Agenda - Planning Commission - 02/05/2009

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Zoning Bulletin was silent as to whether a motion for reconsideration could be received by facsimile. It was also silent as to whether such a motion must be filed before the. ZBA office was closed for business. Still, the court found it clear that the statute required a party to "file" a motion for rehearing. with the ZBA within thirty days. Looking at prior case law and the dic- tionary definition of "file," the court concluded that "filing" such a mo- tion required it be physically received by the ZBA.The court also found a close of blisiness requirement for filing on the thirtieth day was "a matter of cornmon sense absent any ZBA procedural rule allowing af- ter-hours filing." Applying that construction of S 677:2, the court found that Cardinal's motion for rehearing was not received by ZBA officials . until February 6, 2007, and thus was not "filed" within the thirty-day period required by S 677:2. The court rejected Cardinal's argument that the ZBA was eqUitably estopped from. asserting the untimeliness of Cardinal's motion for rehear~ ing given the conduct of the ZBA's land use assistant. In order to prove estoppel, Cardinal needed to show: "(1) a representation or concealment of facts was made by the ZBA with knowledge of those facts; (2) Cardi- nal 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) it reasonably relied upon the representation to its detriment." The court found no evidence that the ZBA's land use assistant had the authority to either accept a filing on behalf of the ZBA after the close of business on February 5, 2007, 0.1: to waive the thirty-day period in S 677:2. "Even assuming that the assistant assured Cardinal's counsel that the post-s :00 p.m. fax would be retrieved later in the evening, a municipal agent's un- authorized conduct [could] not estop the municipality," said the court. Furthermore, Cardinal's counsel could not reasonably rely upon the as- sistant's assurance. Accordingly, the court concluded that Cardinal failed to show the required elements for estoppel. See also: Pelletier v. City of Manchester, 150 N.H. 687, 844 A.2d 48.4 (2004). See also: Phetteplace v. Town of Lyme, 144 N.H. 621, 744 A.2d 630 (2900). .~ Cas~(Note: The .court noted that its holding did not prevent ZBAs froni adopting rules permitting after-hours filing. . , " . , {.) j~ )' 10 @ 2008 Thomson Reuters/West 42 (=-') ) :\~