2508 West Lake Road Nonconforming Structure - Decision on Motion

Yermont Superior Court
Filed 06/01/26
Environmental Division

VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION
32 Cherry St, 2nd Floor, Suite 303, Docket No. 25-ENV-00037
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

2508 West Lake Road Nonconforming Structure DECISION ON MOTION
FOR ATTORNEY FEES

In this matter Wyldwood Lodge LLC (Appellant) appealed a May 8, 2025 decision of the Town
of Poultney (Town) Development Review Board (DRB) approving Joseph and Patricia Adams'
(Applicants) application for alternations to, and enlargement of, a nonconforming structure located at
2508 West Lake Road, Poultney, Vermont (the Property). By Decision on Motion, dated April 16,

2026, the Court granted summary judgment in Applicants' favor. Presently before the Court is

Applicants' motion for attorney fees. Appellant opposes the motion.
In this matter, Appellant is represented by Justin Barnard, Esq. Applicants are represented by
Frank Urso, Esq.

Legal Standard
This Court applies the "American Rule" regarding attorney fees, which means that parties
must bear their own attorney fees absent a statutory or contractual exception. Southwick v. City of

Rutland, 2011 VT 105, 1 5; DJ Painting, Inc. v. Baraw Enters., Inc., 172 Vt. 239, 246 (2001). Although
the Vermont Supreme Court has recognized the ability of trial courts to use their equity power to

award attorney fees "as the needs of justice dictate," In re Gadhue, 149 Vt. 322, 327 (1987), this power

may be invoked "only in exceptional cases and for dominating reasons of justice." Sprague v. Ticonic
Nat'l Bank, 307 U.S. 161, 167, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). Circumstances that may justify an
award of attorney fees may involve situations "where one party has acted 'in bad faith, vexatiously,

wantonly, or for oppressive reasons' where the litigant's conduct can be characterized as unreasonably
obdurate or obstinate, and where it should have been unnecessary for the successful party to have

brought the action." Gadhue, 149 Vt. at 329 (quoting Harkeem v. Adams, 117 N.H. 687, 377 A.2d
617, 619 (1977)) (emphasis added). Notably, in both Gadhue and Harkeem, the exception to the
American Rule took shape after the plainuff was forced to endure a second round of litigation

Page 1 of 3
(including more than one trip to the state supreme court) to secure rights that should have been
forthcoming after the first appearance. Gadhue at 328–29; Harkeem at 620.
Discussion
In this case, Appellant challenged Applicants’ proposals to alter/enlarge a nonconforming
structure before the DRB in one action, and challenged Applicants’ State Shoreland Permit in
proceedings before the Vermont Agency of Natural Resources (ANR) in another. The DRB initially
denied Applicants’ proposal to alter/enlarge the nonconforming structure but later approved a
substantially changed application. Appellant appealed the second application to alter/enlarge the
nonconforming structure to this Court, raising four issues in its amended Statement of Questions. As
noted above, the Court granted summary judgment in Applicants’ favor on the four Questions in
Appellant’s amended Statement of Questions. The Shoreland Permit was not appealed to this Court.
There are no statutory or contractual grounds for an award of attorney fees in this case.
Instead, Applicants argue that this Court should grant them an award of attorney fees based on the
so-called “bad faith” exception to the American Rule. This rarely-applied exception does not provide
a legal basis for the relief that Applicants seek. While the Court concluded that Applicants were
entitled to judgment as a matter of law on the four Questions raised by Appellant, those Questions
were not facially frivolous, nor was Appellant’s conduct so outrageous as to warrant an award of
attorney fees. Although Applicants won on the merits before this Court, multiple trips through the
state court system were not required to secure their rights in the permit under appeal. 1 Applicants
applied twice to the DRB (and were opposed by Appellant both times), but they prevailed on their
first trip to this Court.
Despite Applicants’ contentions to the contrary, is there no strong indication that Appellant
acted in bad faith, vexatiously, wantonly, or for oppressive reasons in conducting the litigation.
Litigation by its very nature is stressful, expensive and, for any number of reasons, can feel oppressive
to all parties involved. The Court does not doubt that the appeal process was frustrating and costly
for Applicants. Moreover, aspects of both parties’ filings took on a certain ad hominem quality at
times. We cannot find, however, that Appellant’s conduct was such that “dominating reasons of

1 The Court notes that, under Vermont’s land use and environmental permitting regimes, an applicant or

project may require multiple permits from different entities, each of which may be separately appealable in various
contexts and to various degrees provided by statute. Nothing in this decision implies or determines whether a party
pursuing those statutory appeal rights for the same project inherently offends the American Rule. Nothing about
Appellant’s conduct in this case violates Gadhue such that an award of attorney fees is justified.

Page 2 of 3
justice” require an award of attorney fees in this case. Therefore, the motion for attorney fees is
DENIED.

Electronically signed on June 1, 2026, pursuant to V.R.E.F. 9(d).

Joseph S. McLean
Superior Court Judge
Environmental Division

Page 3 of 3