Agenda - Planning Commission - 02/05/2009

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November 25, 20081 Volume21 No. 22 .~ y J the ZBA. Cardinal thus had until February 5, 2007 to file the motion . . for rehearing. On February 5, Cardinal's counsel called the ZBA's land use assis- tant at around 5:10 p.m. to discuss filing a motion for rehearing. The. assistant gave counsel the ZBA's facsimile n,umber. Cardinal sent the mo- tion for rehearing via facsimile at 5:50 p.m, that evening. Cardinal. later maintained that the assistant said she would retrieve the f~ed motion from the town. hall later that evening. The assistant, however, did not have access to the fax machine after business hours. The ZBA eventually considered Cardinal's motion for rehearing and rejected it because it was untimely. Cardinal appealed to the superior court. The superior court concluded that it . lacked jurisdiction and could not consider Cardinal's appeal because Cardinal had failed to timely move for reconsideration in accordance with New Bampshire law, RSA S 677:2. The court found that Cardinal's motion was untimely because it was faxed to the ZBA after the close of business on February 5, 2007, and thus; was not "filed" until February 6, 2007. Cardinal appealed. It argued that the superior court improperly dismissed its appeal because its motion for rehearing was timely filed with the ZBA in accordance with RSA S 677:2. Cardinal noted that RSA S 677:2 did not provide a "close of business" deadline. Instead, it argued that tinder the thirty day time limitation provided by S 677:2, "day" should be construed as twenty-four hours. It asserted that under that construction, its filing was timely. Cardinal also argued that, in the alternative, the ZBA was equitably estopped from asserting the untime- liness of its motion for rehearing given the conduct of the ZBA's land use assistant. DECISION: Affirmed.- The Supreme Court of New Hampshire held that Cardinal's motion for rehearing was untimely because it was not "filed" within the 30- day period. The court explained that in order to appeal a ZBA decision, New HamJ;lshire law (RSA S 677:3) required a timely motion for rehearing. Thus1..if Cardinal failed to timely move for rehearing, itcould not appeal the ZBA's decision to court. Whether Cardinal timely moved for recon- - I side.ration by faxing the motion to the ZBA after the close of business i on,F~bruary 5 required the court to interpret the language of the statute. TheFourt said that when examining the language of the statute, it had to give. the words of the statute their plain and ordinary meaning. Section 677:2 required that a .party must "apply for a rehearing" "[w] ithin 30 days after any order .or decision of the [ZBA]." Section 677:2 @ 2008 Thomson ReuterslWest 9 41