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Home arrow Archives   The American Surveyor     

Vantage Point: Villain or Victim? Print E-mail
Written by Wendy Lathrop, LS, CFM   
Thursday, 26 July 2007

A 1.142Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

Like many, here is a story with two interpretations of the facts.

In 1956, John Pozsgai escaped Hungary's oppressive government and emigrated to freedom in America, settling in Morrisville, a small town in southeastern Pennsylvania.

In 1986, while considering purchase of an adjoining 14-acre site to expand his truck repair business, Pozsgai hired an engineer to examine the suitability of the site for constructing a 12,500 square-foot garage. The project would require a significant amount of filling, and in December of 1986, the consultant advised Pozsgai by letter that "Based upon this investigation, it is my professional opinion that the entire site meets the criteria set forth by the Army Corps of Engineers as `wetlands.' This is based upon soils, hydrology, and vegetation... Please be advised that any further development that might be considered on this site would have to be approved and reviewed by the Army Corps of Engineers, and it has been our experience in the past that the Corps is most reluctant to issue permits for sites that have conditions such as these."

Dissatisfied, Pozsgai hired another firm to evaluate the site, and then a third, both yielding the same assessment of restrictive wetland conditions and need for a Corps permit for any construction.

Reports in hand, Pozsgai renegotiated his contract to purchase the site, from $175,000 contingent upon Pozsgai's ability to secure a building permit for his proposed garage, down to $143,000 "as is" with no contingencies. The site became his on June 19, 1987.

However, shortly before he took title, the Army Corps of Engineers "received information" of possible illegal filling, and in April of 1987 visited and issued Pozsgai a warning, both by phone and while on site. That August, the seller of the property told the Corps that it was not he but Pozsgai who had been filling. The next month, the Corps issued a "cease and desist" order to Pozsgai. During each of two more monthly visits, the Corps found more fill. Finally, in December, a second "cease and desist" order contained two alternative resolutions: either remove all the fill, or submit a Water Quality Certification from Pennsylvania's Department of Environmental Protection.

In May of 1988, several hundred additional truckloads of fill were observed being dumped on site, and in August, after a neighbor complained about the ongoing fill activities flooding his lot, the Army Corps installed a video camera on that neighbor's property, filming an additional 25 truckloads being dumped the following week. Meanwhile, the Corps initiated a lawsuit against Pozsgai for failing to observe the cease and desist orders. By September, the federal district court issued a temporary restraining order and injunction against Pozsgai and his filling operations. In the December trial, he was found guilty on 40 charges of non-permitted discharge into wetlands, resulting in a three-year prison term, five years of probation, and $200,000 in fines ($5000 per count). Although the fine was later reduced to $5000, Pozsgai eventually served time in the federal minimum security prison at Allenwood, Pennsylvania.

In January 1990, the court issued a permanent injunction against Pozsgai, finding him in contempt of court for allowing two New Jersey hauling companies to dispose of fill, dirt, bricks, concrete, and stone in wetlands. Both haulers were also found liable; no one had a permit to discharge fill into the wetlands. In denying Pozsgai's request for a reduction of the sentence against him, the court reiterated in its March 1991 memorandum the prior court's statement that "it's hard to visualize a more stubborn violator of the laws that were designed to protect the environment."

Pozsgai petitioned for a new trial, claiming that wetlands were not protected "waters of the United States" under the jurisdiction of the Clean Water Act (CWA), because the Pennsylvania Canal into which the former (bulldozed out) stream on his land had emptied was neither used in interstate commerce nor navigable. He also claimed that the material placed in the wetlands on his property did not constitute a "discharge of pollutants into water", because the term "wetlands" does not appear in the CWA; therefore "wetlands" are not "water". Besides, he claimed, "fill" did not constitute a "pollutant". Finally, while admitting he had never acquired the state's Water Quality Certification requested by the Corps, he claimed to need only a Nationwide Permit #26. The court's June 1991 memorandum and order denied reconsideration or vacation of its January opinion.

Next the defendant tried to convince the court that the contractors (who already had paid their fines) should be required to remove the fill, and that he should have control over the restoration plan. Unsurprisingly, a February 1992 denial was confirmed by the U.S. Court of Appeals in June 1993.

While all this was occurring, private rights groups around the country noticed Pozsgai's plight and began publishing manifestos proclaiming him a victim whom the government was trying to make an example of while infringing upon his personal rights.

Finally, in March of this year, Pozsgai exhausted his legal recourses when he failed to evade the contempt charges by relying on the 2006 Rapanos v. United States decision (voiding penalties against Rapanos for filling wetlands). Environmentalists hailed the end of the line.

Here is the other side of the story, presented by Pozsgai's daughter in her testimony before the House Committee on Government Reform in October of 2000, in her unsuccessful petition for a presidential pardon.

The 14-acre site contained a stormwater drainage system dating from 1936, with a ditch that Morrisville presumably had shirked responsibility for maintaining. The result was flooding of the road and the Pozsgais' basement for twenty years, primarily due to the illegally dumped tires (about a thousand) on the lot, which he was only trying to clean up. Apparently her immigrant father did not comprehend the notices he received, while others were never delivered to him but instead to his (incompetent and intoxicated) lawyer. His misunderstanding was such that he interpreted the Army Corps' discussion of "mitigation" as a request for a bribe, which he reported to the FBI. Pozsgai's daughter testified that her father continued to receive notices of violations even after the Corps verbally confirmed that they saw no new violations.

Although some might question her account as biased, Pozsgai's daughter stated that the Army Corps and EPA should each explain their permitting procedures in simpler terms, that they should not be able to diminish a property's value by declaring it "wetlands" without compensating its owner, and that the two agencies should agree on the definition of "wetlands". She also recommended creating an independent citizens' ombudsman office with administrative authority to overrule decisions of the Army Corps and EPA regarding section 404(B) of the Clean Water Act.

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

A 1.142Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

 

 
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