Town Counsel Responds To Panciocco Filings

In a filing in Rockingham Superior Court dated Oct. 15, 2013, Atty. Patricia Panciocco accused the Town of Londonderry of violating RSA 674:21(v), stating that it grants municipalities the authority to assess new growth proportionally for new capital facilities owned and operated by the municipality from which new growth benefits. She stated that the violation occurred when school impact fees were collected for school growth when there were fewer students than before.

Also in her filing, Panciocco said the town is guilty of negligence, violation of fiduciary duties owed to impact fee payers, violation of the public trust in government and violation of the Municipal Budget Act, and she requested the court order the town to return all impact fees collected from new development, order the town to suspend application of the impact fee ordinance until such time as it (the town) prepares well grounded studies that comport confirmed facts about the town, award the Respondents their costs and attorney fees, and grant other relief as the Court finds necessary.”
Town Counsel Michael Ramsdell countered with filings that state all of Panciocco’s allegations should be dismissed.
As for “violation of fiduciary duties owed to impact fee payers,” Ramsdell’s filing of Nov. 7 said the allegation should be dismissed because it fails to state “a cognizable breach of fiduciary duty claim” and the town is immune from liability for the alleged breach.
As to “negligence,” Ramsdell said in a filing dated Nov. 5 that the negligence count should be dismissed “because it fails to state a cognizable negligence claim” and the town is immune from liability for the alleged negligent conduct.
The “violation of public trust in government” assertion made by Panciocco was answered by Ramsdell in a filing dated Oct. 31, in which Ramsdell said the allegation “fails to assert a proper cause of action and should be dismissed because 1) the tort (a wrongdoing that causes injury to another person) has never been recognized in this context, 2) to the extent peripherally related actions have been recognized, they are inapplicable in this instance, 3) it is inappropriate to recognize a new tort in this instance and 4) to the extent RSA 674:21 (V) sets forth mandates for the collection of impact fees, it does not impose the duty alleged on the town.”
To the allegation of violating the Municipal Budget Act, Ramsdell said in a filing dated Oct. 6 that it should be dismissed because “the Municipal Budget Act does not provide for or imply a private right of action and RSA 674:21 (V) expressly exempts decisions ‘relative to limitation and expenditure’ of impact fees from the Municipal budget Act.”
Ramsdell concluded in each filing that the request for attorney fees and other relief should be dismissed because “very basic lapses in the pleadings render it impossible to for the town to adequately answer the allegations or sufficiently plead a number of grounds for dismissal or dispositive defenses.”
Ramsdell said the court should not interpret the motion as a concession that the respondents’ statement is adequately plead, rather the town submits the motion to demonstrate that based even on the barest pleading, the respondents are not entitled to relief.
He said the town specifically does not waive any possible additional defenses to the claims or to any other claims made in the respondents’ statement that it is simply not able to raise at the current time due to what he termed “fundamental inadequacies in the pleading.”
Ramsdell requested the court grant the dismissal of the motions presented and “such additional relief as justice requires.”
In a Superior Court decision dated Dec. 31, 2012 the court found that the impact fee program in place in Londonderry since 1994 had at times been illegal and that refunds were due to parties who paid the illegal fees. The court also said that “The court sees that a full accounting of the impact fee program to be the only solution to the town’s widespread misfeasance.” The court then ruled that the town employ an independent auditor to fully audit the town’s impact fee collections and expenditures since the program’s creation in 1994.
A forensic audit was ordered in January and completed in August.

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