Schwarzkopf 4-Lot Subdivision

APR ~~€6 2011 STATE OF VERMONT - VERM'CJN“T ’ SUPEFUOR COUF|T SUPERIOR COURT-ENVIRONMENTAL DIVISIOHNV|RGNMENTAL DMS¢ON } In re Schwarzkopf 4-Lot Subdivision } Docket No. 94-6-10 Vtec Conditional Use Application } {Appeal from Bennington Village (Appeal of Schwarzkopf) } Planning Com. determination) } Amended Judgment Order1 ’I`his appeal concerns the application by Donald S. and Margar.et O’Neil Schwarzl<:opf (“Applicants”) for a permit to subdivide their property at 37 Monument Avenue in the Village of Old Bennington (“Village”) into four lots. No development proposals for the to-be-ereated lots have been suggested in the pending application ’l`he Village of Old Bennington Planning Commission (“Pia'n'ning Commission”) approved the Schwarzkopf subdivision application, subject to six conditions,. including that “[n]o trees_, or other existing foliage, shall be removed nom those areas outside of the building envelopes shown for the subdivided parcels, on the subdivision plan” submitted With the application ln re Schwarzkopf 4~Lot Subdivision Application (#09- §_1, Findings of Fact, Conolusions of Law and Decision, at 3, 1§ 3(¢) (Vill. of Old `Benningt_on Planning Comr_n’n M_ay` 2_6, 2010) (‘.‘PC Decision”). Applicant thereafter appealed the PC Decision to this CouI-t, specifically challenging the constitutionality and appropriateness of Condition v3(<:).

Applicants filed their Statenient of Questions vvith the Court on dun_e 16, 20l0. ’i`heir ,Statem’ent contains two Questions: the first Question challenges Condition 3(¢), quoted above-; the second Question challenges Condition 3(£) from the PC Decision.

Through the parties’ valiant efforts at resolution through negotiation, the Village agreed that any approval by this Court could omit the challenged Condition 3'(t}'.

Based upon this representation, the Court` issued its Entry Orcler of Deceniber 14, _2010, granting judgment in Applicants’ favor and VGIDING Condition 3(£) from the PC Decision. _ 'l`he `Court conducted a site visit on January 14, 2010. Present at the site visit Was Mr. Sehwarzl<o};)f,'2 'Village attorney Robert E. Woolmington, the Village Zonin_g'

All evidence admitted at trial pertained to the sole remaining legal issue on appeal; Whether the subdivision regulation upon Which Condition 3(c) is based is so vague as to be constitutionally iniirin, and Whether Condition 3(<:) is appropriate to impose upon the proposed subdivision Once all parties present completed their presentation - of evidence, the Court conducted a brief lrecess to complete its deliberations and conduct some additional legal research.

Thereafter, the Court rendered its Findings of Fact on the record, addressing all factual issues remaining in dispute in this appeal. Based upon those Factual 'Findings, the Court announced its legal determinations, Which are summarized as follows: Any determination of`Whether a municipal land use regulation is so vague as to be constitutionally infirm should not read the challenged provision in isolation, but rather as part of all applicable regulations ln re Pierce Subdivision Application, 2008 VT 100 11 20, 184 Vt. 365 {courts must “uphold [land use] standards even if they are general and Will look to the entire ordinance,- not just the challenged subsection, to determine the standard to be applied.”) {oitations omitted). 'l`he Village of Old Bennington Subdivision Regulations {“Regulations”) §2.07 directs that “[t}rees existing on lots shall be preserved Wherever feasible;,” Based upon this Regulation, the Planning' C'omrnissi'on imposed Condition 3('_€)~, Which Applicants challenge by their Question l.

We initially shared Applicants’ concern of how to properly define “Where feasible,” but, upon examining the remainder oi` the Village’s land use regulations, conclude that “feasibility” relates to the practicality of preserving the existing trees. _The Village has determined, through its land use regulations, that trees and other natural landscaping are important contributors to the character of the Village in general and the surrounding neighborhood in particular. See Village of Old

Bennington Zoning Bylaws (“Bylavvs”) § 90 {.concerning the purpose of design review standards) and § 95 (concerning the design review standards, including standards found in Bylaws § 95(1~"`) requiring “reasonable amounts oi` plantings, landscaping2 and screening With particular emphasis on trees, as required to maintain and improve the visual quality of the Village.”).

Read in context With the stated purposes, criteria, and standards found in both the Regulations and Bylavvs, Regulations § 2.07 allows a subdivider to clear his or her property of dead or dying trees and underbrush, so as to preserve its attractiveness and viability for use, but limits tree cutting “where feasible,” so as to preserve the existing trees until a development plan is submitted and approved for the subdivided lots. Once development plans are created for each subdivided lot, the preserved trees can be incorporated into the development in away that is in harmony with the historic qualities of the Village as required under the Regulations and Bylaws. Based upon this reasoning, we DECLINE to adopt Applicants’ claim; we hold that Regulation § 2.07 is not so vague as to be unconstitutional _ Base‘d upon the evidence presented at the de novo merits hearing, we conclude that Regulation § 2.07 imposes an obligation upon Applicants,v as a condition of the ~ approval of their subdivision application, to preserve the trees on each of the four subdivided lots, where feasible_, so as to preserve and contribute to the character of the Village and neighborhood settings in connection vdth this particular application and the neighborhood that surrounds the subdivision7 we lind that it is feasible to preserve trees along the exterior lot boundaries and outside of the proposed building envelopes, and to only restrict the cutting of trees that are at least six inches in diameter at breast height (“DBH”') and are not dead or dying. W'e conclude that Applicants should also be allowed to cut trees within the easements on their property that are to 'beused to construct and maintain driveways and underground utility lines, since it Would not be feasible to require preservation of these trees, The preservation of the identified trees Will allow them to be included in any landscaping plan that may be part of any future development approval.*’f 'l`o effectuate this legal determination, We impose the following condition upon our approval under Regulations § 2.07:5

Applicants and their successors and assigns shall not cut trees that are at least 6” DBH and more than twenty feet away from the building envelope/ setback area on each lot, as depicted on Applicants" revised subdivision plan, admitted at the March 4, 201 l trial as Exhibit 6 (a copy of Which is attached to this Judginent Order).

This cutting restriction shall also prohibit the cutting oi any maple trees, 6” DBH or greater, along the easterly boundary of Lot l near and parallel to Monunient Avenue, even if such trees are within twenty feet of the building envelope This cutting restriction shall not apply to any dead or dying trees, or to trees standing at an angle of less than 60 ° from the level plane of its base, and shall in no event apply to brush or other vegetation inside or outside of the building envelope/ setback for each lot.

This cutting restriction shall also not apply to the cutting of trees or the removal of ' vegetation Where such trees and vegetation are on the permanent reciprocal easement for shared access and underground utilities, as shown on Exhibit 6.

This cutting restriction shall remain in full force and eiiec_t until superseded by a landscaping plan approved by the appropriate municipal panel or appellate court These proceedings are remanded to the Village of Old Bennington Zoning Administrator, solely for the purpose of completing the ministerial act of recording the approval and revised conditions that this Judgrnent Order memorializes.~ '.i`he approval ` and conditions issued by the Village of Old Bennington Planning Cominission that are not disturbed by this Judgin'ent Order or the Court’s prior Entry Order of December 14, 2010 shall remain in full force and effect This completes the current proceedings before this Court.

Done at Newfane; Verrnont, this oth day of April, 2011. <\?s<tii ’i`homas §§Durkin, Environmental dudge

(holding that a subdivision permit does not create a vested right for a developer in the zoning permit process since “suhdi`vision review is not intended to police prospective uses of the subdivided lots”) The condition stated here substitutes for Condition 3(c) from the P_C Decision. le light of the replacement Condition stated here, Condition 3(c) from the PC Decision is hereby VOIDED §§

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