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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2007-574 BARRY O. UPTON v. TOWN OF HOPKINTON Argued: February 14, 2008 Opinion Issued: April 8, 2008 Cronin & Bisson, P.C., of Manchester (Daniel D. Muller, Jr. and John G. Cronin on the brief, and Mr. Cronin orally), for the petitioner. Upton & Hatfield, LLP, of Concord (Russell F. Hilliard and Matthew R. Serge on the brief, and Mr. Hilliard orally), for the respondent. DUGGAN, J. The petitioner, Barry O. Upton, appeals the order of the Superior Court (Conboy, J.) upholding the decision of the planning board (board) for the respondent, Town of Hopkinton (Town), to condition its approval of his subdivision plan upon his paying one-third of the cost to improve a portion of Branch Londonderry Turnpike (Turnpike). We affirm. The record reflects the following facts. The petitioner owns a 21.1-acre parcel on the Turnpike on the outskirts of Hopkinton. The Turnpike in this area is a class V gravel road surrounded by wetlands. Currently, there are five single-family residences along the Turnpike, including the petitioner's.

In August 2006, the petitioner applied to the board for subdivision approval. He proposed replacing the existing single-family residence on his property and creating four new residential lots. The board considered the application at public hearings in September, October, November and December 2006. In addition, the board took a site walk of the property, and reviewed comments from the Town's consultant engineer, fire chief, public works director and road committee, as well as from the Town of Bow, the City of Concord, and the Central New Hampshire Regional Planning Commission. Among the concerns raised was "access to the development should [the] . . . Turnpike be closed due to flooding." The flooding was estimated to occur approximately 500 feet from the petitioner's development. The fire department, for instance, was concerned about responding to an emergency should the Turnpike be closed. There was also concern about school bus access to the subdivision in the event that the Turnpike was closed. The board was informed that the Turnpike had been closed for flooding three times in 2005 and three times in 2006. The public works director estimated that "anytime [the town] receive[s] 2-inches of rain the road needs to be closed temporarily due to its elevation and its location through a wetland." When the Turnpike is closed, residents must travel through Bow and Concord to access their properties. Even when the Turnpike is not closed, the chief of the fire department noted that this particular location "has one of the furthest response times." Additionally, the Central New Hampshire Regional Planning Commission opined that the petitioner's development would result in an additional thirtyeight to forty vehicle trips per day, which might "warrant road upgradings in Hopkinton." The commission observed that "based on the origins and destinations of trips from the subdivision's residents, . . . the majority of trips may be along [the] . . . Turnpike heading generally northerly towards I-89 or to center Hopkinton or Contoocook." At the November hearing, board members observed that because the proposed development would double the number of homes on the Turnpike and would be on the outskirts of town, the board could deny the application if it found that the application would result in a "scattered or premature subdivision . . . as would involve danger or injury to public health, safety or prosperity by reason of the lack of . . . . drainage, transportation, schools, fire protection, or other public services, or necessitate the excessive expenditure of public funds for the supply of such services." RSA 674:36, II (Supp. 2007). Given this, a majority of the board believed that the petitioner needed to address "the issue of safety as a result of the condition of [the] . . . Turnpike," perhaps by paying for a portion of the cost of improving the road. At the December hearing, the board considered what was needed to improve the Turnpike. The public works director stated that while he planned

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to rebuild a culvert along the Turnpike, he did not believe that this alone would alleviate the flooding. The petitioner's surveyor and engineer opined that "a box culvert or bridge [was] needed to rectify the situation. The work would require the raising of the road along with the dredging of the brook." The Town's consultant engineer concurred. The estimated cost of installing a box culvert was between $250,000 and $300,000. The public works director informed the board that the Turnpike was not on the ten-year improvement schedule "as there are other roads that are more heavily traveled that [are] of a higher priority." Ultimately, the board voted to approve the subdivision with the condition that the petitioner bear one-third of the cost of installing a box culvert. The petitioner appealed to the superior court, arguing that this condition violated RSA 674:21, V (Supp. 2007). In his petition, the petitioner conceded that RSA 674:21, V gave the board the "authority to assess off-site improvement costs to developers," but he asserted that the costs in this case did not bear a rational nexus to his proposed subdivision. "In this case," he contended, "the proposed project has no relationship to the area of the road in need of repair." The trial court found to the contrary, and this appeal followed. Superior court review of planning board decisions is limited. Summa Humma Enters. v. Town of Tilton, 151 N.H. 75, 79 (2004). The superior court must treat the factual findings of the planning board as prima facie lawful and reasonable and cannot set aside its decision absent unreasonableness or an identified error of law. Id.; see RSA 677:15 (Supp. 2007). The appealing party bears the burden of persuading the trial court that, by the balance of probabilities, the board's decision was unreasonable. Summa Humma Enters., 151 N.H. at 79; see RSA 677:15. The review by the superior court is not to determine whether it agrees with the planning board's findings, but to determine whether there is evidence upon which they could have been reasonably based. Summa Humma Enters., 151 N.H. at 79. Our review of the superior court's decision is equally deferential. Id. We will uphold the decision on appeal unless it is unsupported by the evidence or legally erroneous. Id. The petitioner first argues that because the need to upgrade the Turnpike was not "created" by his proposed development, the board could not lawfully require him to pay one-third of the cost of improving the Turnpike. Imposing this condition, he asserts, violated RSA 674:21, V(a), which provides, in pertinent part: "Upgrading of existing facilities and infrastructures, the need for which is not created by new development, shall not be paid for by impact fees." He contends that it also violated the Town's ordinance, which contains an identical provision. The interpretation and application of statutes present questions of law, which we review de novo. Babiarz v. Town of Grafton, 155 N.H. 757, 759

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(2007). In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Id. When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. These same rules of construction apply to zoning ordinances. Fox v. Town of Greenland, 151 N.H. 600, 605 (2004); see Feins v. Town of Wilmot, 154 N.H. 715, 719 (2007). Impact fees "are charges assessed by a municipality to shift the cost for capital improvements necessitated by a development to the developer and new residents." 15 P. Loughlin, New Hampshire Practice, Land Use Planning and Zoning

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