Posted by: Patricia Salkin | October 20, 2008

Motion for Rehearing of ZBA Decision Filed by Facsimile After 5:00pm on Deadline Day is Untimely

A developer applied for and was denied a special exception to excavate loam, sand, gravel and stone by the zoning board of adjustment.  Through counsel, the developer sought a rehearing.  The statute provides that the applicant has 30 days to appeal, beginning on the day following the decision.  The decision was rendered on January 4, 2007.  On February 5 the developer’s counsel contacted the zoning board of adjustment’s land use assistant at her home at approximately 5:10pm to discuss filing a motion for a rehearing.  She provided counsel with a fax number and said she would be at town hall later that night to retrieve the faxed motion.  The motion for rehearing was faxed at about 5:50pm. On March 1, 2007 the ZBA determined that the motion was untimely and rejected it on its merits. On appeal, the Superior Court concluded that the developer failed to timely move for consideration within the thirty day statutory period, finding that the 30 days would have been February 3, 2007 but because it was a Saturday, the applicant had until Monday, February 5, 2007 to file the motion.  Since it was filed after the close of business on February 5th, the court said the motion was not filed until February 6th. The Court also held that just because the ZBA assistant provided a fax number, the ZBA was not estopped from asserting the motion’s untimeliness.  


On appeal to the New Hampshire Supreme Court, the developer argued that the motion was not untimely since the statute did not specify that it had to received by 5:00pm. Furthermore, the developer argued that a day is equivalent to 24 hours, and since the ZBA voted on the application at 11:45pm, they had until 11:45pm on the night of February 6th to file their motion.


The Supreme Court, in applying rules of statutory construction, held that the motion for rehearing was not received by ZBA officials until the following day (February 6th) and therefore it was not filed within the thirty-day period.  The Court noted, however, that its ruling does not prevent local zoning boards from adopting rules permitting after hours filing if they choose, including filing by fascimile. The Court also held that the developer failed to satisfy all four prongs of the test for proving estoppel (“ (1) a representation or concealment of material facts was made by the [ZBA] with knowledge of those facts; (2) [Cardinal was] unaware of the truth of the matter; (3) the representation was made with the intention of inducing [Cardinal] to rely upon it; and (4) [ot] reasonably relied upon the representation to [its] detriment.), commenting that there was no evidence that the assistant had authority either accept a filing on behalf of the board after the close of business or to waive the thirty-day period in the state statute for filing of a motion. Therefore, the Court affirmed the dismissal for lack of subject matter jurisdiction.     


Cardinal Development Corporation v. Town of Winchester Zoning Board of Adjustment, 2008 WL 4489666 (N.H. 10/8/2008).


The opinion can be accessed at:

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