New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

RSA 21:35, II Provision Regarding Filing Dates Applies to Appeals from ZBA Decisions

Trefethen v. Derry
No. 2012-394, 4/12/2013

The plaintiffs in this case moved for a rehearing after the ZBA granted a special exception on an abutting property.  The ZBA denied the motion.  The plaintiffs then appealed to the superior court under RSA 677:4, which requires appeals to be filed “within 30 days after the date upon which the board voted to deny the motion for rehearing.”  The superior court dismissed the case because the appeal was filed 32 days after the date of the ZBA decision and therefore was untimely.
 
Appeal periods are interpreted very strictly by New Hampshire courts.  When a statute includes a time limit on appeals, petitioners must file within that time period or they have lost the right to appeal.  The appeal period in this case was 30 days under RSA 677:4.  However, the thirtieth day in this case was a Saturday.
 
The superior court relied on a previous Supreme Court opinion, Radziewicz v. Hudson, 159 N.H. 313 (2009), in refusing to apply a superior court rule which extends a deadline to the next business day if the deadline falls on a Saturday, Sunday or legal holiday.  However, a different version of RSA 21:35 was in effect at the time the appeal in Radziewicz was filed.  That statute was amended effective January 1, 2009, and the new version applied to the appeal in the current case.
 
RSA 21:35, II now provides that “[i]f a statute specifies a date for filing documents or paying fees and the specified date falls on a Saturday, Sunday, or legal holiday, the document or fee shall be deemed timely filed if it is received by the next business day.”  The provisions of RSA Chapter 21 in general apply to the “construction of all statutes…unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the same statute.”  RSA 21:1 (emphasis added by the Court).  Since RSA 677:4 contains no language manifesting the legislature’s intent to exclude it from the operation of RSA 21:35, II repugnant to the context of RSA 677:4, RSA 21:35, II applied.  The 30-day deadline fell on a Saturday, so the appeal was timely because it was filed on Monday, the next business day.

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