State v. Brooks

2004 VT 88, 861 A.2d 1096, 177 Vt. 161, 2004 Vt. LEXIS 270
CourtSupreme Court of Vermont
DecidedSeptember 3, 2004
DocketNo. 03-447
StatusPublished
Cited by8 cases

This text of 2004 VT 88 (State v. Brooks) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brooks, 2004 VT 88, 861 A.2d 1096, 177 Vt. 161, 2004 Vt. LEXIS 270 (Vt. 2004).

Opinion

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 [163]*163up” 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 Whitehom (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 [164]*164survey, to “[pjrepare 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 Willis-ton 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 [165]*165significance. 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 [166]

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Bluebook (online)
2004 VT 88, 861 A.2d 1096, 177 Vt. 161, 2004 Vt. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brooks-vt-2004.