Corey Bertrand’s home security camera caught an unexpected visitor poking around his Franklin property last November: Gov. Phil Scott.
Earlier that fall, the governor had learned that state regulators were planning to force Bertrand to remove the 4,800-square-foot house he’d built in a protected wetland. Scott had asked his staff to look into the situation, but when he found himself in the neighborhood, he figured he’d check it out himself.
“The governor said, ‘I really need to see this. I need to see the so-called wetland. I need to see the house, because it’s all sort of academic at this point,'” Scott chief of staff Jason Gibbs recalled. “He came back and said, ‘It looks like it’s in a pretty dry spot.'”
Bertrand, who wasn’t expecting a gubernatorial visit, was impressed when he saw the security footage. “It’s pretty cool that he took his time to come all the way up here to look around,” the 39-year-old master electrician said.
But environmental advocates found it troubling. “I’ve never heard of a governor getting that involved,” said former Agency of Natural Resources general counsel Jon Groveman.
Even more alarming, in Groveman’s view, was what came next: As agency lawyers prepared to take Bertrand to court, Scott’s office intervened and effectively froze the enforcement action. According to Gibbs, the governor hoped to persuade the legislature to create more flexibility in the state’s environmental enforcement laws — and apply it retroactively to Bertrand’s case.
“That definitely does not send the right signal,” said Groveman, who now works for the Vermont Natural Resources Council, an environmental advocacy group. “These are bedrock laws. You build in wetlands at your own peril, and you live with the consequences.”
According to agency documents obtained through a public records request, Bertrand’s troubles began in December 2016, when a Department of Environmental Conservation enforcement officer visited his half-built home in an agricultural region of northern Vermont. The 57-acre property — a mix of hayfields, woodlands and wetlands on a hill overlooking the Lake Carmi valley — had been farmed for years before Bertrand acquired it earlier that year.
Though a previous owner had received permission from the state to subdivide the parcel and build a driveway across a small stream, that permit had long since expired — and, the DEC officer found, Bertrand had ignored its restrictions. According to internal memos, he had cleared, drained, dredged and filled more than an acre of wetland, causing sediment to flow into a tributary of Lake Carmi.
Furthermore, the officer found, Bertrand had violated a separate state wastewater permit by constructing the house 100 yards downhill of its approved site, right on the edge of a protected Class II wetland and well within a 50-foot buffer.
The records show that, up and down DEC’s chain of command, officials believed that Bertrand should be held accountable.
“From the evidence, it is clear that the owner knew that this house was being constructed in a wetland,” Watershed Management Division deputy director Mary Borg wrote in a February 2017 memo to Secretary of Natural Resources Julie Moore. “The Division supports taking an aggressive approach and [the Compliance and Enforcement Division] believes it is a strong case.”
But Moore, a political appointee who reports directly to Scott, appeared to have reservations.
“Knowing that this action will likely rise quickly to the attention of the Governor, I would appreciate the opportunity for a short meeting to ask a few clarifying questions,” she responded to Borg in an email. Moore asked her staff whether the house could stay put, but an agency lawyer advised that such an outcome “would be unprecedented and not recommended.”
By the time the agency informed Bertrand in March 2017 that he might lose his home, it was mostly complete. He, his wife, Kelly, and their four children had been living in the four-bedroom house for a week. “It was a big joke,” he said of the state’s actions.
Bertrand claimed he’d had no idea that he was building in a wetland, nor outside the permitted house site, blaming a miscommunication between a previous owner and the town. “I never knew, and the town office people never knew,” he said.
Franklin Town Clerk Lisa Larivee declined to comment, saying only that Bertrand’s dispute with the state is “not town business.”
As enforcement officials considered their options, Bertrand set about contacting state legislators in the area and enlisted them to plead his case. Three of them — Rep. Brian Savage (R-Swanton), Rep. Steve Beyor (R-Highgate Springs) and then-senator Dustin Degree — reached out to agency officials and the governor’s office on his behalf.
“It was certainly overreach by the state agencies, I feel,” Savage said. “Corey did what he was supposed to do. He thought he was in compliance with the permits.”
According to Gibbs, the governor learned about the matter not from legislators but from a weekly cabinet report Moore wrote in June 2017. Scott asked for more information and deputized two top staffers, Jaye Pershing Johnson and Brittney Wilson, to work with the agency to reach a resolution.
“They asked questions — frankly, many of the questions I asked,” Moore said. “And they asked for time to consider it before we went forward.”
The governor’s office certainly took its time. In December 2017, not long after Scott dropped by the property unannounced, agency lawyers issued a draft administrative order calling for a $36,000 fine and removal of the house. But after a monthlong public comment period, the agency never filed a final order, so the case never moved forward.
“Ultimately, we had to hit the pause button,” Gibbs said, explaining that the governor had been uncomfortable with the only two options legally available: to seek the house’s removal or to drop the case altogether. While Scott agreed with enforcement officials that Bertrand had knowingly violated the law, he thought the legislature should come up with a third option during the 2019 session that would punish offenders without bankrupting them.
“Say what you will about Mr. Bertrand’s intent, telling him to tear down his house is not an inconsequential decision,” Gibbs said. “It would very likely ruin his life.”
To a certain extent it already has, Bertrand said last week as he ambled around his backyard on a clear autumn day.
“Through all that stress, my wife ended up leaving me last November, and now I got this big house and four kids,” he said. “I mean, I spent over $14,000 in engineering fees and lawyers’ costs — and for nothing!”
A tall, broad-shouldered man with short graying hair and a close-cropped beard, Bertrand wore work pants, boots and a blue T-shirt featuring a yellow Bertrand Electric logo. He mentioned several times that if he lost his house, he would lose his business, and his three employees would lose their livelihoods. If the state forced the issue, he said, he would “just lock it up and move somewhere else,” rather than pay hundreds of thousands of dollars to relocate the house.
“It’s gonna bankrupt us,” he said. “It’s gonna make us homeless.”
According to Bertrand, he had plowed his life savings into buying the $83,000 property and building the $575,000 home, which he financed with a $400,000 mortgage.
Though Bertrand claimed he had nothing left to pay a state fine, he continues to invest in the property. As he showed off a sweeping view of bright autumn foliage, a carpenter worked on a porch off the master bedroom. “If I’m gonna be paying 14 grand a year in taxes, I want to be done,” he explained.
Bertrand pointed at a stretch of grass in his backyard that, before he’d filled it in, had been a hayfield. “Apparently, the wetland is supposed to be right here,” he said. “Which, as you can see, is very, very dry.” He added, “The old saying farmers use is, wetlands are lazy farmers who don’t take care of their fields.”
Bertrand isn’t the only one who has questioned the value of the wetland. Moore described it as “marginal.” But according to Rep. David Deen (D-Westminster), “There are no unimportant wetlands” in the Lake Carmi watershed, where farms and camps have contributed to alarming levels of phosphorous.
“Wetlands take out pollutants and nutrients and do all kinds of neat things,” said Deen, the retiring chair of the House Committee on Fish, Wildlife and Water Resources.
Bertrand hasn’t heard a word from the state in nearly a year, when settlement talks last broke down. He said he believes that Scott and Moore put a halt to the proceedings after dozens of community members and the trio of state legislators “raised a stink” about the situation. “It was, politically, making them look terrible,” Bertrand opined.
Moore denied that she’d been pressured to overrule her enforcement officers, claiming that there had been “wide disagreement at almost every level within the agency” about what to do. The secretary conceded that the records obtained by Seven Days contradict that claim, but she insisted that her staff debated it at length in meetings.
As for whether Scott had overstepped his bounds? “He’s the governor,” Moore said. “It’s his call.”
Deb Markowitz, Moore’s predecessor as secretary of natural resources, disagrees. “A governor does have the power to take a second look at a case,” she said, “but it’s bad practice for governors to dive into an agency’s business and pick out a particular case.
“As soon as you respond to a complaint by interfering in the particular matter, then the word will get out that the way to avoid the environmental regulations is to go directly to the top,” Markowitz continued. “And before you know it, you will be running ANR from the governor’s office.”
During Sal Spinosa’s 14 years as director of ANR’s enforcement division, he occasionally felt “the long reach” of the governor’s office, he said. “But in each case, I had the pleasure of working with secretaries who realized the governor could not have an overt influence over enforcement,” he added.
In one particularly notorious case, a Jericho man named Larry Westall built a house in a wetland considered important to migratory birds and muskrats, even after a permit application had been denied. He was eventually forced to remove the home. “That was enforcement working as intended,” said Spinosa, who retired in 2009.
Spinosa said he was surprised to hear that Scott was handling the Bertrand case in such a different fashion.
“The governor getting involved in this, to me, is totally out of line,” he said. “With each decision, you build a precedent, and this is a bad precedent.”
This article appears in Oct 17-23, 2018.
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Is it a good precedent to bankrupt someone and make them homeless to protect a non-existent “wetland”?
The wetland is non existent because he filled it in. The law is pretty clear on all of this.
we should not allow people to purchase wetlands! Especially, building that monstrosity- people mindlessly build these mcmansion eyesores and destroy nature in the process! Why was he allowed to fill that in? Why be surrounded by nature if you are going to destroy it? Go live in a suburb. the project shouldn’t have gotten to a completion stage! Builders have to follow permit guidelines! Just bogus and disrespect- people keep thinking, “oh, it doesn’t matter if I destroy this part of nature, it’s my land” but TOO MANY people think this way and clear cut, build and over develop- it’s a huge problem! We need to go in the reverse direction- protect, conserve wetlands and reforest. I don’t care about someone’s house who doesn’t think rules apply to him, and who
destroys wetland habitat! We have so much of this pig mentality- enough already! the gov. needs to see the big picture regarding his interference and the message he is sending!
“I need to see the so-called wetland.”
So says the man who gets his jollies riding around in a circle, belching out pointless greenhouse gasses. So called. Uh huh.
For what it’s worth, there’s a common sense difference between a priority habitat for migrating birds and an area deemed to be a wetland within acres of farm field. I don’t know the specifics of this case other than what I’ve read here, but I work in the industry and there is something, at least in Massachusetts, called a “constructed wetland.” This is pretty much as it sounds…a wetland created on purpose to provide runoff treatment. It doesn’t get registered as a protected wetland and can be modified/filled in future development. This sounds to me like what this wetland is/was…a constructed wetland before its time. To be clear, there’s no grandfather clause on something like that, and I don’t blame the ANR for enforcing the laws that are on the books, but this particular case seems to be blown out of proportion. I suggest the ANR work with Corey to agree to a replication of some sort that could, with current technology, provide better treatment than what previously existed.
It is so clear this home builder figured he could get away with this. The rest of us have to follow the law and permit regulations, ignorance is no excuse. The flashing neon sign was his spending a huge amount of money to truck thousands of yards of dirt to fill in the wetland so he could site his house in a premium spot. Living on the lake, we have a lot of neighbors who buy property and then want to violate laws that protect the lake so they can have better views or nearer access.
Fines are not enough to punish this guy for his flagrant abuse of the fragile environment of our lakes. I was planning on voting for Governor Scott because I believe he’s a person of integrity. But if he lets this greedy builder get away with dumping his home’s sewage into the lake’s ecosystem, he will forever lose my respect. And my vote.
Let’s see, if I’m forced to choose between ruining this guy’s life or ruining our beautiful state’s environment? Well, Vermont wins every single time. Builders and developers spend huge amounts of money to comply with permits. Sending the message if you build before we catch you then you get away with it? That sounds like a prescription for an onslaught of lawsuits against the state.
“Mr. Gorbachev…umm, Scott: TEAR DOWN THIS HOUSE.”
This article is precious. Where to begin…
Under Shumlin, Markowitz oversaw what Shumlin announced at a press conference about the Lowell wind project, “marching in lock step with GMP” to get the project through. This was after the ANR staff scientists raised alarms, and once Gov. Shumlin and Sec. Markowitz saw what they were doing, all the staff scientists reversed their testimony
https://vermontersforacleanenvironment.wor…
Then there’s Jon Groveman (and DEC Commissioner David Mears) who oversaw and permitted the filling of wetlands and hundreds of feet of Class A headwaters above 2500 feet. Here’s a presentation by ethical hydrogeologists who detail the problems with the permits that Groveman, as General Counsel of ANR, was responsible for: http://www.vce.org/401_Presentation.pdf and what the results are
https://vermontersforacleanenvironment.wor…
and ANR’s response (still under the Shumlin/Markowitz adminisration to VCE’s investigation
https://vermontersforacleanenvironment.wor…
Also under Shumlin, Markowitz and Groveman, the administration permitted dozens of solar projects on Class 2 wetlands. VCE filed comments http://vce.org/VCE_BartonSolar_wetlands_co… that were ignored, the project was built, and this was the result: http://vce.org/BartonSolarSpring2015.pdf
And David Deen and his committee in the House heard VCE’s investigation into the slate quarry issues that include massive decades-long filling of wetlands which you can see here: https://youtu.be/p4AKea1fBO0
The committee can be heard saying that they would like Sec. Markowitz to come in and explain why what was shown was happening. That never happened. Nothing ever happened.
I’m not playing politics here, just stating the facts. I’ve been working as an environmental advocate in Vermont for 19 years and have watched political interference in ANR by Governors Dean (here’s one example https://www.benningtonbanner.com/stories/s…) Douglas, Shumlin, and Scott. Business as usual in the not-so-green Vermont. That’s the story, not this one instance but the bigger picture of how Vermont’s green image is a sham.
Good journalism. Question remains, however, whether Christine Hallquist and Democrats offer anything better or, in fact, might be even worse? Democratic Party candidate this year is not James Ehlers. It is Christine Hallquist. And she has indicated she supports same disastrous anti-environment policies that emanated from Shumlin administration. For example, under Shumlin and legislation supported by Democrats (Tony Klein, Shap Smith, Chris Bray, etc.), Democrats abandoned 40 year bipartisan commitment to protect ridge lines. They supported filling in streams and wetlands for access roads to mountaintops, and dynamiting of mountain tops so out-of-state, multinational co’s could erect wind towers to kill bats and birds. They supported destruction of open space and total exemptions from natural resource protection zoning, including supporting industrial energy development in Act 250 classified wetlands, such as Shelburne Pond headwaters in South Burlington. When South Burlington’s Planning Commission told Shumlin’s Public Service Board they opposed this, they were ignored (as were countless other jurisdictions across Vermont).
Democrats abandoned support not only for Act 250 land use planning but for zoning that had been encouraged and supported by their own party, under Governor Kunin’s Act 200. If campaign finance donors like David Blittersdorf and Duane Peterson wanted it, Democrats supported it.
Christine Hallquist unfortunately has shown no indication she would be different from Shumlin. There were other candidates in Democratic gubernatorial primary but plurality selected the heir to Shumlin, just another pro-F35 fighter jet Chamber of Commerce Democrat, seemingly happy to do the bidding of whatever developers want. Strange and topsy turvy time in Vermont when VT GOP is more pro-environment than Democrats but it’s world we live in with current iteration of Vermont Democratic Party.
Oh, boo hoo to the criminal who bought and built a $600k house, illegally. Laws are laws. A lot are good and founded on science and careful municipal planning and ultimately the will of our electorate, and some are indeed misguided. Regardless, breaking the law because you have kids and like nice things and just felt like it, has never been much of a defense. But we all have those urges. Way too big of a project to credibly cry ignorance. Which in any case, isnt even a legal defense against most infractions.
A little birdie said to send the Governor down to harbor road in shelburne because the Davis’s are tearing up wetlands
The article says that the Governor thought a dredge and fill site looked “pretty dry.”
Whoa. That’s what dredging and filling _does_. Its purpose is to create dry ground, usually to support construction.
And this is a drought year.
IMHO, the Governor should leave this decision to those who have the skills and knowledge to make it.
The thing is, he didn’t know he was building in wetlands. As someone who knows Corey Bertrand and has been at his side the whole time, he would know if he was building on wetlands. The land before he started building was were cows would graze, and it was very dry. You people also need to see that if Corey loses the case, his children and him would be homeless, he would loose so much money, he would go bankrupt, and lose his buisness, which he has workers with families who rely on him.