State v. Brooks

• Decision Date: 03 September 2004
• Docket Number: No. 2003-447.,2003-447.
• Citation: 861 A.2d 1096
• Parties: STATE of Vermont v. Steven BROOKS.
• Court: Vermont Supreme Court

861 A.2d 1096

STATE of Vermont v. Steven BROOKS.

No. 2003-447.

Supreme Court of Vermont.

September 3, 2004.

Edward G. Adrian, Office of Secretary of State, Montpelier, for Plaintiff-Appellee.

David H. Casier, Burlington, for Defendant-Appellant.

Present: AMESTOY, C.J.,¹ DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ.

DOOLEY, J.

¶ 1. The issue in this appeal is whether respondent, Steven Brooks, was engaged in land surveying when he combined two deeds and a preexisting survey into a map depicting a boundary line adjustment pursuant to a conveyance that occurred twelve years earlier. Respondent appeals a superior court decision reinstating the Board of Land Surveyors' (Board) decision that respondent, by failing to prepare a survey abstract or perform any research or field investigation in connection with his preparation of the map, failed to meet certain minimum standards for surveys in violation of Rule 5.4(A) of the Rules of the Board of Land Surveyors. We reverse.

¶ 2. In 1999, Manson Surdam, a landowner in the Town of Williston, requested that respondent, a licensed land surveyor, complete the paperwork for a land transaction that took place twelve years earlier. In 1988, Surdam sold half an acre of his property to his neighbor to resolve a boundary dispute. He failed, however, to obtain subdivision approval from the town for this property division, and his attorney discovered the error in 1999, when Surdam was arranging to sell his property. Surdam contacted respondent to remedy the violation. Respondent determined from the town that he could remedy the violation by creating a map that combined the description on Surdam's original deed, the description on the deed from the 1988 conveyance, and a preexisting survey prepared by another surveyor, John Marsh. Town officials expressed mild embarrassment and told respondent that the town's only interest was in "mak[ing] the paperwork to line up" with the conveyance. Respondent offered Surdam two options: to prepare a map as described above, or to prepare a full new land survey. For cost reasons, Surdam chose the former option.

¶ 3. Respondent created a map depicting the 1988 conveyance based upon the two deeds and the Marsh survey. He titled the map a "Boundary Line Adjustment," signed and affixed his seal to it. To distinguish his work from a survey, respondent placed disclaimer notes on the upper left hand corner of the cover page explaining to the reader that the map was not a survey and was not based on any field research. The notes occupy a space of about 4" x 6"; one of the notes provides:

7) The purpose of this plot is to depict a transfer of a small parcel of land that is recorded in Volume 84 Page 238 between Surdam and one Martha Whitehorn (now owned by Rainville). This conveyance of 0.50 acres of land was to resolve a boundary line between Surdam and Whitehorn but never received local approval.

¶ 4. In the midst of drawing the map, respondent realized that the Marsh survey contained a serious flaw such that the property description did not close. Respondent did not try to solve the error; instead he drew an arbitrary line to make the survey line close. Respondent noted the problem with the Marsh survey and his correction on the cover page of the map. This disclaimer occupied a space of about 1/4" x 4".

¶ 5. The map was filed in the land records, but the record does not disclose who filed it. Apparently, another land surveyor encountered the map and filed a complaint with the Board. After an investigation, the Board charged respondent with violating 26 V.S.A. § 2598(b)(4)² — violation of a Board rule. The Board specified the violated rule as Rule 5.4(A)(1)³, which requires a land surveyor, when preparing a land survey, to "[p]repare a survey abstract." The content of a survey abstract is specified in Rule 5.3(J). It is undisputed that respondent did not create a survey abstract in connection with the Surdam map.

¶ 6. After a hearing, the Board made fifteen findings of fact, upon which it concluded that the map could be mistaken for a survey despite the disclaimer on the cover page. The Board, however, did not specifically address respondent's defense — that he was not engaged in land surveying when he prepared the map. Thus, the Board did not determine whether the preparation of the map involved land surveying. The Board determined that respondent engaged in unprofessional conduct using the following rationale:

A licensed land surveyor does not have the authority to suspend the Board's regulations when they are inconvenient. The document prepared by the respondent was titled like a survey, signed like a survey, sealed like a survey, and filed like a survey. Like a survey, it was prepared with the intent of depicting a transfer of property. It was filed on the Williston Town Land Records with the knowledge that town officials and the public would rely on it.

The Board understands that the respondent did what was requested by his client and the town officials. His duty as a licensed professional, however, was to tell the client and town officials what he could and could not do for them, rather than simply do their bidding. When a licensee's signature and seal are affixed to a document that is virtually indistinguishable from a survey plat, it should rightly carry some weight and significance. The public must be reasonably assured that a certain amount of professionalism and minimum standards have been met by the licensed land surveyor who files documents for permanent storage on the land records of this State.

Based on this conclusion, the Board ordered that retention of respondent's license be conditional upon his completion of a full survey of Mr. Surdam's 1988 land transfer within eight months.

¶ 7. Respondent appealed the Board's decision, and the appellate officer reversed because the Board never explicitly found that respondent engaged in land surveying when he created the map. The State appealed, and the superior court reinstated the Board's decision, citing deference to the Board's findings. The court held that, based on the Board's findings, respondent had engaged in land surveying as defined in 26 V.S.A. § 2502(3) and, therefore, he was required to abide by the requirements of Rule 5.4(A)(1) when he prepared the map. According to the superior court, the question of whether respondent engaged in land surveying is a mixed question of law and fact and its conclusions followed from the facts found by the Board. The court particularly relied upon its conclusion that the map was a "survey plat" as described in 27 V.S.A. § 1403(b):

Mr. Brooks' survey of Mr. Surdam's property was created to portray an unpermitted 12 year old conveyance that was being retroactively permitted. Mr. Brooks, in purporting to depict it on a survey plat submitted for recording, was representing that he had engaged in a land surveying process, which he had not. Notwithstanding that he disclosed the limitations of his work in preparing the plan, he was engaged in preparing a graphic description of a property conveyance without having done so in compliance with professional standards. His work thus constituted "land surveying" within the meaning of 26 V.S.A. § 2502(3) for the reasons described above, and the survey plat he created falls within the requirements of 27 V.S.A. § 1403(b) and the Board rules.

¶ 8. Both parties agree that the sole issue in this appeal is whether respondent engaged in land surveying while preparing the map. As usual, we approach the review question under a limited standard of review. "We will affirm the Board's findings as long as they are supported by substantial evidence, and its conclusions if rationally derived from the findings and based on a correct interpretation of the law." Braun v. Bd. of Dental Exam'rs, 167 Vt. 110, 114, 702 A.2d 124, 126 (1997). Here, the facts are undisputed, and the case turns on a question of law. In such cases, we frequently give additional deference to the conclusions of an administrative proceeding in which a professional's conduct is being evaluated by his or her peers. See id. As in the recent case of Office of Prof'l Regulation v. McElroy, 2003 VT 31, ¶ 7, 175 Vt. 507, 824 A.2d 567 (mem.), we do not think the additional deference is warranted here. This is essentially a jurisdictional dispute in which the Board members have no special expertise. Moreover, the governing construction was made by the superior court, rather than by the Board which had a different theory of the case.

¶ 9. Land surveying is a statutory term of art. The purpose of the licensing and regulation of land surveyors is "to safeguard property and the public welfare" with respect to the "practice of land surveying." 26 V.S.A. § 2501. To this end, the term is specially defined in the statutory scheme, 26 V.S.A. § 2502(3) (1998), amended by 26 V.S.A. § 2502(3) (Supp.2003)⁴, as follows:

"Land surveying" means the process of searching land records, applying the rules of evidence with respect to boundary law and applying the principles and methods of property measurement, all performed for the purpose of;

(A) determining the proper location for monumentation of property boundaries and establishing that monumentation; or

(B) determining the area of property within established boundaries; or

(C) preparing written and graphic property survey descriptions for conveyancing.

In essence, respondent's argument is that when he created the map it was not done for any of the three alternative purposes in the statutory definition. The record is sparse on this issue, partially because, as the appellate officer found, the Board failed to address this question. The superior court, and the State, argue that respondent came within the third purpose to prepare "written and graphic property survey descriptions for conveyancing." We find this to be an overbroad reading of the statute. The town needed the map as part of its subdivision process, but did...