Contributed Column

The Zoning Game

by Barbara G. Ripley,
Downs Rachlin Martin PLLC

Enforcement: the other
side of permitting

You recently bought a beautiful old farm field and cleared, stumped and rock-picked it so you could plant corn. You even conveyed the develop- ment rights to a local land trust so the land would never be developed. You thought you were doing the right thing, yet one day you come home for lunch to find a certified letter from the state of Vermont.

It is a "Notice of Alleged Violation." It says that you have illegally converted a wetland. What? That field is perfectly dry except for a couple of low areas that puddle when it rains.

Nonetheless, it is a Vermont Class 2 Wetland. In addition, it is deemed a federal wetland, based on the federal definition. You have landed in both the state and federal environmental enforcement crosshairs. What now?

You are about to enter what will seem like a maze of agencies' having sometimes overlapping jurisdiction, although Vermont has largely consolidated its enforcement procedures. I hope to provide an introduction to the process of state and federal enforcement of environmental violations.

While there has been much public discussion about how hard it is to obtain permits, there is less public awareness about the environmental enforcement process. Enforcement can have very significant ramifications for the violator, financial and otherwise.

Enforcement action occurs when a landowner fails to obtain an environmental permit or abide by its terms or otherwise violates environmental law.

Vermont's environmental enforcement authority generally rests with the secretary of the Agency of Natural Resources. It is derived from laws intended to protect human health and the environment. The agency has its own enforcement division comprised of lawyers and environmental enforcement officers, but the Attorney General's Office can also become involved.

Federal environmental enforcement authority stems from several statutes and enforcement authority is scattered among several agencies. Some violations, like the wetland issue described above, may be subject to both state and federal enforcement.

State enforcement

State enforcement action can begin in a variety of ways including citizen complaints, concerns raised by agency staff or requests by district environmental commissions (Act 250). The enforcement process might begin with a letter from one of the division staffers describing the violation and urging voluntary compliance. A division director could also send a Notice of Alleged Violation.

Resolution of a case occurs informally; or in some circumstances, resolution might become substantively and procedurally complicated. If the matter is resolved at the division level, the staff will send the violator a letter describing the resolution and (perhaps) closing the case.

Once the enforcement division becomes involved, the matter is investigated and a report of findings is generated. The enforcement division can also use the Notice of Alleged Violation and informal case resolution approach. For less cooperative violators or more complicated, high-stakes cases, it can also resolve cases using the formal Assurance of Discontinuance and Administrative Orders directing the violator to take affirmative steps to resolve the violation. Appeals of Administrative Orders are heard in the Environmental Court and in some cases, can end up in Superior Court. Although rare in Vermont, criminal action is possible.

Federal enforcement

The federal enforcement process is somewhat similar, although the penalty may be higher and the settlement process more complex. Administrative, civil and criminal penalties are possible.

Which agency will be in charge and why is not always clear, even to the involved federal staff. For example, wetland violations may be prosecuted both by the U.S. Army Corps of Engineers, which has chief wetlands permitting authority, and the EPA. Federal enforcement actions may be resolved administratively or they may be prosecuted in federal court.

Your first impulse might be an indignant phone call to your state or federal representative or senator. Political considerations may figure into whether a case is brought, particularly with higher-profile cases, but once the process begins, politics do not generally play a role in the outcome. Suffice it to say that regardless of who handles a case or why it was initiated, its resolution involves the consent of many layers within the federal government, following fairly rigid protocols.

Penalties can be severe

In both state and federal cases, the substantive resolution of an environmental violation can include several components. Obviously restoration is going to be paramount, but deterrence is also critical, both for the violator and for the message it sends to potential violators.

In a Vermont case where a house was constructed in a wetland buffer, the Water Resources Board ordered the house removed and the wetland restored.

A recent federal case involving the conversion of 54 acres of wetland was settled by requiring restoration of the wetland, donation of an additional 104-acre conservation easement and payment of a $27,500 penalty. Clearly, nothing to sneeze at.

The penalty itself can be simply payment of a fine or it can involve the implementation of a Supplemental Envi-ronmental Project or both. The amount of the fine or value of the SEP is based on various factors: economic benefit, willfulness, actual or potential environmental impact, mitigating circumstances, costs to the state or federal agency, violator's record of compliance, and length of time the violation has existed.

The maximum state penalty is $25,000 per violation and $100,000 for continuing violations. The federal penalty varies; it can run into the millions.

Check the Web sites of both the state of Vermont Agency of Natural Resources and the federal Environmental Protection Agency for more information on their enforcement cases.

Municipal enforcement

A brief mention of local or town-level environmental enforcement: Towns do have the authority to enforce violations of zoning bylaws and permit conditions. Some of these bylaws can be considered environmental in nature. They regulate land use, including building of structures, changes of use, and changes to land. Failure to obtain or abide by the terms of a zoning or building permit carries potential penalties of $75 a day as well as requiring compliance.

Zoning enforcement actions are instituted by the zoning administrator. They begin with a notice of violation and can end up in Environmental Court. The penalties there can seem severe as well, such as a requirement to remove a structure that juts into a setback area, regardless of how much it cost to build it and even if it were an unintentional oversight.

So what about the cornfield?

What is the likely outcome of the example with which I began? Most likely the agencies would choose among themselves which would take the lead in the enforcement action. You would be wise to hire a wetlands consultant and an attorney to advocate for you, given the size of the violation.

There will be considerable back-and-forth in negotiating a settlement. You may be able to obtain an "after the fact" permit to allow you to use some of the field, but clearly some restoration of the converted land will be required. The restoration will include tree-planting, adding woody vegetation back (tree stumps) and perhaps some re-grading.

Depending somewhat on your cooperativeness during the process, you may avoid a penalty. Your own "good faith" is very important. Once an agreement is reached, the lead agency will seek concurrence with its sister agencies. You will all sign a settlement document and the matter will be closed.

The message here is this: It is wise to abide by the terms of the permit you worked so hard to obtain, and do not agree to conditions you cannot live with; it is unwise to upset your neighbors, since they may complain about you; and it is wise to be proactive on issues of environmental protection.

If you have a question regarding something you wish to do on your land, you can check with the agency or your town first. Staff members are generally quite helpful. If you own a business, the agency provides environmental auditing services. If you avail yourself of these services, you may find greater cooperation in the resolution of any violations that are discovered. If you find yourself in the position of being an alleged or actual violator, take the matter seriously, consult an attorney if need be, and accept the fact that it may cost you, both financially and with respect to how you can use your property. •

Barbara Ripley is an attorney with Downs Rachlin Martin PLLC, specializing in commercial development, permitting, land use and municipal matters.

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