State v. Brooks

State v. Brooks (2003-447); 177 Vt. 161; 861 A.2d 1096

2004 VT 88

[Filed 03-Sep-2004]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 88

                                No. 2003-447


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 Washington Superior Court


  Steven Brooks	                                 June Term, 2004


  Mary Miles Teachout, J.

  Edward G. Adrian, Secretary of State, Montpelier, for Plaintiff-Appellee.

  David H. Casier, Burlington, for Defendant-Appellant.	


  PRESENT:  Amestoy, C.J. (FN1), Dooley, Johnson, Skoglund and Reiber, JJ.

        
       ¶  1.  DOOLEY, J.  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 up" 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 Whitehorn (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) (FN2) -
  violation of a Board rule.  The Board specified the violated rule as Rule
  5.4(A)(1) (FN3), which requires a land surveyor, when preparing a land
  survey, to "[p]repare 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 Williston
    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 significance. 
    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 supported by
  substantial evidence, and its conclusions if rationally derived from the
  findings and based on a correct interpretation of the law."  Braun v. Bd.
  of Dental Exam'rs, 167 Vt. 110, 114, 702 A.2d 124, 126 (1997).  Here, the
  facts are undisputed, and the case turns on a question of law.  In such
  cases, we frequently give additional deference to the conclusions of an
  administrative proceeding in which a professional's conduct is being
  evaluated by his or her peers.  See id.  As in the recent case of Office of
  Prof'l Regulation v. McElroy, 2003 VT 31, ¶ 7, 175 Vt. 507, 824 A.2d 567
  (mem.), we do not think the additional deference is warranted here.  This
  is essentially a jurisdictional dispute in which the Board members have no
  special expertise.  Moreover, the governing construction was made by the
  superior court, rather than by the Board which had a different theory of
  the case.

       ¶  9.  Land surveying is a statutory term of art.  The purpose of the
  licensing and regulation of land surveyors is "to safeguard property and
  the public welfare" with respect to the "practice of land surveying."  26
  V.S.A. § 2501.  To this end, the term is specially defined in the statutory
  scheme, 26 V.S.A. § 2502(3) (1998), amended by 26 V.S.A. § 2502(3) (Supp.
  2003) (FN4), as follows:
   
    "Land surveying" means the process of searching land records,
    applying the rules of evidence with respect to boundary law and
    applying the principles and methods of property measurement, all
    performed for the purpose of; 
    (A)  determining the proper location for monumentation of property
    boundaries and establishing monumentation; or
    (B)  determining the area of property within established
    boundaries; or
    (C)  preparing written and graphic property survey descriptions
    for conveyancing.

  In essence, respondent's argument is that when he created the map it was
  not done for any of the three alternative purposes in the statutory
  definition.  The record is sparse on this issue, partially because, as the
  appellate officer found, the Board failed to address this question.  The
  superior court, and the State, argue that respondent came within the third
  purpose to prepare "written and graphic property survey descriptions for
  conveyancing."  We find this to be an overbroad reading of the statute. 
  The Town needed the map as part of its subdivision process, but did not
  require a survey.  A subdivision or related permit (FN5) may be a necessary
  prerequisite for an effective conveyance of a subdivided lot, cf. Hunter
  Broad., Inc. v. City of Burlington, 164 Vt. 391, 393-94, 670 A.2d 836,
  838-39 (1995) (requiring a state subdivision permit for conveyancing), or
  the subdivision may occur with or without a conveyance.  Here, there was a
  conveyance, but respondent's map played no role in that conveyance,
  apparently because a survey on which the parties relied was done by another
  surveyor at the time.  We conclude that the map did not meet the statutory
  definition for land surveying since it was not prepared "for conveyancing,"
  26 V.S.A. § 2502(3), but was instead created for the sole purpose of
  obtaining a subdivision permit.

       ¶  10.  Two other factors support this conclusion.  First, the statute
  prohibits the practice of land surveying without a license.  26 V.S.A. §
  2503(a)(3).  However, as it existed prior to 2003, the statute also
  contains limits on the above and does not prohibit the "preparation of
  subdivision proposals."  Id. § 2503(b)(4).  Because the preparation of a
  subdivision proposal would  become an issue only if it allegedly involved
  land surveying within the statutory definition, we take this exclusion as a
  legislative recognition that preparing a map for subdivision approval, as
  respondent did here, should not be considered land surveying.
   
       ¶  11.  Second, we note that in 2003, after respondent's creation of
  the map and the Board's decision, the Legislature amended the definition so
  that the practice of land surveying now includes making a "survey for the
  division, subdivision, or consolidation of any tract of land," id. §
  2502(4)(C), and amended the section on prohibitions to delete the exclusion
  for preparation of subdivision proposals, id. § 2503(b).  Moreover, the
  land surveying definition now includes "mapping."  Id. § 2502(4).  Given
  the expansion of the legislative definition, we conclude that respondent's
  activities would clearly be covered by the current statute.  We presume
  that an amendment to the statute is intended to change the law, unless the
  circumstances clearly show that only a clarification was intended.  See
  Tarrant v. Dep't of Taxes, 169 Vt. 189, 198, 733 A.2d 733, 740 (1999); see
  also Perry v. Med. Practice Bd., 169 Vt. 399, 405, 737 A.2d 900, 905
  (1999); Montgomery v. Brinver Corp., 142 Vt. 461, 464, 457 A.2d 644, 646
  (1983).  We have nothing before us to suggest that a clarification was
  intended here.  The amending legislation, 2003, No. 60, §§ 13-14, was based
  upon bill H. 449, introduced by the House Committee on Government
  Operations.  The purposes of the bill was "to make adjustments to the
  system[] for regulating . . . land surveyors" and also "makes changes to
  requirements relating to all regulated professions involving unauthorized
  practice, [and] unprofessional conduct."  H. 449, 2003-2004 Gen. Assem.,
  Bien. Sess. (Vt. 2003).  Whether we label the amendments as adjustments to
  the system or changes to requirements, they are modifications of existing
  law, rather than clarifications.  In any event, we could not call the
  deletion of the exclusion for preparation of subdivision proposals a
  clarification.

       ¶  12.  In reaching this decision, we must specify what is not
  involved and why.  Both the Board and the State place emphasis on the fact
  that the Marsh survey did not close the parcel and respondent artificially
  created his map to show a parcel with closed boundaries.  Respondent is
  charged with creating an incomplete survey, not an inaccurate one.  The
  error in the Marsh survey, and respondent's actions in response to that
  error, as disclosed on the map, are not relevant to the charge against him.  

       ¶  13.  The State's brief to this Court suggests a different theory in
  which the errors in the Marsh survey were relevant.  It argues that by
  drawing a closed parcel, respondent was "determining the area of property
  within established boundaries," an alternative purpose of land surveying
  under § 2502(3).  Again, we find the argument to make the statute
  applicable a stretch.  Because of the error in the Marsh survey, the
  boundaries were not "established" and respondent was explicitly not
  establishing them to correct the error.  The area of the parcel was not
  relevant to the subdivision or displayed on the map.  Determining the area
  of the parcel was not the purpose of the map.
   
       ¶  14.  The Board seems to have relied upon a form of consumer
  protection-to protect the public from confusing respondent's map with a
  survey.  Thus, it emphasized that respondent's map was "titled like a
  survey, signed like a survey, sealed like a survey, and filed like a
  survey."  As we note in the next paragraph, the signature and seal were
  required by statute, whether or not the document was a survey.  The title
  was specified by the Town official, and there is no evidence to show how
  the map came to be filed.  Again, we emphasize that respondent was not
  charged with creating a document that could be confused with a survey.  The
  Board's rationale does not support the allegation of unprofessional conduct
  before it.

       ¶  15.  Two statutes figure in the decisions of the Board and the
  superior court, and require some explanation.  The Board indicated that
  when a surveyor's "signature and seal are affixed to a document that is
  virtually indistinguishable from a survey plat, it should rightly carry
  some weight and significance."  It appears, however, that respondent's
  signature and seal were required by statute.  26 V.S.A. § 2596(a) reads:

         Each licensed land surveyor shall procure a personal seal in
    a form approved by the board.  The surveyor shall affix the
    surveyor's signature and seal together with a certification
    statement as to the nature of the survey work upon all completed
    maps, plats, surveys or other documents before delivery thereof to
    any client or before any map, plat, survey or other document is
    offered for filing at the office of the town clerk or any other
    proper authority.  The certification statement shall clearly set
    forth what information was used as the basis of the survey and
    shall indicate that the survey work identified thereon is
    consistent with this information.

  By affixing his signature, seal and explanation of the nature of the
  document, respondent was complying with the letter and purpose of §
  2596(a).  Indeed, the reference to maps as a class of documents separate
  from surveys support respondent's position that licensed land surveyors
  routinely create documents that are not land surveys. 
   
       ¶  16.  The statute's requirement that surveys must contain a
  description of the information used as a basis for the work also supports
  respondent's actions.  The public should be expected to look to the kind of
  certification information respondent added to understand the map's nature. 
  The Board concluded that, "[e]xcept for the notes in the upper-left hand
  corner, the document is a survey."  Thus, the Board recognized that the
  notes differentiated the map from a survey, but minimized the significance
  of the notes.  The import of § 2596(a) is that information, such as that
  contained in the notes, is routine and the public is expected to read this
  information to understand the significance of the document.  We cannot
  attach the "weight and significance" the Board did to the seal and
  signature.  We find that their presence, along with the explanatory notes,
  shows compliance with the applicable law, not the opposite. 

       ¶  17.  The superior court relied upon 27 V.S.A. § 1403(b) for the
  proposition that the map contained the required elements of a survey plat
  and thus should be treated as a survey.  There is no indication in the
  record that the map was filed in accordance with the chapter on land plats,
  see id., or was intended to comply with that section.  The requirements
  generally relate to the form of the document-like the sheet material and
  margin size, see id. § 1403(b)(1), (5).  The most important
  requirement-that the survey plat show the information required by 26 V.S.A.
  § 2596 and contain "a certification that the plat conforms with
  requirements of this section," 27 V.S.A. § 1403(b)(6)-is inapplicable to
  plats prepared for subdivision approval.  See 27 V.S.A. § 1404(b).  There
  is no certification of conformity with § 1403(b)  on respondent's map.  We
  cannot conclude that § 1403(b) makes respondent's map a land survey.  
  Reversed; the charge of unprofessional conduct against respondent is
  dismissed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  Chief Justice Amestoy was present when the case was submitted, but did
  not participate in this decision.


FN2.  The Board noted that § 2598(b)(4) had been amended in 1998 to change
  the list of actions considered to be unprofessional conduct and that the
  subsection specified in the charges did not apply.  The Board found that
  the section that was violated was actually 3 V.S.A. § 129a(a)(3). 
  Respondent apparently accepted the Board's modification of the charge
  against him and has not raised any claim of error with respect to it.


FN3.  Rule 5.4(A) reads:
    Whenever a land surveyor conducts a survey of property, the
    surveyor shall, at a minimum, perform the following: 
    A.  Research and Field Investigation:
    1.  Prepare a survey abstract.
    2.  Examine, analyze and test consistency of the record evidence. 
    Investigate and document inconsistencies and form preliminary
    conclusions as to the completeness of the record evidence.
    3.  Obtain and document from knowledgeable persons, if necessary,
    parol evidence which may control the location of the corners and
    the boundaries of the property under survey.
    4.  Search for monuments and physical evidence which control the
    location of the corners and the boundaries of the property under
    survey.  Existing monumentation and physical evidence should not
    be removed or disturbed.
    5.  Record and completely describe in detail all physical evidence
    found or the lack of physical evidence.  Descriptions shall
    include materials, size and shape, identifying marks or numbers,
    position and stability.
    6.  Make measurements to locate and perpetuate the location of
    pertinent physical evidence.
    7.  Record all measurements and pertinent information.

FN4.  The revised statute reads:

    "Licensed land surveyor" means a person licensed by the board who
    is:
    (A) a professional specialist in measuring land;
    (B) educated in the principles of mathematics, the related
    physical and applied sciences, and real property law; and
    (C) engaged in the practice of land surveying as defined in this
    section.

  The amended statute defines land surveying in 26 V.S.A. § 2502(4), as:

    "Practice of land surveying" means providing, or offering to
    provide, professional services, including record research,
    reconnaissance, measurements, gathering parol evidence, analysis
    of evidence, mapping, planning, expert testimony, and consultation
    related to any of the following:
    (A) locating, relocating, establishing, reestablishing, or
    retracing property lines or boundaries, or demarcating other legal
    rights or interests in any tract of land, road, right?of?way, or
    easement;
    (B) determining, by the use of principles of surveying, the
    position for any boundary monument or reference point, or
    replacing any monument or reference point;
    (C) making any survey for the division, subdivision, or
    consolidation of any tract of land;		
    (D) creating, preparing, or modifying graphic documents such as
    maps, plats, and plans, or electronic data used or referenced in
    instruments of conveyance of rights in real property, or which
    define rights in real property, or are used to define such rights;
    (E) calculating dimensions and areas, which may be used to define
    rights in real property.

FN5.  The nature of the permit Surdam needed, if any, is unclear.  The
  zoning administrator's certification, which the Town required respondent to
  place on the map, stated that approval of the boundary line adjustment
  "does not constitute the creation of a separate parcel of land," but
  instead "simply adjusts the physical location of the boundary of the
  adjoining parcels."  The certification suggests that the Town's interest is
  to obtain an accurate map of the property within the Town rather than to
  regulate a conveyance.  The Town's process appears far removed from
  "conveyancing."