In Re Robinson

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as well as formal revision before publication in the Vermont Reports.
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                                No. 90-016


In re Minor Subdivision Plot                 Supreme Court
Approval #88-340 for Stanley
Robinson                                     On Appeal from
                                             Windsor Superior Court

                                             Special December Term, 1990



Ellen H. Maloney, J.

John J. Long, Jr. and C. Daniel Hershenson of Hershenson, Carter, Scott &
   McGee, Norwich, for appellant

Robert B. Buckley, Jr. and John C. Candon of Hughes, Miller & Candon,
   Norwich, for appellees


PRESENT:  Allen, C.J., Gibson, Morse and Johnson, JJ.


     JOHNSON, J.   Stanley and Bonnie Robinson, and Shepard Construction
Co., Inc., applied to the Town of Hartford Planning Commission for approval
of a four-lot minor subdivision.  Philomena Sacco, whose property is
bordered on three sides by one of the lots of the proposed subdivision,
contested the application.  The application was approved and Sacco appealed
to the Superior Court.  After a trial de novo pursuant to 24 V.S.A.
{ 4472(a), the court ordered that a minor subdivision permit be issued to
the Robinsons and Shepard Construction Co., but with a number of conditions
necessary to give effect to the Town of Hartford zoning and subdivision
regulations.  Sacco appealed to this Court, claiming that the trial court's
issuance of the permit was error because the proposed subdivision a) did not
comply with lot frontage requirements for the applicable zoning district; b)
violated a prohibition against "reserved strips," as defined by the Hartford
Subdivision Regulations; and c) did not provide safe access past Sacco's
property to the proposed lots of the subdivision.  We affirm.
     The dispute centers around the access drive to the proposed lots.  The
access drive is a 20-foot-wide by 395-foot-long strip of land that begins at
the end of Windsor Drive and continues in a northerly direction past the
westerly boundary of Sacco's property.  Prior to the proposed subdivision,
the access drive was used exclusively by the Robinson and Sacco residences.
It is paved to a few feet beyond Sacco's garage, where it then continues to
the Robinson property as a gravel road.  Under the new subdivision plan, the
drive will serve two additional houses.  The drive is intended to be part of
one of the proposed lots, Lot 003, but subject to rights of way in the other
property owners.  The drive is the only access to the proposed lots, and the
dimensions of the strip of land preclude any other use of the drive by Lot
003.
     Sacco's first claim on appeal is that proposed Lot 003 does not comply
with the width requirements of Hartford's Zoning Regulation 4-7-2, because
only twenty feet of Lot 003 has frontage on a public road.   Regulation 4-7-
2 defines lot measurements and requires that eighty per cent of the required
lot width for this residential zone feet, have frontage on a road, or one
hundred feet.  The Hartford zoning regulations also permit interior lots,
with zero street frontage, as long as there is access from a street through
private "rights-of-way" or "easements" meeting certain safety requirements.
Regulation 4-3-3.1.  The trial court correctly determined that Regulation 4-
7-2 does not logically apply to Lot 003.  But for the access drive, which
continues from the end of a public road, Lot 003 is really an interior lot
with access to the street by private road.  That Lot 003 will be accessed by
its own strip of land, rather than a right-of-way or easement, is not
inconsistent with the scheme of Hartford zoning regulations.
     Sacco further contends that the access drive is an unlawful "reserved
strip" under Section 5-4-1.3 of the Hartford Subdivision Regulations.  The
reserved-strip provision states:  "No privately owned reserved strip, except
on open space areas shall be permitted which controls access to any part of
the subdivision or to any other parcel of land from any street . . . ."
Case law in another jurisdiction indicates that so-called "reserved strips"
typically have been narrow strips of land, reserved from the major parcel
granted, with the object of limiting the accessibility of the parcel.  Koff
v. Frank, 22 Misc.2d 551, 553, 194 N.Y.S.2d 753, 756 (N.Y. Sup. Ct. 1959);
Warren v. Protano, Inc., 155 N.Y.S.2d 686, 689 (N.Y. Sup. Ct. 1956).   That
is the opposite of the case at bar.  Since all lots will have rights-of-way
over the access drive owned by Lot 003, Lot 003 cannot be said to control
access.  The Town Subdivision Regulations expressly permit minor
subdivisions, which it defines in pertinent part as having "frontage on an
existing public street or access to such street by right-of-way . . . ."  {
5-2-1.  Again, that Lot 003 will actually own the right-of-way, which it
will use along with others, does not bar the subdivision of this property.
     Finally, Sacco contends that the court's judgment is rendered void by
the inclusion in the subdivision permit of conditions that, she argues, are
vague and unenforceable.  We cannot agree.  The trial court was authorized
to issue a permit with conditions.  See In re Poole, 136 Vt. 242, 246, 388 A.2d 422, 425 (1978)("[i]t is the duty of the court in a de novo hearing to
specify in its order all the terms and conditions thereof").  The purpose of
the conditions imposed was to conform the proposed project, in all material
respects, with the intent and spirit of the Town of Hartford Subdivision
Regulations, which are intended to assure the comfort, convenience, safety,
health and welfare of its residents.  { 5-1-1.
     The conditions are not vague; they are unqualified and definite.  Those
affecting the access drive require the permit holder to improve and widen
the road, post a sign stating a 10 mph speed limit, post a warning
regarding children and pedestrians, and remove snow in winter to maintain
room for two cars to pass.
   The conditions are, moreover, enforceable.  A violation of a condition of
a subdivision permit would be a violation of the zoning ordinance itself.
Kulak v. Zoning Hearing Bd. of Bristol Township, 128 Pa. Comm. 457, ___,
563 A.2d 978, 980 (1989)(violation of a condition of a special use permit
was the equivalent of a violation of the zoning ordinance); see In re
Meaker, __ Vt. __, __, __ A.2d __, __ (1991)(Dooley, J., dissenting).  Under
24 V.S.A. {{ 4444 and 4445, the zoning administrator is authorized to bring
any appropriate action to restrain, prevent, correct or abate any use or
conduct that violates the zoning ordinances or to impose fines for such
violations.  If the administrator fails to act, interested persons may
appeal to the board of adjustment under 24 V.S.A. { 4472(a).
     Appellant expressed particular concern about the condition requiring
posting of a 10-mile-an-hour speed limit, challenging the trial court's
conclusion that the condition would make the road safe, since law
enforcement officials will have no authority to enforce a speed limit on a
private road.  We agree that permit conditions cannot insure against
unreasonable use by persons other than the permit holders.  Private access
roads are undeniably unsafe if traversed at unreasonable speeds, and law
enforcement officers, it is true, have no authority to enforce posted speed
limits on such roads.  But appellant's argument, carried to its logical
conclusion, would prohibit private access roads altogether.  We do not
believe that such a result is warranted.

     Affirmed.

                              FOR THE COURT:



                              Associate Justice