Vermont Agency of Natural Resource v. Bean

VT_AGNCY_NAT_RESOURCES_V_BEAN.94-136; 164 Vt 438; 672 A.2d 469

[Filed 15-Dec-1995]


       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,
  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.


                                 No. 94-136


Vermont Agency of Natural Resources               Supreme Court

                                                  On Appeal from
    v.                                            Environmental Law Division

Mark A. Bean                                      October Term, 1995


Merideth Wright, J.

       Jeffrey L. Amestoy, Attorney General, and Conrad W. Smith, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Oreste V. Valsangiacomo, Jr. of Valsangiacomo, Detora & McQuesten,
  Barre, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       ALLEN, C.J.   Defendant Mark Bean and cross-appellant Secretary of the
  Vermont Agency of Natural Resources appeal the Decision and Order of the
  Environmental Law Division (ELD) penalizing defendant for violations of his
  Act 250 permit, mobile home park permit, and Act 250.  We affirm in part
  and reverse in part.

       Defendant is the owner of a mobile home park in Lyndon, Vermont. 
  Prior to construction of the park, defendant applied for and received (1)
  approval of the water and sewer system from the Department of Health (DOH),
  (2) a Mobile Home Park permit (MHP permit) from the Agency of Natural
  Resources (ANR), and (3) an Act 250 permit from the District 7
  Environmental Commission (Commission).  The MHP permit incorporated the DOH
  approval letter, and the Act 250 permit incorporated the MHP permit.

       The incorporated permit authorized twenty-seven mobile home sites at
  the park1 and

 

  required appellant to complete the project in accordance with the approved
  plans.  Alteration of the plans required prior written approval of ANR. 
  The permit required that a registered professional engineer inspect and
  certify the water and sewer system after construction but prior to
  occupancy.  The permit also required two on-site drainage swales to control
  erosion and to alleviate an existing problem with standing water in the
  spring of each year.  The Commission stated that the Act 250 aesthetics
  criterion would be satisfied if appellant preserved the existing woods on
  the western boundary of the park, planted two trees on each mobile home
  lot, and created a double row of spruce trees on the northern edge of the
  park.

       Defendant began construction of the park in late 1988.  Pursuant to
  his permit, defendant installed all the lots, water lines, sewer lines, and
  manholes under the general supervision of a contractor or professional
  engineer.  Without amending his permit or obtaining written approval,
  however, defendant developed lots 2, 3, 4, 5, and 6, and placed mobile
  homes on lots 2-5. These lots appeared on the proposed plan for the park,
  but were not approved as sites for mobile homes.  Defendant then developed
  mobile home sites V, W, X, Y, and Z not at the approved locations but where
  no lots had appeared on the plan.  He built an unapproved access road and
  installed unapproved water and sewer lines to serve the V-Z sites. 
  Defendant also cut into the protected tree line on one boundary of the park
  and removed trees that were supposed to remain on mobile home site 12.  In
  the spring and summer of 1989, defendant left stockpiles of topsoil and
  mobile home sites under construction in an unstable condition, contrary to
  the erosion control plan.  In addition, defendant did not properly
  construct or maintain the two on-site drainage swales, failed to plant the
  two rows of eight-foot-tall spruce trees on the northern edge of the park,
  and failed to plant trees on each lot, as required by the permit.

       A representative of ANR visited the site on March 19, 1991, and
  subsequently issued a Notice of Alleged Violation (NOAV).  The NOAV,
  received by appellant on April 12, 1991, listed violations of Act 250 and
  the Act 250 permit, including the development of unapproved mobile home
  sites, the failure to implement the landscaping plan, the unapproved
  removal of

 

  trees, and the creation of erosion problems associated with the unimproved
  sites under construction and the unapproved access road.  In April 1991,
  defendant promised to give ANR a formal reply to the NOAV after
  consultation with his attorney.  There was no further correspondence
  between defendant and ANR, DOH, or the Commission for at least five months.
  The agencies resumed enforcement efforts again in October and continued
  into the spring of 1992.  On April 17, 1992, appellant received a second
  NOAV, listing many violations included in the 1991 NOAV as well as several
  new violations.  The drainage swales were not mentioned in either the 1991
  NOAV or the 1992 NOAV.  Correspondence between defendant and the agencies
  continued through the end of hearings on May 11, 1993.

       ANR issued an Administrative Order pursuant to 10 V.S.A. § 8008 on
  October 28, 1992, imposing penalties of $33,375 for violations of the Act
  250 permit, Act 250, the MHP permit, and the MHP statute.  Defendant
  appealed the Administrative Order to the ELD.  The ELD found multiple
  violations of the Act 250 permit, Act 250, the MHP permit, and the MHP
  statute, and determined that the violations led to actual and potential
  harm to the environment public health, and public welfare.  The ELD issued
  its Decision and Order on January 17, 1994, imposing penalties of $25,178
  based on these violations.

       Defendant raises four issues on appeal.  First, he argues that the
  penalties for actual and potential harm are based on conclusions not
  supported by the evidence or the findings of fact. Second, he claims that
  the failure of ANR to give him notice of the drainage swale violations
  precludes assessment of penalties for any violations of his permits
  resulting from the inadequacy of the swales, and that any alleged violation
  based on siltation of the swales is without support in the record.  Third,
  he alleges that the ELD failed to consider appropriate mitigating factors
  in determining the amount of penalties imposed.  Fourth, he claims that the
  ELD treated dissimilar violations identically.  On cross-appeal, ANR claims
  that the ELD erred when it held that the Uniform Environmental Law
  Enforcement Act does not allow penalties for violations occurring before
  November 2, 1990, that the ELD arbitrarily and capriciously refused to
  impose

 

  penalties for certain months on the basis of unreasonable delay in
  enforcement, and that the ELD erred when it based the penalty on economic
  benefit exclusively. 

                                     I.

       Defendant first claims that the ELD erred in assessing penalties
  against him because the conclusions upon which the penalties were based are
  not supported by the evidence or the findings of fact.  Under 10 V.S.A. §
  8012(b), the ELD may review and determine anew the amount of any penalties
  assessed for violations of Act 250 by applying the criteria set forth in 10
  V.S.A. § 8010(b).  The criteria to be evaluated include the degree of
  actual or potential impact on public health, safety, welfare, and the
  environment resulting from the violation.  10 V.S.A. § 8010(b)(1).  ANR
  produced evidence demonstrating the potential for adverse impacts on public
  health and welfare resulting from four leaking manholes in defendant's
  sewer line. ANR also produced evidence that actual impacts on public
  welfare and environment had resulted from the failure of defendant to
  properly maintain erosion control devices, and that actual impacts to the
  aesthetics of the area resulted from defendant's failure to maintain the
  grounds as required in the permits.  Based on this evidence, the ELD found
  that defendant's activities led to actual and potential impacts on public
  welfare and the environment.  The ELD concluded that the Uniform
  Environmental Law Enforcement Act authorized penalties for the impacts, and
  calculated the penalties accordingly.  10 V.S.A. §§ 8010(b), 8012(b)(4).
  
       Actual and potential harm were not the only bases for the penalties. 
  The ELD also found that, whether harm resulted or not, defendant had
  violated his permit and disregarded Vermont's environmental laws on several
  occasions.  The ELD then concluded that the Uniform Environmental Law
  Enforcement Act authorizes imposition of monetary penalties, even without
  lasting public welfare or environmental harm, in order to deter defendant
  and others from disregarding permit requirements.  10 V.S.A. § 8010(b)(6). 
  Finally, the ELD stated that its ruling furthered the even-handed
  enforcement of Vermont's environmental laws.  10 V.S.A. § 8001(3).  The
  record provides reasonable and credible evidence in support of the ELD's

 

  findings, and the ELD did not err in assessing penalties based on
  conclusions from these findings.  See Jarvis v. Gillespie, 155 Vt. 633,
  637, 587 A.2d 981, 984 (1991) (findings of trial court are not clearly
  erroneous and will stand if there is any reasonable and credible evidence
  to support them). 

                                     II.

       Defendant next argues that the ELD erred when it assessed penalties
  for drainage swale violations because ANR failed to give him notice in
  either of the two NOAVs or the Administrative Order.  This argument fails
  for two reasons.  First, the language of the statute itself does not
  mandate notice of a probable or actual violation.  Rather, the statute
  gives the Secretary of ANR discretion in determining whether to send notice
  in an NOAV: "[T]he secretary may issue a written warning. . . ."  10 V.S.A.
  § 8006 (emphasis added.).  Second, the Administrative Order  notified
  defendant of circumstances evincing a violation and ordered him to
  construct the swales in accordance with the approved plans.  Thus,
  defendant's argument that the penalties were improperly assessed because of
  a failure to notify him of any violations is unavailing.
  
       Defendant further asserts that, even if notice was sufficient for the
  ELD to have assessed penalties against him for any drainage swale
  violations, the evidence does not support the ELD's finding that the
  eastern drainage swale received erosion siltation from the access road and
  unstable mobile home sites under construction.  Witnesses at the trial,
  however, testified that the drainage swale sat below the access road and
  the unstable mobile home sites, that the construction and clearing on the
  road and the sites would have an impact on the drainage system, that the
  erosion was evident, and that over a foot of fine silty clay covered the
  swale.  Further testimony showed that the siltation caused water to pool
  around the area of the eastern swale during the spring of each year, and
  that these flood waters surrounded the septic pump for the park and
  encroached upon several of the mobile home sites.  In light of this
  testimony, we think the ELD had sufficient evidence to support its
  findings.  See Jarvis v. Gillespie, 155 Vt. 633,

 


637, 587 A.2d 981, 984 (1991) (findings of trial court are not clearly erroneous and will stand
if there is any reasonable and credible evidence to support them).

                                    III.

     Both parties claim that the ELD erred in its consideration of mitigating factors in its
penalty calculations.  See 10 V.S.A. § 8010(b)(2) (in determining amount of penalty, ELD must
consider the presence of mitigating circumstances, including unreasonable delay in enforcement).
Defendant argues that the ELD failed to mitigate altogether.  The ELD specifically noted,
however, the many personal and financial difficulties defendant experienced during the time of
violation, and set the penalties at the value of the economic gain from the violations.  The ELD
also mitigated the penalties by not penalizing defendant for five months because of unreasonable
delay in enforcement by ANR.

     On cross-appeal, ANR argues that the ELD acted arbitrarily and capriciously when it
mitigated on the basis of unreasonable delay in enforcement.  In support of this argument, ANR
cites testimony that voluntary compliance efforts were pursued throughout the contested periods
and that these efforts, when coupled with the limited resources of ANR, justify the allegedly
dilatory enforcement.  Although we recognize that ANR faces resource constraints and seeks
voluntary compliance in enforcing environmental regulations, it is outside the province of this
Court to second-guess the ELD's determination regarding the reasonableness of the delay in
enforcement.  Because the ELD did not abuse its discretion, we will not disturb the ELD's
consideration of mitigating factors or its refusal to assess a penalty during the time of
unreasonable delay.  See Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233,
239-40, 617 A.2d 143, 147 (1992) (ELD has discretion to consider whether mitigating
circumstances exist and how they affect assessment of penalty; assessment will not be disturbed
unless unreasonable).

                                     IV.

       In defendant's final argument, he claims that the ELD erred by
  treating dissimilar

 

       violations identically.  The violations at issue here are of two
  distinct groups.  Lots 2, 3, 4, 5, and 6 make up one group; lots V, W, X,
  Y, and Z make up the second group.  Lots 2-6 appeared on the proposed plan
  for the park but were not approved as mobile home sites. Defendant applied
  for amendment of his permits to allow him to develop lots 2-6 as mobile
  home sites.  Defendant developed the lots prior to approval of the
  amendment application and placed mobile homes on lots 2-5.  By contrast,
  defendant developed mobile home sites V-Z not at the approved locations but
  where no lots had appeared on the proposed plan.  Defendant never sought
  amendment of his permits prior to or after construction of lots V-Z.  The
  ELD found that, regardless of their difference, defendant's unapproved
  developments in each group violated the MHP permit, the MHP statute, the
  Act 250 permit, and Act 250, and penalized defendant for all economic gain
  resulting from the violations.  Defendant asserts that the ELD erred in
  penalizing him in the same way for these violations because they are of two
  distinct types.  We disagree.

       The ELD based the penalties not on the specifics of the individual
  violations, but on the basis that one violation is equally as punishable as
  another.  Nothing in the Uniform Environmental Law Enforcement Act
  precludes such an interpretation.  Section 8012(b)(1) gives the ELD
  authority to determine whether a violation has occurred, and § 8012(b)(4)
  allows the ELD to determine the appropriate penalty for such violations. 
  10 V.S.A. § 8012(b)(1), (4). Regardless of whether defendant subsequently
  sought an amended permit, he violated his permit by developing mobile home
  sites on unapproved lots 2-6 and V-Z.  The ELD set the penalty for these
  violations at the economic gain from the violations.  We will not disturb
  the penalty assessment because the ELD acted within its authority and the
  penalty was not unreasonable. See Vermont Agency of Natural Resources v.
  Godnick, ___ Vt. ___, ___, 652 A.2d 988, 994 (1994) (ELD has broad
  discretion in fashioning appropriate sanctions). 

                                     V.

       ANR raises two further issues on cross-appeal.  First, ANR claims that
  the ELD erred

 

  when it held that the Uniform Environmental Law Enforcement Act does
  not allow penalties for violations occurring before November 2, 1990.  We
  recently held that the administrative penalty provisions of the Act are
  applicable retrospectively for violations occurring before November 2,
  1990.  Id. at ___, 652 A.2d  at 992-93.  Accordingly, we reverse on this
  issue and remand for proceedings to determine the amount of penalties, if
  any, for violations during that time.

       Second, ANR argues that the ELD erred when it based the penalty on
  defendant's economic gain from the violations while ignoring the other
  penalty criteria.  The ELD's decision, however, shows this argument to be
  without merit.  The ELD explicitly mentions all eight of the factors
  required by 10 V.S.A. § 8010(b).  Because the ELD did not disregard the
  other penalty criteria, we will not disturb the ELD's penalty calculation. 
  Id. at ___, 652 A.2d  at 994 (ELD has broad discretion in fashioning
  appropriate sanctions).

       Affirmed, except for issue of penalties for violations prior to
  November 2, 1990, which ruling is reversed; cause remanded.


                              FOR THE COURT:



                              _______________________________________
                              Chief Justice


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                                  Footnotes


FN1.   Although the Act 250 permit alone authorizes a thirty-three-unit park, 
  the incorporated permit limits the approved number of sites to twenty-seven.