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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 on Motion to Amend

In Docket Nos. 53-4-99 Vtec and 54-4-99 Vtec, the C ourt ruled on the site plan for a residential subdivision proposed by John and Debora h 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 99-44 9, and a motion for reargument was denied on March 28, 2000. Appellants have file d a complaint against the Vermont Supreme Court in the federal District Court regardi ng that case. The three present appeals involved appeals of build ing 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 partie s. In all three cases, Appellants John Madden and Meli ssa Winborn appeared and represented themselves; Appellee-Applicants John an d Deborah Sherlock also appeared and represented themselves; and the Town of New Hav en, represented by James Ouimette, Esq., entered an appearance but did not p articipate in the evidentiary hearing. Appellee-Applicants Richard and Tori Lathrop appear ed and represented themselves in
Docket No. 227-11-99 Vtec.

Finality of the Underlying Subdivision Appeal Appellant Madden argues that the underlying subdivi sion approvals had been on appeal to the Vermont Supreme Court at the time of the building permit issuance, and that2

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 C ourt is not a continuation of the appeal of the subdivision per mit. Rather, it is at most a collateral attack on the decision in that appeal. That is, th e 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 c ase 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 Co urt, 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 o f 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 unconstit utional, under Chapter I, Article 4 1 of the
Vermont Constitution and under the federal constitu tion. In the April 24, 2000 order, this Court ruled in Appellants = favor on the filing fee, but not on the basis of t he fee = s unconstitutionality. The Court did not reach the q uestion 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 A with respect to the administration of these regulations, with the inten tion of covering the costs of administering

1 Every person within this state ought to find a cert ain 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 j ustice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; comformably to the laws.3

the same. @ ) The filing fee was overturned because it failed to comply with its enabling ordinance. The Court declined to go on to reach th e constitutional issue following the principle that a court should not reach a constitut ional 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 O rder is
DENIED.

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

______________________________________ Merideth Wright Environmental Judge