STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Scarborough Conditional Use Application } Docket No. 206-9-07 Vtec
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Decision and Order
Appellant-Applicant Roger Scarborough (Applicant Scarborough) appealed from
a decision of the Zoning Board of Adjustment (ZBA) of the Town of Leicester denying a
conditional use application for a dirt-surface go-cart race track on his residential
property. Appellant-Applicant has appeared and represents himself; Interested Persons
Bonnie and Charles Johnson (the Johnsons) are represented by Karl W. Neuse, Esq.;
Interested Person Barbara G. Bridgmon is represented by Michael S. Winters, Esq.; and
the Town is represented by James F. Carroll, Esq.
The decision on summary judgment in the present case determined, among other
things, that the operation of the track in 2006–07 violated the performance standard for
noise. The decision left the following issues open for trial: whether the proposal falls
within the permitted use category of an accessory use to a residential property; whether
the proposal falls within the conditional use category of “outdoor recreation,” as an
“other similar place” of outdoor recreation; and, if the proposal falls within an
allowable use category in the district, whether the proposal is capable of meeting the
performance standard for noise if appropriate conditions or safeguards were to be
imposed.
An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. A site visit was taken approximately a month after the hearing
with the parties and their representatives. It was scheduled to include a demonstration
of the operation of go-carts on the track; however, muddy conditions on the track on the
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scheduled date precluded that operation, so that the site visit was held without the
demonstration. The parties were given the opportunity to submit written memoranda
and requests for findings. Upon consideration of the evidence as illustrated by the site
visit, and of the written memoranda and requests for findings filed by the parties, the
Court finds and concludes as follows.
Applicant Scarborough owns a house and a long rectangular lot of land located
at 1551 Leicester-Whiting Road in the Residential Agricultural zoning district of the
Town of Leicester. The Leicester-Whiting Road is an east-west road with a short north-
south segment on which both the Johnson and Scarborough properties are located. The
Scarborough property is a corner lot, having two front yards1, as the Leicester-Whiting
Road takes a sharp bend to the west at the Scarborough property. The Johnsons’
residential property is located adjacent to the long north side line of the Scarborough
property. Barbara Bridgmon owns residential property across the road, to the south of
the Scarborough property.
The houses on both the Scarborough and Johnson properties are located on
higher ground at the elevation of the road before it takes the bend, so that each
property’s back yard slopes sharply down near the rear of the house to a lower
elevation, and is fairly flat as it extends towards the rear of each property. There are no
trees or other vegetation along the Scarborough-Johnson property line. Because of this
slope, activity at the location of the go-cart track on the Scarborough property is audible
and visible from the house and rear deck locations on the Johnson property, even
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Zoning Bylaws, § 618: “Yards on Corner Lots.” However, although the interested
parties also argued that the go-cart track at issue in this case violates the front setback
requirements of § 250(C), the definition of front yard setback in § 190 reveals that
setbacks are only measured to a building, not to land development.
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though a fence2 has been installed along the Scarborough-Johnson side lot line. Activity
at the location of the go-cart track on the Scarborough property is also audible and
visible from the Bridgmon property.
In the summer of 2006 Applicant Scarborough had fill material brought to the
property and had heavy equipment grade the material to create a dirt-surface race track
for motorized go-carts. The outside edge of the track is located 73 feet from the
Scarborough-Johnson property line and 26 feet from the edge of the road. The track is
an approximately 104’ x 250’ oval with about a ten-to-twelve-foot width measured in
from the outside edge, on which the go-carts run. After the track was completed, it was
used for riding and racing go-carts in August and September of 2006 and in June, July,
August and October of 2007, on a total of at least twenty-six days, as well as a single
time in June or July of 2008, prior to the date of trial.
The Zoning Administrator at the time (the former Zoning Administrator) had
issued a letter to Applicant Scarborough on July 19, 2007, determining that the site work
and construction of the track constituted land development as that term is defined in
the Zoning Bylaws, requiring a zoning permit. The former Zoning Administrator stated
in the letter that she herself would have classified the personal motorized-recreation use
of a go-cart track as a residential accessory use, and would have then proceeded to
determine whether its use violated the noise or dust performance standards in the
Zoning Bylaws. § 641. However, based on her reading of an Environmental Court
decision3 construing an unrelated other town’s zoning ordinance in an enforcement
context, she required Applicant Scarborough to apply to the ZBA for conditional use
approval of the construction and operation of the track as an outdoor recreation use,
2
Under the definition of the term “fence” in § 190, a fence greater than six feet in
height requires a permit.
3 In re Appeal of Nixon, No. 21-2-05 Vtec (Vt. Envtl. Ct. May 12, 2006) (Durkin, J.)
(involving an appeal from a Notice of Violation for constructing a motocross racing
track without a permit).
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which is a conditional use in the Residential-Agricultural district. The former Zoning
Administrator’s letter noted that the ZBA could decide to allow the track, could set
conditions regarding noise, dust, and hours of operation, or could interpret the Zoning
Bylaws differently from this Court’s interpretation of the Town of Fairfax ordinance in
Nixon. No party appealed the former Zoning Administrator’s determination to the
ZBA, and it became final.
In the present appeal, Applicant Scarborough applied to the ZBA for conditional
use approval, and appealed the ZBA’s denial, which stated as the sole reason for denial
the proposal’s failure to meet the performance standard for noise. Applicant also
continues to assert that the proposal does not require conditional use approval but
should instead be classified as an accessory use to his residential use of the property, as
well as to assert that it can be operated so as not to violate the performance standard for
noise.
Up to six go-carts have been in use on the track at one time, with as many as
eleven spectators at one time. Only the residents of the Scarborough household and
their relatives and friends use the go-cart track; it is not run as a commercial operation
or with invited spectators other than family and friends. However, because it is visible
from the side of the road, passers-by frequently stop their vehicles on the side of the
road to watch the racing, until Applicant Scarborough asks them to leave.
Summary judgment was already granted in favor of the Johnsons that the past
operation of the track in 2006–07 did violate the performance standard for noise. The
nature of the noise created when the track is in use for two to three hours in each
session, with five or six go-carts using it at a time, on many weekends between June and
October, is a substantial repeated disturbance to the neighbors. The noise level and
sound frequencies produced by five or six go-carts operating continuously in racing
mode for several hours at a time was sufficiently annoying to the neighbors to prevent
them from using the outdoor space on their own properties while the track was in
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operation at that level of intensity, thus adversely affecting the reasonable use of the
surrounding area or adjoining properties. Even though lawnmowers are customary in
the neighborhood on summer weekends, the sound of five or six go-carts racing
together for two or three hours at a time nearly every weekend is much more
objectionable than single lawnmowers widely spaced on separate residential properties,
and with their engines operating under normal load rather than being pushed to
capacity.
Since the 2007 summer season, Applicant Scarborough has taken a number of
steps, in an effort to make the operation of the track less obtrusive to his neighbors. He
applies water to the track before each use, to keep the dust down. He installed a long
fence along the boundary of his property with the Johnson property; however, that
height of fence is insufficient to effectively screen the use from visibility4 or audibility
from the Johnson property. He has installed the highest quality mufflers available, and
has directed the exhaust pipes downwards, to minimize the noise from the go-carts
when in use.
Applicant Scarborough intends the go-cart track to allow his son and nephews
and their friends to have an enjoyable activity at which they are occupied and
supervised, and at which there is no drinking or smoking. At trial he expressed his
willingness to restrict its future use to one day a weekend, but still for two to three
hours at a time, and to refrain from its use on any particular day if the neighbors notify
him that they are having an incompatible event.
No other go-cart tracks or similar motorized recreation tracks for summer use are
located on residential properties in the Town of Leicester or in neighboring towns.
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While the Johnsons also have concerns about the visibility of the yellow color of their
side of the fence, the permit denial on appeal in the present case was only based on the
performance standard for noise, and no cross-appeal was filed. If the application falls
within an allowed use category for the district, all that is before the Court on the merits
of the application is the performance standard for noise.
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People do run snow machines (snowmobiles) on residential properties during the
winter season.
Conditional Use
Appellant is correct that that the go-cart track use does not fall within a
conditional use category and does not require conditional use approval. It does not fall
within the conditional use category of “outdoor recreation,” as it is not listed as a use
within that category and is not similar to any of the listed uses in that category. All of
the listed uses in the conditional use category of “outdoor recreation” are either
commercial or community facilities for the use of more than a single household, or are
the quiet, non-motorized activities of “swimming pool” and “tennis court.” § 190,
“Recreation, Outdoor.”
Accessory Use
However, Applicant Scarborough also did not show that a go-cart track falls
within the use category of an accessory use to the residential use of the property. To
qualify as an accessory use, the go-cart track must be “customarily incidental and
subordinate to” the residential use of the property. § 190, “Accessory Use . . . .” If an
activity is an accessory use to a permitted residential use, it requires only a zoning
permit from the Zoning Administrator, rather than a conditional use permit. § 310.
Regardless of which type of permit or approval is required for an activity, all activities
must also meet the performance standards in § 641.
The evidence presented by Applicant Scarborough himself, as well as by the
other parties, showed that there were no go-cart tracks, and no other similar motorized
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outdoor tracks for summer use,5 on residential properties in the Town of Leicester or in
the neighboring area. The proposal therefore does not qualify as an accessory use to a
residential use, because it was not shown to be “customary” in association with the
residential use of property in the Leicester area.
The level of use in 2006 and 2007 also was not “subordinate” to the residential
use of the property. Rather, the evidence showed that the intensity of use in 2006 and
2007 overwhelmed the residential use of the Scarborough and neighboring properties
during the activity. If the use had been shown to be “customarily incidental” to the
property’s residential use, it would have been appropriate to remand the application to
the Zoning Administrator for a determination of whether some reduced level of
intensity, occurrence or duration could have qualified as “subordinate” to the
residential use of the property, and to rule on whether to issue a zoning permit for the
use in relation to the § 641 performance standard for noise. However, the go-cart track
use is not “customarily incidental” to the residential use of properties in the Leicester
area, concluding the issue of whether the proposal can qualify as an accessory use.
Performance Standard for Noise
All uses, regardless of whether they are conditional uses or permitted uses, must
meet the performance standards in § 641 of the Zoning Bylaws. The burden of proof
that the standards are met is placed on the applicant by the terms of § 641. Section 641
5 While there was some evidence of the winter use of snowmobiles on residential
properties in the area, even if snowmobile use on residential properties is customarily
incidental and subordinate to the residential use of those properties, snowmobile use of
properties is not comparable to a go-cart track, because the residential use of residential
properties in the winter in Vermont is conducted indoors with the windows closed.
That is, the outdoor use of motorized recreational vehicles on residential properties in
the winter may be incidental and subordinate to the residential use, simply because the
residential use is not conducted outside in the garden, in the back yard, or on the deck
in the winter.
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in general prohibits property from being used “so as to create dangerous, injurious,
noxious or otherwise objectionable conditions in such a manner or in such amount as to
adversely affect the reasonable use of the surrounding area or adjoining properties.”
Specifically as to noise, § 641(1) requires that:
Noise volume shall be limited to levels that will not be a nuisance to
adjacent uses. Noise levels or frequencies which are not customary in the
district or neighborhood or which represent a substantial repeated
disturbance to others shall be presumed to constitute a nuisance.
Because the use as proposed does not qualify for approval either as accessory to
the residential use of the property, or as a conditional use, the question of whether a
much-reduced level of occurrence or duration could reduce the noise from this activity
to a level that would comply with the § 641 performance standard for noise has become
moot in the present appeal.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellant-Applicant Scarborough’s go-cart track use is not an allowed use in the
Residential-Agricultural district, as it does not fall within a conditional use category,
and also does not qualify as an accessory use to the property’s residential use. This
decision concludes this appeal.
Done at Berlin, Vermont, this 12th day of March, 2009.
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Merideth Wright
Environmental Judge
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