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Civil Action No. 00-C-364







There are two respondents, and each has acted reprehensibly.

The Jefferson County Commission (CC) raised the fee for zoning appeals on 11/9/2000 from $100 per appeal to $250 per issue appealed. This is not currently being enforced, but the CC has not rescinded its action, and appears to believe it has authority to take such action. We ask the Court to vacate the CC's action, for the following reasons, more fully discussed below.

1. The Fee is too high.

2. The Fee is out of line with fees for similar activities.

3. The Fee is arbitrary and capricious.

4. The Fee is punitive.

5. The CC lacks the authority to set fees.

6. The staff have conflicting instructions.

The Jefferson County Zoning Board of Appeals (ZBA) raised the fee for zoning appeals on 4/19/2001 from $100 per appeal to $250 per appeal. This is currently being enforced. We ask the Court to vacate the ZBA's action for the following reasons, more fully discussed below.

1. The Fee is too high.

2. The Fee is out of line with fees for similar activities.

3. The Fee is arbitrary and capricious.

4. The Fee is punitive.

This brief is filed under the Court's most recent scheduling order. It is titled an "amended brief" since it replaces a brief filed in 2001 under an earlier scheduling order, before the ZBA was added to the case.


The increased fee fundamentally limits citizen access to due process. The new fees will result in many citizens lacking the ability to seek redress and challenge official actions, therefore depriving them of the basic constitutional right to be heard.

We ask the Court to take judicial note that the average annual wage in Jefferson County is $22,062 (from state government reference data http://www.state.wv.us/bep/lmi/ew2000/ew00037.htm). So $250 is three days' pay for this average worker, as shown in Figure 1.(1) Clearly about half the workers in any area earn less than average, and $250 is more than three days' pay for them. Since workers have to pay taxes, housing, food, etc., $250 is certainly many more than three days of disposable income, even for an average worker. Citizens cannot afford such an appeal fee.

The First Amendment to the US Constitution grants the right of access to judicial review. The act of imposing new, substantially higher, fees, and assigning a separate fee for each issue raised represent unwarranted impediments to public access to judicial redress. The "filing of a lawsuit carries significant protections, implicating the First Amendment right of access to the courts". Hoeber for and on behalf of NLRB v. Local 939 F 2d 118, 126 (3rd Cir. 1991). This right is "among the most precious of the liberties safeguarded by the Bill of Rights." United Mine W. of A. Dist. 12 v. Illinois St. Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 196 L.Ed.2d.426 (1967). The constitutional right to the courts "cannot be impaired, either directly…or indirectly by threatening or harassing [a plaintiff] in retaliation for filing lawsuits." Sanders v. St. Louis County, 742 F2d 665, 666 (8th Cir. 1983). See also Russell v. Oliver, 522 F2d. 115, 116 (4th Cir. 1977).

The CC and ZBA may not establish rules that avoid "meting out substantial justice" (North v. WV Board of Regents 233 S.E.2d 411 (1977) p. 419). Nor may it be "arbitrary and capricious" (ibid. p. 418), nor undermine "requirements of law and justice." (ibid. p. 419).

The "Long Range Plan for the Federal Courts", Chapter 9, p. 117 says,

"Federal courts are an indispensable forum for the protection of individual rights. Accordingly, the costs of federal courts, properly borne by all citizens, have traditionally been funded primarily through appropriations rather than user fees.

"Adjudication and resolution of civil disputes in the federal courts create external benefits beyond the obvious private benefits received by individual litigants. These include the creation of precedent, general increases in social harmony, discouragement of violent self-help, and establishment of verdict ranges used by other litigants in settlement calculations."

Jefferson County's own Comprehensive Plan includes the goal, "Give citizens a chance to affect the course of planning activities, land development, and public investment in Jefferson County." (page I-5). If ordinary citizens cannot afford to appeal to the ZBA to make sure our plan and ordinances are followed, then our participation in writing the plan and ordinances was empty.

Procedures require proper oversight by the citizenry, the courts, and the legislature. If filing fees place a financial limit on the number of appeals that can be raised related to administrative acts, then there is a limit on proper oversight. This has the effect of sanctioning, and possibly rewarding, violations of the law. This also presents tangible and substantial disincentives for administrators to adhere to the law and to seek clarity and efficiency in their processes for the public good.


The increased fees are fundamentally higher and inconsistent with charges for similar activities. This raises the issue of equity and the Fourteenth Amendment to the U.S. Constitution's grant of equal protection under the law.

The proposals to charge $250 per item appealed or per appeal are out of line with other fees. The WV Circuit Court filing fee is $85. When it was raised recently the increase was from $75 to $85. The federal District Court filing fee is $150. When it was raised in 1996, the increase was from $120 to $150, even though the last increase had been ten years earlier, in 1986. Neither court charges based on the number of issues raised.

No fee has been posted for Building Code Appeals, so as we understand it no fee can be charged if an appeal is filed.

Variances in Jefferson County cost from $0 to $200. Zoning variances only cost $100, though they go through the same process as an appeal: posting the property, advertising, conducting a public hearing, and issuing a decision. Both a variance and an appeal can be controversial and require lengthy testimony and deliberation. In fact a variance has an additional cost, in that staff study the issue and may prepare a recommendation to the ZBA. In an appeal, staff defend their decision, but this should not be charged to the appellant; it is a cost of processing the decision that is being appealed.


WV Circuit Court filing fee


US District Court filing fee


Building code appeal


Zoning variance


Multiple use variance


Other planning variance


Flood plain variance


Zoning appeal fee set by CC, per issue


Zoning appeal fee set by ZBA

A zoning appeal may easily raise half a dozen issues, which would cost $1,500 under the CC's fee schedule.


The new fees are not based on the true costs of conducting the activities which they are purported to cover. There is no documented due diligence to support the new fees. In fact, the CC and ZBA have consistently failed to produce research or other documentation to support the new fees. The new fees are internally inconsistent, reflecting the lack of a consistent standard of measure or of method. Therefore it must be inferred that the new fees were set devoid of objective standards, research and due diligence. This is the definition of an arbitrary and capricious act.

Before the ZBA adopted the fee increases, Assistant Prosecuting Attorney Cassell told the ZBA it was based on "time and expense that it takes to process" appeals. Nothing in the record supports this comment.

Since there is no documentation in the official record,(2) it appears that Jefferson County has conveniently thrown away any documentation of what was the basis for this dramatically different assignment of fees. Therefore, "The decision, without explanation, departs from other decisions of the Board and is therefore arbitrary." City of Lawrence, Massachusetts v. Civil Aeronautics Board, U.S. Ct. of Appeals, 1st Cir, 1965, 343 F2d 583. "The Board's decision, without explanation…departs from the reasoning and holding in other…cases, and is inconsistent with other aspects of this same [process]. Such action is arbitrary and capricious, and must be reversed." Boston and Maine RR v. United States, 202 F.Supp. 830 (D.C. Mass. 19620, aff'd per curiam 373 U.S. 372.

The Zoning Board of Appeals itself is unpaid. There are costs to take minutes and costs for two legal advertisements. We do not see how these costs could approach $250, let alone $250 per issue appealed. The expense of processing an appeal or variance can certainly be analyzed by the county. That analysis has not been shown.

After the Court questioned charging $250 per issue, the ZBA rapidly adopted a fee much lower than the CC's fee. This sudden change confirms how arbitrary the fee is.


The timing of the fee increase is questionable. There is no documented process or schedule for fee review. Failing to find such an objective and systematic fee review process, the Court should consider what was the cause of the fee increase. The only credible and documented cause is a substantial victory by a Petitioner and others before the ZBA. The Court should consider the fee increase as a punitive action to frustrate, hamper, and prevent Petitioners and others to pursue future appeals. The Petitioners' victories were the triggering event. Punishing citizens for their successful redress is a punitive act of vengeance and abridges the First Amendment the U.S. Constitution's right to free expression and the Seventh Amendment's right for civil matters to be addressed in courts of law and other appropriate forums.

On 7/20/2000 the ZBA approved appeals by Petitioner Burke and others against the Zoning Administrator, and signed the findings of fact 8/31/2000. The appeals stopped a subdivision of 44 homes in the rural zone of the county.(3) On 10/23/2000, three months after the Zoning Administrator and the developer lost these appeals to a group of citizens, the Zoning Administrator recommended an explosive increase in the appeal fee, and on 11/9/2000 the CC adopted it. This is too close for coincidence.

Under the CC's new fee structure, an appeal like the one filed by Burke would cost $1,750, since it raised 7 issues.(4) This is an increase of 1,650% ($1,650 increase over $100). In the entire list of fees, this is the only fee that increased more than 150%. Why? The prompt timing and the explosive increase stink.

Figure 2 compares changes in the different fees. Many did not increase at all, and are shown at 0% change.

The ZBA adopted its fee structure 4/19/2001. The appeal fee remains punitive, because it is higher than the variance fee adopted by the ZBA at the same time on the same page, without justification.


For the CC to insist on its authority to set a different fee from the ZBA infringes on the independence of the ZBA, which is an independent and quasi-judicial body. ZBA members are appointed for staggered terms and are removable only for cause, by petition to the Circuit Court, under §6-6-7.

State Law has given the ZBA specific authority to,

"adopt such rules and regulations concerning the filing of appeals, applications for variances and exceptions, the giving of notice and the conduct of hearings as shall be necessary to carry out its duties under the terms of this article..." (8-24-54)

Whether there is or is not a filing fee, and the level of the filing fee, are clearly "rules" or "regulations" of rather great importance "concerning the filing of appeals." The state has given this authority to the ZBA as part of its independent authority. The CC is applying strong-arm tactics to a quasi-judicial body.

The county is defending the authority of both the CC and ZBA to set the zoning appeal fee. Does the fee depend on who votes last? The state did not set it up that way.

In a 2/26/2001 letter to the Court, Mr. Cassell based the CC's authority on State Code §7-1-3, "superintendents [sic] and administration of the internal police and fiscal affairs of their counties" and §8-24-1. As we noted in our reply then, "superintendence and administration" do not create carte blanche. Just as the Sheriff and Treasurer has state authority that the CC may not intrude on, the ZBA also has state authority that the CC may not intrude on.

The intent of the planning and zoning law, §8-24-1, includes three parts:

"that the planning commission shall serve in an advisory capacity to the governing body" This is not relevant here, since the planning commission gave no advice on fees. The letter came from Mr. Raco as Executive Director of Planning, Zoning and Engineering, with no reference to the planning commission.

"that certain regulatory powers be created" Various regulatory powers were indeed created. Among them, the powers in §8-24-54 were given to the ZBA, not to the CC.

"that additional powers and authority be granted ... to counties" Numerous powers are indeed granted to the CC, such as approving comprehensive plans, zoning ordinances and subdivision ordinances, but not fees, which are instead granted to the planning commission and ZBA in §8-24-32 and §8-24-54.


For the CC to insist on its authority to set a different fee from the ZBA puts the paid staff in an unconscionable position. They are hired and evaluated by the CC, not the ZBA. Yet they are currently following the fee structure of the ZBA, not the CC. The CC has not by any official vote relieved the staff from the CC's fee structure. If the Court rules that the CC has authority to set fees, are the staff culpable for not having charged the CC's adopted fee?


We are filing under §53-3-2 and §8-24-59 of the West Virginia Code, since there is no other avenue open to us, our position having been rejected by the County Commission and Zoning Board of Appeals.

For any and all of these reasons, the petitioners request the Court to declare (1) that the County Commission has no authority to set the fees shown in the record, (2) that the Zoning Board of Appeals must (a) set the appeal fee at a lower level, (b) justify whatever level it sets as "necessary to carry out its duties" (§8-24-54) (c) refund appeal fees in excess of $100 paid by anyone since January 1, 2001, (3) that the Court will hold open the case until new fees are set, and the Court is able to review proof that some reasonable basis has been used in setting the revised fees, and (4) any other relief that seems proper to the Court. Respectfully submitted,


Vicki Faulkner Paul Burke

1. $22,062 divided by 260 working days per year = $85 average daily wage

2. The fee increases were proposed in a letter dated 10/23/2000 from Mr. Raco, Executive Director of Planning, Zoning and Engineering, to the CC. The letter was attached to the original Petition in this case, but was not provided by the county as part of the official record, and does not provide the analysis used in setting the various fees. In any case, the fact that this letter is not part of the official record suggests that the CC did not consider the letter in making its decision.

3. In that appeal, the ZBA agreed with appellants that Development Review System (DRS) calculations should include the full size of the parcel, not just some of it, under Zoning Ordinance section 6.4(a). Correction of DRS made the project ineligible for a conditional use permit. Details are in the public record in Jefferson County Circuit Court civil case 00-C-237, Capriotti v. ZBA, which has reached completion.

4. The appeal challenged three aspects of the DRS calculation and four aspects of the support data.