                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                   }
Town of Richmond,                  }
     Plaintiff,                    }
                                   }
       v.                          }      Docket No. 102-5-02 Vtec
                                   }
Isaac Cowan,                       }
       Defendant.                  }
                                   }

                 Decision and Order on Pending Post-Judgment Motions

       This is an enforcement case related to the placement of a retaining wall on the

property of Defendant Isaac Cowan. In its Decision and Order of February 13, 2007, the

Court resolved the timing and conditions of the order for injunctive relief, which was

agreed to have been satisfied as of November 21, 2007, but required additional memoranda

relating the specific components of the parties’ arguments relating to the penalty amount.

In its Decision and Order of June 4, 2007, the Court imposed a penalty amount of $25,800,

analyzing Defendant’s avoided costs, and the Town’s legal, engineering and

administrative fees and costs for several distinct periods in the history of the dispute. The

June 4, 2007 Judgment Order concluded this enforcement case.

       The Town of Richmond is represented by Mark L. Sperry, Esq.; Defendant now

represents himself. Intervenors Erica Ell and Edward Gaston, represented by David L.

Grayck, Esq., were actively involved in the permit cases related to this property, and with

respect to any injunctive relief, but have not taken an active role in the penalty or post-

judgment phases of this enforcement case.




                                             1
           Several post-judgment motions have been filed. The Town has moved to double the

amount of the fine, pursuant to 24 V.S.A. § 4451(a), 5th sentence.1 Defendant moved for an

order “ordering the Town to discharge the Judgment Order” if the judgment order amount

plus interest to the date of payment is paid. In its March 13, 2008 entry order regarding

these motions, the Court denied this motion, stating that “[n]o basis appears for a

prospective order at this time,” but leaving open the possibility for Defendant to renew the

motion at a later date. Defendant has also moved to suspend the accrual of the interest due

on the judgment order while the pending post-judgment dispute is being resolved.

           At the request of the Court, Liam L. Murphy, Esq., the attorney representing an

intending buyer of the property, was given leave to file a memorandum as amicus curiae

on the pending motions, pursuant to V.R.A.P. 29 (made applicable to Environmental Court

by V.R.E.C.P. 3).



           The Environmental Court has jurisdiction of only three types of enforcement actions

that can result in fines or monetary penalties: under the statute governing state

environmental enforcement orders2; under the statute governing municipal solid waste

orders3; and under 24 V.S.A. § 4451 governing fines for zoning and subdivision violations.


   1
     “In default of payment of the fine, the person . . . shall . . . pay double the amount of
the fine.” 24 V.S.A. § 4451(a).
       2
       Under the Uniform Environmental Enforcement statute, 10 V.S.A. Chapter 201,
monetary penalties may be imposed in a final environmental enforcement administrative
order issued by the Agency of Natural Resources (ANR), or may be imposed de novo by
the Environmental Court after hearing on the order. 10 V.S.A. §§ 8010(c), 8012(b)(4).
   3
     Under 24 V.S.A. Chapter 61, Subchapter 12, monetary penalties may be imposed by
the municipality in a final order relating to municipal solid waste, or may be imposed de
novo by the Environmental Court after hearing on the order. 24 V.S.A. §§ 2297a(e)(5),
2297b(e).

                                                2
The remaining proceedings within the jurisdiction of the Court involve appeals (V.R.E.C.P.

5), judicial review (the remainder of V.R.E.C.P. 4), or relief in the nature of injunctive or

declaratory relief (V.R.E.C.P. 3(1), (6), (7), (8)).

       Of the three statutes providing for civil penalties to be imposed by the

Environmental Court, only two of them explicitly provide for collection or other

enforcement remedies for an unpaid penalty. Both of these place jurisdiction of remedies

for an unpaid penalty in superior court (or in both superior and district court), rather than

in environmental court. Under 10 V.S.A. § 8014(b), if a penalty is imposed and the

respondent fails to pay, the ANR may bring a collection action in any superior or district

court. This legislation was adopted in 1989, contemporaneous with the creation of the

Environmental Court. See 4 V.S.A. § 1001. The statute specifically does not give the

Environmental Court jurisdiction over actions to collect a money penalty, even though it

does give the Environmental Court jurisdiction, concurrently with the superior and district

courts, of actions to enforce the injunctive relief aspects of its orders. 10 V.S.A. § 8014(a).

Similarly, if a money penalty is imposed in a municipal solid waste enforcement case, “and

the respondent fails to pay the penalty within the time prescribed, the legislative body may

bring a collection action in the superior court” only. 24 V.S.A. § 2297a(j). This section was

adopted in 1991. Also compare 6 V.S.A. §§ 4855, 4861 (large farm operation permit appeals

to Environmental Court) with 6 V.S.A. §§ 4854, 15(e) (large farm operation permit

enforcement, including penalties, in superior court, with civil collection actions in superior

or district court).

       The substantial money penalty in the present case was imposed by the

Environmental Court pursuant to 24 V.S.A. § 4451(a). The provisions for a fine (civil




                                                 3
penalty4) for a municipal zoning violation now codified in 24 V.S.A. § 4451(a) (formerly

codified in 24 V.S.A. § 4444) were adopted in 1969, long before the 1995 transfer of zoning

and zoning enforcement jurisdiction to the Environmental Court. Unlike the other two

types of civil penalties that may be imposed by the environmental court, 24 V.S.A. § 4451(a)

is silent as to the nature of any available collection proceedings.5 Compare 24 V.S.A. §

1981(a) (regarding penalties issued for municipal ordinance violations by the judicial

bureau (added effective November 1994): “all the civil remedies for collection of judgments

shall be available to enforce . . . .”).

         Rather than specifying the available collection proceedings, 24 V.S.A. § 4451(a)

retained the prior language of former § 4444 that “[i]n default of payment of the fine, such

person . . . shall . . . pay double the amount of such fine.” This language by itself does not

give Environmental Court jurisdiction of collection actions for zoning penalties. The

Court’s “paramount goal is to discern and implement the intent of the legislature.” Miller

v. Miller, 2005 VT 89, ¶ 14, 178 Vt. 275, 277. It is unlikely that the legislature intended, by

transferring zoning enforcement as well as zoning appeals to Environmental Court, also

implicitly to transfer jurisdiction over collection proceedings for municipal zoning

penalties, especially in view of the legislature’s explicit decision not to give the

Environmental Court such collection jurisdiction in the Environmental Court’s only two



     4
       Town of Hinesburg v. Dunkling, 167 Vt. 514, 524–25 (1998), an appeal of an
enforcement case decided under former 24 V.S.A. § 4444 in superior court, established that
the penalty was civil in nature.
     5
        This court cannot determine whether the legislative silence on this point was
inadvertent; or was due to the fact that such § 4444 actions were brought in superior court,
where all of the normal collection mechanisms were already available; or was due to the
existence of other statutory provisions for any “fines, forfeitures and penalties” imposed
by the superior court for municipal ordinance violations, 13 V.S.A. § 7251; or due to some
other rationale.

                                              4
other types of enforcement proceedings. See LaPlume v. Lavallee, 2004 VT 78, ¶ 8 (“Where

there is no express grant of jurisdiction, we will not invent it.”). Rather, it is more

consistent with the evident legislative intent regarding the Environmental Court’s other

penalty provisions that the legislature intended to leave the collection procedures in

superior court, when it transferred the zoning enforcement jurisdiction to Environmental

Court.

         In Vermont, a judgment creditor has the right to bring a separate action to enforce

a judgment and also has the right to execute on the judgment. Marine Midland Bank v.

Bicknell, 2004 VT 25, ¶ 8, 176 Vt. 389, 393–94. While this Court had jurisdiction over the

original enforcement action giving rise to the June 4, 2007 judgment order, it has not been

given jurisdiction over these remedies to collect or otherwise execute on the judgment

order.

         Rather, by its terms this provision of 24 V.S.A. § 4451(a) appears to be self-executing.

Not only does it not require an order of this Court to take effect, it does not even appear

to allow the court that issued the original judgment order to determine whether or not to

impose the doubling of the fine if there is a default in payment. Accordingly, any further

analysis or order by this Court regarding the doubling-the-fine remedy would be an

impermissible advisory opinion and is precluded. See In re 232511 Investments, Inc., 2006

VT 27, ¶ 19, 179 Vt. 409, 417.

         Similarly, issues to do with the judgment lien filed by the Town, and Defendant’s

request for an order governing its release, appear to be beyond the jurisdiction of this court.

A judgment of this court is one “issued in a civil action,” 12 V.S.A. § 2901, allowing the

judgment lien to be filed. However, 12 V.S.A. § 2905 provides for it to be discharged “in

the same manner as a mortgage” under 27 V.S.A. Chapter 5, and provides specifically that

the obligation to discharge is as provided in 27 V.S.A. § 464. A party aggrieved by a refusal

to discharge may litigate that matter in superior court under 27 V.S.A. § 464(c); this Court

                                                5
has no jurisdiction to issue any orders, prospectively or otherwise, regarding the judgment

lien or its discharge.



       Accordingly, the Town’s “motion” for a doubling of the fine amount is DISMISSED

WITHOUT RULING as beyond the jurisdiction of this Court, as is Defendant’s motion for

an order directing the Town to discharge the judgment lien. Defendant’s motion for

suspension of the accrual of interest on the original penalty is also DENIED; there has been

no showing that it would be unfair for Defendant to have to pay the interest on the original

penalty imposed by the Court.



       Dated at Berlin, Vermont, this 16th day of April, 2008.




                                   ______________________________________
                                   Merideth Wright
                                   Environmental Judge




                                             6
