 

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'

 

1 This Amended ludgment Or_der is intended ito supersede our ludg‘meiit Order of Mareh 9,` .ZOll. Our sole purpose
in issuing this Amended Judgment Order is to revise pages 3 and 4 of the previously issued decision to incorporate
our legal determinations pertaining to trees Within the driveway and utilities easements on the Sehwarzkopfs"
property We announced these determinations at trial but neglected to include them in our original Judgment Oder.

l

Adininistrator, and interested Persons Peter L. Stromgren, Patricia Lynn Green, and
Susan Wright.3

Several other motions vvere addressed by the Court prior to trial, all concerning
either party status or discovery requests 'l`hereafter, the Court conducted a imerits
hearing on Friday, March 4, 2011 at the Bennington Superior Court~_Civil Division.
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

 

2 Co-Applicant Margaret O’Neil Schwarzkopf and Applicants’ attorney David.Grayck did not attend the site visit
3 Peter Green also appears as an lnterested Person in this appeal, but he did not attend the site visit `

2

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

 

4 Tlie PC Decision, as modified by this ludgmem Order, only authorizes the subdivision of the property and does
not authorize any development of the subdivided lots, See ln re Ta& Com'ers Assoc. ,l7`l Vt. 135, 141 (2000)

 

3

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”)

5 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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