                                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




1
   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.

4
   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.




                             _________________________________________________
                                   Merideth Wright
                                   Environmental Judge




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