STATE OF VERMONT
ENVIRONMENTAL COURT
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Appeal of Nixon, et al. } Docket No. 21‐2‐05 Vtec
(Ackerman motocross track) }
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Decision
This matter was heard on the merits at the Franklin County Superior Court in St.
Albans, Vermont, before Environmental Judge Thomas S. Durkin on June 8, 2005. It
concerns an appeal by several neighbors of James and Rene Ackerman (“the
Ackermans”). The neighbors contend that a permit was necessary under the Fairfax
Zoning Bylaws (Bylaws) prior to the construction and use of a motocross track on the
Ackermans’ residential property along Shedd Road in the Town of Fairfax (“Town”).
The Ackermans contend that such a permit is not necessary for the construction and use
of the motocross track on their residential property. The procedural posture of this case
is somewhat unique, as is outlined below.
James E. Nixon, Cynthia Livingston and Ruth Dennis are the neighbors who filed
a timely joint appeal in this case. They represent themselves in this proceeding and are
hereinafter collectively referred to as either “Neighbors” or “Appellants.” The
Ackermans are represented by Gregg H. Wilson, Esq. The Town is represented by
Steven F. Stitzel, Esq., who advised the Court that the Town had elected not to
participate in the merits hearing and requested that Mr. Stitzel not attend the hearing.
Procedural Background
Sometime in 2004, the Neighbors complained to Skip Taylor, the Fairfax Zoning
Administrator (“ZA”), about the construction and use of a motocross track on the
Ackermans’ property. By letter to the Ackermans dated September 30, 2004, the ZA
gave notice of alleged violations of the Fairfax Zoning Bylaws (“Bylaws”) related to the
motocross track. The Ackermans timely appealed the ZA’s notice of violations to the
Fairfax Development Review Board (“DRB”), which rendered “Findings of Fact and
Order” on the Ackermans’ appeal on January 13, 2005.
This Court previously ruled that the DRB Findings and Order constituted a
“non‐decision,” since the DRB reported in its Findings that it was “unable to come to a
decision.” See DRB Decision and Order dated March 31, 2005. The Neighbors filed a
timely appeal to this Court on February 1, 2005.1
Findings of Fact
Based upon the evidence presented at the hearing, the Court makes the following
findings as to the facts material to the ZA’s notice of alleged violation:
1. The Ackermans own and reside on an ±11‐acre parcel of land on a private road,
known as Shedd Road. They purchased the property in about 1987 and made a number
of improvements to the property since their purchase.
2. The Ackerman property contains a main house, an addition thereto, a barn, rock
garden and several planting areas. The property is located in the Agricultural/Forest
zoning district.
3. At some point in 2004, the Ackermans constructed a motocross track on a portion
of their residential property. Their construction consisted of using a backhoe and other
earth moving equipment, including a tractor‐driven rototiller, to construct banks,
jumps, bumps and the track path on two to three acres of their property.
4. There was no evidence offered that the Ackermans sought a pre‐construction
determination from the ZA or other municipal authority as to whether their motocross
1
The question of whether a non‐decision constituting deemed approval of an appeal or application
pending before an appropriate municipal panel should be regarded as an appealable action under 24
V.S.A. § 4471 has caused the Court a small bit of consternation. But the fact that the DRB here
documented its non‐decision convinces this Court that the Neighbors’ appeal is proper and timely made,
thus vesting this Court with jurisdiction.
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improvements required prior zoning approval. Mr. Ackerman testified that he did not
apply for a permit because he believed that the construction and use of the motocross
track was a lawful use of his residential property that did not require a zoning permit.
5. The Ackermans’ son is an amateur motocross racer; they constructed the track
for their son to use for his enjoyment and to practice for his races. Some of their son’s
friends also use the track. There are sometimes up to four people using the motocross
track on the Ackermans’ property.
6. The Nixons own and reside on the property adjacent to the southeast corner of
the Ackerman property.
7. It was unclear from the evidence admitted at trial where Appellant Dennis’s
property is located in relation to the Ackerman property.
8. Appellant Livingston lives nearby, but not adjacent to, the Ackerman property.
Mrs. Livingston sometimes provides music lessons at her home for customers or their
children.
9. The Ackerman property in general, and the motocross track in particular, are
visible from the Nixon home. There appears to be little in the way of vegetation or
landscape buffers between the two properties. The land on either side of the adjoining
boundary is fairly level with the area upon which the motocross track was built.
10. The testimony at trial did not reveal whether the motocross track is visible from
the Dennis or Livingston properties.
11. When one or more riders are using the Ackerman motocross track, noise and
dust travel across to the Nixon, Livingston and Dennis properties. The noise emanating
from the motocross bikes sometimes makes it difficult to carry on a conversation
outside of the Nixon, Livingston or Dennis homes.
12. ZA Taylor testified as to his personal observations of the Ackerman motocross
track being used while he was visiting the Nixon and Livingston properties. Mr. Taylor
also observed, and the Court so finds, that it was difficult to carry on a normal
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conversation at the neighbors’ properties, especially when motocross bikes became
airborne at the jumps and bumps on the track. The amount of noise traveling onto the
neighbors’ properties increases considerably when the bikes are airborne.
13. Use of motorized vehicles for outdoor recreation is not uncommon in this area.
Several other families use motocross bikes in the summer, snowmobiles in the winter,
and ATVs year‐round.
14. Mr. Ackerman noted that there were several other families in Fairfax that he was
aware had constructed motocross tracks on their residential properties. There was no
evidence offered as to which zoning districts these properties were located, or whether
the other property owners had obtained a zoning permit prior to constructing their
motocross tracks.
Conclusions
It is first important to note what legal issues are not before the Court in this
appeal. The Town has not filed an enforcement action against the Ackermans. We are
therefore not asked to consider the appropriateness of fines or penalties, if we were to
find that the ZA’s original notice of violation (NOV) should stand. Given that the
Ackermans timely appealed the ZA’s NOV, the question of whether the motocross track
constitutes a violation of the Bylaws is the sole legal issue properly before this Court.
Further, the pending legal issue can be distilled down to whether the
construction and use of the Ackermans’ motocross track requires a permit under the
Fairfax Bylaws. We therefore turn to the language of the applicable Bylaws provisions.
The ZA’s notice speaks to two general violations: first, “the substantial change in
the use of land without a permit, and [second] for violation of the performance
standards associated with the use of land, specifically odor, noise, dust and potential
damage to an adjoining business.” Town of Fairfax, Notice of Violation, at 1 (Sept. 30,
2004). Bylaws Articles 1.0 and 2.0 prohibit a substantial change in the use of land
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without a permit. Bylaws Article 4.0 establishes performance standards for uses in all
Town zoning districts.
First, we find that the construction and use of the Ackerman’s motocross track
constitutes “a substantial change in the use of land,”2 thereby necessitating a zoning
permit under Bylaws Article 2.0, § 2.2(A). This Bylaws provision defines “land
development” by reference to 24 V.S.A. § 4303, specifically § 4303(10), which includes in
its definition “any change in the use of . . . land, or extension of use of land.”
The Ackermans do not dispute the impacts their motocross track has on their
neighbors. Rather, the Ackermans assert that the track is a permitted extension of their
residential use of their property. We do not find the Ackermans’ assertions persuasive.
In particular, the fact that two or three other families in Fairfax also have motocross
tracks in their residential back yards is not dispositive of the legal issues in this case.
Mr. Ackerman’s testimony at trial did not establish whether those other motocross
tracks are permitted or in the same zoning district.
The facts we do find relevant and dispositive to the legal issue here is the size of
the track, the use of significant earthmoving equipment to construct it, and the use of
the track by the Ackermans’ son and up to three of his fellow racers, both for pleasure
and practice in their pursuit of amateur racing accomplishment. All these factors cause
us to conclude that the motocross track constitutes a change in the use of the
Ackermans’ residential property, and that their change in use is substantial.
Any permitted use in Fairfax must conform to the performance standards in
Bylaws § 4.2. The relevant provisions in § 4.2 prohibit uses that:
(2) Emit any level of noise which is considered offensive; [or]
(4) Emit any dust, dirt or noxious gases which . . . cause[] any damage to
property, business or vegetation . . . .”
Bylaws § 4.2.
2
See Bylaws § 1.3(D) for the origin of the term “substantial change in use of . . . land . . . .”
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The undisputed testimony at trial established that the Ackermans’ neighbors
were sometimes unable to carry on normal conversations on their properties when the
Ackerman motocross track was in use. The noise was particularly offensive when there
were multiple racers using the track and when the racers and their motocross bikes
became airborne.3 Ms. Livingston uses her home for regular music lessons, which were
sometimes interrupted by the noise from the motocross track.
In rendering these determinations, we do not (and can not) preclude a later
determination that a future application could be approved after‐the‐fact for
construction and use of the Ackerman motocross track. Appellants here make a
convincing collateral argument that the Ackermans, by their refusal to submit an
application seeking approval of their track, have preempted their neighbors’
participation in the review process of their changed use. In any review process, the
neighbors would have an opportunity to voice their concerns, and the Ackermans
would have an opportunity to respond to those concerns. Permit approval often results
from the exchange of concerns and accommodations in the municipal review process,
but cannot occur where, as here, a significant creation and expansion of uses occur
without review.
In light of the findings and conclusions here, we do hereby grant Appellants’
appeal and reinstate the violation determinations announced by the Fairfax Zoning
Administrator in his letter of September 30, 2004. The Ackermans’ construction and use
of their motocross track constitutes a substantial change in the use of their residential
property, thereby necessitating their application and receipt of a zoning permit. We
3
The video admitted into evidence via CD recording, Appellants’ Ex. 2, evidenced that the motocross
bikes frequently became airborne, usually for brief instances, while using the track.
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further conclude that the Ackermans’ motocross track, as presently constructed and
used,4 violates the use performance standards in Bylaws § 4.2(2) and (4).
The “deemed approved” determination of the Fairfax Development Review
Board of the Ackermans’ appeal of the Fairfax Zoning Administrator’s notice of
violation is hereby VACATED. As stated above, the Zoning Administrator’s September
30, 2004 determination of violations is hereby REINSTATED.
Done at Berlin, Vermont this 12th day of May, 2006.
__________________________________________
Thomas S. Durkin, Environmental Judge
4
When a property owner commences land development without a permit, they afford the municipal
panel below, or this Court on appeal, with a curious advantage: we are not left to speculate on what
impacts the proposed structure or expansion of use will cause. We have, in essence, a full scale model of
what the applicant is proposing for development.
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