                                   STATE OF VERMONT

                               ENVIRONMENTAL COURT

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

                                    Decision and Order

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

property of Defendant Isaac Cowan. A description of the property and the resolution of

other issues involved with this property, including the location of the flood plain in relation

to the property, may be found in Environmental Court Docket Nos. 73-2-02 Vtec, 74-2-02

Vtec, 222-12-03 Vtec, 60-4-04 Vtec, and 105-5-06 Vtec; in Superior Court Docket No. S145-03

CnC; and in the decision of the Vermont Supreme Court in 2005 VT 126.

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

represented by John W. O’Donnell, Esq.; Intervenors Erica Ell and Edward Gaston are

represented by David L. Grayck, Esq. The issue of whether there was a violation was

concluded by this Court’s decision and order of June 9, 2003, issued in this case and in

Docket No. 73-3-02 Vtec. As of June 9, 2003, the only remaining issues in this enforcement

case related to what injunctive relief and monetary penalty, if any, would be appropriate

for the violation. However, the scheduling of a hearing on those remaining issues was

suspended while litigation proceeded on the mapped and actual location of the flood plain

in relation to the property.


                                              1
        Three years later, after the remaining litigation had concluded, an evidentiary

hearing was scheduled in this case before Merideth Wright, Environmental Judge. At the

2006 hearing, Defendant conceded that the entire retaining wall could be treated as being

within the flood plain for the purposes of this enforcement action, and agreed to the

removal of the retaining wall. The Court ordered on the record of that hearing that the

retaining wall was to be removed, and requested the parties to file in writing their

stipulation as to the remedial methodology involved with the removal of the retaining wall.

The hearing proceeded only on the issue of the appropriate penalty for the violation.

        The parties were given the opportunity to submit written requests for findings and

memoranda of law. Upon consideration of the parties’ stipulation, the evidence, and the

written memoranda and proposed findings, the Court finds and concludes as follows.

        Because the parties agreed as to the removal of the retaining wall and the remedial

site work required on the property, the remaining dispute is over what litigation expenses

in this and in the other docket numbers should be considered in setting the penalty amount

in this case. Defendant does not dispute that the penalty may account for the Town’s costs

of obtaining the June 2003 order, but does dispute whether the Town is entitled to any of

its expenses regarding the floodplain determination based on later engineering survey

work.

        The June 2003 order determined that the retaining wall was built in violation of the

original permit, as that permit required the retaining wall to be built outside the floodplain,

defined in the Zoning Regulations by its location on the Federal Emergency Management

Agency maps and the most current Flood Insurance Rate Maps. The retaining wall consists

of 196 concrete blocks, each 32 cubic feet in volume and weighing 4,800 pounds. The

question of whether injunctive relief requiring the removal of the retaining wall was

appropriate, however, was reserved in that decision, to allow Defendant to pursue the

possibility of surveying his individual parcel and applying for a revision of the floodplain

                                              2
location on his parcel. Zoning Regulations § 6.8.2. After the survey work had been

completed, the Zoning Administrator and the DRB denied Defendant’s request for that

revision; this Court and the Vermont Supreme Court ruled in Defendant’s favor that he

was entitled to a determination of the actual location of the floodplain on his property, that

is, that the DRB should have reached the merits of his application based on his engineering

surveys. In re Appeal of Cowan, 2005 VT 126, ¶¶10–11. The Supreme Court remanded the

matter to the DRB for that determination.

       None of the costs of the litigation from the June 9, 2003 order to the December 13,

2005 remand decision of the Supreme Court should be considered in the monetary penalty

to be imposed in this enforcement action, as the enforcement action was simply on hold

while the parties litigated whether Defendant was entitled to a determination of the actual

on-the-ground surveyed floodplain pertaining to his property, as opposed to the mapped

floodplain.

       However, as of the remand order from the Supreme Court, the engineering

determination of whether the retaining wall was in the actual surveyed floodplain (as

opposed to the undisputed fact from the June 2003 decision and order that it was in the

mapped floodplain) was relevant to the appropriate injunctive relief in this enforcement

action. That is, it was relevant to whether all or some part of the retaining wall should have

been ordered to be removed, as that issue was still being contested.

       The DRB hearing on the remand order was March 8, 2006; the DRB’s decision was

issued on April 20, 2006. It was appealed to this court in May in Docket No. 105-5-06, and

was withdrawn as moot at the merits hearing scheduled together with this enforcement

case for August 2, 2006.

       The Town employed an engineering firm to assist it in determining (and in

evaluating Defendant’s engineer’s determination of) the location of the surveyed flood

plain on Defendant’s property. The Town’s engineer came to the August 2, 2006 hearing

                                              3
prepared to testify as to the location of the flood hazard district and that the entire

retaining wall was actually in the flood hazard district, as well as to testify regarding the

hazards that could result in a 100-year flood if the floodwaters were to undermine the wall

and allow the concrete blocks to be deposited in the stream or to travel downstream onto

other property in flood conditions. The Town’s engineering costs, including the Town’s

costs of preparing the engineering testimony for trial, should be considered in setting an

appropriate penalty in this matter.

       However, the Town seeks its attorney’s fees, zoning administrator’s time, and

engineering fees for everything it has expended on litigation involving this property, as if

all the litigation were related to the enforcement action. Much of it has not been related to

the enforcement action. Rather, some of that time and those fees were expended on the

litigation, ultimately unsuccessful from the Town’s point of view, involving whether

Defendant was entitled to have the surveyed location of the flood plain evaluated on his

property.

       The Court has attempted to determine from Exhibits 17, 22, and 24, and the

testimony of Mr. Rodjenski, which expenses can be attributed to the litigation that resulted

in the 2003 court order (including the motions for summary judgment), and which

expenses can be attributed to the engineering work and witness preparation regarding the

surveyed floodplain location, after the remand from the Supreme Court. The Court

anticipates setting a penalty that recognizes both sets of costs, but excludes costs accrued

during the period from June 9, 2003 through December 13, 2005. The Court does intend to

consider including an amount in recognition of the avoided costs in the delay in doing the

work of removal and rehabilitation, possibly measured by the interest over time on the cost

anticipated to do the work. However, it has not been possible for the Court to determine

from Exhibits 17, 22, and 24, together with the testimony at the hearing, which expenses

should be included and which expenses should not be included. For example, the Court

                                             4
would not include the hour-and-a-half of Mr. Weisel’s time on June 24, 2002, taken up by

copying the 1982 regulations at the state offices, without more information as to why that

had to be done by a professional engineer. Similarly, it is not always possible to tell from

the attorney billing details what should be included; for example, none of the following

entries appears to be appropriate for inclusion: the filing fee for the supreme court appeal,

or the attorney’s attendance at a selectboard meeting, or a telephone conference with the

zoning administrator regarding a settlement offer. In addition, some details reflect the

attorneys’ meetings with named individuals who have not been identified in the context

of this case.

       The monetary penalties provided in the zoning enabling statute, 24 V.S.A. §4451 are

civil and remedial in nature. Town of Hinesburg v. Dunkling, 167 Vt.514, 524 (1998). It is

not sufficient, in determining an appropriate penalty, that it is within the maximum

allowed by the statute or the ordinance. Rather, the Court must link the penalty to the

harm caused by or the benefit obtained by the violation. Compare the factors to be

considered under 10 V.S.A. §8010(b); see also State Agency of Natural Resources v.

Riendeau, 157 Vt. 615, 622–23 (1991).

       Accordingly, to enable the Court to assess an appropriate monetary penalty, we will

give the parties the opportunity to provide the Court with annotations to Exhibits 17, 22,

and 24 (and to Mr. Rodjenski’s testimony) indicating their respective rationales as to why

specific items should or should not be included. The parties should feel free to make

photocopies of the exhibits and highlight various entries, so that they may be keyed to the

text of any argument. It would similarly be helpful to indicate to which case (by use of the

docket numbers listed in the first paragraph of this order) specific items pertained. Any

such annotations and rationales (or any agreement as to any portion of the entries) shall be

filed on or before March 9, 2007. The parties may, by agreement, extend the time for these

filings and so inform the Court.

                                             5
       Therefore, in the present decision, the Court hereby imposes the agreed remedial

order, and will impose a monetary penalty based on the evidence after receipt of the

further filings.

       As defined by the parties in their stipulation filed September 11, 2006, the term

“Plan” as used in this order means the plan prepared by Trudell Consulting Engineers

entitled “Isaac Cowan, Snipe Ireland Road, Richmond, Vermont, Sanitary Plan,” revised

to August 28, 2006, and filed with the Richmond Zoning Administrator on August 30, 2006.

The term “Structures” as used in this order refers to the Proposed Garage, Breezeway, and

Proposed 3-Bedroom House, and the Relocated Wall Blocks (on either side of the Proposed

Garage and Proposed 3-Bedroom House) which are denoted on the Plan. The term “Line”

as used in this order refers to the line defined by the locations of the stream-side edges of

all Structures shown on the Plan.



       Based on the foregoing, it is hereby ORDERED and ADJUDGED that Judgment is

hereby entered in favor of the Town.

I. Injunctive relief is hereby granted as follows, as agreed by the parties and submitted to

the Court in their stipulation:

       A.      The area between Snipe Ireland Brook and a line identified by the locations

       of the stream-side edges of all Structures shown on the Plan (the “Line”) shall be

       returned to the original ground condition as it existed prior to installation of the

       retaining wall (including seeding and mulching), as determined during removal of

       the retaining wall, and shall be maintained in original ground condition thereafter.

       Failure to remove the retaining wall and maintain thereafter the described area to

       original ground condition shall be grounds for contempt. The location of such Line

       shall be determined by reference to the scale of the Plan.



                                             6
       B.     The Town Zoning Administrator1 shall be given at least ten (10) days advance

       written notice of commencement of the Remedial Work. A Town representative or

       representatives may be present during the Remedial Work to observe and verify the

       determination of the original ground conditions and to observe the Remedial Work.

       When such notice is given to the Town Zoning Administrator, a copy shall also be

       sent to Intervenors Ed Gaston and Erica Ell, in care of their attorney, David Grayck;

       they may also be present and/or have a representative or representatives present for

       such observation and verification purposes.

       C.     The removal of the wall and the Remedial Work shall be completed and

       maintained as set forth herein regardless of whether the Defendant Isaac Cowan

       obtains all necessary permits and approvals for the construction of the Structures

       shown on the Plan, or for any other construction or use of the property shown on

       the Plan. The Town of Richmond is under no obligation, by reason of the parties’

       Stipulation or this Court Order, to approve the Plan and Structures referenced in the

       Stipulation. The purpose of Paragraph A above is to establish the location of the

       Line only, to provide for the return to original ground conditions as they existed

       prior to the installation of the retaining wall in the area between the Line and the

       stream, and to provide for maintenance in original ground condition thereafter. In

       lieu of constructing the Structures, Defendant may use any alternative retention

       structures uphill of the Line adequate to retain the ground uphill of the Line and to

       prevent it from coming over the Line into such area, provided that Defendant

       receives approval for such alternative retention structures from the Zoning

       Administrator, if such approval is required. If Defendant should employ such


  1
     As of the time of the filing of the stipulation, the individual defined in the stipulation
as the “Town administrator” was Ronald Rodjenski. This order uses the position rather
than the name, so as to remain enforceable regardless of the incumbent of the position.

                                              7
       alternative retention structures, Paragraph A above shall apply as to the return to

       original ground and maintenance in original ground condition thereafter in the area

       between the Line and the stream.

       D.     Defendant Isaac Cowan shall reimburse the Town, promptly upon receipt of

       invoices, for the reasonable outside consultants’ fees incurred by the Town for

       consultants it retains to be present for such purposes during the Remedial Work,

       provided that Defendant shall not be required to make reimbursement for such

       outside consultants’ fees in excess of the aggregate amount of One Thousand Dollars

       ($1,000.00). If any Town representatives are present during the Remedial Work who

       are employees of the Town, Defendant shall not be required to reimburse the Town

       for their time expended. This requirement as to reimbursement of consultants’ fees

       is based on the parties’ Stipulation and is in addition to and not in lieu of the

       penalties to be imposed by the Court pursuant to paragraph II of this Order.

       E.     As provided in the Stipulation of the parties, this Order, including the

       obligation to remove the retaining wall and to perform the Remedial Work, and

       thereafter to maintain to original ground conditions, shall be binding upon the heirs,

       successors, and assigns of Defendant Isaac Cowan. Any party to the Stipulation may

       record the order of the Court in the land records for the Town of Richmond.

II. A penalty pursuant to 24 V.S.A. §4451 will be imposed for the violation, as discussed

above, in a further order.



       Dated at Berlin, Vermont, this 13th day of February, 2006.




                                   ______________________________________
                                   Merideth Wright
                                   Environmental Judge

                                             8
