Editor’s note: This analysis of the Vermont Supreme Court’s decision In re Laberge Moto-Cross Track, 2011 VT 1 is by Elizabeth Catlin. It was first published on the SCOV Law blog.
Is this the SCOV’s annual effort to appear more sympathetic to those fun-lovin’ folks that so often appear as criminal defendants? Are they seeking to broaden their base of support among the voters? Oh wait, they aren’t elected officials…How else can we explain the enthusiasm that the SCOV has shown for backyard motocross racing in this recent reversal of the Superior Court, Environmental Division (did anyone aside from me oppose the recent court reorganization solely on the grounds that it made the court names so much more unwieldy and awkward?)?
This little gem of an “I hate my neighbors” land-use case comes from the Town of Hinesburg, where Appellants, the Laberges, own an eighteen-acre lot. The Laberges built their house on this lot and began to enjoy the great sport of motorbike riding around their property. Instead of making use of the full eighteen acres, the Laberges concentrated their riding to a one-acre area, wearing down a half-mile track through repeated hot rodding. In a spirit of environmentalism, the Laberges decided to make constructive reuse of the dirt that was left over from excavating their house lot by creating jumps and berms on their motocross track.
I’m sure at this point that most of the readers are salivating at the possibility of being neighbors with such a creative and exciting group of people as the Laberge family. And I don’t want to start a stampede to Hinesburg, but I’m guessing that at least one of the neighboring properties might be available for purchase soon. Surprisingly, the Laberges’ neighbors — the Fenwicks, whose property line is less than 50-feet away from a portion of the motocross track — seem to hate one of the very things that makes this country great (either property rights or motocross racing, take your pick) and have been on a multi-year campaign to regulate and possibly shut down the Laberge track. The Fenwicks first asked the town to enforce its noise standards against the Laberges, which the town did. Then, after the Laberges reduced their use of the track to about two days per week, for only several hours a day, the Fenwicks requested the town force the Laberges to get a zoning permit. The town declined.
The Fenwicks, perhaps driven quite mad by the incessant noise and fumes of internal combustion engines being driven at high speeds over a half-mile track right next door, appealed the town’s decision from the Development Review Board to the Superior Court, Environmental Division. The court, in a de novo trial, decided that the track was not actually prohibited by the town’s zoning regulations, but that it was a “structure” that required a zoning permit. Further, the court held that because motocross-track-use was not a specifically permitted use in the residential district in which the Laberges lived, they were also required to obtain conditional use approval. Rather than submit to this socialist stab at their property rights, the Laberges wisely appealed to the SCOV, a wise and scholarly body that respects private property rights and is constantly looking for ways to show that it understands and identifies with the plight of the every-Vermonter. Naturally, the SCOV reversed the Environmental Division.
After reciting the highly deferential standard of review given to the Environmental Division’s interpretation of zoning ordinances — the SCOV will uphold the lower court unless its interpretation is clearly erroneous, arbitrary, or capricious — the SCOV proceeded to recite its own general rules of statutory construction, in which it basically looks at the statute de novo (thereby rendering its recitation of the deferential review standard mere surplusage). From there, the SCOV considered the evidence in light of its own interpretation of the statutory language, and concluded that the motocross track cannot possibly be a “structure” as defined in the Hinesburg zoning ordinance, which defines “structure” as “anything constructed, erected, or placed and which requires a fixed location on the ground in order to be used,” followed by an including-but-not-limited-to list. As the SCOV sees it, a nice backyard half-mile motocross track is more like a patio than a tennis court, more like a driveway than a swimming pool, more like a sidewalk than a manure lagoon — in each of these examples, the Hinesburg zoning ordinance classifies the latter as a “structure” and excludes the former from the definition of “structure.” Q.E.D., a motocross track is not a structure.
To be fair, the SCOV provided a little more explanation of its thoughts on this topic. The court reasoned that all of the listed “structures” are at least semi-permanent in nature and “require the use of building materials.” By contrast, the innocent motocross track was merely created by the “incidental erosive impact of the motorbikes’ tires and the subsequent movement of dirt already located on the property.” (“Incidental”? really? I would be more inclined toward “purposeful erosive impact of the motorbikes’ tires,” but who am I to say?) Additionally, the SCOV noted that many of the structures “either pose independent health and safety risks — as with manure lagoons — or create the potential for increased vehicular traffic to and from the property, as would be the case with a mobile home.” Clearly, motocross racing doesn’t pose any kind of safety risk — and increased vehicular traffic? From motorbikes? Never!
The SCOV also considered whether the track required a zoning permit because it was a substantial change in use of the land, but reasoned that since the Laberges would not need a permit to ride their motorbikes on their own land absent the track, and the track itself was not a structure under the zoning ordinance, the creation of the track could not be a substantial change in use of the property. Consequently, the SCOV held that the track does not require a zoning permit at all. In its ruling, the SCOV analogized this case to another zoning case, In re Scheiber, 168 Vt. 534 (1998), in which it had held that a private landowner’s construction of a shooting range did not require a zoning permit. Motorbike riding on a half-mile track with jumps and berms, like shooting guns at an earthen berm, is merely an incidental recreational activity of private property owners — not the kind of municipal growth intended to be managed by zoning regulations. Live free and ride. The Fenwicks can go down to New York City if they don’t like the way we do things here.
