Vermont Agency of Natural Resources v. Bean, 94-136

• Decision Date: 15 December 1995
• Docket Number: No. 94-136,94-136
• Citation: 164 Vt. 438,672 A.2d 469
• Parties: VERMONT AGENCY OF NATURAL RESOURCES v. Mark A. BEAN.
• Court: Vermont Supreme Court

Page 469

672 A.2d 469

164 Vt. 438

VERMONT AGENCY OF NATURAL RESOURCES v. Mark A. BEAN.

No. 94-136.

Supreme Court of Vermont.

Dec. 15, 1995.

On Appeal from Environmental Law Division; Merideth Wright, J.

Jeffrey L. Amestoy, Attorney General, and Conrad W. Smith, Assistant Attorney General, Montpelier, for plaintiff-appellee.

Oreste V. Valsangiacomo, Jr. of Valsangiacomo, Detora & McQuesten, Barre, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Defendant Mark Bean and cross-appellant Secretary of the Vermont Agency of Natural Resources appeal the Decision and Order of the Environmental Law Division (ELD) penalizing defendant for violations of his Act 250 permit, mobile home park permit, and Act 250. We affirm in part and reverse in part.

Defendant is the owner of a mobile home park in Lyndon, Vermont. Prior to construction of the park, defendant applied for and received (1) approval of the water and sewer system from the Department of Health (DOH), (2) a Mobile Home Park permit (MHP permit) from the Agency of Natural Resources (ANR), and (3) an Act 250 permit from the District 7 Environmental Commission (Commission). The MHP permit incorporated the DOH approval letter, and the Act 250 permit incorporated the MHP permit.

The incorporated permit authorized twenty-seven mobile home sites at the park ^* and required appellant to complete the project in accordance with the approved plans. Alteration of the plans required prior written approval of ANR. The permit required that a registered professional engineer inspect and certify the water and sewer system after construction but prior to occupancy. The permit also required two on-site drainage swales to control erosion and to alleviate an existing problem with standing water in the spring of each year. The Commission stated that the Act 250 aesthetics criterion would be satisfied if appellant preserved the existing woods on the western boundary of the park, planted two trees on each mobile home lot, and created a double row of spruce trees on the northern edge of the park.

Defendant began construction of the park in late 1988. Pursuant to his permit, defendant installed all the lots, water lines, sewer lines, and manholes under the general supervision of a contractor or professional engineer. Without amending his permit or obtaining written approval, however, defendant developed lots 2, 3, 4, 5, and 6, and placed mobile homes on lots 2-5. These lots appeared on the proposed plan for the park, but were not approved as sites for mobile homes. Defendant then developed mobile home sites V, W, X, Y, and Z not at the approved locations but where no lots had appeared on the plan. He built an unapproved access road and installed unapproved water and sewer lines to serve the V-Z sites. Defendant also cut into the protected tree line on one boundary of the park and removed trees that were supposed to remain on mobile home site 12. In the spring and summer of 1989, defendant left stockpiles of topsoil and mobile home sites under construction in an unstable condition, contrary to the erosion control plan. In addition, defendant did not properly construct or maintain the two on-site drainage swales, failed to plant the two rows of eight-foot-tall spruce trees on the northern edge of the park, and failed to plant trees on each lot, as required by the permit.

A representative of ANR visited the site on March 19, 1991, and subsequently issued a Notice of Alleged Violation (NOAV). The NOAV, received by appellant on April 12, 1991, listed violations of Act 250 and the Act 250 permit, including the development of unapproved mobile home sites, the failure to implement the landscaping plan, the unapproved removal of trees, and the creation of erosion problems associated with the unimproved sites under construction and the unapproved access road. In April 1991, defendant promised to give ANR a formal reply to the NOAV after consultation with his attorney. There was no further correspondence between defendant and ANR, DOH, or the Commission for at least five months. The agencies resumed enforcement efforts again in October and continued into the spring of 1992. On April 17, 1992, appellant received a second NOAV, listing many violations included in the 1991 NOAV as well as several new violations. The drainage swales were not mentioned in either the 1991 NOAV or the 1992 NOAV. Correspondence between defendant and the agencies continued through the end of hearings on May 11, 1993.

ANR issued an Administrative Order pursuant to 10 V.S.A. § 8008 on October 28, 1992, imposing penalties of $33,375 for violations of the Act 250 permit, Act 250, the MHP permit, and the MHP statute. Defendant appealed the Administrative Order to the ELD. The ELD found multiple violations of the Act 250 permit, Act 250, the MHP permit, and the MHP statute, and determined that the violations led to actual and potential harm to the environment, public health, and public welfare. The ELD issued its Decision and Order on January 17, 1994, imposing penalties of $25,178 based on these violations.

Defendant raises four issues on appeal. First, he argues that the penalties for actual and potential harm are based on conclusions not supported by the evidence or the findings of fact. Second, he claims that the failure of ANR to give him notice of the drainage swale violations precludes assessment of penalties for any violations of his permits resulting from the inadequacy of the swales, and that any alleged violation based on siltation of the swales is without support in the record. Third, he alleges that the ELD failed to consider appropriate mitigating factors in determining the amount of penalties imposed. Fourth, he claims that the ELD treated dissimilar violations identically. On cross-appeal, ANR claims that the ELD erred when it held that the Uniform Environmental Law Enforcement Act does not allow penalties for violations occurring before November 2, 1990, that the ELD arbitrarily and capriciously refused to impose penalties for certain months on the basis of unreasonable delay in enforcement, and that the ELD erred when it based the penalty on economic benefit exclusively.

I.

Defendant first claims that the ELD erred in assessing penalties against him because the conclusions upon which the penalties were based are not supported by the evidence or the findings of fact. Under 10 V.S.A. § 8012(b), the ELD may review and determine anew the amount of any penalties assessed for violations of Act 250 by applying the criteria set forth in 10 V.S.A. § 8010(b). The criteria to be evaluated include the degree of actual or potential impact on public health, safety, welfare, and the environment resulting from the violation. 10 V.S.A. § 8010(b)(1). ANR produced evidence demonstrating the potential for adverse impacts on public health and welfare resulting from four leaking manholes in defendant's sewer line. ANR also produced evidence that actual impacts on public welfare and environment had resulted from the failure of defendant to properly maintain erosion control devices, and that actual impacts to the aesthetics of the area resulted from defendant's failure to maintain the grounds as required in the permits. Based on this evidence, the ELD found that defendant's activities led to actual and potential impacts on public welfare and the environment. The ELD concluded that the Uniform Environmental Law Enforcement Act authorized penalties for the impacts, and calculated the penalties accordingly. 10 V.S.A. §§ 8010(b), 8012(b)(4).

Actual and potential harm were not the only bases for the penalties. The ELD also found that, whether harm resulted or not, defendant had violated his permit and disregarded Vermont's environmental laws on several occasions. The ELD then concluded that the Uniform Environmental Law Enforcement Act authorizes imposition of monetary penalties, even without lasting public welfare or environmental harm, in order to deter defendant and others from disregarding permit requirements. 10 V.S.A. § 8010(b)(6). Finally, the ELD stated that its ruling furthered the even-handed enforcement of Vermont's environmental laws. 10 V.S.A. § 8001(3). The record provides reasonable and credible evidence in support of the ELD's findings, and the ELD did not err in assessing penalties based on conclusions from these findings. See Jarvis v. Gillespie, 155 Vt. 633, 637, 587 A.2d 981, 984 (1991) (findings of trial court are not clearly erroneous and will stand if there is any reasonable and credible evidence to support them).

II.

Defendant next argues that the ELD erred when it assessed penalties for drainage swale violations because ANR failed to give him notice in either of the two NOAVs or the Administrative Order. This argument fails for two reasons. First, the language of the statute itself does not mandate notice of a probable or actual violation. Rather, ...