The Hudson zoning board of adjustment (ZBA) voted to grant a use variance for a multi-family dwelling on property next to property owned by the plaintiffs Joanne and Peter Radziewicz. The plaintiffs filed a motion for rehearing, which was denied on November 7, 2007. On Monday, December 10, 2007, 32 days later, the plaintiffs filed an appeal with the superior court under RSA 677:4, which provides in part: “Any person aggrieved by any order or decision of the zoning board of adjustment or any decision of the local legislative body may apply, by petition, to the superior court within 30 days after the date upon which the board voted to deny the motion for rehearing….”
It is well-established that timely filing of an appeal to superior court in a land use case is a strict matter of subject matter jurisdiction and cannot be waived. The trial court granted the Town’s motion to dismiss for failure to file within 30 days of the ZBA decision to deny the rehearing.
On appeal to the Supreme Court, the plaintiffs made three arguments for the timeliness of the Monday filing. First, they cited Rule 12(1) of the superior court, which provides: “In computing any period of time prescribed or allowed by these rules, by order of court, or by applicable law, … [t]he last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall extend until the end of the next day that is not a Saturday, Sunday, or a legal holiday….”
The Court held that the superior court rule does not apply to the appeal deadline under RSA 677:4, and the plain meaning of the statute requires filing within 30 days.
Next, the plaintiffs argued that their appeal was timely based on the case of HIK Corp v. Manchester, 103 N.H. 378 (1961), in which the Court had held a Monday filing timely when Sunday was the thirtieth day after denial of the rehearing. The Court distinguished HIK Corp. “because Sunday was ‘generally recognized as a dies non juridicus,’ a day on which no judicial act or proceeding could be carried out…. We know of no comparable recognized principle in the common law with regard to Saturday deadlines….” [citation omitted]
Finally the plaintiffs attempted to gain the benefit of an amendment to RSA 21:35, the statute that provides general rules for computing statutory deadlines, which became effective on January 1, 2009. Laws 2008, Chapter 11 added subparagraph II, as follows: “If 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 Court rejected the plaintiffs’ argument that the new section simply expresses the previous intent and meaning of the statute.
Curiously, while RSA 677:4, relating to ZBA appeals, does not mention RSA 21:35, RSA 677:2, relating to motions for rehearing, and RSA 677:15, relating to planning board appeals, both expressly refer to RSA 21:35 for counting 30-day periods for filing. The legislature may wish to address this inconsistency to remove any doubt about how to compute the 30-day filing period for ZBA appeals.