                                   STATE OF VERMONT

                               ENVIRONMENTAL COURT


                                                  }
In re Appeals of:                                 } Docket Nos. 227-11-99 Vtec,
 John A.G. Madden and Melissa Winborn             }250-12-99 Vtec, and 15-1-00 Vtec
                                                  }
                                                  }


                                   DECISION AND ORDER

       In Docket Nos. 53-4-99 Vtec and 54-4-99 Vtec, the Court ruled on the site plan for a
residential subdivision proposed by John and Deborah Sherlock on the former Phelps
Farm on Hunt Road in New Haven. This Court=s decision in that matter was affirmed by
the Vermont Supreme Court under Docket Number 99-449, and a motion for reargument
was denied on March 28, 2000. The three present appeals involve appeals of building
permits issued for three of the lots in the subdivision, as follows:
              Docket No. 227-11-99 Vtec is the appeal of building permit #51-99, pertaining
       to lot number 4.
              Docket No. 250-12-99 Vtec is the appeal of building permit #46-99, pertaining
       to lot number 2.
              Docket No. 15-1-00 Vtec is the appeal of building permit #62-99, pertaining to
       lot number 1.
       In all three cases, Appellants John Madden and Melissa Winborn appeared and
represented themselves; Appellee-Applicants John and Deborah Sherlock also appeared
and represented themselves; and the Town of New Haven, represented by James
Ouimette, Esq., entered an appearance but did not participate in the evidentiary hearing.
Appellee-Applicants Richard and Tori Lathrop appeared and represented themselves in
Docket No. 227-11-99 Vtec.


Validity of the Building Permits


                                              1
       Appellants= primary argument against the issuance of the building permits in each of
these three appeals was that the underlying subdivision approval was on appeal to the
Vermont Supreme Court at the time of the building permit issuance. That argument has
become moot, as the Vermont Supreme Court=s action is now final as to the underlying
subdivision approval.
       In Docket No. 250-12-99 Vtec, Appellants also argue that the initial application was
in the name of Orebaugh, a prospective purchaser who did not actually purchase that lot.
However, the Sherlocks as property owners also had an interest in that building permit, and
were entitled to pursue its approval in lieu of the Orebaughs.
       Appellants presented no other evidence that the applications for building permits
failed to meet any of the standards in the Zoning Regulations for issuance of building
permits for single-family residences. The Court finds no reason that any of the three
building permits should be disapproved or revoked, and each of them is therefore
approved in this appeal.


Validity of the Town=s Filing Fee
       Appellants also argue that the $300 filing fee imposed by the Town for taking
matters to the Zoning Board of Adjustment is unconstitutional under Chapter I, Article 41 of
the Vermont Constitution, and that it unreasonably discourages citizens from filing notices
of appeal. The filing fee was raised from $100 to $300 in the midst of these appeals, and
we cannot find from the evidence whether Appellants actually paid the higher fee on the
first two cases, or only on the third one.
       We do not reach the question of the fee=s constitutionality, or even whether the fee
                                      2
is reasonable under 24 V.S.A. '4462(a) , because we conclude that it fails to satisfy '322

   1
    Every person within this state ought to find a certain remedy, by having recourse to
the laws, for all injuries or wrongs which one may receive in person, property or
character; every person ought to obtain right and justice, freely, and without being
obliged to purchase it; completely and without any denial; promptly and without delay;
comformably to the laws.
   2
   . . . . The legislative body may set such reasonable fees for filing of notices of
appeal and other acts as it deems proper, the payment of which shall be a condition to

                                             2
of the Zoning Regulations of the Town of New Haven. That section provides that:
       The Board of Selectmen shall establish all fees to be charged with respect to the
       administration of these regulations, with the intention of covering the costs of
       administering the same.

       The Town has not shown that the $300 fee was established to cover the costs of
administering the zoning regulations. Rather, the increase in the fee (originally proposed to
be $500) was proposed to the Selectboard by Appellee-Applicants Sherlock, for the reason
that Athey feel it is to[o] easy for someone to go outside of the zoning regulations,@ that is,
in order to discourage appeals to the Zoning Board of Adjustment. Selectboard Minutes,
October 7, 1999. The only discussion shown in the Selectboard minutes is that A$500
seems too high,@ suggesting that while the Selectboard chose the $300 level of fee, rather
than the suggested $500, the Selectboard=s purpose for the increase was that stated in the
minutes by Appellee-Applicants Sherlock.
       Moreover, the evidence presented from the Town Report with regard to the Town=s
legal fees does not constitute a cost of administering the zoning regulations. Costs of
administration that may be covered by a filing fee before the ZBA are those incurred by the
operation of the ZBA and Zoning Administrator, not the Town=s legal fees before this
Court. The American Rule regarding attorney=s fees does not allow those fees to be
shifted to the opposing litigant unless a statute or contract provides for such fee shifting.
       The Town=s memorandum on this subject, assuming that the facts stated therein
were supported by an affidavit of the Town Clerk, showed that the 1999 Arevenues@ for the
ZBA exceeded the 1999 expenses, although it did not show the source of either those
revenues or the categories of expenses included. As of the date of adoption of the higher
fee, therefore, the fee could not be justified by a shortfall in revenues. While it showed that
the year 2000
Arevenues@ as of the date of the memorandum (April 7, 2000) were zero, as compared with
expenses of $578 for that period, there is nothing to show that the revenues anticipated for
the remainder of the year would not cover those expenses. Of course, without knowing the

the validity of such filing or act under this chapter.



                                               3
filing fees for zoning permit applications, variance applications or site plan approval
applications, it is difficult to determine what Arevenues@ the Town is relying on for its
argument.
       Accordingly, the Court must rule in Appellants= favor on the filing fee. Until and
unless a filing fee higher than the previous fee can be justified and adopted by the
Selectboard as part of a set of reasonable fees designed to cover the cots of administration
of the zoning regulations, the filing fee of $300 does not comply with '322 of the Zoning
Regulations. Upon proof of payment of the $300 filing fee, Appellants may apply to the
Town for a refund of that portion of the fee which exceeds the amount of the most recent
former filing fee.


       This ruling on the filing fee does not affect in any way the validity of Appellee-
Applicants= building permits as upheld by this decision.


       Dated at Barre, Vermont, this 24th day of April, 2000.




                                   ______________________________________
                                   Merideth Wright
                                   Environmental Judge




                                             4
