STATE OF VERMONT
ENVIRONMENTAL COURT
} Town of Richmond, } Plaintiff, } } v. } Docket No. 102-5-02 Vtec } Isaac Cowan, } Defendant. } }
Decision and Order on Pending Post-Judgment Motions
This is an enforcement case related to the placement of a retaining wall on the
property of Defendant Isaac Cowan. In its Decision and Order of February 13, 2007, the
Court resolved the timing and conditions of the order for injunctive relief, which was
agreed to have been satisfied as of November 21, 2007, but required additional memoranda
relating the specific components of the parties’ arguments relating to the penalty amount.
In its Decision and Order of June 4, 2007, the Court imposed a penalty amount of $25,800,
analyzing Defendant’s avoided costs, and the Town’s legal, engineering and
administrative fees and costs for several distinct periods in the history of the dispute. The
June 4, 2007 Judgment Order concluded this enforcement case.
The Town of Richmond is represented by Mark L. Sperry, Esq.; Defendant now
represents himself. Intervenors Erica Ell and Edward Gaston, represented by David L.
Grayck, Esq., were actively involved in the permit cases related to this property, and with
respect to any injunctive relief, but have not taken an active role in the penalty or post-
judgment phases of this enforcement case.
1 Several post-judgment motions have been filed. The Town has moved to double the
amount of the fine, pursuant to 24 V.S.A. § 4451(a), 5th sentence.1 Defendant moved for an
order “ordering the Town to discharge the Judgment Order” if the judgment order amount
plus interest to the date of payment is paid. In its March 13, 2008 entry order regarding
these motions, the Court denied this motion, stating that “[n]o basis appears for a
prospective order at this time,” but leaving open the possibility for Defendant to renew the
motion at a later date. Defendant has also moved to suspend the accrual of the interest due
on the judgment order while the pending post-judgment dispute is being resolved.
At the request of the Court, Liam L. Murphy, Esq., the attorney representing an
intending buyer of the property, was given leave to file a memorandum as amicus curiae
on the pending motions, pursuant to V.R.A.P. 29 (made applicable to Environmental Court
by V.R.E.C.P. 3).
The Environmental Court has jurisdiction of only three types of enforcement actions
that can result in fines or monetary penalties: under the statute governing state
environmental enforcement orders2; under the statute governing municipal solid waste
orders3; and under 24 V.S.A. § 4451 governing fines for zoning and subdivision violations.
1 “In default of payment of the fine, the person . . . shall . . . pay double the amount of the fine.” 24 V.S.A. § 4451(a). 2 Under the Uniform Environmental Enforcement statute, 10 V.S.A. Chapter 201, monetary penalties may be imposed in a final environmental enforcement administrative order issued by the Agency of Natural Resources (ANR), or may be imposed de novo by the Environmental Court after hearing on the order. 10 V.S.A. §§ 8010(c), 8012(b)(4). 3 Under 24 V.S.A. Chapter 61, Subchapter 12, monetary penalties may be imposed by the municipality in a final order relating to municipal solid waste, or may be imposed de novo by the Environmental Court after hearing on the order. 24 V.S.A. §§ 2297a(e)(5), 2297b(e).
2 The remaining proceedings within the jurisdiction of the Court involve appeals (V.R.E.C.P.
5), judicial review (the remainder of V.R.E.C.P. 4), or relief in the nature of injunctive or
declaratory relief (V.R.E.C.P. 3(1), (6), (7), (8)).
Of the three statutes providing for civil penalties to be imposed by the
Environmental Court, only two of them explicitly provide for collection or other
enforcement remedies for an unpaid penalty. Both of these place jurisdiction of remedies
for an unpaid penalty in superior court (or in both superior and district court), rather than
in environmental court. Under 10 V.S.A. § 8014(b), if a penalty is imposed and the
respondent fails to pay, the ANR may bring a collection action in any superior or district
court. This legislation was adopted in 1989, contemporaneous with the creation of the
Environmental Court. See 4 V.S.A. § 1001. The statute specifically does not give the
Environmental Court jurisdiction over actions to collect a money penalty, even though it
does give the Environmental Court jurisdiction, concurrently with the superior and district
courts, of actions to enforce the injunctive relief aspects of its orders. 10 V.S.A. § 8014(a).
Similarly, if a money penalty is imposed in a municipal solid waste enforcement case, “and
the respondent fails to pay the penalty within the time prescribed, the legislative body may
bring a collection action in the superior court” only. 24 V.S.A. § 2297a(j). This section was
adopted in 1991. Also compare 6 V.S.A. §§ 4855, 4861 (large farm operation permit appeals
to Environmental Court) with 6 V.S.A. §§ 4854, 15(e) (large farm operation permit
enforcement, including penalties, in superior court, with civil collection actions in superior
or district court).
The substantial money penalty in the present case was imposed by the
Environmental Court pursuant to 24 V.S.A. § 4451(a). The provisions for a fine (civil
3 penalty4) for a municipal zoning violation now codified in 24 V.S.A. § 4451(a) (formerly
codified in 24 V.S.A. § 4444) were adopted in 1969, long before the 1995 transfer of zoning
and zoning enforcement jurisdiction to the Environmental Court. Unlike the other two
types of civil penalties that may be imposed by the environmental court, 24 V.S.A. § 4451(a)
is silent as to the nature of any available collection proceedings.5 Compare 24 V.S.A. §
1981(a) (regarding penalties issued for municipal ordinance violations by the judicial
bureau (added effective November 1994): “all the civil remedies for collection of judgments
shall be available to enforce . . . .”).
Rather than specifying the available collection proceedings, 24 V.S.A. § 4451(a)
retained the prior language of former § 4444 that “[i]n default of payment of the fine, such
person . . . shall . . . pay double the amount of such fine.” This language by itself does not
give Environmental Court jurisdiction of collection actions for zoning penalties. The
Court’s “paramount goal is to discern and implement the intent of the legislature.” Miller
v. Miller, 2005 VT 89, ¶ 14, 178 Vt. 275, 277. It is unlikely that the legislature intended, by
transferring zoning enforcement as well as zoning appeals to Environmental Court, also
implicitly to transfer jurisdiction over collection proceedings for municipal zoning
penalties, especially in view of the legislature’s explicit decision not to give the
Environmental Court such collection jurisdiction in the Environmental Court’s only two
4 Town of Hinesburg v. Dunkling, 167 Vt. 514, 524–25 (1998), an appeal of an enforcement case decided under former 24 V.S.A. § 4444 in superior court, established that the penalty was civil in nature. 5 This court cannot determine whether the legislative silence on this point was inadvertent; or was due to the fact that such § 4444 actions were brought in superior court, where all of the normal collection mechanisms were already available; or was due to the existence of other statutory provisions for any “fines, forfeitures and penalties” imposed by the superior court for municipal ordinance violations, 13 V.S.A.
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STATE OF VERMONT
ENVIRONMENTAL COURT
} Town of Richmond, } Plaintiff, } } v. } Docket No. 102-5-02 Vtec } Isaac Cowan, } Defendant. } }
Decision and Order on Pending Post-Judgment Motions
This is an enforcement case related to the placement of a retaining wall on the
property of Defendant Isaac Cowan. In its Decision and Order of February 13, 2007, the
Court resolved the timing and conditions of the order for injunctive relief, which was
agreed to have been satisfied as of November 21, 2007, but required additional memoranda
relating the specific components of the parties’ arguments relating to the penalty amount.
In its Decision and Order of June 4, 2007, the Court imposed a penalty amount of $25,800,
analyzing Defendant’s avoided costs, and the Town’s legal, engineering and
administrative fees and costs for several distinct periods in the history of the dispute. The
June 4, 2007 Judgment Order concluded this enforcement case.
The Town of Richmond is represented by Mark L. Sperry, Esq.; Defendant now
represents himself. Intervenors Erica Ell and Edward Gaston, represented by David L.
Grayck, Esq., were actively involved in the permit cases related to this property, and with
respect to any injunctive relief, but have not taken an active role in the penalty or post-
judgment phases of this enforcement case.
1 Several post-judgment motions have been filed. The Town has moved to double the
amount of the fine, pursuant to 24 V.S.A. § 4451(a), 5th sentence.1 Defendant moved for an
order “ordering the Town to discharge the Judgment Order” if the judgment order amount
plus interest to the date of payment is paid. In its March 13, 2008 entry order regarding
these motions, the Court denied this motion, stating that “[n]o basis appears for a
prospective order at this time,” but leaving open the possibility for Defendant to renew the
motion at a later date. Defendant has also moved to suspend the accrual of the interest due
on the judgment order while the pending post-judgment dispute is being resolved.
At the request of the Court, Liam L. Murphy, Esq., the attorney representing an
intending buyer of the property, was given leave to file a memorandum as amicus curiae
on the pending motions, pursuant to V.R.A.P. 29 (made applicable to Environmental Court
by V.R.E.C.P. 3).
The Environmental Court has jurisdiction of only three types of enforcement actions
that can result in fines or monetary penalties: under the statute governing state
environmental enforcement orders2; under the statute governing municipal solid waste
orders3; and under 24 V.S.A. § 4451 governing fines for zoning and subdivision violations.
1 “In default of payment of the fine, the person . . . shall . . . pay double the amount of the fine.” 24 V.S.A. § 4451(a). 2 Under the Uniform Environmental Enforcement statute, 10 V.S.A. Chapter 201, monetary penalties may be imposed in a final environmental enforcement administrative order issued by the Agency of Natural Resources (ANR), or may be imposed de novo by the Environmental Court after hearing on the order. 10 V.S.A. §§ 8010(c), 8012(b)(4). 3 Under 24 V.S.A. Chapter 61, Subchapter 12, monetary penalties may be imposed by the municipality in a final order relating to municipal solid waste, or may be imposed de novo by the Environmental Court after hearing on the order. 24 V.S.A. §§ 2297a(e)(5), 2297b(e).
2 The remaining proceedings within the jurisdiction of the Court involve appeals (V.R.E.C.P.
5), judicial review (the remainder of V.R.E.C.P. 4), or relief in the nature of injunctive or
declaratory relief (V.R.E.C.P. 3(1), (6), (7), (8)).
Of the three statutes providing for civil penalties to be imposed by the
Environmental Court, only two of them explicitly provide for collection or other
enforcement remedies for an unpaid penalty. Both of these place jurisdiction of remedies
for an unpaid penalty in superior court (or in both superior and district court), rather than
in environmental court. Under 10 V.S.A. § 8014(b), if a penalty is imposed and the
respondent fails to pay, the ANR may bring a collection action in any superior or district
court. This legislation was adopted in 1989, contemporaneous with the creation of the
Environmental Court. See 4 V.S.A. § 1001. The statute specifically does not give the
Environmental Court jurisdiction over actions to collect a money penalty, even though it
does give the Environmental Court jurisdiction, concurrently with the superior and district
courts, of actions to enforce the injunctive relief aspects of its orders. 10 V.S.A. § 8014(a).
Similarly, if a money penalty is imposed in a municipal solid waste enforcement case, “and
the respondent fails to pay the penalty within the time prescribed, the legislative body may
bring a collection action in the superior court” only. 24 V.S.A. § 2297a(j). This section was
adopted in 1991. Also compare 6 V.S.A. §§ 4855, 4861 (large farm operation permit appeals
to Environmental Court) with 6 V.S.A. §§ 4854, 15(e) (large farm operation permit
enforcement, including penalties, in superior court, with civil collection actions in superior
or district court).
The substantial money penalty in the present case was imposed by the
Environmental Court pursuant to 24 V.S.A. § 4451(a). The provisions for a fine (civil
3 penalty4) for a municipal zoning violation now codified in 24 V.S.A. § 4451(a) (formerly
codified in 24 V.S.A. § 4444) were adopted in 1969, long before the 1995 transfer of zoning
and zoning enforcement jurisdiction to the Environmental Court. Unlike the other two
types of civil penalties that may be imposed by the environmental court, 24 V.S.A. § 4451(a)
is silent as to the nature of any available collection proceedings.5 Compare 24 V.S.A. §
1981(a) (regarding penalties issued for municipal ordinance violations by the judicial
bureau (added effective November 1994): “all the civil remedies for collection of judgments
shall be available to enforce . . . .”).
Rather than specifying the available collection proceedings, 24 V.S.A. § 4451(a)
retained the prior language of former § 4444 that “[i]n default of payment of the fine, such
person . . . shall . . . pay double the amount of such fine.” This language by itself does not
give Environmental Court jurisdiction of collection actions for zoning penalties. The
Court’s “paramount goal is to discern and implement the intent of the legislature.” Miller
v. Miller, 2005 VT 89, ¶ 14, 178 Vt. 275, 277. It is unlikely that the legislature intended, by
transferring zoning enforcement as well as zoning appeals to Environmental Court, also
implicitly to transfer jurisdiction over collection proceedings for municipal zoning
penalties, especially in view of the legislature’s explicit decision not to give the
Environmental Court such collection jurisdiction in the Environmental Court’s only two
4 Town of Hinesburg v. Dunkling, 167 Vt. 514, 524–25 (1998), an appeal of an enforcement case decided under former 24 V.S.A. § 4444 in superior court, established that the penalty was civil in nature. 5 This court cannot determine whether the legislative silence on this point was inadvertent; or was due to the fact that such § 4444 actions were brought in superior court, where all of the normal collection mechanisms were already available; or was due to the existence of other statutory provisions for any “fines, forfeitures and penalties” imposed by the superior court for municipal ordinance violations, 13 V.S.A. § 7251; or due to some other rationale.
4 other types of enforcement proceedings. See LaPlume v. Lavallee, 2004 VT 78, ¶ 8 (“Where
there is no express grant of jurisdiction, we will not invent it.”). Rather, it is more
consistent with the evident legislative intent regarding the Environmental Court’s other
penalty provisions that the legislature intended to leave the collection procedures in
superior court, when it transferred the zoning enforcement jurisdiction to Environmental
Court.
In Vermont, a judgment creditor has the right to bring a separate action to enforce
a judgment and also has the right to execute on the judgment. Marine Midland Bank v.
Bicknell, 2004 VT 25, ¶ 8, 176 Vt. 389, 393–94. While this Court had jurisdiction over the
original enforcement action giving rise to the June 4, 2007 judgment order, it has not been
given jurisdiction over these remedies to collect or otherwise execute on the judgment
order.
Rather, by its terms this provision of 24 V.S.A. § 4451(a) appears to be self-executing.
Not only does it not require an order of this Court to take effect, it does not even appear
to allow the court that issued the original judgment order to determine whether or not to
impose the doubling of the fine if there is a default in payment. Accordingly, any further
analysis or order by this Court regarding the doubling-the-fine remedy would be an
impermissible advisory opinion and is precluded. See In re 232511 Investments, Inc., 2006
VT 27, ¶ 19, 179 Vt. 409, 417.
Similarly, issues to do with the judgment lien filed by the Town, and Defendant’s
request for an order governing its release, appear to be beyond the jurisdiction of this court.
A judgment of this court is one “issued in a civil action,” 12 V.S.A. § 2901, allowing the
judgment lien to be filed. However, 12 V.S.A. § 2905 provides for it to be discharged “in
the same manner as a mortgage” under 27 V.S.A. Chapter 5, and provides specifically that
the obligation to discharge is as provided in 27 V.S.A. § 464. A party aggrieved by a refusal
to discharge may litigate that matter in superior court under 27 V.S.A. § 464(c); this Court
5 has no jurisdiction to issue any orders, prospectively or otherwise, regarding the judgment
lien or its discharge.
Accordingly, the Town’s “motion” for a doubling of the fine amount is DISMISSED
WITHOUT RULING as beyond the jurisdiction of this Court, as is Defendant’s motion for
an order directing the Town to discharge the judgment lien. Defendant’s motion for
suspension of the accrual of interest on the original penalty is also DENIED; there has been
no showing that it would be unfair for Defendant to have to pay the interest on the original
penalty imposed by the Court.
Dated at Berlin, Vermont, this 16th day of April, 2008.
______________________________________ Merideth Wright Environmental Judge