ANR
v. Persons, 2013 VT
46
When the SCOV classifies the basis
of your appeal as being “for a host of reasons” it’s not necessarily a good
thing.
Defendants here are a landowner and
the Trust “A” of that landowner. Without
getting too far into the nitty-gritty details regarding ownership, sales, and
so on, there was a 152-acre plot of farmland, which was subdivided into seven
lots. This case involves three of the
lots—two of which are owned by a non-party—because the landowner replaced a
water line that went through all three.
There is a Class II wetland located
on the lot owned by the Trust, and wet soils on the other two lots abut the
wetland. When the land was first
subdivided in the late 1990s, landowner got in a little hot water (pun totally
intended) for excavating and filling within the wetland and its buffer
zone. He eventually admitted to
violations of applicable wetlands-protection laws and entered an assurance of
discontinuance with the Agency on Natural Resources (ANR).
Flash forward several years, when
the owner of the other lots learns of the administrative order against landowner
. . . he contacts ANR’s Waterbury office to ask about what excavation he, the
neighbor, can do to prepare his lots for sale.
He also asked whether there were any outstanding requirements from the
2001 assurance of discontinuance that required attention.
So ANR officials come
a-callin’. They determine that the wet
soils constitute an additional wetland as evidenced by the surrounding vegetation,
soil, and hydrology. They also note that
landowner had recently cleared a swath of trees and excavated soils from a
strip of land that cut across the three lots to replace a damaged water line
that supplied water to the Trust-owned lot.
Another site visit revealed three
spring-fed wells in the secondary wetland.
So the ANR issued a notice of violation, requiring that defendants
remove the new tiles and gravel and make repairs to the cleared land promptly. Long story, short, he didn’t. In fact a follow-up site visit showed that landowner
subsequently added electrical outlets to the well. Approximately two-and-a-half years later, the
ANR issued an administrative order against the landowner.
Landowner appealed the order to the
environmental court. After a hearing on
the merits, the court concluded that landowner “knew or should have known” that
they were working in wetlands. Landowner
testified that everything was dry when he was doing the work, but the court
didn’t believe him. Instead, the court
found that the soil, plants, and hydrology meant that the work was performed in
a wetland and that the Trust was equally liable based on the trustee’s
knowledge of the area and the Trust’s ownership of the lot. The court slapped a $14,222 fine on the defendants.
And that’s how we end up at the
SCOV.
The standard of review is
semi-deferential: factual findings are upheld unless they’re completamente locos; conclusions of law
are upheld if the proper legal standard was applied and the conclusions are
reasonably supported by the findings.
Landowner made thirteen objections
to the trial court’s findings. The SCOV
reasons that there is significant overlap and so addresses the claims
“thematically.”
Landowner’s first argument was
notice and due process based. Basically,
he argued that he didn’t know that the work was being done in wetlands, nobody
told him, and that inadequate notice is provided by the rules and National
Wetlands Inventory (NWI) wetland maps.
The SCOV doesn’t buy it—reasoning that the rules require all landowners
to seek authorization from the ANR before commencing any nonexempt activities,
including clearing and excavating land.
The SCOV also reasons that the maps read in conjunction with the rules
provide notice because the rules provide a definition that includes “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.” The SCOV also rejects landowner’s claim that
they should have received a warning first, reasoning that whether to issue a
warning or notice is a matter of discretion for the ANR.
Landowner next argued that the
assurance of discontinuance didn’t provide adequate notice of protected
wetlands. The SCOV rejects that argument
in short order, noting that the trial court never said that the assurance of
discontinuance gave notice; rather, the trial court used the assurance of
discontinuance in its overall determination of whether defendants knew or
should have known of the wetlands.
Defendants also argue that the NWI
maps are difficult to read and don’t show the exact location of wetland
boundaries. The SCOV finds this
argument unavailing.
[Author’s side note: Isn’t unavailing just a great not-used-enough-in-everyday-speech
word? I challenge you to use unavailing in normal speech today. Please post reactions—and if at all possible,
pictures of people’s faces in reaction to your usage—in the comments
below.]
The SCOV reasons that the NWI maps
do not illustrate precise boundaries of each and every wetland in the state,
but do highlight protected areas, generally. Thus, it becomes the property owner’s
responsibility to ensure that work is not performed in a restricted
wetland.
The SCOV sums up the landower’s position
as being that “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.”
The SCOV notes that due process requires reasonable notice and explicit
standards for those applying prohibitions.
In this case, the SCOV notes that this is a civil not criminal penalty
and that landowner had a reasonable opportunity to learn what was
prohibited. The SCOV also notes that landowner
was “well aware that significant wetlands were located on the property.” As such, “[a]t the very least, the very
least, defendants should have sought the advice of ANR before commencing work.”
The SCOV also notes that the landowner had notice in 2007, but didn’t do
anything about it until 2010.
Oops.
Landowner’s argument regarding the
court’s calculation of the penalty falls into the
no-error-without-abuse-of-discretion realm, and the SCOV finds no abuse of
discretion. There’s a mitigation
argument and so forth, but none of it finds any traction.
The landowner’s final argument was
that he was entitled to a jury trial, but the SCOV just doesn’t see it in this
context—it’s a civil penalty and there’s no common law or statutory right to a
jury trial.
So, if you want to avoid running
afoul of wetland regulations, make sure you know what is and isn’t a wetland before you start excavating. You dig?
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