refunded, even if it is not fully expended within the six year period.
      
      
2. The Board of Selectmen shall annually determine which owners of record are due a refund. The Board of Selectmen shall provide written notice of the amount due to all owners who are due a refund. The notice shall include accrued interest, if any. The Board of Selectmen shall promptly cause said refund to be made.
   

J. Impact Fees on Subdivisions and Site Plans

The Town of Bow finds that in addition to the impact of new development on capital facilities as set forth above, subdivisions and site plans may place an extraordinary burden on capital facilities owned or operated by the municipality that are necessary to specifically benefit the particular subdivision or site plan.  In such cases the Planning Board shall impose an impact fee on the subdivision or site plan as a condition of approval to pay the proportional share of municipal capital improvement costs which are 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.

Impact fees under this section of the Ordinance shall be assessed by the Planning Board in accordance with RSA 674:21.  The impact fees collected shall be administered in accordance with Section H.  The decision of the Planning Board to impose an impact fee under this Section, may be appealed to Superior Court in accordance with RSA 677:15.

K. Scattered or Premature Development

Nothing in this article shall be construed so as to limit the existing authority of the Bow Planning Board to deny new proposed development which is scattered or premature, requires an excessive expenditure of public funds, or otherwise violates the Town of Bow Zoning Ordinance, the Bow Site Plan Review Regulations, the Land Subdivision Regulations, or which may otherwise be lawfully denied.

L. Review and Change in Method of Assessment

The Methodology for the Calculation of School Impact Fees in the Town of Bow, NH (dated September 27, 2000, and as amended) and other methodologies adopted in conformance with this article and the associated fee schedule(s) shall be reviewed periodically by the Planning Board.  Such review shall take place not more than five years from the initial adoption of this ordinance, nor more frequently than annually.  The review by the Planning Board may result in recommended adjustments to the methodology and related fees based on the most recent data as may be available.  Such report shall be adopted for the purposes of impact fee assessment by the Planning Board after a public hearing, noticed in accordance with RSA 675:7.

After a public hearing on December 18, 2003, the Planning Board adopted the update Public School Impact Fees  – Bow, New Hampshire  – Basis of Assessment  – 2003 Update dated October 2, 2003 to replace the methodology dated September 27, 2000.

M. Suspension of Adopted Method of Assessment

A Methodology, together with the fee schedule, for the calculation of other impact fees, adopted in accordance with this Article, may be suspended periodically by the Planning Board no more frequently than annually.  Such suspension shall take effect after a public hearing, noticed in accordance with RSA 675:7, where the Planning Board determines that such suspension is in the best interests of the Town.  Impact fees previously collected under the methodology shall not be subject to refund.  An impact fee that has been assessed, but is not yet payable under section F. above, shall not be required.  The Planning Board may re-implement a previously suspended impact fee methodology and associated fee schedule no sooner than 12 months following the effective date of such suspension.  Re-implementation shall not take place until after a public hearing, noticed in accordance with RSA 675:7, where the Planning Board determines that re-implementation is in the best interests of the Town.

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