Robes v. Town of Hartford

Annotate this Case
ROBES_V_TOWN_OF_HARTFORD.92-098; 161 Vt. 187; 636 A.2d 342

[Filed 10-Dec-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-098


 Peter Robes, Ash Bullard                     Supreme Court
 Charles Potter, Michael Wood,
 Roy Hathorn and Fred Davis
                                              On Appeal from
      v.                                      Windsor Superior Court

 Town of Hartford, et al.                     September Term, 1993



 Richard W. Norton, J.

 William D. Cohen of Abell, Kenlan, Schwiebert & Hall, P.C., Rutland, for
    plaintiffs-appellants

 Peter F. Welch of Welch, Graham and Manby, White River Junction, for
    defendant-appellee



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.




      JOHNSON, J.  Plaintiffs, developers of new residential buildings in the
 Town of Hartford, appeal from the order of the superior court, which held
 that 24 V.S.A. { 3615, as that statute read in 1986, authorized the Town of
 Hartford to impose an impact fee on new developments to finance future
 expansion of the Town's sewage capacity.  Defendants appeal the trial
 court's award of attorney's fees to plaintiffs.  We affirm in part and
 reverse in part.
      The Town of Hartford operates a municipal sewage system to which all
 residential buildings are required to be connected.  On December 29, 1986,
 
 
 
 the Town's Board of Selectmen passed a resolution imposing a "Plant Impact
 Fee" on all residential structures not occupied before January 1, 1987, and
 on existing residential structures requiring additional demand for sewage
 services after January 1, 1987.  The Town assessed the impact fee at a rate
 of $600 per bedroom and assumed each structure would have three bedrooms,
 for a total fee of $1800 for each affected structure.  The purpose of the
 Plant Impact Fee was to collect capital funds to finance the future
 expansion of the Town's sewage capacity.
      Plaintiffs, after incurring and paying the Plant Impact Fee, filed
 suit to declare the Plant Impact Fee illegal, to enjoin the Town from
 further enforcement, and to recover their payments and other damages,
 including attorney's fees and costs.
      After a bench trial, the court entered judgment for defendants.  The
 court held that 24 V.S.A. { 3615 authorized the Town to impose the Plant
 Impact Fee and that the fee rate was both reasonable and rationally related
 to the Town's purpose of financing expansion or new construction of sewage
 facilities to meet anticipated needs.  The court, however, also held that
 the 1986 resolution (FN1) was "defective" insofar as it lacked a mechanism for
 returning capital funds that went unexpended after a reasonable period of
 time.  The court found that this defect was not fatal to the operation of
 the Plant Impact Fee and ordered the Town to amend its ordinance to require
 the refund of monies not expended within six years of collection.
 
 

 Nevertheless, the court awarded attorney's fees to plaintiffs, on the theory
 that plaintiffs' suit, though not successful, had been "meritorious" in
 bringing to light a defect that ultimately preserved a so-called "common
 fund."
      Plaintiffs appeal the trial court's findings that the Town had acted
 pursuant to statutory authority when it imposed the impact fee and that the
 fee rate was reasonable and related to a legitimate public purpose.  Defend-
 ants, on cross-appeal, claim that it was error for the trial court to award
 attorney's fees and costs to plaintiffs, who had not prevailed on any of
 their claims.  We address these issues in turn.
                                     I.
      Plaintiffs first argue that the trial court erred in holding that 24
 V.S.A. { 3615 authorized the Town to impose the Plant Impact Fee.  At the
 time the Town enacted its Plant Impact Fee in 1986, { 3615 authorized a
 municipality to establish sewage disposal charges, "to be paid at such times
 and in such manner as the [municipal sewage disposal] commissioners may
 prescribe," based on:  (1) metered water consumption; (2) the number and
 kind of plumbing fixtures; (3) the number of persons residing in or
 frequenting the premises served; (4) the appraised value of the premises; or
 (5) a combination of the enumerated bases or "any other equitable basis."
 24 V.S.A. { 3615 (1983) (amended 1989).(FN2)

 

      Plaintiffs argue that { 3615 permitted municipalities to impose a
 sewage charge only to recoup money expended on an existing municipal sewage
 system, not to collect money in anticipation of future needs.  Plaintiffs
 also argue that even if { 3615 did contemplate charges for future needs, the
 statute required that the Town use an "equitable basis" for establishing
 such charges; they contend that the Plant Impact Fee does not use an
 "equitable basis" and must be struck down.  We believe plaintiffs'
 interpretation of { 3615 is too narrow.
      Before turning to plaintiffs' arguments, we note that in Vermont a
 municipality has only those powers and functions expressly granted to it by
 the legislature, such additional functions as may be incident, subordinate
 or necessary to the exercise thereof, and such powers as are essential to
 the declared objects and purposes of the municipality.  Bryant v. Town of
 Essex, 152 Vt. 29, 36-37, 564 A.2d 1052, 1056 (1989).  We construe municipal
 acts strictly, and we resolve any fair, reasonable, substantial doubt con-
 cerning a municipality's authority to act against the municipality.  In re
 Ball Mountain Dam Hydroelectric Project, 154 Vt. 189, 192, 576 A.2d 124, 126
 (1990).
                                     A.
      Plaintiffs contend that { 3615 cannot authorize the Plant Impact Fee
 because the fee is not a "sewage disposal charge" based on actual use.
 They point to our holding in Kirchner v. Giebink, 150 Vt. 172, 552 A.2d 372
 (1988) to support their contention.  In Kirchner, we held that { 3615
 contained "limiting statutory language," id. at 183, 552 A.2d  at 379,
 
 
 
 because it "authorize[d] 'sewage disposal charges' based upon five possible
 means of determining a fair charge for use," id. at 181, 552 A.2d  at 378,
 and did so in "very specific language," id. at 183, 552 A.2d  at 379.
 Plaintiffs argue that the Town failed to base its Plant Impact Fee on one of
 the five bases enumerated in { 3615.  We disagree.
      Defendants do not dispute that they did not base the Plant Impact Fee
 on any of the first four bases enumerated in { 3615.  Defendants claim,
 however, that they acted pursuant to { 3615(5), which permits sewage charges
 based on a combination of the enumerated bases "or any other equitable
 basis."  Defendants argue that this Court, in Handy v. City of Rutland, 156
 Vt. 397, 400-01, 598 A.2d 114, 116 (1990), recognized that { 3615(5)
 authorized sewage impact fees to finance system improvements.
      In Handy, we held that { 3615 authorized the City of Rutland to impose
 an impact fee on extraterritorial users to defray the costs of expanding the
 city's sewage system.  Id. at 402, 598 A.2d  at 117.  We acknowledged that "{
 3615 does limit the bases upon which a municipality may fix sewer rates."
 Id.  But we also found that { 3615 permits charges to be paid "'in such
 manner as the [municipal sewage] commissioners may prescribe'"; that {
 3615(5) permits such charges to be based on "'a combination of any of [four
 enumerated] bases or any other equitable basis'"; and that "'[t]he [sewage]
 commissioners may change the rates of such charges from time to time as may
 be reasonably required.'"  Id. at 400-01, 402, 598 A.2d  at 116, 117
 (quoting 24 V.S.A. { 3615 (1983) (amended 1989)).
      Plaintiffs contend that Handy authorizes only extraterritorial
 exactions under { 3615, and not, as here, municipal exactions on planned
 
 
 
 sewage use within the municipality's borders.  Plaintiffs are correct that
 our decision in Handy involved an exaction on extraterritorial users not
 otherwise subject to municipal controls.  Id. at 402, 598 A.2d  at 117.  But
 our decision to uphold the city's authority under { 3615 did not rely on
 the exaction's extraterritorial nature.  As we stated in Handy, "Vermont law
 . . . does not distinguish between resident and non-resident customers."
 Id. at 404, 598 A.2d  at 118.  Rather, the extraterritorial nature of the
 city's exaction served to clarify the scope of authority provided in { 3615.
 Because the plaintiffs in Handy were not residents of the City of Rutland
 subject to other municipal charges or controls, we found no conflict between
 { 3615 and other statutory sections under which the City might have imposed
 sewage charges.  Id. at 402, 598 A.2d  at 117.  In the absence of such
 conflict, we were easily able to conclude "that the type of hookup fee
 imposed by the City of Rutland was within the scope of fees authorized by {
 3615, which allows municipal sewer commissioners to establish charges to be
 paid 'in such manner as the commissioners may prescribe.'"  Id. (quoting 24
 V.S.A. { 3615 (1983) (amended 1989)).
      We believe that in this case the Town also exercised proper authority
 under { 3615.  When the Town passed its 1986 resolution, regulations
 required the Town to begin planning for expanded sewage capacity when its
 current facilities reached eight percent of total capacity.  In implementing
 the Plant Impact Fee through the 1986 resolution, the Town exercised a
 laudable degree of foresight and attempted to soften the blow that a more
 rapid planning and construction schedule might entail.  The Town's foresight
 was borne out by the fact that daily usage of its sewage system increased
 from forty-five percent of capacity to sixty-five percent of capacity in the 

 

 time between the passage of the 1986 resolution and the 1991 trial.  Under
 these circumstances, we are hard pressed to view the Town's actions as
 falling outside the limits of { 3615.
      Plaintiffs, however, argue that the provisions of chapters 97 and 101
 of Title 24, when read in pari materia, restrict a municipality's power to
 impose sewage charges under { 3615.  Specifically, they contend that even
 if we read { 3615 to allow a municipality to impose sewage charges not based
 on actual use, that power is limited by the restrictions on the use of those
 charges authorized in { 3616.  We disagree.
      Plaintiffs are correct that this Court must read provisions that are
 part of the same statutory scheme in pari materia.  Drumheller v. Shelburne
 Zoning Bd. of Adjustment, 155 Vt. 524, 529, 586 A.2d 1150, 1152 (1990).
 Moreover, we have held that { 3616 does set forth the permissible uses of
 the proceeds of { 3615 charges.  Kirchner, 150 Vt. at 181, 552 A.2d  at 378.
 But we find that {{ 3615 and 3616, and other applicable provisions of
 chapters 97 and 101, when read in pari materia, support the Town's, rather
 than plaintiffs', position.
      In { 3616, as that statute read in 1986, the legislature required that
 a municipal sewage department's "charges and receipts" "shall only be used
 and applied to pay the interest and principal of the sewage disposal bonds
 of such municipal corporation as well as the expense of maintenance and
 operation of the sewage disposal department or other expenses of the sewage
 system."  24 V.S.A. { 3616 (1983) (amended 1989).
      Plaintiffs argue that { 3616 limits a municipality to three types of
 expenditures:  (1) repaying the interest and principal of sewage disposal
 bonds; (2) paying current maintenance and operating expenses of the sewage
 
 
 
 system; or (3) paying other expenses of the system.  They urge us to read
 the words "other expenses" in the final phrase of { 3616 to mean "other
 current expenses," i.e., identifiable and specific costs, and not to mean
 unspecified future expenditures.
      We are constrained from reading the word "expenses" in { 3616 to mean
 only "current expenses" or "operating expenses."  First, { 3616 by its
 express terms permits a municipality to use sewage charges to pay "the
 expense of maintenance and operation of the sewage disposal system or other
 expenses of the sewage system" (emphasis added).  If we read the words
 "other expenses" to mean the same as "the expense of maintenance and
 operation," then the statute contains a redundancy.  We will not interpret a
 statute in a way that renders a significant part of it pure surplusage.
 State v. Beattie, 157 Vt. 162, 165, 596 A.2d 919, 921 (1991).  Second, we
 presume that the legislature chose its words advisedly.  State v. Papazoni,
 ___ Vt. ___, ___, 622 A.2d 501, 503 (1993).  If the legislature had intended
 the payment of "current expenses," then it would have used the more specific
 term rather than the general term "expenses."  See State v. Camolli, 156 Vt.
 208, 213, 591 A.2d 53, 56 (1991).
      Chapters 97 and 101 of Title 24 do not specially define the word
 "expenses."  The ordinary meaning of the word "expense" is "[a]n outlay;
 charge; cost; price."  Black's Law Dictionary 577 (6th ed. 1990).  We note
 that plaintiffs, in their brief, use the words "expenses" and "costs"
 interchangeably when discussing the application of {{ 3615 and 3616.  We
 also note that chapter 91 of Title 24 defines "expense" as a "cost," i.e.,
 "the cost of architects, surveyors, engineers, contractors, lawyers or
 other consultants or experts as well as current operating expenses to be
 
 
 
 incurred by the [consolidated water] district."  24 V.S.A. { 3343(b)
 (emphasis added).  Chapters 91 and 105 of Title 24 provide special
 definitions of the words "cost," id. { 3341(b)(4), and "costs," id. {
 3672(8).  As these definitions are nearly identical, we set forth the
 definition of "costs" from 24 V.S.A. { 3672(8), which relates to
 Consolidated Sewer Districts:
           "Costs" as applied to a sewage system include the
         purchase price of any such system, the cost of con-
         struction, the cost of all labor, materials, machinery
         and equipment, the cost of improvements, the cost of all
         lands, property, rights, easements and franchises
         acquired, financing charges, interest prior to and
         during construction and, if deemed advisable by the
         sewer commissioners for one year after completion of
         construction, cost of plans and specifications, surveys
         and estimates of cost and of revenues, cost of engi-
         neering and legal services, and all other expenses
         necessary or incident to determining the feasibility or
         practicability of such construction.

 24 V.S.A. { 3672(8) (emphasis added).
      When the same word is used in statutes in pari materia, it will bear
 the same meaning throughout, unless it is obvious that another meaning was
 intended.  State v. Welch, 135 Vt. 316, 321, 376 A.2d 351, 354 (1977).  The
 foregoing definition indicates that "costs" and "expenses," as used in Title
 24, do not refer solely to operating expenses or expenses already incurred,
 as plaintiffs contend.  Based on the definitions of "expense" and "cost" or
 "costs" used elsewhere in the Title, and on the plain, ordinary meaning of
 "expenses," we find that { 3616 permits "sewage disposal charges" to be used
 as defendants have ordered under the Plant Impact Fee enactments.
                                     B.
      Plaintiffs argue, however, that the impact fee is not "equitable," as
 required by 24 V.S.A. { 3615(5), because it does not treat all town
 
 
 
 residents equally, and because each affected contributor pays for the
 equivalent of 150 gallons of water per bedroom for three bedrooms, even
 though in some cases actual water usage is significantly less than 150
 gallons per bedroom and the actual number of bedrooms is fewer than three.
 Plaintiffs are correct that a municipal exaction under { 3615(5), even
 though not based on actual water or sewer usage, must nonetheless be
 "equitable."  Handy, 156 Vt. at 404, 598 A.2d  at 118.  But we disagree with
 plaintiffs' contentions because we believe the Town used an equitable basis
 in setting its fee rate.
      Plaintiffs first argue that the impact fee is inequitable because it
 does not treat all residents equally.  This argument is insupportable under
 Vermont law.  We have consistently upheld disparate classifications of
 property if the classification is reasonably related to the purpose for
 which it is established.  See, e.g., In re Property of One Church Street,
 152 Vt. 260, 266, 565 A.2d 1349, 1352 (1989) (upholding property tax
 classification).  In this case, as we have already noted, the Town faced a
 regulation that required the Town to begin planning for sewage system
 expansion when its current system reached eighty percent of total capacity.
 The Plant Impact Fee recognizes this and affects only residential structures
 that will cause the need for additional sewage capacity.  We find that it
 reasonably related to the regulatory purpose to ask those who will impose
 new or additional demands on the system to pay for the expansion required as
 a result.
      Plaintiffs' second argument is that the impact fee is inequitable
 because it does treat all affected contributors equally, regardless of their
 actual usage.  As we discussed above, we do not view 24 V.S.A. { 3615 as
 
 
 
 requiring a town to base a sewage charge on actual sewage usage only.  The
 trial court found that the Town had based its Plant Impact Fee on gallonage
 allocation standards established by the United States Environmental
 Protection Agency and adopted by the Vermont Agency of Natural Resources.
 These standards establish the amount of reserve capacity a municipal sewage
 system must set aside for each structural type, regardless of a particular
 structure's actual usage.  According to these standards, each residential
 connection to a municipal sewage system requires the system to reserve
 sewage capacity equal to 150 gallons of water per bedroom per day, with each
 residence deemed to contain three bedrooms on average.  On this basis, the
 Town assessed a Plant Impact Fee of $1800 for each affected structure.
      In Handy, we found that a hookup fee based on "the maximum amount of
 effluent that may be discharged under plaintiffs' Act 250 permit" was
 "certainly" equitable under { 3615(5).  Handy, 156 Vt. at 405, 598 A.2d  at
 118.  Here, the Town based its Plant Impact Fee on the actual amount of
 reserve capacity it was required, under state and federal regulations, to
 set aside for plaintiffs' intended uses.  We find that the Town's basis,
 which reflected an actual amount of required reserve capacity, was certainly
 as equitable as the basis found equitable in Handy, which reflected a
 potential amount of permitted discharge.
      For the foregoing reasons, we conclude that the Town's basis in
 imposing the Plant Impact Fee was "equitable" under 24 V.S.A. { 3615(5).
                                     II.
      Plaintiffs also claim that the trial court erred in holding that the
 fee rate itself was reasonable and bore a "rational nexus" to a legitimate
 public purpose.  They appear to rely on our holding in Handy for the
 
 
 
 proposition that municipal sewer rates, when authorized by statute, must
 undergo a separate determination of their reasonableness.  Handy, 156 Vt. at
 402-03, 598 A.2d  at 117-18.  In Handy, we found that "Vermont law . . .
 requires that [sewer] rates be fair, reasonable, and equitable."  Id. at
 404, 598 A.2d  at 118.  But the Handy decision was limited to a holding that
 "the reasonableness of a city's extraterritorial rates is an appropriate
 issue for judicial review."  Id. (emphasis added).
      Plaintiffs ask us to extend the Handy decision to all municipal sewage
 rates.  We need not reach this question, for we find as a matter of law
 that plaintiffs have failed to sustain their burden of proving that the
 Selectboard's actions were unreasonable.  As we clearly stated in Handy,
 "because the rates established by a lawful rate-fixing body are presumed
 reasonable, the persons challenging the rates bear the burden of showing
 that they are unreasonable."  Id. at 404, 598 A.2d  at 118.
      At trial, plaintiffs presented evidence showing that the Town had not
 conducted studies to determine the necessity or cost of additional sewage
 capacity.  But plaintiffs presented no studies of their own showing that
 additional capacity was not necessary or that the costs were unreasonable.
 See id. at 405, 598 A.2d  at 119 (plaintiffs failed to meet burden of proving
 that sewer fee was unreasonable when they presented no cost analyses or
 other evidence showing that fee was inappropriate); South Shell Investment
 Co. v. Town of Wrightsville Beach, 703 F. Supp. 1192, 1203 (E.D.N.C. 1988),
 aff'd, 900 F.2d 255 (4th Cir. 1990) (plaintiffs' conclusory arguments where
 they challenge reasonableness of sewage impact fee but offer no evidence
 showing fee is unreasonable).  In the absence of evidence of
 
 
 
 unreasonableness, plaintiffs' arguments are conclusory only, and hence
 meritless.
      Plaintiffs also failed to present any evidence that defendants acted
 arbitrarily or unreasonably in calculating the fee rate itself.  Indeed, the
 trial record discloses that plaintiffs' witnesses offered testimony showing
 that the Town used four separate bases to determine its impact fee rate:
 (1) the actual cost of constructing the Town's sewage facilities ten years
 earlier, which came to approximately $5 per gallon per day without
 correcting for inflation; (2) the advice of consultants that the cost of
 constructing new wastewater treatment capacity in Vermont was $5-6 per
 gallon per day of additional capacity; (3) the advice of the Agency of
 Natural Resources that a $4 per gallon figure for adding new sewage
 capacity was "a low figure" and thus acceptable under guidelines that
 required the Town to charge no more than the actual cost of construction;
 and (4) information provided by "five or six communities in the state who
 had some sort of capital or impact fees in place right now" and whose
 "computations on average indicated around five dollars and forty cents per
 gallon . . . [for] adding new wastewater treatment plants."  The record
 reflects that the Town's decision to fix a $4 per gallon impact fee was
 neither arbitrary nor unreasonable.  We hold that it was not error for the
 trial court to find that the Plant Impact Fee was reasonable.
      Thus, we need not reach plaintiffs' contention that the trial court
 erred in finding that the Plant Impact Fee bears a "rational nexus" to the
 declared municipal purpose.  Plaintiffs acknowledge that Vermont has not
 heretofore adopted the "rational nexus" test for deter-mining the validity
 of municipal charges and fees.  But cf. Vermont Ass'n of Realtors v. State,
 
 
 
 156 Vt. 525, 530, 593 A.2d 462, 465 (1991) (state agency regulation must
 have some nexus to agency's grant of authority); and In re Club 107, 152 Vt.
 320, 324, 566 A.2d 966, 968 (1989) (there must be some nexus between Liquor
 Control Board regulation and Board's specifically granted power or between
 regulation and legitimate regulatory purpose).  We decline to adopt this
 test today because, as we stated above, plaintiffs failed to meet their
 burden of proof at trial and now offer only conclusory arguments that do not
 warrant review.
                                    III.
      Finally, defendants on cross-appeal claim as error the trial court's
 award of attorney's fees and court costs to plaintiffs under an apparent
 "common fund" theory.  We agree and reverse this award.
      The trial court awarded attorney's fees to plaintiffs, even though they
 had not prevailed on any of their claims, because their lawsuit had
 uncovered a "defect" in the Town's impact fee resolution, namely, that the
 enactment failed to provide for the refund of capital funds that went
 unexpended for a reasonable period of time.  The court ordered the Town to
 amend its resolution to provide for a refund mechanism.  The court then
 awarded attorney's fees to plaintiffs, reasoning that the refundable monies
 represent "a common fund . . . created in part by the contributions of the
 named plaintiffs here, and protected by the efforts of their attorneys in
 bringing to light the potential invalidity of the ordinance."
      Vermont has consistently applied the American Rule with respect to the
 award of attorney's fees.  Anderson v. State, 147 Vt. 394, 395, 518 A.2d 360, 360 (1986).  Under the American Rule, attorney's fees are ordinarily
 unrecoverable in the absence of statutory authority or the parties'
 
 
 
 contractual provision concerning this expense.  Converse v. Town of
 Charleston, 158 Vt. 166, 169, 605 A.2d 535, 537 (1992).  In this case,
 there is neither an agreement between the parties nor statutory authority to
 support the court's award of attorney's fees to plaintiffs.
      In other jurisdictions that apply the American Rule, the courts have
 created certain "equitable exceptions" to the Rule, such as the principles
 of "common fund," "private attorney general," "vexatious litigant," and
 "substantial benefit."  Residents ad hoc Stadium Comm. v. Trustees of Cal.
 State Univ., 152 Cal. Rptr. 585, 596-97 (Ct. App. 1979).  But even under an
 equitable exception, unsuccessful litigants do not qualify for attorney's
 fees.  Carroll v. State Bar of Cal., 213 Cal. Rptr. 305, 314 (Ct. App.),
 cert. denied, 474 U.S. 848 (1985).(FN3)
      Under the "common fund" doctrine, relied on by the trial court in the
 instant action, attorney's fees are not paid by the losing party, but rather
 by the prevailing party out of the recovered damages.  Bowles v. Washington
 Dep't of Retirement Sys., 847 P.2d 440, 449 (Wash. 1993).  Where a lawsuit
 has successfully created a "common fund," the court may allow plaintiffs'
 attorney's fees to be paid out of that fund, with the result that each
 plaintiff's proportional share of the recovery is reduced.  Baksinski v.
 
 
 
 Northwestern Univ., 595 N.E.2d 1106, 1110 (Ill. Ct. App. 1992).  Here,
 however, there were no damages recovered.
      There are cases that permit an award of attorney's fees even though no
 money damages were in fact recovered or recoverable.  Such cases apply the
 "substantial benefits" principle, which is an extension of the common fund
 doctrine.  Braude v. Automobile Club of S. Cal., 223 Cal. Rptr. 914, 920
 (Ct. App. 1986).  Nonetheless, the fundamental requirement for such an award
 is that plaintiffs prevail on one or more claims against defendants.
 Carroll, 213 Cal. Rptr.  at 314.  Indeed, in the case relied on by the trial
 court to support its award, Mooney v. City of Laconia, 573 A.2d 447 (N.H.
 1990), the New Hampshire court awarded plaintiff attorney's fees under a
 "substantial benefit" theory after granting plaintiff's motion for summary
 judgment.  Id. at 449-450.  Thus, the plaintiff had prevailed as a matter of
 law.
      Vermont has not recognized the "common fund" exception and we see no
 reason to do so today.  Although the trial court characterized plaintiffs'
 lawsuit as "meritorious," the court nonetheless rendered judgment for
 defendants on all counts.  Moreover, the court's order to provide a refund
 mechanism for unexpended impact fees did not create a "common fund" in the
 classic sense.  The order merely provided an incentive to the Town to expend
 revenues generated by the Plant Impact Fee within six years.  In any event,
 any benefits accruing to plaintiffs or to others similarly situated "are not
 actual or concrete but are potential, conceptual, intangible and doctrinal
 in nature."  Braude, 223 Cal. Rptr.  at 923.  We hold that an award of
 attorney's fees under these circumstances is not warranted under Vermont
 law.  Plaintiffs must bear their own litigation expenses in this matter.
 
 
 
      The award of attorney's fees to plaintiffs is reversed.  In all other 
 respects, the judgment of the superior court is affirmed.


                                    FOR THE COURT:



                                    ______________________________
                                    Associate Justice




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                              Footnotes

FN1.    The trial court referred to the 1986 resolution as an "ordinance,"
 but the record is clear that the enactment was in the form of a resolution.
 We have previously held that a municipality may impose impact fees by
 resolution only if the resolution satisfies the requisites of an ordinance.
 Herbert v. Town of Mendon, ___ Vt. ___, ___, 617 A.2d 155, 158 (1992); see
 24 V.S.A. { 1972 (setting forth requisites for enactment of ordinance).  But
 we need not decide whether the 1986 resolution satisfies the requisites of
 an ordinance because the parties stipulated at trial that there was no
 dispute as to "enactment issues."

FN2.    Sections 3615 and 3616 were amended in 1989 to provide greater
 flexibility for municipalities to impose sewage charges.  1989, No. 45. {{
 5, 6.  Section 3615 now permits municipalities to "establish annual charges
 separately for . . . fixed operations and maintenance (not dependent on
 actual use), and variable operations and maintenance."  Section 3616 now
 permits municipalities "to develop a dedicated fund which may be created by
 the [sewage] commissioners to finance major rehabilitation, major
 maintenance, and upgrade costs for the sewer system."  In addition, with the
 enactment of Act 200 in 1988, municipalities were granted general authority
 to impose impact fees to finance capital projects.  See 24 V.S.A. {{ 5200-
 5206.

FN3.    In at least two cases, plaintiffs lost on their individual claims
 and yet were awarded attorney's fees under equitable theories.  Parham v.
 Southwestern Bell Tel. Co., 433 F.2d 421, 429-30 (8th Cir. 1970); Brown v.
 State, 565 So. 2d 585, 592 (Ala. 1990).  In both cases, however, plaintiffs
 brought both individual and class claims and prevailed on one or more class
 claims.  See Parham, 433 F.2d  at 426 (violation of Title VII of Civil Rights
 Act of 1964 with respect to plaintiff class); Brown, 565 So. 2d  at 588 (trial
 court entered summary judgment for plaintiffs as to one of two subclasses
 only).  The case at bar is not a class action, nor did plaintiffs prevail on
 any claim at trial.