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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA
CIVIL ACTION NO. 00-C-364
(Judge Steptoe)

VICKI HUNTER FAULKNER and
PAUL BURKE as "CITIZENS
FOR JEFFERSON'S FUTURE,"

Petitioners,

v.

COUNTY COMMISSION OF JEFFERSON COUNTY, WEST VIRGINIA,
and JEFFERSON COUNTY PLANNING AND ZONING COMMISSION,

Respondents.

FINAL ORDER

THIS MATTER came on for a final decision this 13th day of June, 2002, upon the Petition for Writ of Certiorari to Rescind Fee Changes; upon the Court's issuance of a rule in certiorari; and upon the Court's setting of a briefing schedule in this matter. In making its decision, the Court has studied the Amended Brief of Petitioners, the Reply Brief of Respondents, and the Reply Brief of Petitioners; the record of this case; and has also made reference to pertinent legal authorities.

In prior proceedings in this case the Court overruled Respondent's objection to jurisdiction; partially granted Respondent's Motion to Dismiss (removing all but one issue from the case); and granted Petitioners leave to file an Amended Petition and to name additional party respondents, the Jefferson County Planning and Zoning Commission and the Jefferson County Board of Zoning Appeals.

The sole issue remaining for decision in this case is the validity of the increase in the fee for filing an administrative appeal of a decision of the Jefferson County Planning and Zoning Commission to the Jefferson County Board of Zoning Appeals. On November 9, 2000, the Jefferson County Commission raised this particular fee (among other land use regulation fee increases) from $100.00 per appeal to $250.00 per issue appealed. Such change was to be effective January 1, 2001. The instant petition for a writ of certiorari challenging this fee increase (among certain others) was filed on December 28, 2001. On April 10, 2001, the Jefferson County Planning and Zoning Commission voted to "ratify" and "accept" the fee increases that had been adopted by the County Commission. However on April 19, 2001, the Jefferson County Board of Zoning Appeals appears to have adopted a modified version of the fee increase for filing an administrative appeal of a decision of the Planning and Zoning Commission to the Board of Zoning Appeals, changing it from $250.00 per issue appealed to a flat $250.00 per appeal.(1) The Board of Zoning Appeals further adopted a provision that the filing fee is refundable in full if the party taking the appeal substantially prevails in that appeal.

The Court is pleased that by its action the Board of Zoning Appeals scaled back the fee increase for filing appeals to it from $250.00 per issue appealed to $250.00 per appeal. In the Court's view this removed the most egregious aspect of the fee increase. In defending the fee increase, Respondents' Counsel has enumerated the many procedural safeguards that are contained within the Zoning Ordinance relating to the taking of an appeal; and has also pointed out that depending upon its complexity, an appeal may occupy the time of several staff persons as well as Board members for many hours. That these matters are expensive and time-consuming to deal with is not doubted by the Court. The question remains, however, as phrased by Respondents' counsel, as to whether the fee is "reasonable." In this regard it is important to bear in mind that the previous fee was only $100.00. On the other hand, Petitioners have canvassed what in their view are similar filing fees for instituting actions in circuit court and in federal district court, for example, and argue that the $250.00 filing fee is out of line with comparable fees in other forums.

Upon careful reflection, the Court remains concerned that the new $250.00 filing fee for filing an appeal of an administrative decision of the Planning and Zoning Commission to the Board of Zoning Appeals is excessive, that its increase by 150% was arbitrary, that the Respondents have not justified this fee as relating to costs, see W. Va. Code Section 8-24-32 (subdivision application fees must be "proportioned to the cost of checking and verifying proposed plats"), and that this dramatically increased filing fee could reduce petitioners', and others', ability to take an appeal to seek correction of errors in application of land use laws. The Court is persuaded that such a dramatic increase is not justified in law, is arbitrary and capricious, and would act substantially to chill or hinder the rights of aggrieved citizens to legal redress by means of taking an appeal. Such a precipitous increase implicates the procedural due process rights of the Petitioners, and would also for other persons similarly situated. Therefore, the Court must invalidate this fee increase as insufficiently justified, arbitrary, and excessive.

It is therefore ADJUDGED and ORDERED that the $250 per appeal filing fee for filing an appeal of an administrative decision of the Jefferson County Planning and Zoning Commission to the Jefferson County Board of Zoning Appeals, approved by the Jefferson County Commission at its regularly scheduled meeting on November 9, 2000 to be effective on January 1, 2001, and as adopted in modified form by the Jefferson County Board of Zoning Appeals on April 19, 2001, shall be, and hereby is, RESCINDED and HELD FOR NAUGHT.

Any and all exceptions and objections of the Respondent and the Petitioners to the Court's rulings herein are noted and preserved.

This is a final Order. The Clerk is directed to retire this matter from the docket and place it among causes ended.

The Clerk shall enter this order as of the date above written and shall transmit attested copies to the following counsel of record and pro se parties:

Ms. Vicki Hunter Faulkner
Route 5, Box 98
Harper's Ferry, WV 25425
Pro Se Petitioner

Mr. Paul Burke
P.O. Box 1320
Shepherdstown, WV 25443
Pro Se Petitioner

J. Michael Cassell, Esq.
Assistant Prosecuting Attorney
Jefferson County
P.O. Box 729
Charles Town, WV 25414
Counsel for Respondent Jefferson County Commission
and Respondent Jefferson County Planning & Zoning Commission

[signed]
THE HONORABLE THOMAS W. STEPTOE, JR.
CIRCUIT JUDGE, JEFFERSON COUNTY
TWENTY-THIRD JUDICIAL CIRCUIT

1. A controversy exists between the parties as to which local government body has the legal authority to enact fees such as the one at issue in this case. As the Court has determined to resolve this matter on other grounds, it declines to address this issue. To the extent that any party's submission to the Court contains a recitation that the Court had previously ruled that the Jefferson County Commission lacked the legal authority to enact such fees and/or fee increases, based upon the Court's review of the file in this matter, such a recitation may be in error.