1 STATE OF VERMONT

ENVIRONMENTAL COURT
} Town of Richmond, } Plaintiff, } } v. } Docket No. 102-5-02 Vtec } Isaac Cowan, } Defendant. } }

Decision and Order This is an enforcement case related to the placemen t of a retaining wall on the property of Defendant Isaac Cowan. A description o f the property and the resolution of other issues involved with this property, includingthe location of the flood plain in relation to the property, may be found in Environmental Cou rt Docket Nos. 73-2-02 Vtec, 74-2-02 Vtec, 222-12-03 Vtec, 60-4-04 Vtec, and 105-5-06 Vt ec; in Superior Court Docket No. S145-03 CnC; and in the decision of the Vermont Supreme Cou rt in 2005 VT 126. The Town of Richmond is represented by Mark L. Sper ry, Esq.; Defendant is represented by John W. O’Donnell, Esq.; Intervenors Erica Ell and Edward Gaston are represented by David L. Grayck, Esq. The issue of whether there was a violation was concluded by this Court’s decision and order of Jun e 9, 2003, issued in this case and in Docket No. 73-3-02 Vtec. As of June 9, 2003, the onl y remaining issues in this enforcement case related to what injunctive relief and monetary penalty, if any, would be appropriate for the violation. However, the scheduling of a hea ring on those remaining issues was suspended while litigation proceeded on the mapped and actual location of the flood plain in relation to the property.2

Three years later, after the remaining litigation h ad concluded, an evidentiary hearing was scheduled in this case before Merideth Wright, Environmental Judge. At the 2006 hearing, Defendant conceded that the entire re taining wall could be treated as being within the flood plain for the purposes of this enf orcement action, and agreed to the removal of the retaining wall. The Court ordered o n the record of that hearing that the retaining wall was to be removed, and requested the parties to file in writing their stipulation as to the remedial methodology involved with the removal of the retaining wall. The hearing proceeded only on the issue of the appr opriate penalty for the violation. The parties were given the opportunity to submit wr itten requests for findings and memoranda of law. Upon consideration of the partie s’ stipulation, the evidence, and the written memoranda and proposed findings, the Court finds and concludes as follows. Because the parties agreed as to the removal of the retaining wall and the remedial site work required on the property, the remaining d ispute is over what litigation expenses
in this and in the other docket numbers should be c onsidered in setting the penalty amount in this case. Defendant does not dispute that the penalty may account for the Town’s costs of obtaining the June 2003 order, but does dispute whether the Town is entitled to any of its expenses regarding the floodplain determinationbased on later engineering survey
work. The June 2003 order determined that the retaining w all was built in violation of the original permit, as that permit required the retain ing wall to be built outside the floodplain, defined in the Zoning Regulations by its location o n the Federal Emergency Management Agency maps and the most current Flood Insurance Ra te Maps. The retaining wall consists of 196 concrete blocks, each 32 cubic feet in volum e and weighing 4,800 pounds. The question of whether injunctive relief requiring the removal of the retaining wall was appropriate, however, was reserved in that decision, to allow Defendant to pursue the possibility of surveying his individual parcel and applying for a revision of the floodplain3

location on his parcel. Zoning Regulations § 6.8.2 . After the survey work had been completed, the Zoning Administrator and the DRB den ied Defendant’s request for that revision; this Court and the Vermont Supreme Court ruled in Defendant’s favor that he
was entitled to a determination of the actual locat ion of the floodplain on his property, that is, that the DRB should have reached the merits of his application based on his engineering surveys. In re Appeal of Cowan, 2005 VT 126, ¶¶10–11. The Supreme Court remanded the
matter to the DRB for that determination. None of the costs of the litigationfrom the June 9, 2003 order to the December 13, 2005 remand decision of the Supreme Court should be considered in the monetary penalty to be imposed in this enforcement action, as the enf orcement action was simply on hold while the parties litigated whether Defendant was e ntitled to a determination of the actual on-the-ground surveyed floodplain pertaining to his property, as opposed to the mapped floodplain. However, as of the remand order from the Supreme Co urt, the engineering determination of whether the retaining wall was in the actual surveyed floodplain (as opposed to the undisputed fact from the June 2003 d ecision and order that it was in the mapped floodplain) was relevant to the appropriate injunctive relief in this enforcement action. That is, it was relevant to whether all or some part of the retaining wall should have been ordered to be removed, as that issue was still being contested. The DRB hearing on the remand order was March 8, 20 06; the DRB’s decision was issued on April 20, 2006. It was appealed to this court in May in Docket No. 105-5-06, and was withdrawn as moot at the merits hearing schedul ed together with this enforcement case for August 2, 2006. The Town employed an engineering firm to assist it in determining (and in evaluating Defendant’s engineer’s determination of) the location of the surveyed flood plain on Defendant’s property. The Town’s engineer came to the August 2, 2006 hearing4

prepared to testify as to the location of the flood hazard district and that the entire retaining wall was actually in the flood hazard dis trict, as well as to testify regarding the hazards that could result in a 100-year flood if th e floodwaters were to undermine the wall and allow the concrete blocks to be deposited in th e stream or to travel downstream onto other property in flood conditions. The Town’s eng ineering costs, including the Town’s costs of preparing the engineering testimony for tr ial, should be considered in setting an appropriate penalty in this matter. However, the Town seeks its attorney’s fees, zoning administrator’s time, and engineering fees for everything it has expended on litigation involving this property, as if all the litigation were related to the enforcement action. Much of it has not been related to the enforcement action. Rather, some of that time an d those fees were expended on the litigation, ultimately unsuccessful from the Town’s point of view, involving whether Defendant was entitled to have the surveyed locatio n of the flood plain evaluated on his property. The Court has attempted to determine from Exhibits 17, 22, and 24, and the testimony of Mr. Rodjenski, which expenses can be a ttributed to the litigation that resulted in the 2003 court order (including the motions for summary judgment), and which expenses can be attributed to the engineering work and witness preparation regarding the surveyed floodplain location, after the remand fromthe Supreme Court. The Court anticipates setting a penalty that recognizes both sets of costs, but excludes costs accrued during the period from June 9, 2003 through Decembe r 13, 2005. The Court does intend to consider including an amount in recognition of the avoided costs in the delay in doing the work of removal and rehabilitation, possibly measur ed by the interest over time on the cost anticipated to do the work. However, it has not bee n possible for the Court to determine from Exhibits 17, 22, and 24, together with the tes timony at the hearing, which expenses should be included and which expenses should not be included. For example, the Court5

would not include the hour-and-a-half of Mr. Weisel ’s time on June 24, 2002, taken up by copying the 1982 regulations at the state offices, without more information as to why that had to be done by a professional engineer. Similar ly, it is not always possible to tell from the attorney billing details what should be include d; for example, none of the following entries appears to be appropriate for inclusion: th e filing fee for the supreme court appeal, or the attorney’s attendance at a selectboard meeting, or a telephone conference with the zoning administrator regarding a settlement offer. In addition, some details reflect the attorneys’ meetings with named individuals who have not been identified in the context
of this case. The monetary penalties provided in the zoning enabl ing statute, 24 V.S.A. §4451 are civil and remedial in nature. Town of Hinesburg v. Dunkling, 167 Vt.514, 524 (1998). It is not sufficient, in determining an appropriate penal ty, that it is within the maximum allowed by the statute or the ordinance. Rather, th e Court must link the penalty to the harm caused by or the benefit obtained by the viola tion. Compare the factors to be considered under 10 V.S.A. §8010(b); see also State Agency of Natural Resources v.
Riendeau, 157 Vt. 615, 622–23 (1991). Accordingly, to enable the Court to assess an appro priate monetary penalty, we will give the parties the opportunity to provide the Cou rt with annotations to Exhibits 17, 22, and 24 (and to Mr. Rodjenski’s testimony) indicatin g their respective rationales as to why specific items should or should not be included. T he parties should feel free to make photocopies of the exhibits and highlight various e ntries, so that they may be keyed to the text of any argument. It would similarly be helpfu l to indicate to which case (by use of the docket numbers listed in the first paragraph of thi s order) specific items pertained. Any such annotations and rationales (or any agreement a s to any portion of the entries) shall be filed on or before March 9, 2007. The parties may, by agreement, extend the time for these filings and so inform the Court.6

Therefore, in the present decision, the Court hereby imposes the agreed remedial order, and will impose a monetary penalty based on the evidence after receipt of the further filings. As defined by the parties in their stipulation file d September 11, 2006, the term “Plan” as used in this order means the plan prepare d by Trudell Consulting Engineers entitled “Isaac Cowan, Snipe Ireland Road, Richmond , Vermont, Sanitary Plan,” revised to August 28, 2006, and filed with the Richmond Zon ing Administrator on August 30, 2006.
The term “Structures” as used in this order refers to the Proposed Garage, Breezeway, and Proposed 3-Bedroom House, and the Relocated Wall Bl ocks (on either side of the Proposed Garage and Proposed 3-Bedroom House) which are deno ted on the Plan. The term “Line” as used in this order refers to the line defined bythe locations of the stream-side edges of
all Structures shown on the Plan.

Based on the foregoing, it is hereby ORDERED and ADJ UDGED that Judgment is hereby entered in favor of the Town. I. Injunctive relief is hereby granted as follows, as agreed by the parties and submitted to the Court in their stipulation: A. The area between Snipe Ireland Brook and a line i dentified by the locations of the stream-side edges of all Structures shown onthe Plan (the “Line”) shall be returned to the original ground condition as it exi sted prior to installation of the retaining wall (including seeding and mulching), as determined during removal of the retaining wall, and shall be maintained in orig inal ground condition thereafter. Failure to remove the retaining wall and maintain thereafter the described area to original ground condition shall be grounds for cont empt. The location of such Line shall be determined by reference to the scale of th e Plan.1 As of the time of the filing of the stipulation, the individual defined in the stipulation

as the “Town administrator” was Ronald Rodjenski. This order uses the position rather than the name, so as to remain enforceable regardles s of the incumbent of the position.

7 B. The Town Zoning Administrator 1 shall be given at least ten (10) days advance
written notice of commencement of the Remedial Work . A Town representative or representatives may be present during the Remedial Work to observe and verify the determination of the original ground conditions and to observe the Remedial Work. When such notice is given to the Town Zoning Admini strator, a copy shall also be sent to Intervenors Ed Gaston and Erica Ell, in car e of their attorney, David Grayck; they may also be present and/or have a representati ve or representatives present for such observation and verification purposes.
C. The removal of the wall and the Remedial Work sha ll be completed and maintained as set forth herein regardless of whethe r the Defendant Isaac Cowan obtains all necessary permits and approvals for the construction of the Structures shown on the Plan, or for any other construction or use of the property shown on the Plan. The Town of Richmond is under no obligat ion, by reason of the parties’ Stipulation or this Court Order, to approve the Pla n and Structures referenced in the Stipulation. The purpose of Paragraph A above is t o establish the location of the Line only, to provide for the return to original gr ound conditions as they existed prior to the installation of the retaining wall in the area between the Line and the stream, and to provide for maintenance in original ground condition thereafter. In lieu of constructing the Structures, Defendant may use any alternative retention structures uphill of the Line adequate to retain th e ground uphill of the Line and to prevent it from coming over the Line into such area, provided that Defendant receives approval for such alternative retention st ructures from the Zoning Administrator, if such approval is required. If De fendant should employ such8

alternative retention structures, Paragraph A above shall apply as to the return to original ground and maintenance in original ground condition thereafter in the area
between the Line and the stream. D. Defendant Isaac Cowan shall reimburse the Town, p romptly upon receipt of invoices, for the reasonable outside consultants’ fees incurred by the Town for consultants it retains to be present for such purpo ses during the Remedial Work, provided that Defendant shall not be required to ma ke reimbursement for such outside consultants’ fees in excess of the aggregat e amount of One Thousand Dollars ($1,000.00). If any Town representatives are presen t during the Remedial Work who are employees of the Town, Defendant shall not be r equired to reimburse the Town for their time expended. This requirement as to re imbursement of consultants’ fees is based on the parties’ Stipulation and is in addi tion to and not in lieu of the penalties to be imposed by the Court pursuant to pa ragraph II of this Order. E. As provided in the Stipulation of the parties, thi s Order, including the obligation to remove the retaining wall and to perf orm the Remedial Work, and thereafter to maintain to original ground condition s, shall be binding upon the heirs, successors, and assigns of Defendant Isaac Cowan. A ny party to the Stipulation may
record the order of the Court in the land records f or the Town of Richmond. II. A penalty pursuant to 24 V.S.A. §4451 will be imposed for the violation, as discussed above, in a further order.

Dated at Berlin, Vermont, this 13 thday of February, 2006.

______________________________________ Merideth Wright Environmental Judge