Saturday, January 29, 2011

SCOV Unanimously Embraces Home Moto-Cross Tracks

by Elizabeth Catlin

In re Laberge Moto-Cross Track, 2011 VT 1 (mem.).

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.


  1. Wow! What a useless, arrogant, sarcastic and hateful piece from the writer, Ms. Catlin. Why do you hate Vermont working people and their children? Yes, we get it, you don't like motorcycles, snowmobiles, cars, chainsaws, etc.

    As much as you obviously cannot stand it, property rights still exist in Vermont. This case is a good example of the Court realizing that family recreation does not require a zoning permit. This is probably confusing to you but read a few land use cases and you might get the idea.

    Next time, how about a little more cogent legal analysis and not so much of a showcase of your superior and elitist attitiude?

  2. Hi Anonymous.

    You must be new here.

    You make no bones about your disagreement with this piece, and your language makes clear that you feel strongly about your position and took offense to Betsy's tone. But keep a couple of things in mind.

    First, we tend to write our pieces with our tongues firmly in cheek. Check our masthead, we are here to entertain and lampoon as well as inform. So don't take everything we say so seriously. I think Betsy was expressing the surprise that many of us in the area of land use law felt when reading this decision, namely that it seemed like a shift from the SCOV's prior jurisprudence and a pretty big exception to what we as attorneys expect to be covered by zoning bylaws and permits. You may have felt the tone was too catty, and that is a fair criticism, but it is one of tone and subjective response more than substance.

    Second, I do not think it is a fair criticism of either Betsy or her summary to characterize it as anti-working people or their children. I have represented (or represented businesses being challenged by)enough working Vermonters to know that opposition to a perceived or actual zoning issue knows no socio-economic bounds. Plenty of good, salt-of-the-earth people oppose their neighbors' use when they feel like it interferes with their private enjoyment. After four years on the Montpelier DRB, I can tell you that if you think only elites or "superior" types oppose zoning permits or seek enforcement actions, then you may want to spend some time watching your local DRB. In my experience, zoning permits in Montpelier have been opposed by individuals of all types of political and social stripes. And this is in Montpelier! Our population is made up of something like 83% elite/superior types. A friend of mine who used to do planning in Barre, though, tells me that opposition in that City was no less or vigorous simply because of the different demographics.

    (Continued in next post)

  3. (Continued from last post)

    Third, I would strongly urge you and everyone else to avoid ad hominem (personal) attacks on either contributors or other commentators. This is because they are often untrue (Betsy is a born and bred Vermonter hailing from the farmlands of Orange County). It also undercuts and weakens your argument. You make several salient points, but I had to read through your comments three times to bring them out because I kept getting distracted by your rhetoric.

    In logic ad hominem is know as a fallacy because it makes the statements under scrutiny neither more nor less true. For example, if I said, "we need more industry in Vermont because that creates jobs, and jobs are what we need right now," and someone responded, "no we don't you corporate hack! What would you know about industry, you don't brush your teeth everyday!" My statement may or may not be true, and it may not even be logical (for the record it is), but my critic's statements have done nothing to show others any weaknesses or faults in my position. Who cares if I am a "corporate hack" or if I do not brush my teeth everyday. Even if those things are true, they do not affect either the truth or logic of my argument, and unrebutted, it stands.

    When people talk about civility, they often confuse the concept. Civility does not mean that we disagree less or that we abandon our beliefs, but rather that we employ the tools that have been around for thousands of years to effectively engage and persuade others of the righteousness of our position and the flaws in our opponent's. This means engaging the substance and form of our opponent's positions and either showing their inherent weaknesses or raising counter-arguments that dispute or call the positions into question. The Greeks called this the art of rhetoric. We call it civil discourse.

    Finally, when I started this blog, I enabled the comments because it was my hope that people could use this section to begin a conversation and explore some of the legal issues raised in a particular case or summary. People can post anonymously because some of us have firms or public reputations that may not allow us to speak as freely on these issues as we could if our names were removed. (Lawyers are also not immune to the inverse fallacy of ad hominem, which is ad verecundiam---the fallacy of appealing to authority---so it is nice to allow some to press their positions without relying on their reputation). The anonymous function, however, must be used wisely, and I would ask you as well as everyone else reading to keep this in mind.

    That said, welcome to SCOV Law, and thank you for joining the conversation. As an old lifeguard, consider this the first whistle asking you not to run on the deck, but also an invitation to jump into the pool.



  4. Thank you for your comment, Anonymous, I will certainly take your suggestions under advisement. I'm sorry that you took the blog entry as an attack on all users of engines, it was not meant that way. I believe that if you read other SCOV Law blog entries, you will see that many of my fellow SCOV-bloggers poke fun at all kinds of different litigants. The blog is intended to initiate some discussion of Supreme Court decisions, and one of the ways that some of us try to get the discussion going is to say things that will provoke people to respond. Clearly, this blog entry was provocative enough for you...and possibly a bit too provocative. As I said, I will take your comments under advisement.

  5. from a different anonymous:
    I agree with my anonymous sister. Way too much snark in this piece. The author eclipses the issue and the (correct) ruling by SCOV: people don't - and shouldn't - need a zoning permit to ride their two-wheelers around in their own fields.
    Sass, unlike alcohol, is best in moderation. A real Orange County girl should know better.

  6. But snark is what makes the world go 'round! Or maybe that's love . . . whatever.

    To be fair, the issue is whether a motocross track is a structure for zoning purposes. I don't think that's eclipsed in the summary.

    The ruling probably is correct. But that doesn't mean it's not ripe for lampooning. And I think there's some equal-opportunity fun-poking going on here. I don't think that equates to "useless" and "hateful." This is far from an I-love-the-Fenwicks-and-hate-the-Laberges summary.

    How do you know the first Anonymous is female? I certainly didn't get that from reading the comment.

  7. Luckily, I am not actually from Orange County, Dan got that wrong. And as hard as it is, I will refrain from further comment on counties.

  8. Snark is fine, but making fun of a litigant for being dull enough to want a motocross track at his home is mean-spirited.

    If you all want to be the go-to source for irreverent commentary on the Vermont Supreme Court, why not direct your arrows at the frequently lazy analysis by the members of the court? That would be welcomed by this Vermont lawyer.

    Lampooning the ruling would be great, but this post didn't do that. Instead it contained unwarranted criticism of a litigant that was neither analytical, clever or funny. Just mean.

  9. Out west we enjoy motocross and support the family who is putting effort in riding dirtbikes rather than watching their kids get involved with drugs or alcohol. It is common for people to mistake motocross as a bad thing and forget that it is actually bringing families closer together. I'm glad to hear that they can ride!

  10. This is probably complicated to you but study a few area use situations and you might get the concept. How about a little more cogent lawful research and not so much of a display of your excellent and highbrow attitiude?