Radziewicz v. Town of Hudson

982 A.2d 415, 159 N.H. 313
CourtSupreme Court of New Hampshire
DecidedOctober 20, 2009
Docket2009-085
StatusPublished
Cited by9 cases

This text of 982 A.2d 415 (Radziewicz v. Town of Hudson) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Radziewicz v. Town of Hudson, 982 A.2d 415, 159 N.H. 313 (N.H. 2009).

Opinion

ÜALIANIS, J.

The petitioners, Joanne and Peter Radziewicz, appeal an order of the Superior Court (Nicolosi, J.) dismissing, for lack of subject *315 matter jurisdiction, their appeal from a ruling of the zoning board of adjustment (ZBA) in favor of the respondent, Town of Hudson. See RSA 677:4 (2008). We affirm.

The record supports the following relevant facts. The petitioners own property in Hudson. They contest the ZBA’s grant of a use variance to the owners of an abutting property permitting it to be used as a multi-family dwelling. On November 8,2007, the ZBA denied the petitioners’ motion for a rehearing. See RSA 677:2 (2008). Thirty-two days later, on December 10, 2007, the petitioners appealed to the superior court. See RSA 677:4. The town moved to dismiss, arguing that the appeal was untimely and that the court, accordingly, lacked subject matter jurisdiction. See id. (allowing for appeal of a ZBA decision to the superior court “within 30 days after the date upon which the [ZBA] voted to deny the motion for rehearing”). The petitioners objected, arguing that because the thirtieth day had fallen on a Saturday, Superior Court Rule 12(1) permitted them to file the appeal on the following Monday. The superior court initially denied the town’s motion to dismiss.

On September 29, 2008, the parties attended a hearing on the merits of the petition. The town orally renewed its motion to dismiss for lack of subject matter jurisdiction due to untimely filing. The superior court granted the motion, reasoning that decisions of this court that had been issued since its initial order denying the motion dictated that “failure to comply with a statutory timeframe deprive[d] . . . [it] of appellate jurisdiction.” This appeal followed.

The petitioners first argue that the trial court erred by reversing its earlier denial of the town’s motion to dismiss. Specifically, they claim that superior court rules barred the trial court from reconsidering the issue because the town did not file a motion for reconsideration or request a hearing when the initial order denying the motion was issued.

The trial court has the power to reconsider an issue until final judgment or decree. Goudreault v. Kleeman, 158 N.H. 236, 249 (2009). In addition, “the issue of subject matter jurisdiction may be raised at any time in the proceedings because jurisdiction cannot be conferred where it does not already exist.” Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 575 (2003). “The superior court has no discretion when dealing with statutory time requirements that confer jurisdiction.” Id. Accordingly, the town was not required to file a motion for reconsideration or to request a hearing, and the trial court did not err in revisiting its earlier ruling.

Next, the petitioners argue that they timely filed their appeal to the superior court because the thirtieth day from the ZBA’s denial of their motion for rehearing fell on a Saturday, and that, accordingly, Rule 12(1) *316 extended the deadline to the following Monday. The petitioners concede that RSA 677:4 mandates that appeals be filed within thirty days in order to establish jurisdiction in the superior court, and that they failed to comply with this deadline. Nonetheless, they argue that the provisions of Rule 12(1) control.

Rule 12(1) 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 trial court ruled that notwithstanding Rule 12(1), the plain language of RSA 677:4 does not allow for filing an appeal beyond thirty days when the thirtieth day falls on a Saturday. We agree.

The interpretation and application of RSA 677:4 is a question of law, which we review de novo. See Upton v. Town of Hopkinton, 157 N.H. 115, 118 (2008). In matters of statutory interpretation, we are the final arbiters of the legislature’s intent as expressed in the words of a statute considered as a whole. Id. When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. at 118-19. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. at 119.

In construing other sections of RSA chapter 677 containing similar provisions, we have held that parties must comply with the required statutory timelines to establish jurisdiction in the superior court. For example, we have held that “strict compliance with the thirty-day filing deadline of RSA 677:15, I, is required to vest the trial court with jurisdiction.” Atwater v. Town of Plainfield, 156 N.H. 265, 267 (2007). We have also held that under RSA 677:3, I (2008), “compliance with the deadline is a necessary prerequisite to establishing jurisdiction and failure to timely move for rehearing divests the superior court of subject matter jurisdiction.” Cardinal Dev. Corp. v. Town of Winchester Zoning Bd. of Adjustment, 157 N.H. 710, 712 (2008). The same rule applies here. RSA 677:4 vests jurisdiction in the superior court for appeals of ZBA decisions only if a petition is filed “within 30 days after the date upon which the [ZBA] voted to deny the motion for rehearing.”

We addressed a similar issue in Dermody v. Town of Gilford, 137 N.H. 294 (1993). In that case, the petitioners filed an appeal in the superior court *317 thirty-one days after a decision of the Gilford Planning Board. The applicable statute, however, required that they file their petition “within 30 days after the filing of the decision.” Dermody, 137 N.H. at 295 (quotation and emphasis omitted). The petitioners argued that the superior court had the discretion to allow their petition because their noncompliance with the deadline resulted from “accident, mistake or misfortune,” the standard by which the superior court could, at that time, waive the strict application of its rules. Id. at 296-97; see SUPER. Ct. R. Preface (amended 1999). We disagreed, holding that

[statutory time requirements relative to the vesting of jurisdiction . . . must be distinguished from the superior court’s own procedural rules. While the superior court has the discretion to apply its concept of accident, mistake or misfortune in some other contexts, the court cannot use this concept to establish jurisdiction in the superior court in the first instance.

Dermody, 137 N.H. at 296-97 (citation omitted).

The same reasoning applies to this case, and we agree with the trial court’s conclusion that the plain meaning of the statute, and not Rule 12(1), governs the petitioners’ appeal.

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Bluebook (online)
982 A.2d 415, 159 N.H. 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/radziewicz-v-town-of-hudson-nh-2009.