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STATE OF VERMONT

SUPER.`IOR COURT--ENV'IRONMENTAL DIVISIOEUPEF<§GR const
} ENWHSNMEN?AL misses

_In re Schwai'zkopf 4-Lot .Subdivision '}` v ‘Docket No. 194-6-10 Vtec
Conditional Use Applicatioii ` v v} (Appeai from Bennington Village
(Appeal of_Schwarzk'opi) } ' ~_ ?lan_.n,ing Com. determination}

. . } . _ .

_ Judgm'ent 01de '

This appeal concerns the apphcation by Donald S. and Maigaret O’Nei1 -'
Schwarzkopf (“Apphcants’ ’) for a permit to subdivide their property at 37 Monument
~ Avenue in the \_/'1113ge of Old Bennington (“V1113ge”) into four 10_ts. No development
proposals for the to-be-created lots have been suggested in the pending application

T,he V1113ge Of Old Bennington Planning Corninission (“Plannirig Commission”)
approved the Schwarzkopf subdivision app11c3t1011, subject to six eonditions, including
that “[n ]0 trees, or other existing foh`age sh311 be removed from those areas outside of
the building envelopes shown for the subdivided parcels, on the subdivision pian”
submitted with the application 111 re S_chwarzkopf 4- Lot Subdivision App}icatiori (#09-
w_6_1,1?`1111111'1gs of Faot,Cone1usions of Lavv and Decision, at 3,.1{ 3(1: ) (V111. of Old
Bennington Plannin_g Coinm’n May 26, 2010) (“PC_ Decision” ) Applican_t thereafter '
appealed the PC Decision to this Court- spec111c311y challenging the constitution311ty 1
and appropriateness of Condition 3(1:.)

App]icants filed their Statement of Questions With the Coiii‘t on June 16, 2010
v The11 Statement_£contains two Question_s: the iii‘st Question challenges Condition 3(1: c),`_
quoted above; the second Question challenges Condition 3(1) from the PCt Dec`ision.
Through the parties valiant efforts at resoiution through negotiation, the V1113ge
agreed that any approved by this Couit could omit the ch311_enged Condition 3(1). g
Based upon this representation, the Court issued its Entry Orde1 of Deceni_beij 14, 5
l 2010, granting judgmentin Applicants’ favor and VOIDING Condition 3(1) froin the PC
v Decision n t t

The Court conducted a~ site visit on Januaiy 14, 2010P1esent at the site visit
Was Mr. Sohwai‘zkopf,l Village attorney Robert E. Wookningto`n, the Vi]lage Zoning

 

l Co-Applicaiit_Ma:rgaret O’Neil S'chwarzk_opf and App]icants’ attorney David Grayck did not attend the site visit

vAdrninistrator, and lnterested Persons Peter L. Strorngren, Patricia Lynn Green, and
l Susan Wright.2 ` .

Several other pretrial motions Were addressed by the Court prior to trial, all`
concerning either party status or discovery requests Thereafter, the Court conducted
a merits 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(<: ) is based is so `
vague as t_o be _constitutionally infirm,' and Whether Condition 3(c) is appropriate to
impose upon the ~-prop_osed subdivision Once all parties present completed their .
presentation of evidence _the Court conducted a brief recess to complete its l
deliberations and conduct some additional legal research. 7 l

Thereai°ter, 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 ash
foiiows _ _ _ _ . '

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 l
rather as part ot` all applicable regulations In re Pierce Subdivision Application, 2008
V’l` 100 '-1] 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. ”) (citations omitted)

The 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 Commissio_n imposed Condition ~3(c), '>Which Applicants `
challenge by their Question l 7 ` l ’- l ` v

We initially shared Applicants’ concern of how to properly define “Where _`
feasible,” but, upon examining the remainder of 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 particulars See Village of .Old.,

Bennington Zoning Byla_Ws (“Bylaws_) § 90 (concerning the purpose of design review

 

' - 2 Peter Green also appears as an Interested Persoii in this appeal, but he did not attend the site visit

standards) and §95 (concerning the design review standards, including standards
found in Bylaws § 95(F)_ requiring “reasonable amounts of.plantings, landscaping, and '
screening with particular emphasis on trees, as required to maintain and improve the
visual quality of the Village. ”.} l v

Read in context with the stated purposes, criteria, and standards found 111 both
the Regulations_and Bylaws, 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 a way that is in harmony with the historic '

` qualities of the 1:Village as required under the Regulations and Bylaws. Based upon
this reasoning, ~`we DECLINE.to adopt Applican_ts’ claim; we hold that Regulation
§ 2.07 is not so_ vague as to be unconstitutional.~ y l `

Based upon the evidence presented at the de novo merits hearing, we conclude
that Regulation § 2 07 imposes an obligation upon Applicants, as a condition of the
approval of their subdivision application, to preserve the trees on each of the four
subdivided lots, §vhere feasible, so as to preserve and contribute to the character of the
Villa_ge and neighborhood settings In' connection with this particular application and
the»neighborhood that surrounds the’subdivision, 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 (“QBH”) and are not dead or dying. `The preservation of these identified
trees will allow them to be included in any landscaping plan that_may he part of any

, future development .approval.3 'l`o effectuate this legal determination, we impose the ,
following condition upon our approval under Regulations § 2. 07: 4

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’

 

3 'llie PC Decision, eis modified by this ludgrnerit Order, only authorizes the subdivision of the property and does
riot authorize any development of the subdivided lots. See 111 re Taft Coniers Assoc l7l Vt.135,l4l (2000)

 

(holding that a subdivision permit does not create a vested right for a developer 111 the zoning permit process, since ~

» ‘subdivi'sion review is` not intended to police prospective uses of the subdivided lots”)

4 The condition stated here substitutes for Coiiditiori 3(<:) from the PC Decision. ln light of the replacement
Coiiditioii stated here, Condition 3(0) from the PC Decision _is hereby VOIDED.

revised Subdivision pian, admitted ai~rhe March 4-,' 2011 mai as ambit
v6 (a_ copy of which is attached to_ this Judgment Order). - '

This cutting restriction shall also prohibit the cutting of any maple

tre.,es 6” _DBH or greater, along the easterly boundary of Lot l near and

- parallel to Monument 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 remain in full force and effect until
superseded by a landscaping plan approved by the appropriate '
municipal panel or appellate court.

4 These proceedings are remanded to the _Village of Old Bennington Zoni`ng
Administrator, solely for the purpose of completing the ministerial act of recording the
approval and revised conditions that this Judgrnent Order memorializes The approval .
and conditions issued by the Village of Old Bennington Planning Commission that are
not disturbed by this Judgment Order shall remain in full force and effect

This completes the current proceedings before this Court.

Done at herlin, Vermont, thisch day of March, 201 l.

'\~o 1-(_¢_¢

Thomas § Durkin, Environmental Judge '

     

 

 

 

 

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