Activities of landowner, not intent, determine whether “land disturbing activity” has taken place

by Rachel Greifenkamp

Town of Raymond v. Mary Jane Vogt and Raymond R. Vogt

(Wisconsin Court of Appeals, January 22, 2014)

The Town of Raymond, WI has an ordinance that prohibits landowners from engaging in land-disturbing construction activities that cause runoff into state waters without first obtaining a permit. Raymond and Mary Jane Vogt testified that they removed weeds and thistles, moved land in order to vertically install a large steel plate five to eight feet from the neighbor’s property line, and filled a ten-by-twenty-foot area of the ditch with gravel and multiple truckloads of dirt to enhance a drainage ditch between their property and their neighbors property.  All of this work was performed without a permit. A trial court determined this to be “land-disturbing activity” within the meaning of the term found in the Town ordinance, The trial court ordered the Vogts to allow Town agents to inspect their property and develop a remedial plan, which the court then approved and ordered the plan to be carried out at the expense of the Vogts. In all, the trial court awarded the Town $16,676 for expenditures and $45,131.50 for daily forfeitures and costs, totally nearly $52,000 to be paid by the Vogts.  The Vogts appealed.

The Town ordinance defined “land disturbing activity” as “any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or nonvegetative soil cover, that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state.”  At the trial court hearing, the town of Raymond’s engineer testified that the changes made by the Vogts restricted water flow and led to an increase in water on their neighbors property and that it reduced the amount of water flowing from the Vogts’ property into the Root River (a state waterway). The Vogts countered by saying that the activities were performed to clean and restore the existing drainage ditch, and were intended to reduce erosion. The trial court concluded – and the Court of Appeals affirmed however – that the activities of a party are what determines whether a permit is necessary to proceed. The trial court found that the Vogts performed clearing, excavating, filling, and grading on the property that changed the topography by more than a foot, and that the runoff from the Vogts’ property drained into the Root River.  The Court of Appeals concluded that the evidence sufficiently proved that the Vogts’ work constituted non-exempt land-disturbing construction activities. The holding in favor of the Town of Raymond was held by the Court of Appeals.

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