Decision Date25 June 1999
Docket NumberNo. 97-509.,97-509.
CourtVermont Supreme Court

Gary S. Kessler, Senior Environmental Enforcement Attorney, Waterbury, for Plaintiff-Appellee Agency of Natural Resources.

Joseph S. McLean of Stitzel, Page & Fletcher, P.C., Burlington, for Plaintiff-Appellee City of South Burlington.

Michael B. Clapp, Burlington, for Defendant-Appellant.



Defendant Frank Irish appeals from an Environmental Court decision that certain excavation work on his property was in violation of the Vermont Wetland Rules, the City of South Burlington zoning bylaws, and 10 V.S.A. § 1259 (discharge of waste into state waters without a permit). Defendant contends: (1) the Wetland Rules failed to provide adequate notice that the work was occurring in a significant wetland; (2) the area in question had not been validly designated as a significant wetland; (3) the work was for farming purposes and therefore did not violate the Wetland Rules; (4) the evidence did not support a finding that he violated 10 V.S.A. § 1259; (5) the zoning-violation finding was erroneous; and (6) the monetary penalties were improper. We affirm in part, reverse in part, and remand for further proceedings.


Defendant is a farmer whose property is located in South Burlington. The subject of this dispute concerns a 26-acre parcel of the farm lying south of Allen Road. The northerly and easterly halves of the parcel consist of hayfields. Approximately in the middle of the parcel is a wetland demarcated on the National Wetland Inventory (NWI) maps for the State of Vermont.

In February 1996, the Irish Development Corporation submitted an application to the City for a 48-lot subdivision for the property. The application listed defendant as the owner of the property, and Peter Smejkal and Ron Brousseau as contacts for the applicant corporation. On March 19, 1996, Catherine O'Brien, assistant wetlands coordinator for the Agency of Natural Resources (Agency), visited the site in response to a request by the City. She informed Smejkal that the site contained significant wetlands, including areas contiguous to wetlands identified on the NWI maps, informed him that a conditional use determination (CUD) by the Secretary of the Agency would be required before any development could take place on the property, and recommended that he hire a wetlands consultant to further define the wetland areas. The consultant was estimated to cost $1500.

Later that month, defendant hired a contractor to excavate a drainage ditch along the southern and western boundaries of the parcel to intercept water draining onto the land from an existing water supply line. The excavator proceeded to cut and remove trees and brush from the area, grub up tree roots and stumps, excavate the ditch, and deposit some of the brush and roots into the ditch. In early April, O'Brien visited the site again in response to a complaint that work was occurring in a protected wetland. In addition to the excavation work, O'Brien observed substantial erosion in the ditch that was causing a continual discharge of silt into the nearby Bartlett Brook. The City sent defendant a notice of violation on April 17, followed by a second notice of violation on April 30, alleging violations of the City's zoning bylaws. In early May, the Agency sent a notice of violation, stating that the excavation work was within a significant wetland area and required a CUD under the Vermont Wetland Rules. One year later, in May 1997, the Secretary of the Agency issued an administrative order finding that defendant had violated § 6.3 of the Wetland Rules by stumping, grading and ditching in a significant wetland without first obtaining a CUD, and had further violated 10 V.S.A. § 1259 by causing a discharge into state waters. The same month, the City filed a complaint in Chittenden Superior Court alleging violations of the City's zoning bylaws. Defendant filed a request for hearing on the Agency's administrative order with the environmental court, pursuant to 10 V.S.A. § 8012(a). By stipulation of the parties, the City's complaint was consolidated with the proceeding on the administrative order.

Following an evidentiary hearing, the court issued a written decision, finding that defendant had committed the charged violations, and imposed "alternative penalties." The court imposed a base penalty of $2,500 for the state violations, and $2,195 for the city violations. In the event that on or before May 6, 2001, the property was sold, subdivided, or developed by defendant for other than agricultural purposes, the court ordered that defendant would be required to pay an additional penalty of $15,000 to the State, and an additional penalty of $19,755 to the City. This appeal followed.


Defendant first contends the Vermont Wetland Rules failed to provide sufficient notice that the portion of his property where the excavation work was performed was a significant wetland, thereby requiring a CUD before the work could be commenced. The Wetland Rules require a CUD by the Secretary for certain uses within "significant" wetlands. See Vermont Wetland Rules, § 6.3.1 The Wetland Rules provide further that all wetlands shown on the NWI maps for the State of Vermont, and all wetlands contiguous to such mapped wetlands, are presumed to be Class Two wetlands, which in turn are defined as significant. See id. §§ 4.1, 4.2.2 In addition, the Wetland Rules set forth standards and methods for identifying the boundary between wetland and upland areas, and distinguishing wetlands from deepwater habitat. See id. § 3.2.

It is undisputed that the NWI maps for Vermont showed a wetland on defendant's property. Although the specific area where the excavation work was performed lay outside the delineated wetland, the Agency alleged, and the court found, that it was within a contiguous wetland area. Defendant asserts that the rule designating contiguous wetlands as significant failed to give reasonable notice of the precise area subject to the CUD requirement.

Due process of law requires notice sufficient to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited" and to "provide explicit standards for those who apply them." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); see also State v. Galusha, 164 Vt. 91, 94, 665 A.2d 595, 597 (1995). The degree of precision that will satisfy this standard, however, "varies with the nature — and in particular, with the consequences of enforcement — of the statutory provision." General Media Communications, Inc. v. Cohen, 131 F.3d 273, 286 (2d Cir.1997). As the United States Supreme Court has explained:

[E]conomic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process. The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.

Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (footnotes omitted); see also In re 1650 Cases of Seized Liquor, 168 Vt. 314, 324, 721 A.2d 100, 107 (1998); Rogers v. Watson, 156 Vt. 483, 491, 594 A.2d 409, 413-14 (1991).

Assessed in light of this standard, the Wetland Rules were sufficient to put defendant on reasonable notice of the existence of significant wetland areas and the possibility that the planned excavation might require environmental review and approval. Indeed, the record discloses that defendant did not have to inquire about the possibility. Catherine O'Brien, the assistant wetlands coordinator for the State of Vermont, was contacted by the City after it received the subdivision application for defendant's property, and she in turn contacted the applicant and visited defendant's property in mid-March 1996, prior to commencement of the excavation. O'Brien identified several areas of significant wetland on the property, including areas contiguous to those identified on the NWI maps, explained that any work within these areas would require a prior CUD, and recommended that a wetland consultant be hired to further delineate the extent of the wetland area. O'Brien wrote a follow-up letter on March 27 in which she confirmed the presence of significant wetlands on and adjacent to the property, recommended the hiring of a wetlands consultant, and reaffirmed the need for a CUD before commencing work in the area.

Several weeks later, in a letter addressed to defendant dated May 6, 1996, O'Brien summarized her findings from the site visits and her conversations with Smejkal, and reaffirmed the need to obtain a CUD because of the presence of significant wetlands. O'Brien also enclosed a copy of her earlier letter to Smejkal.

Defendant did not hire a wetland consultant or apply for a CUD. Instead, in late March, defendant hired an excavation contractor, who began work in one of the contiguous wetland areas, cutting and removing trees and brush, excavating an irrigation ditch, and depositing some of the removed brush and stumps in the ditch. During a second site visit in late April, O'Brien discovered that substantial damage had been done to the wetland area by the excavation. A notice of violation issued shortly thereafter.

Thus, although the Wetland Rules themselves did not define the precise boundaries of the contiguous wetland areas on defendant's property,...

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