Court: Supreme Court of Vermont; September 3, 2004; Vermont; State Supreme Court
The appeal concerns whether Steven Brooks, a licensed land surveyor, was engaged in land surveying when he created a map for a boundary line adjustment based on two deeds and a prior survey. The superior court had reinstated the Board of Land Surveyors' decision that Brooks failed to meet minimum survey standards, specifically Rule 5.4(A), by not preparing a survey abstract or conducting necessary research or field investigations.
In 1999, Manson Surdam sought Brooks' assistance to correct a boundary dispute from a 1988 property sale that lacked subdivision approval. Town officials indicated that Brooks could resolve the issue by creating a map that combined elements from the original deed, the 1988 deed, and an existing survey by John Marsh. Due to cost concerns, Surdam opted for the map over a full survey.
Brooks created the map titled "Boundary Line Adjustment," signed it, and included disclaimers indicating it was not a survey and lacked field research. He noted a significant flaw in the Marsh survey that left the property description incomplete but did not correct it, instead drawing an arbitrary line to close the description. This issue was documented in a brief note on the map.
The map was filed in land records, though it is unclear by whom. A complaint was later filed with the Board by another land surveyor, leading to charges against Brooks for violating 26 V.S.A. 2598(b)(4) and Rule 5.4(A)(1) for not preparing a survey abstract, which is mandated by Rule 5.3(J). It is acknowledged that Brooks did not create a survey abstract for the Surdam map.
After a hearing, the Board found that a map prepared by the respondent could be mistaken for a survey, despite a disclaimer. The Board did not address the respondent’s claim that he was not engaged in land surveying during the map's preparation. It concluded that the respondent engaged in unprofessional conduct, emphasizing that a licensed land surveyor cannot disregard Board regulations. The map was titled, signed, sealed, and filed like a survey, intended to represent a property transfer, and was submitted to the Williston Town Land Records, where it could mislead town officials and the public. The Board noted the respondent should have informed his client and town officials about the limitations of his capabilities rather than merely following their requests. Consequently, the Board conditioned the retention of the respondent's license on completing a full survey within eight months.
The respondent appealed, but the appellate officer reversed the Board’s decision, stating that the Board did not explicitly find he engaged in land surveying. The State then appealed, and the superior court reinstated the Board's decision, supporting it with deference to the Board’s findings. The court concluded that the respondent had indeed engaged in land surveying as defined in 26 V.S.A. 2502(3), and was therefore subject to Rule 5.4(A)(1). It categorized the issue as a mixed question of law and fact, particularly noting that the map constituted a 'survey plat' under 27 V.S.A. 1403(b). The court highlighted that the respondent's work represented an unpermitted conveyance, and even with disclosed limitations, it did not meet professional standards, qualifying as 'land surveying' according to statutory definitions.
The appeal centers on whether the respondent engaged in land surveying when preparing a map. The review standard allows affirmation of the Board's findings if supported by substantial evidence and rationally derived conclusions based on legal interpretation. In this case, the facts are undisputed, focusing on a legal question, which typically merits deference to administrative conclusions. However, additional deference is deemed unnecessary here since the dispute is jurisdictional and the Board lacks special expertise.
Land surveying is defined in statute as activities related to property boundary measurement and documentation for specific purposes, including preparing descriptions for conveyancing. The respondent argues that the map he created was not for any of these purposes. The superior court and the State assert that it falls under the third statutory purpose. However, this interpretation is viewed as overly broad. Although the town required the map for subdivision processes, it did not necessitate a survey, and the conveyance relied on another surveyor's work.
Consequently, the map did not fulfill the statutory definition of land surveying because it was prepared solely for subdivision permit acquisition, not for conveyancing. Additionally, the statute prohibits unlicensed land surveying but allows for the preparation of subdivision proposals, indicating a legislative intent that such proposals do not constitute land surveying. Thus, the preparation of the map by the respondent should not be classified as land surveying under the statute.
In 2003, the Legislature revised the definition of land surveying to encompass activities related to the division, subdivision, or consolidation of land, and removed the exclusion for preparing subdivision proposals. The updated definition explicitly includes 'mapping,' indicating that the respondent's actions fall within the current statute. Legislative amendments are presumed to alter the law unless clear indications suggest otherwise; there is no evidence here to imply a mere clarification. The amendments, linked to bill H. 449, aimed to adjust regulations for land surveyors and modify requirements for regulated professions.
The decision clarifies that the issues under consideration do not involve whether the respondent's map accurately represented the Marsh survey. The respondent is accused of creating an incomplete survey, not an inaccurate one, and the errors in the Marsh survey are deemed irrelevant to the charges against him. The State's alternative theory connecting the errors to the respondent's actions is rejected, as the boundaries were not established, and determining the area was not the map's purpose.
The Board emphasized consumer protection by expressing concerns that the respondent’s map could be mistaken for a survey due to its title, signature, and seal. However, these elements were required by statute irrespective of whether the document was a survey. The Board's rationale does not substantiate the claim of unprofessional conduct against the respondent.
Two statutes are central to the decisions made by the Board and the superior court. The Board indicated that a surveyor’s signature and seal on a document closely resembling a survey plat should carry weight. However, the respondent’s signature and seal were mandated by 26 V.S.A. 2596(a), which requires licensed land surveyors to use a personal seal and include a certification statement detailing the survey's basis on all completed documents before delivery or filing. The respondent's actions complied with this statute, as he affixed his signature, seal, and an explanatory statement, demonstrating adherence to the law and clarifying the document's nature.
The Board recognized that, aside from notes in the upper-left corner, the document is a survey but downplayed the significance of those notes. The statute’s requirement for surveys to describe the basis of the work supports the respondent’s position, as the public is expected to refer to the certification for understanding the map. The Board’s attribution of weight to the seal and signature is rejected; their presence, along with explanatory notes, indicates compliance.
The superior court cited 27 V.S.A. 1403(b), suggesting the map contained necessary elements of a survey plat, yet there is no evidence it was filed per the land plats chapter or intended to comply with it. Key requirements pertain to document form, and the requirement for a certification of conformity is not applicable to subdivision approval plats, as clarified in 27 V.S.A. 1404(b). The absence of such certification on the respondent’s map means it cannot be classified as a land survey.
The charge of unprofessional conduct against the respondent is dismissed. The Board acknowledged an amendment to 2598(b)(4) that altered the actions deemed unprofessional, noting that the relevant violation was actually 3 V.S.A. 129a(a)(3), which the respondent accepted without contest. Rule 5.4(A) outlines minimum requirements for land surveyors, including conducting research and field investigations, preparing survey abstracts, analyzing record evidence, and obtaining necessary parol evidence to determine property boundaries.
Search for monuments and physical evidence that determine property corners and boundaries; such evidence must remain undisturbed. Record a detailed description of any physical evidence found, including its materials, size, shape, identifying marks, position, and stability. Measurements must be taken to establish the location of relevant physical evidence, with all measurements and relevant data documented. A licensed land surveyor is defined as a professional specialized in land measurement, educated in mathematics, physical sciences, and real property law, actively engaged in land surveying. Land surveying includes services such as record research, measurements, evidence analysis, mapping, and expert consultation related to property lines, boundary markers, land divisions, and graphic document preparation. The nature of the permit required by Surdam is uncertain. The zoning administrator's certification indicated that the boundary line adjustment does not create a separate parcel, merely adjusting boundaries of adjacent parcels, reflecting the town's interest in accurate mapping rather than regulating conveyance. The town's process does not directly relate to conveyancing.
