Penalties Did Not Violate Due Process: Fid-Bau Portal

Penalties Did Not Violate Due Process

Frank Irish is a farmer with property in South Burlington, Vermont. This dispute involved a 26‐acre (10‐ha) parcel of the farm. In the middle of the parcel is a wetland demarcated on the National Wetland Inventory maps. The Irish Development Corp. applied to the city for a 48‐lot subdivision for the property. A state wetlands coordinator visited the site and told the owner that the site contained significant wetlands requiring a conditional use determination by the state agency secretary before any development could occur. Later, Irish hired a contractor to excavate a drainage ditch along two boundaries of the parcel to intercept water draining onto the land from an existing water supply line. On a subsequent visit, the wetlands coordinator found substantial erosion in the ditch that was causing a continual discharge of silt into a nearby brook. Irish received two zoning violation notices from the city. The state also sent a notice of violation. Later, the state issued an order finding Irish violated the Wetland Rules. A court imposed penalties on Irish. He appealed. Irish argued that the Vermont Wetland Rules failed to provide sufficient notice that the portion of his property was a significant wetland. The court said the Wetland Rules were sufficient to put Irish on reasonable notice of the existence of significant wetland areas and the possibility that the planned excavation might require environmental review and approval. Although the Wetland Rules did not define the precise boundaries of the wetland areas, the state clearly put him on notice of the existence of those areas, offered its administrative expertise and advice to clarify the precise boundaries, and delineated methods to identify those areas. Thus, the imposition of civil penalties did not violate due process.