                          Environmental Court of Vermont
                                 State of Vermont

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                   E N T R Y R E G A R D I N G M O T I O N
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In re Laberge Moto-Cross Track                    Docket No. 259-11-08 Vtec
Project:     Laberge Moto-Cross Track
Applicant:
             (Appeal from DRB determination that no permit needed.)

Title: Motion for Summary Judgment, No. 4

Filed:        July 15, 2009

Filed By: Attorney Brian P. Hehir, for Appellees Matthew A. & Judith Laberge

Response filed on 08/18/09 by Appellant Fiona & Gary Fenwick

Reply in support of motion filed on September 4, 2009 by Attorney Brian P.
Hehir, for Appellees Matthew A. & Judith Laberge

___ Granted                   _X_ Denied              ___ Other

     This appeal arises from a decision by the Town of Hinesburg
Development Review Board (“DRB”) concerning recreational motorcycle use
on private property owned by Appellees, Matt and Judy Laberge.
Appellants, Gary and Fiona Fenwick, who own property abutting the
Laberges, initiated this action on June 2, 2008, by first requesting
that the Hinesburg Zoning Administrator (“ZA”) require Appellees to
obtain conditional use approval to operate motorcycles on a track
constructed by the Laberges on their residential property. After the ZA
denied the Fenwicks’ request, Appellants submitted a second request on
July 25, 2008, to the Hinesberg Director of Planning and Zoning
(“Planning Director”). This letter requested that the Planning Director
require Appellees to obtain a zoning permit, authorizing the continued
use of the motorcycle track adjacent to the Laberges’ home.     When the
Planning Director denied the Fenwicks’ request, they filed a timely
appeal with the DRB. The DRB denied the Fenwicks’ request on October 7,
2008. Appellants thereafter filed a timely appeal with this Court.
     This matter has been set for trial on Tuesday, September 29, 2009.
The Court already conducted its first site visit with the parties on
June 16, 2009. Appellants have suggested that a second site visit is
warranted.   That request is the subject of another Entry Order that
accompanies this Order.
     Also pending before the Court is Appellees’ motion for summary
judgment, which Appellees most recently supported with an affidavit from
Mr. Laberge, which was filed with the Court on September 3, 2009.
Appellants have responded in opposition to the pending summary judgment
motion, which is now ripe for our consideration.
         The Laberges argue in their pending motion for summary judgment
In re Laberge Moto-Cross Track, #259-11-08 Vtec (Entry Order on summary judgment motion)(09-15-09)              Page 2.


that their use of the non-commercial motorcycle track on their private
residential property can only be characterized as incidental to their
occupancy, and that such use cannot, as a matter of law, be determined
to require either a zoning permit or conditional use approval.
     In considering the Laberges’ motion, we note that summary judgment
is only appropriate where “the pleadings, depositions, [and] answers to
interrogatories, . . . together with the affidavits, if any, . . . show
that there is no genuine issue as to any material fact and that any
party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3).
The Laberges must overcome a high procedural hurdle when filing such a
motion, since they bear the burden of proof,     Travelers Ins. Cos. v.
Delmarle, Inc., 2005 VT 53, ¶ 3, 178 Vt. 570 (mem.), and “the Court must
consider the facts presented in the light most favorable to the
nonmoving party.” Madkour v. Zoltak, 2007 VT 14, ¶ 12, 181 Vt. 347.
     With these considerations in mind, we find that substantial
disputes as to material facts exist in the record—namely, the extent,
duration, and frequency of use by the Laberge family and non-family
members since 2008, following the resolution of a noise dispute between
the parties on December 4, 2007.1 Resolving these issues will inform the
Court’s deliberation.   We therefore conclude that a summary entry of
judgment is not proper at this time. Rather, an evidentiary hearing is
necessary to resolve disputes over material facts and enable the Court
to thereafter render sound legal conclusions. We reach this conclusion,
having determined that the Laberges are not “so clearly correct as to be
entitled to judgment ‘as a matter of law.’”      Berlin Dev. Assocs. v.
Dep’t of Soc. Welfare, 142 Vt. 107, 110 (1982). Summary judgment must
therefore be DENIED. We will proceed to trial as scheduled.
      We note that Appellants initially appeared pro se when they first
filed their Notice of Appeal and Statement of Questions, but have since
retained Attorney Christopher Roy to assist in the presentation of their
case.    We ask Attorney Roy to advise whether Appellants’ initial
Statement of Questions may be consolidated, so as to assist the Court
and the parties in efficiently conducting the trial in this appeal.



___________________________________________      ___September 15, 2009.______
      Thomas S. Durkin, Judge                            Date
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Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Christopher D. Roy, Attorney for Appellants Fiona & Gary Fenwick
    Brian P. Hehir, Attorney for Appellees Matthew A. & Judith Laberge
    Interested Persons Tonia L. & David L. Bouchard
    Ernest M. Allen, III, Attorney for the Town of Hinesburg


1
  Two of Appellants’ factual representations are unclear to the Court: whether Appellants agree that Appellees have
reduced activity and participation on the track following the resolution of the previous dispute; and whether Appellants
contend that a permit is required for use of the track by Appellees at any level of noise or frequency.
