In re Jewell

In re Appel of Jewell (98-092); 169 Vt. 604; 737 A.2d 897

[Filed 13-Jul-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-092
                               MAY TERM, 1999

In re Appeal of:	               }	APPEALED FROM:
Max E. Jewell and Judith Belyea	       }
	                               }
Town of Hartford	               }	Environmental Court
	                               }	
      v.	                       }
	                               }
Max E. Jewell and Judith Belyea d/b/a  }
Jewell Transport and Evergreen         }
Recycling  	                       }	DOCKET NO. E 96-030
		

             In the above-entitled cause, the Clerk will enter:

       The Town of Hartford appeals from an environmental court decision and
  two post-judgment orders, which involve an appeal by Max Jewell and Judith
  Belyea, permittees, from a  decision of the zoning administrator of zoning
  violations and from the Town's enforcement  action.  The Town contends that
  the trial court erred by:  (1) modifying its original decision to  allow
  sorting of metal recyclable material outside the bunker in violation of the
  1994 permit, and  (2) denying the Town's request for fines.  We affirm.


       Permittees own property in the Town of Hartford where they operate a
  trucking business  and a recycling business.  In 1994, permittees applied
  for and received a permit under the town  zoning regulations to conduct
  their businesses.  The relevant permit provisions provide:

     12.  The northeast portion of the lot is proposed to be used for the 
          selection and storage of logs, tires, ferrous and non-ferrous 
          metals.
     13.  Logs will sorted to grade in the sorting area . . . .
     15.  Tires would be stored in the selecting/storage area . . . .
     16.  Ferrous and non-ferrous metals would be sorted and stored in the 
          selecting/storage area.  The metals would then be baled inside in 
          the recycling area, then shipped.

  These provisions identify three areas: (1) the sorting area, (2) the
  selecting/storage area, also  called "the bunker," and (3) the recycling
  area.

       On November 16, 1995, the zoning administrator issued a notice of
  violation of the 1994  permit.  Permittees appealed to the zoning board of
  adjustment, which upheld the notice of  violation.  Permittees appealed
  further to the environmental court.  The Town also filed a  complaint for
  enforcement of the decision of the zoning board of adjustment, requesting
  that the  court impose fines for each day of violation.

 

       The environmental court consolidated the two cases.  It found
  violations of several 1994  permit conditions and ordered the permittees to
  bring their operation into compliance with their  permit within fifteen
  days, except for changing the size of the noncomplying bunker.  The court 
  further ordered permittees to submit a noise abatement plan to the zoning
  board of adjustment  within forty-five days.  The court declined to impose
  any fines on the ground that the Town had  not requested them.  

       Both parties filed post-judgment motions.  Permittees requested a
  clarification of the order  concerning metals, claiming that they initially
  deposit metals in the sorting area but then move  them to the bunker for
  selecting and storage.  They contended that the court's finding that short-
  term accumulation of recyclables for approximately one week does not
  constitute "storage" as the  term is used in the field of waste management
  contradicted its statement that, "[p]ermittees must  remove any metals in
  piles outside the bunker."  In response, the court amended its decision, to 
  state:  "permittees must remove any metal in piles outside the bunker no
  later than eight days  after they have been placed in such piles." 
  (Emphasis added.)

       The Town also filed a motion to modify the court's decision, asserting
  the court erred by  stating that the Town had not requested fines because
  both the complaint and the proposed  findings and conclusions included such
  a request.  The Town requested that the court impose  fines of twenty
  dollars per day from November 23, 1995, which was seven days after the
  notice  of violation.  The court denied the motion, stating it could not
  find from the evidence that  violations occurred on all 466 days but
  granting leave to renew the motion "if supported by a list  of dates of
  violations keyed to the evidence."  The court stated that, if the motion
  were renewed,  it would give permittees an opportunity to submit evidence
  on the penalty issue, and, in  determining the appropriate fine, it would
  take into consideration the money permittees had spent  on compliance.  See
  Town of Hinesburg v. Dunkling, 167 Vt. 514, 529, 711 A2d 1163, 1172  (1998)
  (no abuse of discretion to consider cost of compliance in determining
  amount of fine to  impose). 

       The Town appealed.  It first claims that the court erred by modifying
  its decision to allow  piles of metal to remain outside the bunker for up
  to eight days.  The Town maintains that this  modification allows
  permittees to sort metal outside the bunker, which is inconsistent with the 
  1994 permit.  In response, permittees claim that metals can be sorted only
  in front of the bunker  and that sorting the metals outside is the purpose
  of making piles outside the bunker.

       Sorting metals outside the bunker violates the plain language of both
  condition 16 of the  1994 permit and the environmental court's order, which
  enjoins permittees from sorting or  storing metals outside the bunker.  See
  Secretary, Agency of Natural Resources v. Handy Family  Enters., 163 Vt.
  476, 481, 660 A.2d 309, 312 (1995) (ordinarily we rely on plain meaning of 
  permit conditions because we presume they indicate underlying intent). 
  Short-term accumulation  of metals is not "storage" as that term is
  generally used in the field of solid waste; thus, short-term accumulation
  of metals outside the bunker does not violate the 1994 permit or the order 
  here on appeal.  We find no error in the trial court's order.  It does not,
  however, allow any  sorting of metal outside the bunker.   

 

       Next, the Town argues that the court erred by not imposing fines and
  by requiring the  Town to provide a list of dates of violations keyed to
  the evidence before it would consider  imposing fines.  According to the
  Town, such a list is not necessary to support the imposition of  fines
  under 24 V.S.A. § 4444(a).  The Town maintains that for the court to impose
  a fine for  each day from the notice of violation to the court's decision,
  it need only present evidence  demonstrating that permittees engaged in a
  pattern of continued violations of the 1994 permit  conditions.  We agree. 
  To the extent that the trial court implied the Town must prove the permit 
  violations continued each day, the court erred.

       Section 4444(a) provides:  "each day that a violation is continued
  shall constitute a separate  offense," and violators "shall be fined not
  more than fifty dollars for each offense."  If we  accepted that the Town
  must prove permit violations on each day of the period for which it seeks 
  penalties, the Town's burden of proof would be so onerous as to vitiate the
  statute's deterrent  purpose by rendering it nearly impossible to
  demonstrate a continuing violation.  Cf. United  States v. SCM Corp., 667 F. Supp. 1110, 1124-25 (D. Md.1987) (agreeing it would be  impossible for
  EPA to nail down proof for each day of claimed continuous emissions
  violation,  but requiring such proof nonetheless because agency failed to
  use available means to avoid proof  problem).  We will not construe a
  statute in such a way that its application is at odds with its  underlying
  purpose.  See Mesa Leasing, Ltd. v. City of Burlington, 10 Vt. L.W. 60, 61
  (1999).

       Contrary to the Town's contention, the burden of proof remains with
  the Town, and, to  establish a continuing violation, it must demonstrate
  more than that the permittee received notice  of the permit violations and
  failed to cure them.  We hold that the Town need not produce  evidence of a
  continuing violation for each and every day to sustain its burden of proof
  but that  evidence, such as that produced in this case, of periodic noise
  complaints by neighbors and  periodic inspections by the zoning
  administrator disclosing unpermitted activity outside the  bunker may weave
  a sufficient pattern of violations for the court to infer a continuing
  violation  for some or all of the period for which the Town requests that
  the court impose penalties.  See,  e.g., State v. City of Greenville, 726 S.W.2d 162, 167 (Tex. Ct. App. 1986) (evidence of  continuing violation
  where same violation found during eleven site inspections over four-year 
  period).  We note that the number of days for which the evidence supports a
  continuing violation  merely sets the maximum penalty available under §
  4444(a).  The environmental court has  discretion - given the purpose of
  the statute and the leeway it grants the court to determine the  amount of
  fine per violation -  not only to balance permittee's continuing violation
  against its  compliance costs but also to consider such factors as those
  specified in the Uniform  Environmental Enforcement Act.  See Handy Family
  Enters., 163 Vt. at 485-86, 660 A.2d  at  314 (1995); Agency of Natural
  Resources v. Godnick, 162 Vt. 588, 596-97, 652 A.2d 988, 993-94 (1994)
  (same).

 

       Affirmed as to the permit modification.  Reversed and remanded for
  consideration of  penalties.

					
	                               BY THE COURT:


	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________ 
	                               John A. Dooley, Associate Justice
	
                                       _______________________________________ 
	                               James L. Morse, Associate Justic
                                       
                                       _______________________________________      
                                       Denise R. Johnson, Associate Justice

	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice