Richard Roberts Group, Inc. Declaratory Ruling #225

ENTRY_ORDER.93-298; 161 Vt. 618; 640 A.2d 46

[Filed 01-Feb-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-298

                             JANUARY TERM, 1994


 Richard Roberts Group, Inc.,      }          APPEALED FROM:
 Tamarack Associates, Brown Farm   }
 Associates and William Legrow,    }
 Declaratory Ruling #225           }
 (Remand)                          }          Environmental Board
                                   }
                                   }
                                   }
                                   }          DOCKET NO. 2W0771


              In the above entitled cause the Clerk will enter:

      Richard Roberts Group, Inc. appeals a decision of the Vermont
 Environmental Board which denied it a refund of its Act 250 application fee.
 The refund was denied under the Board's rule that states: "In the event that
 an application is withdrawn prior to the convening of a hearing on the
 merits, the Environmental Board, shall, upon request, refund . . . all of
 that portion of the fee paid in excess of $1,000."  EBR 11(D).  We reverse.

      In 1988, Roberts applied for an Act 250 permit and paid an application
 fee of $96,450, which was based upon the estimated construction cost of the
 project.  Thereafter, District #2 Commission held a party status hearing on
 June 14, 1988, and conducted a site visit on June 28, 1988.  After these
 hearings, Roberts requested, and was granted, a recess of the application
 process.

      On December 22, 1989, Roberts filed an amended application for a
 redesign of the project that was substantially smaller than the original
 proposal.  Roberts requested a refund of $89,653, reflecting the difference
 in cost between the original project and the amended project.  After a
 denial of the refund on the ground that Roberts had not properly "withdrawn"
 its application and a reversal and remand by this Court, In re Richard
 Roberts Group, Inc. et al., No. 91-358 (Aug. 7, 1992), the Board again
 denied a refund, construing the June 14 party status hearing to be a
 "hearing on the merits."

      The purpose of the June 14 hearing was to determine whether adjoining
 property owners were entitled to party status because the project had a
 direct effect on their property under the Act 250 criteria.  10 V.S.A. {
 6085(c).  The  Board reasoned that the June 14 party status meeting was a
 "hearing on the merits" because the legal rights of adjoining landowners to
 participate in the Act 250 process had been decided.  We disagree.


 

      Many judicial decisions affect legal rights in one way or another.
 Applying the Board's rationale, virtually every decision that is binding on
 the parties would render the preceding hearing to be "on the merits."  But
 applied as a legal "term of art," a "hearing on the merits" is necessarily
 limited to hearings held to determine the applicant's entitlement to an Act
 250 permit under 10 V.S.A. { 6086.

      Likewise, as the Board determined, the June 28 site visit was not a
 hearing on the merits.  The District Commission did not take testimony on
 June 28.  Moreover, the Commission did not return to the hearing room to
 record their observations from the site visit although observations upon
 which the fact-finder intends to rely must be placed in the record.   In re
 Quechee Lakes Corp., 154 Vt. 543, 552, 580 A.2d 957, 962 (1990).  For these
 reasons, we agree with the Board that the site visit did not constitute a
 "hearing on the merits."

      Even if a hearing on the merits were convened, we would be reluctant to
 approve the denial of a refund under the circumstances here.  There was a
 vast disparity between the fee the Board wished to keep and the burden on
 the permitting process.  Arguably, this enrichment fails to comply with the
 doctrine that administrative fees be reasonably related to the cost of the
 governmental function.  Pollak v. City of Burlington, 158 Vt. 650, 608 A.2d 659 (1992).  The Board may wish to review its rule and amend it to add a
 greater degree of flexibility.

      Reversed.



                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
 [x]  Publish
                                    _______________________________________
 [ ]  Do Not Publish                Denise R. Johnson, Associate Justice