A request for a rehearing before a zoning board of adjustment (ZBA), a prerequisite to appealing to superior court, must be received by the ZBA within 30 days after the decision. The 30-day time period is counted in calendar days beginning with the day following the date of the ZBA vote to approve or disapprove the application. RSA 677:2. The deadline in this case was February 5. The motion for rehearing was faxed to the ZBA at 5:50 p.m. on the final day.
Counsel for Cardinal Development Corp. (Cardinal) called the ZBA’s land use assistant at home at 5:10 p.m. on the final day to discuss filing a motion for rehearing. The parties disagreed about what was discussed during the phone call, but the land use assistant ultimately provided counsel with the ZBA’s fax number. Counsel faxed a motion to the ZBA at 5:50 p.m. The ZBA ruled that because the motion was sent after business hours, it was actually received on February 6, one day late and, as such, it was untimely. The superior court agreed and concluded that it lacked jurisdiction because Cardinal failed to timely move for rehearing in accordance with RSA 677:2.
On appeal, Cardinal argued that RSA 677:2 does not contain a 5:00 p.m. deadline but requires only that a motion must be filed within 30 “days” of the ZBA vote. Cardinal argued that a “day” is a 24-hour period and that its filing at 5:50 p.m. was within 30 (twenty-four hour) days of the 11:45 p.m. vote of the ZBA. The ZBA countered that the time the decision was made is irrelevant because the date upon which the decision was made is not counted in calculating the 30-day period. Furthermore, there is no ZBA procedural rule allowing filing by fax. The ZBA cautioned that if Cardinal’s position is correct, then parties could simply “file” motions by “leaning them against the town hall.”
The Court observed that “[a]lthough the statute does not specifically state that the window for applying for rehearing closes when the ZBA closes for business on the day, such a requirement is a matter of common sense absent any ZBA procedural rule allowing after-hours filing.” The Court cited prior cases where it held that the complete act of “filing” includes physical receipt of the document by the relevant authority before the close of business. As such, the rehearing motion faxed at 5:50 p.m. was not received by ZBA officials until the following day, and thus was not “filed” within the thirty-day period of RSA 677:2.
Cardinal also argued that the ZBA is equitably estopped from asserting the untimeliness of its motion for rehearing because the land use assistant gave counsel the fax number and allegedly represented that she would go to the office later that evening to retrieve the faxed motion. The Court refrained from deciding whether equitable estoppel can apply to timely filing, a question of subject matter jurisdiction, because estoppel plainly could not be found under the facts. There was no evidence to establish that the land use assistant had the authority to accept motions on behalf of the ZBA after the close of business, or to waive the 30-day filing period. A municipal agent’s unauthorized conduct cannot estop a municipality. Moreover, Cardinal’s counsel could not have reasonably relied on the assistant’s assurance since counsel did not even call for the fax number until 5:10 p.m., after the close of business.
Municipal boards may adopt rules permitting after-hours filing. If so, rules should address what after-hour modes of filing will be acceptable, to avoid situations where a motion is left propped against the town hall.