ANR v. Persons ( 2012 )

STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION
}
Secretary, Vermont Agency of }
Natural Resources, }
Plaintiff, } Docket No. 97-6-10 Vtec
} (Administrative Order
v. } enforcement proceeding)
}
Timothy Persons and the Trust A }
of Timothy Persons, }
Respondents }
}
Decision on the Merits
This matter came before the Court for a merits hearing after Respondents,
Timothy Persons and Trust A of Timothy Persons,1 filed a timely request for a hearing
and gave notice contesting the May 24, 2010 Administrative Order (“the AO”) issued
against them by the Secretary of the Vermont Agency of Natural Resources (“ANR”).
ANR alleged in the AO that Respondents caused excavation work to be conducted
within a protected wetland and its fifty-foot buffer without first receiving authority to
do so. The AO includes an ANR directive that Respondents pay certain penalties,
abide by the applicable Regulations in the future, and complete other remedial
measures as directed by ANR.
When the parties were unable to resolve their legal disputes voluntarily, the
Court set this matter for trial. Pursuant to the parties’ mutual recommendation, the
Court did not conduct a site visit, having received assurances that the trial testimony,
exhibits, and other evidence would provide sufficient context for the Court.
ANR was represented at the merits hearing by John Zaikowski, Esq., an ANR
staff attorney. Respondent Timothy Persons and the trustee for Respondent Trust A of
Timothy Persons, Allen Bacon, appeared at the merits hearing as well, together with
Paul S. Gillies, Esq., who served as legal counsel for both Respondents.
At the close of evidence, the parties requested, and the Court granted, the
opportunity to file post-trial memoranda. Based upon the evidence presented and
admitted at the merits hearing, the Court renders the following factual and legal
1
Allen Bacon provided testimony at trial and represented himself to be the sole trustee of the Trust A of Timothy J.
Persons.
determinations, including determinations on ANR’s request for imposition of penalties
and other relief.
Factual Findings
1. Respondent Timothy J. Persons (“Respondent Persons”) or those related to him
once owned a 152± acre tract of land, once used as a working farm, along the western
border of Hastings Road in the Town of Lunenburg, Vermont. A portion of this
property also has frontage along U.S. Route 2. At the time of Respondent Persons’s
ownership, the property had not been used as a farm for many years.
2. Respondent Persons or his relatives set about to subdivide this property for
resale. The property was eventually subdivided into seven lots, as shown on a survey
dated September 1996 and admitted at trial as Respondents’ Exhibit B.
3. The northern most point of Hastings Road (a/k/a Town Highway #23), which
runs north to south, intersects with U.S. Route 2, which runs west to east. Lot 1 only
has frontage on U.S. Route 2. Lot 2 borders the intersection of both U.S. Route 2 and
Hastings Road and has frontage on both roadways.
4. Starting at the intersection of U.S. Route 2 and Hastings Road and travelling in
a northern to southern direction on Hastings Road, Lots 2 through 7 are aligned in
consecutive order: Lot 2 abuts Lot 3; Lot 3 abuts Lot 4; Lot 4 abuts Lot 5A; Lot 5A
abuts Lot 5; Lot 5 abuts Lot 6; and Lot 6 abuts Lot 7.
5. Lots 4, 5, and 5A are the portions of the original parcel of land that are the
subject of these environmental enforcement proceedings. Lot 4 contains 10.1± acres;
Lot 5 contains 59± acres; and Lot 5A contains 10.1± acres.
6. Respondent Trust A of Timothy Persons (“Respondent Trust”), with Allen Bacon
serving as the sole trustee, is the owner of Lot 4. An individual who is not a party to
these proceedings, Carl Jaborek, owns Lots 5 and 5A, having acquired those lots from
Respondent Persons. Respondent Persons financed Mr. Jaborek’s purchase of Lots 5
and 5A. At the time of trial, Mr. Jaborek was alleged to be in default on his obligations
to Respondent Persons under the applicable financing agreement.
7. Lot 5A has an address of 182 Hastings Road. The original farmhouse was
situated on this Lot.
8. There are wet soils on portions of Lots 4, 5, and 5A.
9. Trial testimony suggested that a water supply easement encumbers Lots 5
and 5A, for the benefit of Lots 4 and 6.
2
10. A water line that once served to supply water to Lot 4 was damaged or
destroyed when Mr. Jaborek, or those working on his behalf, bulldozed the former
farmhouse on Lot 5A. The water line that once supplied water to Lot 4 ran from a
spring-fed well dug on Lot 5, across Lot 5A and onto Lot 4. The well is five or more
feet deep and lined with cement tiles. The tiles reach a height of approximately three
feet above the ground surface. The tile structure is depicted in a photo admitted at
trial as ANR Exhibit 8. This pre-existing tile structure is in the foreground of Exhibit
8; the three tile structures in the background of Exhibit 8 are described in ¶ 20,
below.
11. Mr. Jaborek visited the ANR Waterbury offices sometime in 2007 to inquire
about what excavation work could be done on his property on Hastings Road, Lots 5
and 5A. At that time, Mr. Jaborek was attempting to sell one or more of his lots. He
intended to do certain work on the lots, or allow others to do work on the lots, in
connection with the water supply easements, and he did not want the work that he or
others did on the property to interfere with his ability to sell the properties. The
credible evidence at trial indicated that it was not Mr. Jaborek’s intention to contact
ANR in an effort to file a complaint concerning unpermitted work in designated
wetlands.
12. Mr. Jaborek’s interest in the possible impact on wetlands on or near his
property was piqued when Respondent Persons made Mr. Jaborek aware that he
(Respondent Persons) had been the subject of an ANR Administrative Order, issued on
September 14, 1999, concerning un-permitted excavation work within a mapped
Class II wetland and its fifty-foot buffer on Lot 4. Respondent Persons had initially
contested the Administrative Order, claiming as a defense that he was not aware that
the land in question contained a Class II wetland and buffer. Respondent Persons
later admitted to the 1999 wetland violation, and on February 9, 2001, he entered into
an Assurance of Discontinuance (“the 2001 AOD”). Based upon the 2001 AOD, this
Court entered a March 2, 2001 Order approving and incorporating the terms and
requirements of the 2001 AOD. See ANR v. Persons, No. 237-12-99 Vtec (Vt. Envtl.
Ct. Mar. 2, 2001) (Wright, J.).
13. By the terms of the 2001 AOD, Respondent Persons admitted to the existence of
the Class II wetland on Lot 4 and that excavation work, and the dumping of fill and
3
gravel within the wetland and its buffer, were violations of the applicable wetland
protection laws and regulations. Slip op at 5–7.
14. After entering into the 2001 AOD, Respondent Persons enrolled in classes
concerning wetlands delineation and septic design.
15. When Mr. Jaborek visited ANR officials in 2007, in addition to inquiring about
what excavation work could be done on his property, he also wanted to learn whether
the 2001 AOD had any outstanding requirements that needed to be addressed prior to
his planned sale of Lots 5 and 5A.
16. As a consequence of Mr. Jaborek’s 2007 inquiry (noted above in ¶¶ 11 and 15),
ANR officials visited Lots 4, 5, and 5A on May 2, 2007. Their visit revealed that there
had been extensive work conducted in wet areas on the Lots. The condition of the
excavated areas on Lots 5 and 5A is depicted in the photos admitted as ANR Exhibits
4–8 and 15–19.
17. Lot 4 contains a Class II wetland. This is the same wetland that gave rise to the
wetland violations to which Respondent Persons eventually admitted in 2001. This
wetland is depicted in an overlay map drawn on an aerial map that was admitted at
trial as ANR Exhibit 23. Areas with wet soils continue from the Lot 4 wetland, across
Lot 5A, onto Lot 5. These wet soils are contiguous to the Class II wetland on Lot 4 and
continue from the Lot 4 Class II wetland onto Lots 5 and 5A. These wet soils end in
an area just south of the excavation and construction work described below; the
southern border of these wet soils is depicted by a blue line on Exhibit 23.
18. During their first 2007 visit on May 2, 2007, ANR officials observed the Class II
wetland on Lot 4 and contiguous wet areas flowing from that wetland and across Lots
4, 5A, and 5. They confirmed that these wet areas represented an additional wetland,
contiguous to the Lot 4 Class II wetland, by their evaluation of the existing plants,
soils, and hydrology in this secondary wetland. The areas that Respondent Persons
excavated are within this secondary wetland.
19. Sometime prior to the ANR officials’ visit on May 2, 2007, Respondent Persons
and those working at his direction cut a swath of trees and excavated soils from an
area approximately twelve to fourteen feet wide that runs from Lot 4, across Lot 5A, to
a point on Lot 5 near where the pre-existing tile structure is located. This cleared area
is wholly within the secondary wetland that is contiguous to the Class II wetland on
Lot 4. The cleared area is roughly depicted on Exhibit 23 by a yellow line. Sections of
4
the cleared area are also shown in ANR Exhibits 4–8 and 15–19. As shown in these
photographic Exhibits, all portions of the area Respondent Persons cleared are within
this secondary wetland.
20. ANR officials again visited Lots 4, 5A, and 5 on June 21, 2007 after receiving a
report that Respondent Persons was conducting further excavation work in the
identified wetland. Their visit revealed that Respondent Persons had dug three
additional spring-fed wells, encapsulated in concrete tiles and constructed in a fashion
similar to the pre-existing tile structure described in ¶ 10, above. Respondent Persons
had also brought several loads of gravel onto the well sites and deposited the gravel
around the old and new tile structures. The location of the three new tile structures is
depicted on Exhibit 23 by three red dots; photographs admitted at trial as ANR
Exhibits 6–8, 16, 18, and 19 also show these three new tile structures. As noted in
these photographic Exhibits, the soils around the three new tile structures are wet, as
are the excavated areas that extend around the new wells.
21. ANR officials returned again on September 18, 2007 to inspect the past or
possible new work within the secondary wetland on Lots 5 and 5A. They determined
that Respondent Persons had conducted additional work by installing electrical
fixtures on the three new tile structures.
22. Respondent Persons conducted the tree-cutting and excavation work within the
secondary wetland so that he could replace the water line that originally supplied
water to Lot 4 and provide a source of water for the other nearby Lots. His assertion
that the soils were not wet when he conducted his tree-cutting and excavation work
was contradicted by other credible testimony and evidence provided to the Court. The
Court therefore concludes that Respondent Persons’s assertions that these soils are
not wet now, and were not wet at the time of his excavation work, are not credible.
Respondent Persons did concede that he observed wet soils in the vicinity of his
excavation work.
23. ANR Exhibits 4–8 and 15–19 accurately depict wet areas around and within the
areas Respondent Persons excavated.
24. To the extent that Respondent Persons had doubts about whether the areas he
planned to excavate included protected wetlands, he was aware from his previous
dealings with ANR officials that those officials were able and willing to assist him in
determining the extent of protected wetlands on his property and the Lots owned by
5
Respondent Trust (Lot 4) and Mr. Jaborek (Lots 5 and 5A). He chose not to seek
assistance from ANR officials in determining whether the area he planned to excavate
included protected wetlands.
25. From his previous dealings with ANR, his subsequent educational course work,
and his experience as a general contractor, Respondent Persons knew or should have
known that if he intended to conduct excavation work or other activities and uses in
an area protected by state wetland protection laws and regulations, he could only
receive lawful authority to do so by requesting a conditional use determination (“CUD”)
from ANR officials. Respondent Persons chose not to seek a CUD prior to conducting
his tree-cutting and excavation activities in 2007.
26. The Class II wetland on Lot 4, its buffer, and the secondary wetland that flows
contiguously from that Class II wetland onto Lots 5 and 5A, serve the following
purposes, which Vermont’s wetland laws and regulations seek to protect:
a. water storage to avert flooding;
b. protective areas for wildlife;
c. necessary bear habitat; and
d. erosion control.
27. The following ANR officials devoted the following time, at their established
hourly rates, to responding to Respondent Persons and his unlawful tree-cutting,
excavation, and well construction activities in the wet soils on Lots 4, 5 and 5A:
a. Pardiak Monks, DEC Stormwater Engineer, devoted 10.5 hours; his time is
valued at $31.00 per hour.
b. Reginald Smith, Environmental Enforcement Officer, devoted 30.0 hours;
his time is valued at $25.07 per hour.
c. Shannon Morrison, District Wetlands Ecologist, devoted 4 ½ hours; her time
is valued at $26.57 per hour.
d. Rebecca Chalmers, District Wetlands Ecologist, devoted 25 hours; her time
is valued at $21.00 per hour.
Legal Conclusions
I. Wetlands Designation
Respondent Persons and Respondent Trust do not appear to dispute many of
the substantive allegations presented by ANR. For example, Respondent Persons
admits that he and others who he employed conducted the excavation work, dredging,
gravel, and other fill work on Lots 4, 5 and 5A, as well as the construction of the three
new tile structures on Lot 5, for the purpose of installing wells and water lines to
supply water to Lots 4 and 6. Respondent Persons also does not dispute that a
6
protected Class II wetland is located on Lot 4, near where he conducted these
activities. This protected wetland was the subject of the prior Administrative Order,
Assurance of Continuance, and Order from this Court in 2001. See ANR v. Persons,
No. 237-12-99 Vtec (Vt. Envtl. Ct. Mar. 2, 2001) (Wright, J.). None of the activities
Respondent Persons conducted were within the confines of the Class II wetland, as
mapped by ANR, but all activities were within the secondary wetland that is
contiguous to the delineated Class II wetland.
The only dispute presented by the parties is whether Respondent Persons and
Allen Bacon, the trustee for Respondent Trust (the entity holding title to Lot 4), knew
or should have known that the areas in which Respondent Persons conducted these
activities were protected under the Vermont Wetlands Protection and Water Resources
Management laws (10 V.S.A., Chapter 37) and the Vermont Wetland Rules (“the
VWR”).2 For the reasons detailed below, we conclude that Respondent Persons and
Allen Bacon knew or should have known that their activities were conducted within
wetlands that are protected by 10 V.S.A., Chapter 37 and the VWR.
The VWR provide protection for “significant” wetlands,3 which are defined as
Class I and Class II wetlands. VWR § 2.24 (Jan. 1, 2002). The Department of
Environmental Conservation maintains the Vermont Significant Wetland Inventory
(“VSWI”) map, on which Class I and Class II wetlands are mapped, although Class II
wetlands are not limited to just those wetlands identified on the VSWI map. Rather,
due to the metamorphic nature of surface and ground water, the classification of Class
II wetlands also includes “all wetlands contiguous to such mapped wetlands, . . .
unless determined otherwise by the [Water Resources] Board” pursuant to a
successful petition for an alternate wetlands determination by ANR or a property
owner. VWR § 4.2(b) (Jan. 1, 2002).
The credible evidence presented to the Court establishes that, at the time
Respondent Persons and others he employed conducted the work at issue in this
enforcement action, a secondary wetland existed contiguous to the Class II wetland on
Lot 4. The evidence also establishes that this wetland continues to exist. This
secondary wetland was and is evidenced by the plants, soils, and hydrology in this
2
Since we find that Respondent Persons conducted activities in 2007 that gave rise to wetland protection violations,
we conclude that the version of the VWR that were in effect from January 1, 2002 through July 31, 2010 control this
case. A later version of the VWR was adopted on July 16, 2010 and went into effect on August 1, 2010.
3
VWR § 1.1: Purpose and Authority.
7
area. Pursuant to VWR § 4.2(b) (Jan. 1, 2002), this secondary wetland also
constitutes a Class II wetland that is protected by 10 V.S.A., Chapter 37 and the VWR.
Respondent Persons, therefore, excavated within a protected wetland on Lots 4, 5
and 5A.
Respondent Persons, when confronted with the wet areas flowing from the Class
II wetland on Lot 4 onto the portions of Lots 5 and 5A that he wished to excavate,
chose not to seek guidance from ANR officials and did not petition for a new wetlands
determination, as is suggested and authorized under VWR Sections 7 and 8. Rather,
he excavated for his water lines and spring-fed wells in an area he knew to be wet.
Respondent Persons knew the procedures to petition for a wetlands re-
determination, to apply for a conditional use determination to permit activities within
wetlands, and to request assistance from ANR officials prior to conducting excavation
activities. His choice not to complete any of these actions, despite his knowledge that
the area in which he wanted to complete excavation work contained wet soils,
reinforces this Court’s determination that he knew that he was excavating and
constructing wells in a protected wetland but chose to ignore the regulations
established to protect wetlands and the important functions that they serve.
Based upon this compelling evidence, we can only conclude that Respondent
Persons knew or should have known that he was conducting unlawful activities within
a protected wetland, that is, a wetland deemed significant under the VWR. The
trustee for Respondent Trust was equally culpable, due to his knowledge of the area
and the Trust’s ownership interest in Lot 4.
II. Penalty Assessment
When this Court determines that an environmental violation alleged by ANR in
an administrative order has occurred, we are required to “determine anew the amount
of a penalty” that should be assessed against the respondent who sought to challenge
the ANR order. 10 V.S.A. § 8012(b)(1), (4). We therefore review the credible facts
presented here to determine an appropriate penalty assessment, pursuant to 10 V.S.A.
§ 8010(b)(1)–(8).4
4
ANR notes that the version of 10 V.S.A. § 8010(b)(1)–(8) in effect at the time of Respondent Persons’s violations
included a provision concerning a recapture of the economic benefit of the violation. However, because ANR has
chosen not to seek such a recapture, the authority for which is now codified in 10 V.S.A. § 8010(c)(2), we do not
consider the issue of recapture.
8
Subsection (1): Respondent Persons’s disregard for the wetland protection
rules had and continues to have potential impacts on public health, safety, welfare,
and the environment, given the disruption of the important functions that significant
wetlands serve. To encourage Respondent Persons to remedy his wetland
encroachments, we impose a penalty of $3,000. We conclude that such a penalty is
warranted here, given that Respondent Persons has refused to take corrective
measures after being directed to do so by ANR officials. However, we decline to impose
a more significant penalty under this subsection, since actual impacts were not
demonstrated by the evidence presented at trial.
Subsection (2): There was no evidence presented of mitigating factors favoring
Respondent Persons or disfavoring the timeliness of ANR’s action. We therefore assess
no penalty or credit in light of this factor.
Subsection (3): The credible evidence shows that Respondent Persons had
knowledge about assessing wetlands and about the procedures to be followed when he
was confronted with a protected wetland in an area he wished to excavate. The fact
that he chose to go forward with excavating within the protected wetland, including
through constructing three new spring-fed wells, even in light of the abundant
evidence of wet soils, leads us to conclude that Respondent Persons knew of the
wetland and its significance but chose to pursue his personal interests instead of the
public interest. For these reasons, we assess an additional penalty of $3,000.
Subsection (4): The record presented shows that Respondent Persons has
previously violated wetland protection regulations. This past history of non-
compliance provided Respondent Persons with knowledge of the protected wetlands on
his property and the property owned in the name of his Trust. Respondent Persons
has failed to take any steps, over a span of the four years since ANR officials first
approached him about his most recent wetland encroachment, to comply with the
wetland protection rules or to mitigate his encroachment into the protected wetland.
For these actions, we impose a fine of $4,000.
Subsection (5): This subsection has been repealed.
Subsection (6): In viewing the importance of establishing a penalty that will
have a deterrent effect upon Respondent Persons, we note both the apparent failure of
the prior proceedings to infuse Respondent Persons with a respect for protected
wetlands as well as his refusal to acknowledge his most recent transgressions and
9
lack of any effort to correct those transgressions. We therefore impose an additional
penalty of $2,000, in the hope and expectation that this additional penalty will provide
some deterrent for Respondent Persons if and when he is again faced with a desire to
excavate in a wetland.
Subsection (7): The value of the time that all ANR officials committed to
responding to Respondent Persons’s wetland violations, including prosecution of this
current violation, totals just under $1,722. We direct Respondent Persons to
reimburse these costs as an additional penalty for his violations.
Subsection (8): We are uncertain how long Respondent Persons’s
encroachment into the protected wetland existed before disclosure to ANR, although
the photographic Exhibits appear to show freshly turned soils that have not yet settled
or grassed over. At the time of trial, the credible evidence revealed that Respondent
Persons had not taken a single step to remedy his encroachment into the protected
wetland. We therefore impose an additional penalty of $500 for the time Respondent
Persons allowed these wetland encroachments to go unaddressed. Our assessment
here would be more significant, but, in lieu of an additional penalty, we AFFIRM all
the injunctive remedies imposed by the ANR Secretary in her AO.
Conclusion
For the reasons stated above, we conclude that Respondents Timothy J.
Persons and Trust A of Timothy Persons, jointly and severally, shall be liable for a total
penalty in these proceedings of $14,222. We further AFFIRM the injunctive directives
imposed against Respondents Persons and Trust A of Timothy Persons, jointly and
severally, that are contained on pages 2–3, ¶¶ B through E in the Administrative Order
of the ANR Secretary, dated May 24, 2010. All deadlines in ¶¶ B through E shall now
run from the date that Respondent Persons, through his attorney, receives this Merits
Decision.
Rights of Appeal (10 V.S.A. § 8012(c)(4) and (5))
WARNING: This Decision and the accompanying Judgment Order will become
final if no appeal is requested within 10 days of the date this Decision is received. All
parties to this proceeding have a right to appeal this Decision and Judgment Order.
The procedures for requesting an appeal are found in the Vermont Rules of Appellate
Procedure (V.R.A.P.) subject to superseding provisions in the Vermont Rules for
10
Environmental Court Proceedings (V.R.E.C.P.) 4(d)(6). Within 10 days of the receipt of
this Order, any party seeking to file an appeal must file the notice of appeal with the
Clerk of the Environmental Division of the Vermont Superior Court, together with the
applicable filing fee. Questions may be addressed to the Clerk of the Vermont
Supreme Court, 111 State Street, Montpelier, VT 05609-0801, (802) 828-3276. An
appeal to the Supreme Court operates as a stay of payment of a penalty, but does not
stay any other aspect of an order issued by this Court. 10 V.S.A. § 8013(d). A party
may petition the Supreme Court for a stay under the provisions of the Vermont Rules
of Civil Procedure (V.R.C.P.) 62 and V.R.A.P. 8.
A Judgment Order accompanies this Decision. This concludes the current
proceedings before this Court in this enforcement action.
Done at Newfane, Vermont this 1st day of August, 2012.
______________________________________________
Thomas S. Durkin, Environmental Judge
11