                                   STATE OF VERMONT
SUPERIOR COURT                                                  ENVIRONMENTAL DIVISION
Vermont Unit                                                     Docket No. 164-12-13 Vtec

                                        Laberge NOV

                               ENTRY REGARDING MOTION

Title:        Motion for Summary Judgment (Motion 3)
Filer:        Matthew A. Laberge
Attorney:     Brian P. Hehir
Filed Date:   November 13, 2014
Response in Opposition filed on 12/22/2014 by Attorney Claudine C. Safar for Appellant Fiona
Fenwick

The motion is DENIED.

        This appeal relates to certain activities undertaken by Matt and Judy Laberge (“the
Laberges”) on their property located at 852 Hayden Hill Road West in Hinesburg, Vermont. The
Town of Hinesburg (“Town”) Zoning Administrator issued the Laberges a Notice of Violation
(“NOV”) on July 31, 2013 for unreasonable noise on their property, in violation of § 5.12.1 of
the Town of Hinesburg Zoning Regulations (“Regulations”). The NOV was prompted by noise
complaints from neighboring landowners, Gary and Fiona Fenwick (“Appellants”), and
referenced three specific dates in the summer of 2013 on which noise was reported at an
intensity exceeding 80 decibels (“dBA”) at the property line every five-minutes for 10 to 15
seconds over the course of 1 to 2 hours. This noise was caused by the use of two off-road
motorcycles.
        The Laberges appealed the NOV to the Town of Hinesburg Development Review Board
(“DRB”), which found that the Laberges’ motorcycle use during the summer of 2013 constituted
a “usual and customary residential activity” and was not in violation of § 5.12.1 regarding noise
restrictions. Appellants timely appealed that decision to this Court. The Laberges now move
for summary judgment, asking the Court to find that their motorcycle use is not a zoning
violation as a matter of law. Appellants oppose the motion on the grounds that material facts
are in dispute regarding the extent and frequency of the noise impacts and therefore whether
the Laberges violated the Regulations noise standards.
        We may only grant summary judgment to a moving party upon a showing that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” V.R.C.P. 56(a). We must “accept as true the [factual] allegations made in opposition to
the motion for summary judgment” and give the non-moving party the benefit of all reasonable
doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (internal
citation omitted).
        The sole legal issue is whether the Laberges violated § 5.12.1 of the Regulations as
alleged in the Notice of Violation that is on appeal. Regulations § 5.12.1 states that
“[u]nreasonable noises are not permitted. A determination of ‘unreasonable’ shall include
factors such as intensity, duration, and frequency (i.e., how often it occurs). . . . This section
5.12.1 shall not be construed to prohibit usual and customary residential activities or property
maintenance.”
        In their motion for summary judgment the Laberges argue that the intensity, duration,
and frequency of the noise of the motorcycle use of their property are minimal and therefore
the Court should rule that the noise is not unreasonable as a matter of law. This is, however, a
factual issue that is material to the resolution of the case and clearly disputed by Appellants.
       In the alternative, the Laberges argue that the use of off-road motorcycles is a usual and
customary residential activity in the Town of Hinesburg and therefore is exempt from the noise
performance standards. In support of this the Laberges assert that at least 17 other families
use their property in a similar way. This fact, also, is disputed by Appellants and the Laberges
have not supported this fact with any affidavit or other admissible evidence. More importantly,
however, a determination of whether or not the Laberges’ particular use of their property is a
customary residential activity requires the same factual record of the intensity, duration, and
frequency of the use among other possible factors. For example, a residential activity may be
customarily done only occasionally; if it is done for hours at a time on a regular basis it may not
be a customary residential activity. Thus, material facts are in dispute regarding this issue as
well.
       Because the Laberges have failed to show either absence of a genuine dispute of
material fact or that they are entitled to judgment as a matter of law, their motion for summary
judgment is DENIED. This matter shall proceed to trial as scheduled on Thursday, January 15,
2015.
        Electronically signed on January 08, 2015 at Newfane, VT, pursuant to V.R.E.F. 7(d).




________________________________
Thomas S. Durkin, Judge
Environmental Division

Notifications:
Claudine C. Safar (ERN 3985), Attorney for Appellants Gary and Fiona Fenwick
Ernest M. Allen (ERN 3968), Attorney for Interested Person Town of Hinesburg
Brian P. Hehir (ERN 4252), Attorney for Appellees Matthew and Judith Laberge
rkane



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