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Agency of Natural Resources v. Persons

Supreme Court of Vermont

June 28, 2013

Agency of Natural Resources
Timothy Persons, and Trust A of Timothy Persons

On Appeal from Superior Court, Environmental Division 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. 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 ...

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