op2012-274


Agency of Natural Resources v.
Timothy Persons, and Trust A of Timothy Persons (2012-274)
 
2013 VT 46
 
[Filed 28-Jun-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 

2013 VT 46 

 

No. 2012-274

 

Agency of Natural Resources


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, 
Environmental Division


 


 


 


 


Timothy Persons, and Trust A of
  Timothy Persons


February Term, 2013


 


 


 


 


Thomas
  S. Durkin, J.


 

Paul S. Gillies
of Tarrant, Gillies, Merriman & Richardson,
Montpelier, for Appellants.
 
William H. Sorrell, Attorney General,
and Kyle H. Landis-Marinello, Assistant Attorney
General,
  Montpelier, for Appellee.
 
 
PRESENT:  Reiber, C.J., Skoglund, Burgess and Robinson, JJ.,
and Bent, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.  Defendants Timothy Persons and Trust A of Timothy Persons appeal from a Superior Court,
Environmental Division decision that held certain construction and excavation
work performed on defendants’ property violated the Vermont Wetlands Protection
and Water Resources Management laws and the Vermont Wetlands Rules (VWR). 
For a host of reasons, defendants contend they were not given adequate notice
that portions of their lands contain a protected wetland, and therefore, they
should not be subjected to the resulting fines.  We affirm.
¶ 2.            
Defendant Timothy Persons or his relatives owned a 152-acre plot of
farmland in Lunenburg, Vermont, with frontage along U.S. Route 2 and Hastings
Road.  In August 1998, the property was subdivided into seven individual
parcels.  Defendant Trust A of Timothy Persons
(Trust A) purchased the property in April 1999 and began selling the subdivided
lots.  Defendant Trust A sold Lots 5 and 5A to
Carl Jaborek, an individual not a party to this
proceeding.  Defendant Trust A retained ownership
of Lot 4, with Allen Bacon acting as sole trustee.  
¶ 3.            
Lots 4, 5, and 5A are the subject of this appeal.  Lots 4 and 5A
each contain 10.1 acres; Lot 5 contains 59 acres, including the property’s
original farmhouse.  There is a Class II wetland located on Lot 4.  As
found by the environmental court, areas with wet soils extend from the Lot 4
wetland across Lots 5 and 5A, such that the wet soils abut
the Class II wetland.  
¶ 4.            
In September 1999, the Agency of Natural Resources (ANR) issued an
Administrative Order against defendant Persons for unpermitted excavation work
within a Class II wetland and its fifty-foot buffer on Lot 4.  Defendant
Persons initially contested the Order but later admitted to the 1999 wetland
violation.  He subsequently entered into an Assurance of Discontinuance
(AOD)[1]
with ANR in 2001, wherein he admitted to the existence of the Class II wetlands
on Lot 4, and that excavation work and the dumping of fill and gravel within
the wetland and its buffer were violations of the applicable wetland-protection
laws and regulations.  Defendant Persons thereafter enrolled in
classes pertaining to wetlands delineation and septic design. 
¶ 5.            
Years later, Mr. Jaborek, owner of Lots 5 and
5A, learned of the Administrative Order against defendant Persons and contacted
ANR’s Waterbury office to inquire what excavation could lawfully be performed
on his property in order to prepare his lots for sale.  He also asked
whether there were any outstanding requirements from the 2001 AOD that required
attention.  As a consequence, ANR officials visited Lots 4, 5, and 5A in
May 2007 and confirmed that the wet soils located on the lots represented an
additional wetland as evidenced by the surrounding vegetation, soil, and
hydrology.  
¶ 6.            
During the initial visit, ANR officials noted that defendant Persons
recently cleared a swath of trees and excavated soils from a strip of land that
cut across Lots 4, 5, and 5A, to replace a damaged water line that supplied
water to Lot 4.  The area cleared was wholly contiguous to the Class II
wetland on Lot 4.  In June 2007, after receiving a report that defendant
Persons was conducting further excavation work in the identified wetland, ANR
conducted another site visit, which revealed that defendant Persons dug three
additional spring-fed wells, approximately five feet deep in the secondary
wetland.  The wells were encapsulated in concrete tiles and extended three
feet above ground level. 
¶ 7.            
In July 2007, ANR issued a notice of violation, requiring that
defendants remove the new tiles and gravel and make repairs to the cleared land
by August 15, 2007.  In September 2007, an ANR official and the State
Wetlands Coordinator conducted another site visit, where they observed no
change in conditions or attempt to ameliorate the cited violations; rather,
they found that defendant Persons had installed electrical fixtures on the
three new tile structures.  In May 2010, ANR issued an
Administrative Order against defendants for dredging and filling in a Class II
wetland and its fifty-foot buffer zone without obtaining a conditional use
determination pursuant to VWR §§ 6.3(b), 8.  
¶ 8.            
Defendants appealed the Order to the environmental court.  After a
full hearing on the merits, the court concluded that defendants “knew or should
have known that their activities were conducted within wetlands that are
protected by 10 V.S.A., Chapter 37 and the VWR.”  Even though defendant
Persons testified that the soils were not wet when he conducted the excavation
work, the court did not find his testimony credible.  Based on the
credible evidence, including evidence of the existing plant, soil, and hydrology
in the area in question, the court determined that a Class II wetland existed
at the time defendants conducted their work and, continues to exist today.
 As such, the court concluded that defendant Persons knowingly and
defiantly excavated the land and installed wells without seeking the guidance
of ANR or petitioning for a new wetlands determination.  The court also
found Allen Bacon, the sole trustee of Trust A, to be equally responsible,
based on his knowledge of the area and the Trust’s ownership interest.
 Accordingly, the court assessed a penalty of $14,222 against
defendants pursuant to 10 V.S.A. § 8010(b)(1)-(8).
 This appeal followed.  
¶ 9.            
We begin by setting forth the appropriate standard of review.  The
trial court’s factual findings must be upheld unless clearly erroneous.  Town
of Bethel v. Wellford, 2009 VT 100, ¶ 5, 186 Vt. 612, 987
A.2d 956.  “Where the trial court has applied the proper legal
standard, we will uphold its conclusions of law if reasonably supported by its findings.”  Id.
(quotation omitted). 
¶ 10.         Defendants
articulate thirteen objections to the trial court’s findings.  The thrust
of their arguments focuses on whether they knew or should have known they were
working within protected wetlands and whether the associated penalty is
reasonable.  Because of the significant overlap among defendants’ claims,
we address them thematically. 
¶ 11.         Defendants
first contend they were not given adequate notice that they were working in
protected wetlands, and any violation would be in contravention of basic due
process.  Specifically, they allege that ANR should have informed them of
wetland boundaries during the initial site visits.  Defendants also
maintain that neither the 2001 AOD nor the National Wetlands Inventory (NWI)
maps sufficiently alerted them to other wetland areas located on the
property.  We disagree. 
¶ 12.         VWR[2] provides protection for significant
wetlands, which include any Class I or Class II wetland and their associated
buffer zones.  Vermont Wetlands Rules §§ 2.24, 6.1, 6 Code of Vt. Rules 12
004 056.  The rules require landowners to seek authorization from the
Secretary of ANR before commencing any nonexempt activities, including clearing
and excavating the land.  See VWR §§ 6.3, 8.1, 6 Code of Vt. Rules 12 004
056; see also 10 V.S.A. § 913(a) (“[N]o person shall conduct or allow to be
conducted an activity in a significant wetland or buffer zone of a significant
wetland except in compliance with a permit, conditional use permit
determination, or order issued by the secretary.”).  The rules provide
further that all wetlands shown on the state’s NWI maps and all wetlands
contiguous to such mapped wetlands are presumed to be Class II wetlands. 
See VWR §§ 4.1, 4.2, 6 Code of Vt. Rules 12 004 056. Similarly, Chapter 37 of
Title 10, entitled Wetlands Protection and Water Resources Management, outlines
the state’s commitment to protect and regulate the water resources of the state
through statute and sets forth similar guidelines in determining wetlands;
Chapter 201 of Title 10 outlines the enforcement action for wetland
violations.  
¶ 13.         Pursuant
to 10 V.S.A. § 8006, the Secretary of ANR may issue either a written warning or
a written notice for an alleged violation, with a brief description of the
violation and the intended course of action, as well as, specific time lines
and directives to achieve compliance, if appropriate.  The rules do not
require the Secretary to first issue a warning and then a notice as defendants
contend.  While it may have been good practice for ANR officials to orally
notify defendants of the alleged violation during their first site visit in May
2007, such action was not required.[3]  

¶ 14.         Next,
defendants argue that the 2001 AOD did not provide adequate notice that they
were operating on protected wetlands, as the AOD addressed only a discrete
portion of Lot 4, and failed to indicate the existence of nearby wetlands.
 The record makes clear that the work in question, namely—excavation,
dredging, gravel and other fill work, and the installation of the spring
wells—took place outside the precise boundaries of what the AOD delineated as
Class II wetlands.  The trial court, however, did not presume that the AOD
had provided defendants in 2001 with actual notice of all wetlands on their
property.  The court merely reasoned that, in light of defendants’ prior
exchanges with ANR officials, defendants knew agency officials could provide
wetland boundary determinations on their land.  Also, the court
found that, because of the prior compliance matter, defendants knew or should
have known that if they “intended to conduct excavation work or other
activities and uses in an area protected by state wetland protection laws and
regulations, [they] could only receive lawful authority to do so by requesting
a conditional use determination.”  So, while the court used the 2001 AOD
as contextual background, it did not find that the AOD provided defendants with
a definitive ruling of the boundaries of all the existing wetlands.  
¶ 15.         Similarly,
defendants allege that the NWI maps failed to accurately denote the secondary
wetlands on their property.  They argue the maps were difficult to read
and required professional assistance or input to determine the boundary, as
they were not “intended to show the exact location of wetland boundaries.”  We
find this argument unavailing.  
¶ 16.         Even
though the record indicates that NWI maps may not illustrate the precise
boundary of each and every wetland in the state, they highlight protected
areas, generally.[4] 
The onus is placed on the landowner to seek further clarification or petition
for remapping.  VWR § 7.1, 6 Code of Vt. Rules 12
004 056.  In fact, the rules expressly state that “the maps denote
the approximate location and configuration of significant wetlands.  The
actual boundaries . . . shall be
determined in the field.”  VWR § 3.2(b), 6 Code of Vt. Rules 12 004
056.  Furthermore, the trial court never declared that NWI maps would
apprise defendants of wetlands.  Instead, the court used the map as a
counterpoint to illustrate that Class II wetlands extend beyond those marked on
the map.
Class
II wetlands are not limited to just those wetlands identified on the VSWI map.
 Rather, due to the metamorphic nature of surface and ground water, the
classification of Class II wetlands also includes “all wetlands contiguous to
such mapped wetlands, . . . unless determined otherwise by
the [Water Resources] Board,” pursuant to a successful petition for an
alternative wetlands determination by ANR or a property owner.  VWR
§ 4.2(b), 6 Code of Vt. Rules 12 004 056.  
 
¶ 17.         In
sum, defendants argue they were not afforded basic due process because they
were never notified or able to learn the location of the wetlands before being
charged by ANR for violating the law and regulations.  Due process
necessitates that there is “notice sufficient to give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited and to provide
explicit standards for those who apply them.  Agency
of Natural Res. v. Irish, 169 Vt. 407, 411, 738 A.2d 571, 575-76 (1999)
(quotations omitted).  The U.S. Supreme Court has “expressed
greater tolerance of enactments with civil rather than criminal penalties
because the consequences of imprecision are qualitatively less severe.”  Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 498-99 (1982). 
¶ 18.         In
particular, this Court in Agency of Natural Resources v. Irish, found that
NWI maps in conjunction with ANR’s recommendations could provide a defendant
with reasonable notice that it was necessary to procure a conditional use
determination before commencing work.  169 Vt. at 413, 738
A.2d at 577.  There, the Court reasoned that in light of the less
demanding strictures in civil suits and the fact that the defendant knew there
were significant wetlands on his property as marked by the NWI maps and that
ANR recommended that he obtain an expert opinion and a conditional use
determination prior to the excavation work, the defendant had ample notice he
was working on protected land.  Id. at 412-13, 738
A.2d at 576-77.
¶ 19.         Similarly,
defendants here were well aware that significant wetlands were located on the
property.  While neither the AOD nor the NWI map detailed the precise
locations of all secondary wetlands, the underlying facts suggest defendants
knew or had reason to know they were performing work on protected wetlands, as
evidenced by the fact that Lot 4 contains a Class II wetland, the work was
performed on Lot 4 and the abutting lands, and as the environmental court
noted, credible evidence indicated that the surrounding soils were wet. 
Based on the totality of facts, defendants had sufficient reason to know that
the excavation work was prohibited without a permit or a conditional use
determination.  At the very least, defendants should have sought the advice
of ANR before commencing work.  What is more telling is that defendants
received the notice of the violation in July 2007, and they did not protest the
violation or make reparations to the land until ANR sought a penalty for
noncompliance in May 2010.  Accordingly, we are satisfied there was no
violation of defendants’ due process rights. 
¶ 20.         Defendants
next assert that the trial court erred in calculating the penalty.  We
disagree.  “The imposition of civil penalties represents a discretionary
ruling that will not be reversed if there is any reasonable basis for the
ruling.”  Id. at 418, 738 A.2d at 580.
 Here, the court outlined its penalty assessment in accordance with 10
V.S.A. § 8010, the remedial statute designed to “to enhance the protection of
environmental and human health,” “prevent the unfair economic advantage
obtained by persons who operate in violation of environmental laws,” “foster
greater compliance with environmental laws, and deter repeated violation[s].”
 10 V.S.A. § 8001; see also Agency of Natural Res. v. Deso, 2003 VT 36, ¶ 18, 175 Vt. 513, 824 A.2d 558.
¶ 21.         The
court imposed a total penalty of $14,222.  To encourage remediation, the
court imposed a penalty of $3000.  Because defendant Persons had knowledge
of the significance of the wetlands and nonetheless pursued his own interests,
it imposed a $3000 penalty.  Defendant Persons’ previous violations
generated a $4000 fine.  To deter future violations, the court assessed a
penalty of $2000.  The court incorporated ANR’s expenditures of $1722 into
the assessment.  Lastly, the court fined defendants $500 for the amount of
time they allowed the wetland encroachments to go unaddressed. 
¶ 22.         Defendants
claim the trial court failed to account for mitigating factors when assessing
the penalty.  They suggest that their attempt to locate wetland maps and
defendant Persons’ enrollment in wetland classes was sufficient to eliminate
any penalty assessment.  They also maintain that ANR’s failure to notify them
that they were operating in wetlands should serve as a mitigating factor. 
We find defendants’ arguments unavailing.  
¶ 23.         The
fact that defendant Persons took a class on wetland delineation and made an
effort to locate wetlands on environmental maps is not a mitigating factor
here.  As a landowner of protected wetlands, the onus is on him,
individually, to ensure that he is conducting permissible activities in
permitted areas.  Also, ANR had no obligation to discuss the situation
with defendants before issuing the violation.  See 10 V.S.A. §
8006(b).  Moreover, defendants had almost three years from receipt of the
notice of violation before any penalties were assessed.  In those three
years, they could have challenged the ANR’s findings pursuant to VWR § 7.1, 6
Code of Vt. Rules 12 004 056, or they could have complied with the Agency’s
order and performed the necessary repairs. The mitigating factors argued were
insignificant.  We find no error in the court’s decision.
¶ 24.         Additionally,
defendants claim that the court improperly assessed the fines because there was
no evidence of direct impacts on the wetlands.  Section 8010(b)(1) of the remedial statute specifically informs the court
to consider both actual and potential impacts of the environmental violation
when calculating a penalty.  While there were no demonstrable impacts to
the wetlands evidenced at trial, the court factored that into its assessment.
 In fact, it declined to impose a more significant penalty because “actual
impacts were not demonstrated by the evidence presented at trial.”  Because
the court factored the actual impacts into its equation, we find its
calculation reasonable.  
¶ 25.         Finally,
defendants assert that the environmental court increased the penalty six fold
based on a violation of the 2001 AOD.  We find no facts to support this
assertion.  There was no dispute that the activities in question were
beyond the scope of the AOD.  The environmental court merely found that
the AOD should have informed defendants that they were operating in areas
contiguous to the previously identified wetlands on Lot 4.  Further, the
court provided calculated and well-founded reasoning for each and every penalty
assessment under 10 V.S.A. § 8010.  The record does not indicate that the
environmental court increased any one penalty six fold
on the basis of the AOD violation.  
¶ 26.         Finally,
defendants allege that they were entitled to a jury trial.  They concede
they do not have a constitutional right to a jury trial and fail to provide any
rationale as to why this Court should expand its interpretation of the right to
a jury trial in this instance.  See State v. Irving Oil Corp., 2008
VT 42, ¶¶ 11, 15, 183 Vt. 386, 955 A.2d 1098 (looking beyond traditional
analysis of whether claim had eighteenth century common law analogue and
reasoning that civil penalty served remedial purpose and, as such, found that
penalty was equitable in nature and defendant was not entitled to jury
trial.).  Accordingly, we do not address this issue. 
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] Pursuant
to 10 V.S.A. § 8007(a), the Secretary may accept from a respondent an assurance
of discontinuance of a violation as an alternative to administrative or
judicial proceedings.  


[2] 
Since the activities in question were conducted in 2007, the Rules that were in
effect from January 1, 2002 through July 31, 2010 control.
 


[3]
 Reginald Smith, an ANR environmental enforcement officer, testified that
he attempted to call defendant Persons and Allen Bacon, trustee, to inform them
of the alleged violation but was unable to reach them. 


[4]
As an extension, defendants argue that because the maps lack exactitude, a
landowner cannot discern lands “contiguous” to an identified wetland, or a
“buffer zone”—fifty feet from the designated wetland.  For the same
reasons we find defendants’ argument regarding the maps unavailing, we also
find this argument unpersuasive. 



