Appeal from Superior Court, Environmental Division.
G. Walsh, J. Thomas J. Donovan, Jr., Attorney General, and
Robert F. McDougall, Assistant Attorney General, Montpelier,
Bond of Strouse & Bond, PLLC, Burlington, for
PRESENT: Reiber, C.J., Skoglund, Eaton and Carroll, JJ.
1. Respondents, Francis Supeno, Barbara Supeno, and Barbara
Ernst, appeal an order of the Environmental Division imposing
a penalty of $27, 213 for water and wastewater permit
violations. On appeal, respondents argue that their due
process rights were violated, the penalty assessment was
precluded by res judicata, and the amount of the penalty was
excessive. We affirm.
2. The following facts are either not disputed or were found
by the court. Respondents Francis Supeno and Barbara Supeno
are siblings and jointly own property in Addison at 306
Fisher Point Road. Barbara Supeno and Barbara Ernst live
adjacent to the property at 330 Fisher Point Road. In October
2009, the Supeno siblings obtained a wastewater system and
potable water supply permit, which authorized the replacement
of a seasonal cottage at 306 Fisher Point Road with a
year-round residence with one bedroom. The permit included
the construction of an on-site well and wastewater disposal
system. The water supply for 330 Fisher Point Road is
provided through a public water system.
3. In June 2014 the Agency of Natural Resources (ANR)
received a complaint of an alleged violation of the
wastewater permit. ANR also became aware that the property
was advertised as a two-bedroom, two-bathroom rental. ANR
sent an inquiry to respondents seeking to conduct an
inspection of the property, but respondents did not reply. An
ANR enforcement officer went to the property and Barbara
Supeno denied ANR access to the house. The Environmental
Division granted ANR's petition for an access order and
ANR received access on September 9, 2014. During the visit,
the ANR enforcement officer observed two water lines entering
the basement of 306 Fisher Point Road. Respondent Ernst
explained that one line was from the on-site well and the
other was a spliced connection of the town water line from
330 Fisher Point Road, and that the house could switch
between the two water sources. The enforcement officer also
observed the permitted bedroom on the second floor and an
additional nonpermitted bedroom in the basement.
4. On September 18, 2014, ANR filed an emergency
administrative order (EAO) and the court granted the petition
the same day. The EAO listed three violations: (1)
respondents failed to obtain a permit before modifying the
rental home at 306 Fisher Point Road to add a second bedroom;
(2) respondents spliced into the public water supply line
serving 330 Fisher Point Road and connected it to the rental
property on 306 Fisher Point Road without obtaining a permit;
and (3) respondents created an unapproved cross-connection at
the rental property, which allowed it to switch between the
well water and the public water system and created a risk
that potentially polluted water could contaminate the public
water supply. The EAO stated that the Secretary of ANR
"reserve[d] the right to subsequently issue
Administrative Orders, including penalties." The EAO
also notified respondents of their right to request a prompt
hearing on the merits of the order.
5. Respondents requested a hearing, which the Environmental
Division held in September 2014. Respondents were represented
at the hearing by counsel. In October 2014, the court
modified the EAO to allow respondents to seek a permit from
ANR to connect the building at 306 Fisher Point Road to the
public water supply, but the violations remained unchanged.
Respondents did not appeal the EAO.
6. In June 2015, ANR issued an Administrative Order (AO) for
the same violations contained in the EAO and assessed a $29,
325 penalty against respondents. Respondents requested a
hearing on the penalty assessment in the AO before the
7. The parties filed cross motions for summary judgment.
Respondents alleged that penalties could not be assessed in
the AO for three reasons: (1) the AO violated their due
process rights because they were not informed of the
possibility of such a high penalty being assessed; (2) the AO
was barred by res judicata because it involved the same
parties and issues as the EAO; and (3) the penalty violated
the Eighth Amendment to the U.S. Constitution. ANR moved for
summary judgment on the penalty assessment. The court
concluded that respondents had received full process and res
judicata did not apply and therefore denied respondents'
motion for summary judgment. The court further concluded that
review of the penalty assessment involved disputed facts and
denied summary judgment to both parties on this issue.
Following an evidentiary hearing, the court made findings
relevant to the penalty assessment, which are discussed more
fully below, and set the total penalty for the violations at
$27, 213. Respondents filed this appeal.
8. On appeal, respondents argue that assessing a penalty in
the AO after the violations were established in the EAO was a
denial of due process and barred by res judicata. They also
contend that ...