Agency of Natural Resources v. Weston, 02-456.

• Decision Date: 18 June 2003
• Docket Number: No. 02-456.,02-456.
• Citation: 830 A.2d 92
• Parties: AGENCY OF NATURAL RESOURCES v. Don WESTON.
• Court: Vermont Supreme Court

830 A.2d 92

AGENCY OF NATURAL RESOURCES v. Don WESTON.

No. 02-456.

Supreme Court of Vermont.

June 18, 2003.

Present: AMESTOY, C.J., DOOLEY, JOHNSON, SKOGLUND, JJ., and FREDERIC W. ALLEN, C.J. (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. Defendant Don Weston appeals from the environmental court's order fining him approximately $15,000 for violating solid waste regulations and a condition of his Act 250 land use permit. We affirm the violations, but reverse the penalty imposed for the permit violation and remand the matter for reconsideration of the appropriate fine for the transgression.

¶ 2. Defendant owns and operates an excavating business. In March 1989, he purchased 146 acres of undeveloped land that was subject to an Act 250 permit. Seven months earlier, the seller of part of the land had obtained the permit to allow him to subdivide the property. The permit had been denied twice before because of the applicant's failure to demonstrate that the proposed subdivision would "not significantly reduce the agricultural potential of the primary agricultural soils." 10 V.S.A. § 6086(a)(9)(B); see 10 V.S.A. § 6001(15) ("Primary agricultural soils" are soils having potential "for growing food and forage crops"). The permit was finally granted when the applicant consolidated the areas to be set aside for agricultural use into a single thirty-three-acre parcel. Among the conditions of the permit were the following:

17. The 33 acres of primary agricultural soils . . . shall be maintained as open, cleared, uncluttered and unencumbered land. Activities which will reduce the potential of the soils for agricultural use, such as the construction of buildings or swimming pools, are prohibited. At a minimum, the owner ... or the lessee of the Agricultural Area . . . shall cut the hay from the Agricultural Area twice each year and shall fertilize this area at least once every three years.

18. A multiple year lease arrangement shall be made available by the owner. . . to a farmer for a commercial farming practice utilizing the Agricultural Area. The condition of the lease shall in no way inhibit the responsible use of fertilizer, reseeding or other appropriate improvements for the enhancement of the agricultural potential for the soils on the site. This lease shall be for a minimum term of five years, renewable for five year periods at the end of each term.

¶ 3. From 1989 to 1999, in compliance with these permit conditions, defendant leased the thirty-three-acre parcel to local farmers, who planted corn and cut hay. In 1999, defendant applied for a permit to develop his property. Neighbors opposed the proposal, and the application was denied.

¶ 4. In the summer of 2000, defendant dumped three loads of chicken manure on the thirty-three-acre parcel near the property line with residents who had opposed his development proposal. Some of the residents complained to local and state officials about the odor and other problems associated with the manure. The Jericho town health officer inspected the manure pile in August 2000 and then contacted officials from the Department of Agriculture, who inspected the property in August and again in November 2000. Following the August visit, the agricultural investigator found no violation, concluding that the pile looked like normal chicken manure, and that stacking manure for late spreading was a normal agricultural practice. The investigator noted, however, that the field had not been cut in some time, and that there was a high weed content in the hay.

¶ 5. At their November visit, state agricultural officials noted that the field was old corn stubble and overgrown weeds that had not been cut. The field did not appear to have been used for any agricultural production during the summer 2000 growing season. The officials met with defendant and explained to him that he needed to take a crop from his land to keep it in agricultural use and legitimize the stacking of manure for fertilizer. The officials further advised Weston that the manure pile had to be spread before December 15 of that year, and that the storage of manure without an agricultural use is a solid waste violation. Late on December 14, the last day of the year on which the rules for acceptable agricultural practices allowed the spreading of manure, defendant had a local farmer spread the manure.

¶ 6. In the summer of 2001, defendant delivered another two loads of chicken manure to the thirty-three-acre parcel, again dumping it near the residential properties. In response to more complaints from the neighbors, the same agricultural investigator from the previous year visited the property on a number of occasions. Concluding that the parcel was not being put to any agricultural use, the investigator referred the matter to plaintiff Agency of Natural Resources for possible solid waste violations. An environmental enforcement officer from the Agency visited defendant's property on August 28 and September 4, 2001. Defendant told the officer that he would be bringing in another two loads and spreading the manure within two weeks in preparation for crop planting the following year. On September 19, after determining that defendant had not spread the manure pile, the officer issued defendant a notice of violation for storage of a solid waste without a permit, and ordered him to remove the pile by September 28.

¶ 7. That same month, the Commissioner of the Department of Agriculture wrote the Town of Jericho health officer a letter stating that because no farming practices had occurred on defendant's property in the past two years, the Department had concluded that the property was not being used for an agricultural operation, and thus the Town could regulate the storage of manure. On October 1, the Jericho health officer issued a health order directing defendant to remove the manure pile. Defendant had a local farmer spread the manure later that month.

¶ 8. On April 29, 2002, the Agency of Natural Resources issued an administrative order finding that defendant (1) had violated Condition 17 of his Act 250 permit by failing to cut hay on the thirty-three-acre parcel in accordance with the permit; and (2) had violated 6-302(d) of Vermont's Solid Waste Management Rules by storing solid waste (chicken manure) for an extended period of time outside a certified facility without distributing the manure as fertilizer. The order required defendant (1) to pay a $2000 penalty within thirty days; (2) to plow and seed the thirty-three-acre parcel by June 1, 2002; (3) to refrain from disposing of chicken waste, including chicken manure, on the property, and to follow the Department's accepted agricultural practices when fertilizing the soil; and (4) to abide by the conditions of the Act 250 permit, including Condition 17's requirement that hay be cut twice each year on the parcel. The order also stated that the $2000 fine could be augmented depending on evidence presented at a hearing before the environmental court, should defendant request one.

¶ 9. Defendant appealed the administrative order to the environmental court, which held a hearing on July 10, 2002. Following the hearing, the court determined that (1) defendant violated Condition 17 of his Act 250 permit by failing either to cut hay in the years 2000 and 2001 or to seek a minor permit amendment to allow him to forego cutting hay for one or both of those years; and (2) defendant violated Solid Waste Management Rule 6-302(d), which prohibits the storage of a solid waste outside a certified facility, by stacking chicken manure without using it for soil enrichment. The court modified one of the provisions of the administrative order to allow the use of manure but not chicken waste, and then imposed a $14,640 penalty based on avoided costs — $14,000 for the cost avoided in not having to cut hay twice a year for two years, and $640 for the cost of removing the manure pile in 2000 and 2001.

¶ 10. On appeal, defendant argues that (1) the environmental court's findings concerning the presence of chicken carcasses in the manure as well as the odor and files resulting from the chicken waste were unsupported by the evidence and outside the court's jurisdiction because they were unrelated to the issues before the court; (2) the court misinterpreted Condition 17 to require defendant to cut hay twice a year regardless of the physical condition of the land or the use of the land for other agricultural activities; (3) the court misconstrued the solid waste management rules to prohibit the extended field stacking of manure; and (4) the court abused its discretion in assessing the penalty for the permit violation.

¶ 11. Defendant first contends that we must vacate the environmental court's findings that were made in excess of its jurisdiction. According to defendant, the court's findings concerning the presence of animal carcasses in the manure, the strong odor and number of flies generated by the manure, and the timing of the deliveries of the manure to maximize the neighbors' annoyance were all unrelated to the issues before court — whether defendant violated his Act 250 permit by failing to cut hay twice a year and whether he stacked manure in violation of solid waste management rules. Defendant surmises that the court made the challenged findings for the sole purpose of supporting its advisory opinion that defendant's neighbors might have a private nuisance action against him. He contends not only that these findings are extra-jurisdictional, but also that they are unsupported by the evidence presented at the hearing.

¶ 12. We decline to address these arguments. The challenged findings may not have been relevant to the alleged violations at issue in the environmental court hearing, but, in any event, they played no part in the court's disposition of the matter. The penalties imposed by the court were expressly tied to avoided costs, and were not increased based on any finding of...