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 STATE OF VERMONT 

 ENVIRONMENTAL COURT 

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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 

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 Decision and Order on Motion to Amend

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. Appellants have filed a complaint against the Vermont 

Supreme Court in the federal District Court regarding that case. 

The three present appeals involved appeals of building permits issued for three of 

the lots in the subdivision. This Court issued its decision upholding those building permits 

on April 24, 2000. On May 3, 2000, Appellant John Madden moved to amend the decision. 

 No responses were filed by any of the other parties. 

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. 

Finality of the Underlying Subdivision Appeal

Appellant Madden argues that the underlying subdivision approvals had been on 

appeal to the Vermont Supreme Court at the time of the building permit issuance, and that 
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by filing his complaint against the Vermont Supreme Court in federal court, the Vermont 

Supreme Court=s action upholding the subdivision approval cannot be considered to be 

final. 

However, Appellants= federal court action against the Vermont Supreme Court is not 

a continuation of the appeal of the subdivision permit. Rather, it is at most a collateral 

attack on the decision in that appeal. That is, the Supreme Court=s decision on the 

subdivision appeal is final; it is being challenged for reasons collateral to the merits of the 

subdivision permit. If the result of the federal case is to vacate the Vermont Supreme 

Court=s ruling on the motion for disqualification, and to send the matter back for a hearing 

before a differently-constituted Vermont Supreme Court, such a ruling by the federal court 

could also provide the basis to file a V.R.C.P. 60(b) motion to reopen the decision in the 

present cases. Until and unless that should occur, however, the subdivision appeal 

decision by the Vermont Supreme Court is considered final. 

Constitutionality of a Filing Fee in Any Amount

Appellant also seeks amendment or reconsideration of this Court=s decision on the 

validity of the $300 filing fee for appeals to the Zoning Board of Adjustment. Appellant 

argues that a filing fee in any amount is unconstitutional, under Chapter I, Article 41

 of the 

Vermont Constitution and under the federal constitution. In the April 24, 2000 order, this 

Court ruled in Appellants= favor on the filing fee, but not on the basis of the fee=s 

unconstitutionality. The Court did not reach the question of the fee=s constitutionality, or 

even whether the fee was reasonable under 24 V.S.A. '4462(a), because the Court 

concluded that the filing fee did not comply with '322 of the Zoning Regulations (which 

requires the Selectboard to establish all fees to be charged Awith respect to the 

administration of these regulations, with the intention of covering the costs of administering 

 

 

1Every 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. 
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the same.@) 

 The filing fee was overturned because it failed to comply with its enabling 

ordinance. The Court declined to go on to reach the constitutional issue following the 

principle that a court should not reach a constitutional question if the matter may be 

decided on other grounds. Monti v. State, 151 Vt. 609, 614 (1989); and see State v. Read, 

165 Vt. 141, 146 (1996). 

Accordingly, Appellant=s Motion to Amend the April 24, 2000 Decision and Order is 

DENIED. 

Dated at Barre, Vermont, this 23rd day of May, 2000. 

______________________________________ 

Merideth Wright 

Environmental Judge