Supreme Court Sends Derry Case Back to Lower Court

A local Realtor’s case against the town has been returned to the New Hampshire Superior Court from the State Supreme Court in what the individual calls a “landmark” ruling. Trefethen’s case began when he protested a Zoning Board of Adjustment (ZBA) ruling allowing a day care center to open next to a property he owns. “We found they miscalculated the measurements on the plan. The day care was only a half-acre lot, and the parking was too close to our fences,” he said. But the ZBA allowed the day care to go in, setting in motion a chain of events.

Trefethen appealed the decision, contending he had not been properly “noticed” for the hearing. “We were never noticed at the post office box,” he said. Instead, the notice went to his street address, and he did not find it in time. He filed a motion to the Superior Court for the board to reconsider the day care’s application. “They submitted the wrong drawings,” he said. “We had a survey done.” He took the material to Superior Court.

He filed within the 30 days allowed, but two of those days fell on a weekend, and the Superior Court rejected the appeal as “untimely.” The Superior Court cited a case called “Radzewicz vs. the Town of Hudson,” in 2006-07. But “Radzewicz” was enacted prior to Legislative Law 2135, Trefethen said, which ruled that “anything that fell on a weekend could be credited to a Monday.”

Superior Court judge Marguerite Wageling used Radzewicz vs. Hudson without considering the legislative law, Trefethen said. “But for the Supreme Court it was a no-brainer,” Trefethen said. “They said, ‘This is wrong.’” According to Trefethen the Supreme Court said, “yes, you have to hear cases that come before you, and holidays and weekends are part of the legitimate time frame.”
He added, “Why the town and Superior Court didn’t get that, I don’t know.”

The Supreme Court sent the case back to Superior Court, Trefethen said. “If Superior Court decides in his favor, the ZBA will have to hear our appeal,” he said. “If we lose at Superior Court, we are going back to the Supreme Court.” His case was a landmark case, Trefethen said, explaining, “No one has ever challenged Radzewicz and won. But we did.”

Bob Mackey, Code Enforcement Officer for Derry, said, “What Mr. Trefethen’s appeal did was to have the Supreme Court decide that his appeal was timely when it was filed with the Superior Court.”
Where are they now? Mackey said, “The town’s position is that there already was a hearing. The judge should be able to give a decision based on the information, and find for or against the Zoning Board.”

The situation could play out in one of three ways, Mackey said: the judge could make a decision for Trefethen, or there would be another hearing at the Supreme Court level. “Or the judge could remand it back to the Zoning Board.”