Welcome to Leicester, VT

A:  From 06, it had gone back, if I had my paperwork in front of me, at least 6 to 7 had been racing.  After October 6, on June 1^st 08, we were home for a short time after church, we noticed his son had taken a cart in the a.m., it was about 10:30 for a short time and we had an invite we had to go to and we left around noon time that day, again June 1^st 08, and we didn’t get back until 3:15 that day.  At 3:15 when we returned there was 3 go carts and trucks and trailers around the race track circle and they were racing and I had noted and written down that the racing had stopped at quarter of 7:00 at night, and there was much noise and dust present during that time.

Q:  You tell about the noise.  Can you just describe in general the noise that you hear when the go carts are running?

A:  Well, it certainly isn’t like a riding lawn mower.  You can imagine what one sounds like, and when you get 2, 3, 4, and 5 the noise is quite unbearable.  In the summer time you have to shut the doors and windows.  You have to turn the air conditioner on.  You certainly can’t use our back porch for anything, for entertainment or whatever.  It’s very noisy and it’s very disturbing after awhile after you listen to it long enough. 

Q:  So, does it interfere with what you would like to be doing in your house or around your property?

A:  Certainly, yes.

Q:  You said it was not like a riding lawn mower, so it’s louder than a riding lawn mower?

A:  Definitely.  Anybody has ever heard a loud motorcycle or anything of a racing nature, it’s very loud.

Q:  What is the pitch like?

A:  Its, well I played it the one time, it’s not a high pitch noise, it’s a roaring noise, it’s a very irritating roaring noise.

Q:  And other than seeing Mr. Scarborough use go carts, is this noise a noise that is customary in the neighborhood?

A:  Definitely not, not before this race track was built.

Q:  Is it customary anywhere in the town of Leicester as far as you are aware?

A:  Not to the best of my knowledge, no.

Q:  Now, are you aware of whether Mr. Scarborough may have attempted to make some changes to the go carts to change the noise?

A:  I believe he mentioned, he could or he was going to, but if he has, I will state for the record, that as of when we heard it this very last time in 08, we could see no difference in the noise level whatsoever.

Mr. Putnam stated that was all he had for Bonnie.

Mr. Putnam stated he would ask Charlie a couple questions.

Q:  State your name.

A:  Charles Johnson

Q:  OK and you are married to Bonnie?

A:  Oh yes.

Q:  And you live in the same house?

A:  Oh yes.

Q.  I’m not going to go through all of the same questions about the track, but can you just describe in your own words the noise from the track?

A:  It’s just annoying.  As a matter of fact, instead of asking just me, I think you should ask some of these members on the Board because they was over and heard it themselves, what they think of it.

Putnam:  well, they can keep that to themselves.  I am asking you what your words are.

A:  Very annoying

Q:  How would you describe the volume?

A:   I have no idea.  I’m not a rocket scientist so I know what the pitch is or not.

Q:  How does it compare to other noises in the neighborhood?

A:  Very loud, very loud.  I don’t know of any noise in the neighborhood that’s annoying.

Q:  In the Town of Leicester in general, would you say it is a customary noise?

A:  No, it is not a customary noise.

Q:  And have you noticed any change in the noise level based on changes that Mr. Scarborough may have made?

A:  No, I couldn’t tell any difference. 

Putnam:  that’s all the questions of all the witnesses that I have.  So, if I could just add a couple more comments on the legal issue, and then we will be done with our presentation.

In the appeal that the Johnson’s submitted, I believe you received those documents and it had the decision from the Environmental Court which was an interim decision.  They had decided just on one of the issues in the case which was whether there had been a noise violation in the past.  They left open some other issues which is why it is still on appeal.  But, the Court decided in that decision that we had submitted, that there had been a violation of the noise standard based on the past actions, the past running of the go carts.

Chair:  Point of Order.  Chair asked that just one party speaking is allowed to continue speaking and if there are other comments to be offered later, it allows the person speaking to finish without interruption. 

Putnam:  So, in that document which we submitted, the Environmental Court ruled that the past operation of the track has violated the noise standard.  It didn’t state that any future operation would violate it, but basically said that what had happened already was in violation.  And that decision is binding on this Board and on the Zoning Administrator so, just because the Zoning Administrator may have a different opinion of what violates the noise ordinance, the Court decides it and that settles it, unless the Supreme Court over rules it.  So, that decision has been filed and based on the evidence we just heard, the Johnson’s don’t notice any changes in the noise from what happened before.  So, if it was a violation before, and the noise level hasn’t changed, then we believe it is still a violation and a notice of violation should be issued. 

That’s our position on the noise.  We also believe that a permit is required to operate the track at all and so that no operation should occur until the Court issues a permit.  I will just come back to what I said at the beginning.  We don’t need an immediate decision, it’s winter time and I don’t think the carts are going to be running  and so we would just suggest that the Board hear all the testimony today, the Environmental Court  will come out with its decision, hopefully, it could be in the next few weeks, it could be in a couple months, but that should come soon, and when that decision comes out, that will help the Board make this decision about whether Mr. Scarborough can continue to operate or whether there should be a notice of violation and enforcement.  So, that’s it unless there are any questions for me.

Chair:  I am going to ask at this time if you would like to have as evidence, the notice of the appeal or anything else that you have just stated that we would enter into as exhibit numbers.

Putnam:  I would be happy to do that.  The notice of appeal that we filed with the Board?

Chair:  Yes

Putnam:   I have a few copies of that, I’m not sure if you have all made copies for yourselves.  But, I have, I brought with me about 3 o 4 copies, so I could give one to Mr. Scarborough and…

Chair:  We will accept one at this point if you have one.  Anything else that you may have?

Putnam:  Um, I don’t believe that we need anything else, it’s basically just the testimony of the Johnson’s and the Court’s decision and there is some legal arguments in our notice and that would be enough. 

Here’s the notice.  I would be happy to give another copy to Mr. Scarborough. 

Attorney Carroll:  With leave of the Chairman, just as a housekeeping measure here Mr. Putnam, I want to make sure that your intent at this point, is to put the notice of appeal into evidence, which I think, is the right thing to do.  Make sure we have it marked and we understand that.  I don’t know if there are any other documents that you would like to submit to have as part of the record.  At some point Mr. Peterson may choose to put his letter and the correspondence…

Putnam:  His letter is an attachment to that.  What I don’t have there is the original complaint that he was responding to.  I will see if I can find that.

Attorney Carroll:  OK, again, I leave that to you,  as to whether you want that as part of the record, but this would be a good time, as a housecleaning measure to get those documents up here, get them marked, and determine if there is any objections to them from either Mr. Scarborough or specifically, Mr. Peterson.  And then we decide about their admission and make them part of the record and start to use them for the purpose of asking any questions.  Does the notice of appeal also have with it, the decision that was issued, the interim decision, or the primary decision?

Putnam:  Yes, that’s one of the attachments.

Attorney Carroll:  Let’s mark the Notice of Appeal as Exhibit A: Johnson.  As a matter of formality, I guess the follow-up question would be whether Mr. Scarborough or Mr. Peterson have any objection to the introduction of this particular document as an exhibit?

Peterson:  I would like to know if it has both pages of my letter to the Johnson’s.  Initially, it didn’t and this is what held us up for some time.   Missing is a two page letter from Andrew in Exhibit A. 

Schuerger:  Can we have Andrew submit his original letter and have a statement of the difference of the two and that way we don’t have to change this?

Andrew can make a copy of it right now.  Andrew had another question about the Environmental Court decision wanted to have it read to him to understand what it is.

Attorney Carroll:  The immediate question was whether you have an objection to this coming in as evidence.

Peterson:  As evidence, no.

Attorney Carroll:  Andrew, you guys can follow-up with Mr. Putnam.

Attorney Carroll:  Mr. Scarborough, do you have any objection to the introduction of this document as an exhibit?

Scarborough:  I don’t think I do.

Chair:  This document will be considered as Exhibit A:  Johnson and will have it entered as evidence at this time now.

Chair:  What might benefit and just to take a minute would be the actual ruling of the Environmental Court.

Schuerger:  Yes, I thought it would be useful to read the one aspect of the Environmental Court interim decision specific to the noise which is determined to be binding on us and the Zoning Administrator.

Putnam:  So, to read that out loud?

Schuerger:   Yes, please.

Putnam:  What I am reading is on page 9 and 10 of the Environmental Court’s Order which is attached to Exhibit A.  I am starting at the middle of page 9 the heading is:

Motion for Summary Judgment as to Question 2 of the Statement of Questions

The performance standards in § 641 of the Zoning Bylaws apply to the operation of a use, whether it is a permitted use or a conditional use, and whether it has been proposed or has received a permit and is in operation.

However, all this is before the Court in the present appeal⁶ is what was before the ZBA, that is, Applicant Scarborough’s application for conditional use approval of the go-cart track.  Section 352 (9) of the conditional use standards requires an applicant to show that the proposed project will comply with the performance standards, but § 352(15) provides that the ZBA, and hence this Court in this de novo appeal, “may attach such reasonable conditions and safeguards as it may deem necessary.”  If the application remains for a conditional use, ⁷ the issue before the Court is therefore whether there are any conditions or safeguards that could be imposed, under which the go-cart track could meet the noise performance standard.

As to this issue, the Johnsons’ affidavit states simply that “the use of the track has caused noise and dust which has been a substantial and repeated disturbance” to them.  As this affidavit has not been countered by an affidavit or other evidence from Applicant Scarborough, even giving him the benefit of all doubts and inferences as the nonmoving party, summary judgment must be granted in favor of the Johnsons that the past use of the track has violated the noise performance standard.  However, that determination does not dispose of the conditional use application now before the Court.  Material facts remain in dispute as to whether the track is capable of meeting the required standard in the future, and, if so, what conditions and safeguards may be necessary to achieve that result.

That’s the quote and it’s a lot of legalese, but the key passage is the part where summary judgment must be granted in favor of the Johnsons that the past use of the track has violated the noise performance standard. 

Donald Scarborough asked how the noise performance standard was measured.  Brenda McAtee was also asking because she didn’t understand.

Attorney Carroll:  For clarification, I will ask, because we have a tape recorder, that’s being made of the proceeding, so that the extent that anyone is raising their hand asking a question, making a comment, etc. that it be through the Chair and that you state your name for the record so that we have a clear indication on the record.  So obviously, you had a question.

Donald Scarborough:  I had a question on the noise performance.  How is that measured?  It’s not in decibels.  I don’t think it reads that in the bylaws.  Hello…..

Attorney Carroll:  Is that a question that is directed to any particular person or is that just any?

Donald Scarborough:  Anybody that is in charge, I guess, of the Zoning Board.  They must know the bylaws better than I do.  I’ve read them and..

Attorney Carroll:  If I might, I just want to make a point.  The point is, this is a quasi judicial body.  They’re here to make findings, make conclusions, not testify as to.  So, asking questions of this Board is probably not going to get you very far.  If you have questions specific to, for instance, noise standards and how those might be measured, and you have specific testimony and evidence about that, an opportunity will be provided to present that testimony. 

Donald Scarborough:  Because their decision would be based off from the zoning laws that has identified how to measure what’s excessive noise and what isn’t excessive noise. 

Attorney Carroll:  I’m not disputing that.  I’m just telling you that this is a quasi judicial body that’s making a decision, not testifying as to the facts of the case.

Donald Scarborough:  So, that can’t be answered here tonight, how it’s measured?

Attorney Carroll:  It’s not a question that can be put to a board that is finding facts and conclusions.  They are not here to testify.

Donald Scarborough:  Gotcha.

Chair:  What we would like to do is, at this point in time, Mr. Scarborough is offer you the opportunity to

give your explanation and reason for being here tonight.

Roger Scarborough:  I guess first of all I would like to ask you now that this has been brought up, when my permit that I put in for the conditional use permit, I was instructed by a member of this Board, which isn’t on here any longer, I assumed it was the wrong one to put in, in the first place, but it was denied, right off.  I guess at this point, I would like to ask you, seems how there never was an explanation, why it was denied?  Nobody ever explained it, just that it was denied.

Schuerger:  I think it might be appropriate to make sure we separate what case we are hearing today from what might have transpired in the past.  So, we’re hearing a case about the Zoning Administrator’s decision on a complaint about noise and some of the other history comes into it because of what’s going on in the Environmental Court, but if your operating something that wasn’t permitted, that’s a separate issue that’s also perhaps before another body, but what we’re hearing today is, the Zoning Administrator’s response to the complaint about noise.

Roger Scarborough:  OK, so I guess I would like to say that taking the oath wasn’t that big a deal either I guess.  I would like to point out that we never had 6 or 7 carts running, ever.  We never ran Saturday and Sunday, ever.  There has to be a difference in the noise situation because we have done some work to them.  And this all started out, first of all, with the dust problem.  Now the dust problem is taken care of,  so now we’re going to hit the noise issue.  And, it’s just an entertainment for certain people, I think because we ran twice this year, twice.  Is that going to disrupt anybody’s life for that long?

Chair:  Can you explain to us what you did to perhaps quiet them down?

Roger Scarborough:  Quiet them down?  Exactly.  The pipes used to stick straight up, now we have them bent down to the ground.  Instead of having a muffler on that was 2 to 3 inches long, now it’s got a muffler on that is 6 to 8 inches long.  And when the Court came here, they never even asked to hear them run.  I wanted to start them up for Judge Wright and she never even asked to hear them run.  It was too muddy for the kids to run.  It was in August when it rained all that time.  And now there is a fence up there that blocks the noise.   It’s not like these carts are out there every day, all day, twice this summer, two or three hours max.  I’m a little sick and tired of coming to this kind of stuff, personally.

Chair:  I’m going to offer Mr. Scarborough, first, every opportunity to explain or at least present his case, so.  Anything further on that?

Roger Scarborough:  Well yeah, they are having a big issue where stuff they wrote here about how I wasn’t supposed to be running the track without a conditional use or without a permit or anything.  There is nothing in here that said I had to have a permit to run a race track.  They didn’t say I did need one or I didn’t need one.  Nobody has ever given me a written violation of any kind that says I can’t run that track.  So, what’s to stop me?  What’s the reason I can’t run?  Because, the Johnsons don’t want me to?   The world doesn’t revolve around the Johnsons.  Maybe yours does, but mine doesn’t.

Chair:  I guess I would just like to ask the question, do you have anything further you would like to present tonight or do you want to just kind of continue?

Roger Scarborough:  Yes, continue on.  I probably shouldn’t say anything more.

Chair:  Then I would like, at this point in time, suggest that the Board has a chance and opportunity to ask questions right now.  Do you have any questions?  Or, Andrew did too.

Attorney Carroll:  I think Mr. Peterson would want an opportunity to also participate.

Andrew Peterson:  Just to clarify a couple points.  Two things to enter in as evidence.  One is the complete letter to the Johnsons which was also copied to Mr. Scarborough and Attorney Neuse regarding my not finding in favor of the noise permit.  For some reason they omitted the second page.  The second thing I would like to submit is the complaint by the Johnsons which was hand delivered to me on June 5^th at 7:00 p.m., right here, which states:

To Whom It May Concern:

Please note we are requesting a zoning violation to Section 641(1) of Leicester Zoning bylaws regarding excess noise due to a go cart track in Leicester, Vt., Charles E. Johnson, Bonnie L. Johnson.

That was the entirety of the violation.  For me, it was strictly noise.  There was nothing else that I was asked to look into.  So, as far as I’m concerned, I answered it completely 100%.

Chair:  So, we will enter that as well.  Do you want that entered?

Andrew:  Yes, I would.

Chair:  Do you have any objections to having this entered?

Putnam:  No

Andrew:  Next actually, I would like to ask Attorney Putnam to continue reading from section 3 on the page where he was explaining why there was a violation.  Page 10

Putnam:  So this is Finding 3 on page 10.  “Summary judgment is granted in favor of the Johnsons that the past operation of the track failed to meet the performance standard for noise, but is denied as to this application for conditional use approval, as material facts are in dispute as to whether the proposal is capable of meeting the performance standard for noise under any possible conditions or safeguards.”

Andrew:  And you interpret that to mean that they say that it is not, that it is in violation of performance standards going forward.

Putnam:  What I interpret that to say is, the past operations violated the noise standards.  If the operation continues at the same level as the past, my interpretation is that would continue to violate the noise standard, but the Court is leaving open the possibility that something could be done to the go carts or the track that would bring it into compliance.  There is a theoretical possibility, but I haven’t heard testimony to the fact that it has been accomplished.

Andrew:  What does the Court mean by “as material facts are in dispute”? 

Putnam:  When material facts are in dispute, that means that the Court is not,  is leaving the issue for trial. 

Andrew:  Would that mean that they have actually made a decision?

Putnam:  The Court has made a two part decision here.  They are finding that the issue has been decided about the past operation.  And they’re saying it remains open for trial whether there could be some conditions placed on it so that a future permit could be issued it would allow it.

Andrew:  The way you are reading this is that when they state “I denied this application for conditional use approval, as material facts are in dispute as to whether the proposal is capable of meeting the performance standard for noise under any possible conditions or safeguards.”  You are saying that somehow that should be interpreted to say they shouldn’t do anything in the future because this says no?  Is that the way I’m understanding?

Putnam:  That’s not what I’m trying to say. 

Andrew:  So, I just want to make that clear.  The basis of my decision, I want to explain to the Board.  A lot of town’s have noise ordinances.  We don’t have ordinances in Leicester.  This is part of the zoning bylaws.  That’s something that could be enacted, it’s something that could be done down the line if it’s considered a problem.  This is something that I have investigated through and through.  I’ve looked at various other rulings that have gone on in the State in regard to different things.  One of most relevant ones to our situation.  We don’t say much about noise.  We just say that it can’t be continuous, it can’t be too much. Yes.

Schuerger:  Just for the benefit of those present, I think it might be useful to read §641(1) so that it’s in context to what you are about to talk about.

Andrew:  This is Performance Standards for the Town of Leicester noise.  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.

This case is important, I believe, because it goes way beyond Leicester.  This is a lot of uses in Vermont.  In this type of district which most of Vermont is made up of, where you’ve got rural agricultural.   You got farm uses going on.  You got people riding snow machines, you got people with shooting ranges in their back yard, you got people riding ATV’s, I’ve got neighbors that ride BMX bikes.  These are all things that I would consider  part of Vermont’s make up.  And, I believe that this case, and the decision of this case, is going to affect the future of a lot of different Vermont towns and I think that is part of the reason why we haven’t heard back from the Environmental Court because this is very important on how it is dealt with.  That said, we don’t talk about decibel levels here at all.  That’s something that was brought up in court.  I came out with the video camera one day and had Mr. Scarborough fire up one of his machines and rev up the engine.  I filmed it from the property line.  And interestingly, the Johnsons’ were mowing their lawn at the same time.  At the property line, when a car goes by, you can hear a car much louder than either of them.  But, the noise was pretty much equal from both sides.  To me it was not something that represented.  If that was the noise going on 24/7 or going on late into the evening, that sort of thing, I could see a point there.  But, a few hours, here and there on occasion, to me does not strike me as a repeated noise.  And, I think that’s part of what our performance standards are saying.  Noise levels or frequencies which are not customary, that is the first part we got to look at.  Noise levels that are not customary.  So, the Selectboard went out with a decibel meter at one point and I believe the property line was 67 decibels.  So, at the Johnsons’ house..

Putnam:  I would like to make an objection here.  I don’t know if you wanted me to interrupt or not, I apologize.  But,

Attorney Carroll:  If you have an objection, why don’t you just state it in as a concise a form as you can and the Board will make a decision about whether they would like to have Mr. Peterson’s testimony or not.

Putnam:  My objection is just that Mr. Peterson is talking about other people who made other measurements.  I think the Board should be listening to direct testimony from witnesses and not hear say from other.

Attorney Carroll:  So, your objection is hear say?

Putnam:  Basically, yes.

Attorney Carroll:  Questions to Andrew Peterson. 

Q:  These decibel levels that you are wishing to testify about on this particular issue, these are not measurements you took yourself?

A:  Correct

Q:  These are measurements taken by someone else?

A:  Yes

Q:  These results of decibel levels were then told to you?

A:   I believe it’s written in the file.

Q:  So, there’s a record somewhere in the file in connection with the first permit application that was submitted at that particular point in time.

A:  That’s correct

Q:  So, you are not attempting to offer any testimony specific to decibel levels about anything that occurred in the most recent past.

A:  Correct

Q:  So, whatever decibel levels you are talking about or testifying about, happened sometime in the past and are part of a record of the whole permit application.

A:  That’s correct

Attorney Carroll:  The question is whether or not to allow him (Andrew) to testify specifically that decibel levels occurred at a particular level to be offered for the truth that they in fact occurred at that level if you were not in fact present to acquire those test results.

Andrew:  If the Town is uncomfortable with that, then I am happy to withdraw decibel levels.

Roger Scarborough:  It was the Zoning Board that did that, all of them were invited, but not all of them showed up that day.

Attorney Carroll:  Mr. Scarborough, I assume what you are talking about is the event that occurred in connection with the first permit application. 

Roger Scarborough:  I think it was around then, I’m not sure.

Attorney Carroll:  In any event, Mr. Peterson, as I understand it, you are withdrawing that specific component of your testimony.

Andrew:  Absolutely

Andrew:  Noise levels and frequencies which are not customary in the district.  Noise levels and frequencies.  So, the levels which I will use without any sort of device to measure them.  You got go carts, you got shot gun blasts, you got snowmobiles, you got tractors, any of these things make a loud audible noise.  Yup, certainly get your notice if not disturbing, For example, one of the things that I think is very interesting in Vermont, in 1998 the State of Vermont Environmental Court found after some neighbors complained about their neighbors having a shooting range in the back yard.  This went to the Zoning Administrator, didn’t have a problem with it.  It went to the ZBA, didn’t have a problem with it.  Went to the Environmental Court, lost in Environmental Court.  What they said was, that’s part of the character of Vermont.  Your neighbors are going to fire guns in the back yard and the objection was that there was noise.  The things that were cited by the Supreme Court in their agreement with all this, was things that applied right directly here.  Primarily, family use, the use of increase, especially on weekends.  These were all things that were found to be well within reason.  As such, if we had a situation in this town where somebody came to me or the Johnsons’ came to me and said Mr. Scarborough is set up some targets in his backyard and is firing off shotguns for two hours a day, does he need a permit?  The answer is, no.  And, this comes from the Supreme Court.  That’s fairly well guaranteed as far as I see it, in my job as enforcing the laws literally.  As such, I do not see that this is uncustomary.  District or neighborhood.  Residential, rural, agriculture.  A lot of loud noises there.  This isn’t a downtown neighborhood in Middlebury or Burlington where you do have specific noise standards.  A repeated disturbance.  Again, what constitutes repeated.  Is a shotgun blast every 10 minutes, repeated?  Is a school bus driving by once a day, repeated?  Is someone mowing the lawn for 2 hours, repeated?  Is running go carts for 3 or 4 hours, repeated?  In my research and my view, I said, no, it is not. 

Finally, the last thing I wanted to make clear, for what you guys might decide tonight, initially, Mr. Putnam said the Court ruling currently before the Environmental Court has to do with this.  My reading of this is that it does not.  I would suggest that you guys take a close look at that to make sure that what we are waiting for from the Environmental Court  is simply a decision on whether or not this requires a conditional use permit.  Nothing further than that.  As such, whether or not it requires a conditional use permit, there’s still noise standards that are very separate.  This is a completely separate issue and if you want to wait through the winter, that’s fine with me, but I see this as a very separate thing and should be treated separately by you all.  That’s my notes and would be happy to answer any questions that are pertinent.

Schuerger:  Mr. Peterson, would you state for the record the case you were citing?

Andrew:  This is Schreiber (97-150) 168 Vt. 534; 724 A.2d 475

Schuerger:  Could I copy that?

Chair:  Just for the record, we have no objections.  We are going to then file the original appeal of Bonnie & Charlie Johnson, the hand written one as Exhibit B and the complete letter as Exhibit C.

Does the Board have any questions they would like to ask at this time?

Mr. Scarborough, I guess I just want to ask this question, if you think that tonight, that tonight’s meeting and/or if there is a decision made, would be regarded as material, as compared to waiting for the Environmental Board hearing?

Roger Scarborough:  I don’t know what you mean.

Schuerger:  Do you believe that the Environmental Court’s decision will be material to our decision on the appeal by the Johnsons of the Zoning Administrator’s decision?

Roger Scarborough:  Well, like Andy said, I think its two separate issues.

Schuerger:  Do you think if the Environmental Court rendered a decision one way or another it won’t make a difference what we might find, like if they had made the decision yesterday, you think we would be finding something different?  Can you anticipate that?

Roger Scarborough:  I don’t know, I don’t know what to say about that.

Putnam:  I just like to first set the record straight on the scope of the Environmental Court case.  It’s true that one of the issues is should Mr. Scarborough get a conditional use permit, but another one of the issues was, is this a noise violation.  I don’t think we need to submit it into evidence, but I’ll just read to the Board, Mr. Scarborough’s statement of questions which is what determines the issues in the Environmental Court case.  And the statements that were in his statement were:  conditional use permit is not needed, children do not need to have permits to ride go carts on private property, this is an accessory use of the property, and no one brought any evidence of a noise violation.  So, we have been litigating that issue in Environmental Court.  Was the past activity a noise violation and can he be allowed to do it in the future, or is the future use going to be a noise violation.  So, contrary to what Mr. Peterson says, this is an issue in Environmental Court and I do think it would be very helpful to have that decision and just as a practical matter, if this Board issued a decision tomorrow, then one of the other of us, is probably not going to like it, and with that, have to appeal to preserve their rights.  So, we would have to go back to the Environmental Court.  There might be a conflict between the decisions and there would be a lot more litigation for both Mr. Scarborough and the Johnsons.  So, that’s why we, you know it’s sort of a mute point until summer comes around anyway, so we think it would be better to wait and get that guidance and go from there.

Brenda McAtee:  I’m Brenda McAtee, I recently moved back to Leicester.  Andy says there is no noise level that you measure whatever.  So how can you violate a level you don’t have?  I don’t, I’m not computing that, I’m sorry, I don’t get that.  If there’s not a speed limit, you can’t pick me up for speeding.  If there’s not a level, how can you fine him for breaking it?  I don’t understand that, do you? 

Chair:  Can you mention your name again?

A:  Brenda McAtee

Q:  Are you considered to be an interested party?

A:  Yes

Attorney Carroll:  So, you would like to address that question to Andy?

Brenda:  Yes 

Andrew Peterson:  It’s ah, years ago when there was the Senate hearings on pornography, the famous statement.  I don’t know what pornography is, but I know it when I see it.  That’s what we got here.  We’ve got, i.e. speeding, a lot of places, Germany, there are no speed limits, however, you can still get a speeding ticket if you are exceeding speeds that are safe for the conditions.  That’s what we have here.  It’s a judgment call.  For me, I have to go in and look at it and say, if I were living next door, would this bother me?  The way it is written, how do I choose to enforce it?  So, it is very random.  I was talking about decibel levels before, but there are no decibel levels involved in this whatsoever, I was using them more for reference sake.  Again, for me it’s literally how it’s written.  We can’t read anything else into that without creating problems.

Tim Johnson:  825 Swinington Road.  It seems like Brenda brought up a good point to get this level thing and it seems like we’re talking around the subject.  Because, Mr. Peterson just read in a book, and it states right there.  We’re not talking about what goes on in Germany, or what goes on in Montpelier, we’re talking about the Town of Leicester.  In that book right there he just read from, it describes what’s a nuisance and the levels.  He just said, he said it in front of everybody.  That’s what the levels are, it’s a nuisance.  So, talking about things in other parts of the State or other parts of the world, makes no sense here.  We’re talking around the subject.  It’s right there in black and white, he just read it for everybody. 

It should be a question I feel to the Board and to Mr. Peterson.  He more or less answered the question, by talking about other subjects.  I’m asking the Board, what does that have to do with, we’re here tonight to talk about the issue of this Town of Leicester, not somewhere else in the State, as he got up and talked about earlier.  It’s Leicester.  There’s the laws, there’s the book, he read it.  You all know it.  Why can’t someone, a Board Member, stand up and say, here it is, it’s in black and white?  Everybody is talking around the subject and not answering the question. 

Attorney Carroll:  In terms of actually having the Board specifically, as an attorney for the Board, my advice to them is that they are not witnesses.  Question that are directed to them, they are not expected to give answers until they issue their findings, conclusions and order in connection with this.  So, you have to wait until a decision is issued by this panel who will get together, convene, talk about it, determine what that particular ordinance section means, and whether or not there has been a violation in this particular situation.  That’s not something that as an attorney for the Board, I’m going to advise them to specifically respond to as to their individual opinions on this, that’s what they have to convene and discuss and deal with.

What there here to do, is get the testimony in evidence from the people who this impacts and use that information for the purposes of making that decision.

Tim Johnson:  I guess, to follow up on my question, as Brenda asked, and her question was answered by Mr. Peterson, I just as a concerned citizen of the town, I’m new here.  I’ve only been in town for a year, I just wanted to know because I thought I heard him reading something from the book, that stated what was a nuisance, what’s considered that.   So, to me, she got one answer but I’m interpreting it as something else, so I just thought it could be explained clearly to everybody, so we’re all on the same page.  It sounds like two different things.

Attorney Carroll:  Just to reiterate, you can, through the Chair, direct that question to Mr. Peterson if you like.  If he has got an answer, he will give it to you.  You just can’t expect to get an answer from anybody sitting on this Board, here now tonight.  You will get an answer when they get a decision issued.

Tim Johnson:  Like I said, it’s my first time, I thought I would get information.

Attorney Carroll:  I understand

Tim Johnson:  Thank you.

Bonnie Johnson:  I’d like to address the Chair.  I’d like to address the Board with just some facts of finding due to things that have been said tonight.  I’m not asking for any question, I’m not asking you to solve anything.  One thing that was brought up by Mr. Peterson and I too was listening to that clearly, and I’d like to ask the Chair if he would please would indulge me and read again what Mr. Peterson read about what a nuisance is.  I don’t know if it’s 641 or what, but if he would do that first for me. 

Attorney Carroll:  Again, in terms of advising the Board.  That can be read into the record 15 times tonight, and that’s fine, but my request is that you go ahead and read it into the record if you would like it read into the record.

Bonnie:  Fine, as long as I have a copy of it, so that I can read it.  Did you want me to read it out of the --.  OK, I can read it.

Noise volume is 641 performance standards, No. 1

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.

OK, regarding that, I would like to state, in 08 of June what we personally heard and I’m sure there was more than that but only what we heard while we were home, was 3 ¼ hours of what we as listeners, consider a nuisance.  To listen to 3 go carts going around a large race track when you race, you race, it’s not like a motorcycle coming down and passing your house and it doesn’t come back, it’s not even like a 16 wheeler on a work day, coming down and passing and going by.  That is noise for a few minutes.  This is a continued nuisance noise, at a high level that is irritable to the ears of adjacent landowners, as well as, many of the neighbors have also heard this and reported it.  It was reported at the Zoning Meeting, it was reported with witnesses at the Environmental Court, that’s number one.  Number two, it was just said by Mr. Scarborough that no way did they race on Saturday and Sunday.  We have presented written documentation to the Zoning Board, not this complete Zoning Board, the one prior that we met with, as well as, the Environmental Court of where we were asked by the previous Zoning Administrator to keep track of the times.  The length, how many carts, etc., etc.  We did that and we presented.  I’m sorry, but there were several, several 3, 4 Saturdays and Sundays that was continued racing.  That’s one thing.  It was brought to the Environmental Court and offered as proof there as well.

Another thing for Mr. Peterson to state that he came over to the house, I find that in very poor comparison for someone to bring one go cart out in the driveway and start it going and have somebody listen to it a few minutes and try to compare that to what we’re talking about, to as many as 6 or 7 carts going around a race track.  That isn’t even an equal or anywhere near an equal representation of what we are trying to get across to everybody.  The reason also, the Judge from the Environmental Court did not listen to the race car that day, they did have one ready, I believe it was, it might have been more, I’m not sure, but it was a storm coming in and she did not want to be a part of it.  She said she had got caught in one and she did not want to get caught in the other.

Lastly, a large track around anyone’s house, as I stated, that is used for racing is hardly comparable to someone on a riding lawn mower.  I could sit up here and say Mr. Scarborough’s  lawnmower annoys me, I’m not, and if mine annoys him, and I don’t even mow as much as he does, I’m sorry.  That’s sort of a use that residents use to cut their grass, is a lawnmower.  But, we’re way out of context of what a race track is, the length of time that it’s being used, and how many carts are using it.  No, I agree with you, in 06, this is when the majority of all this happened.  This is why we’re here, because there was no consideration given for neighbors or property owners as of to what they were doing.  Oh yes, after the middle of 07, if quieted down, when we came and asked, does a permit be needed, and this started.  And this is also why we haven’t heard it much in 08.  Thank you for your time.

Chair:  Acknowledged Donald Scarborough.  Are you considered to be an interested party?  Are you giving testimony?

Donald Scarborough:  Yes, I am.  I’m Donald Scarborough.  My interest in this conversation is that I have twin sons that happen to take part in the activity at their uncle’s property. 

Schuerger:  Should we mention for the benefit what the qualifications are for interested party status?  OK, interested party status in the hearing takes a couple of different forms.  You have to be an applicant or property owner or adjacent property owner or the State, if the State has an interest in the case.  Or, the Zoning Administrator has an interest in the case.  One other category which also can gain interested party status is an organized group of a certain size.  But, that has to be a formally organized group.

Donald Scarborough:  So, basically what you’re telling me is because I don’t fall in one of them categories, I’m not allowed to speak.

Schuerger:  You don’t qualify in the particulars of this case as an interested party. 

Donald Scarborough:  So, there’s other people in this room, that won’t be able to speak either?

Schuerger:  Correct

Chair:  The one thing that I can suggest is if Roger would like to have you presenting testimony.  That’s up to you, Roger.

Roger Scarborough:  That’s a good idea.

Attorney Carroll:  Maybe if I could just clarify a little bit.  I think it’s important for people to understand that there are rules that the Zoning Board of Adjustment needs to apply here, keeping in mind, as Mr. Putnam said, the likelihood is pretty high that whatever decision is reached by this Zoning Board of Adjustment, it’s probably going to end up at the Environmental Court level.  We don’t know that.  We don’t know that until the appeal is actually taken, but for those reasons, it’s important for this board to apply the statutory requirements in the way in which they are intended.  The interested party rules are there for the purposes of being sure that the people who actually have party status at these proceedings --- and the phrase that used in the immediate neighborhood which typically means abutters or people who might be able to argue in some way that whatever the use is in connection with that particular part of the property actually affects them and their property interest and their property rights.  So, to the extent that you don’t live in the immediate neighborhood, or can’t fashion an argument, then you’re not an interested party, and you don’t have the ability to come here as a party, present evidence, or to pursue an appeal to the Environmental Court.  On the other hand, if Mr. Scarborough has specific witnesses, that he would like to have come testify on his behalf, or if the Johnsons’ had specific witnesses, who aren’t parties, but who have personal testimony, based upon their own personal knowledge, and their own personal information, then the Board can, in its discretion allow that party to speak on behalf of another interested party or as a witness for another interested party.  So to the extent that there is actual personal knowledge and information there might be a basis to do that, but not as an interested party.  Is that clear?

Scarborough:  Yes

Schuerger:  Just for your benefit, what we have done, is the interested party list includes and interested party’s definition.  There were copies of it in the back, if anyone would like to look at that at some point and there is another copy here if anyone’s interested.

Chair:  I would just like to ask if that was the consideration/the direction we were going here, Roger?

Roger Scarborough:  Yup. 

Donald Scarborough:  First of all, I would like to talk about Section 641 in the zoning bylaws that I was confused about.  That’s a very judgmental situation.  What’s annoying to Mr. Neuse may not be annoying to Mr. Fiske.  That is a broad area, ok.  Now, I am under oath.  6 or 7 go carts, never happened.  Even in 06.  The Saturdays and Sundays, never happened.  I’ve got the twin boys.  I got two carts.  I don’t have time to go there two days in a row.   They break too often, the go carts.  Now, I was present when the former Zoning Administrator was there with the decibel meter.  This is not hear say, I was present. 

Chair:  OK, but it is still considered hear say in this hearing.

Donald Scarborough:  Why’s that?  Nobody told me that.  I saw the meter.  I know where he stood.  I know what happened.  67 decibels at the neighbors, Johnsons, adjacent property line.  A Harley Davidson, a Harley Davidson motorcycle went by.  It read 92.  So, therefore, what’s excessive and what isn’t excessive, I mean, in that area where they live, in that intersection, the Johnsons and my brother has a lot of truck traffic, a lot of motorcycles, stopping and going, I mean the Johnsons in 06 I think, or maybe 07, they were here with the Selectboard wanting to shut the road down to trucks because of the jake brakes.  They wanted to shut that road off completely.  They had Diane Benware call the Agency of Transportation and pursue it.  And the State told them, said, it doesn’t happen.  So, I mean, they complain about trucks, yes their noisy, but you can’t stop them.  Motorcycles go by.  Complaint after complaint, after complaint.  This is one issue where three young kids, most of the time are racing together, twice in 08.  We have tried to improve the noise levels; as in reduction.  The dust is no longer an issue. 

Chair:  OK

Peter Mayhew asked if it was too late to sign in on interested parties list.

Schuerger:  Are you an adjacent property owner?  Are you abutting?

Peter Mayhew:  Just down, 1944 Leicester-Whiting Road.  It’s not abutting. 

Schuerger:  In this case, property owner in the neighborhood.

Peter Mayhew:  May I speak?

Attorney Carroll:  Go ahead, you can go ahead and stand up as though ready to speak, how’s that?  Mr. Putnam, do you have any objection to this gentleman speaking or participating as an interested party?

Putnam:  No

Peter Mayhew:  I’m Peter Mayhew 1944 Leicester-Whiting Road.  Just down the road from Roger and rest of my neighbors here.  Everyone keeps talking about this noise status thing and what’s usual noise and unusual noise and the levels and all that stuff.  First the Johnsons’ are saying this go cart track, these noises are not the normal noises you here in the neighborhood.  Well, I’ve been at 1944 Leicester-Whiting Road since approximately the first of August 1989, I’ve had dirt bikes, I’ve had ATV’s, snowmobiles, I’ve got two go carts, we’ve got 3 or 4 four wheelers and we’re always making that noise.  So, why’s that unusual.  It’s the same noises.  It’s just that the Johnsons’ don’t care for it.  So, it’s not out of the ordinary for the neighborhood.  Thank you.

Chair:  OK

Bonnie Johnson:  Mr. Chair, I would like to say that I have never complained about Mr. Mayhew, I don’t feel any of those noises are done in quantity for any length of time that do annoy us enough to have to make a complaint, and I hope I would never have to.  Nothing that they are doing has anything to do with what we are dealing with, with a race track. 

Chair:  Thank you.

Bonnie Johnson:  Any the other thing I would just like to ask in closing that I would like your consideration of the Board to please wait also for the Environmental Court.  I think it is only fair because this was scheduled once before and we were suddenly told not to come after making plans to come because you didn’t have a decision of the Environmental Court.  So, I think it’s only fair now that we are coming again and we still, and we are just as upset not getting their decision as probably you people are and everybody’s sick of coming.  We’ve waiting a long time to have it, one way or the other.  But, it hasn’t come through no fault of ours or any of us here and I just think it would be nice if you would consider to wait.  I think it might have a great bearing on it.  Thank you.

Chair:  Do we have any other testimony that someone would like to present tonight?

Brenda McAtee:  I have a question, again.  If they offered so many hours, so many days a week that they were willing to run, that’s not acceptable?  You know I mean that running after hours, after bedtime, that’s not…that won’t work?

Chair:  That’s not what we are meeting on.  We’re not meeting on that as such tonight.

Julie Delphia:  My name is Julie Delphia.  My husband, and family, and I reside at 1726 Leicester-Whiting  Road.  We are directly at the end of the race track, across the road from the end of the race track.  I think it’s truly unfortunate that a dispute between two neighbors has escalated to a point where we need lawyers.  And, formal meetings to discuss something that should have been able to be handled by talking amongst adults.

I have a great deal of concern about the decision you are going to make regarding this ordinance.  This ordinance is incredibly vague and relies entirely on personal perception.  And I would encourage the Board to think long and hard about making a decision regarding a noise ordinance, and what you consider to be a nuisance noise.  My concern is that in my property which we have been there almost 18  years now.  We had a gun range out back of our house for a good number of years shooting skeet, the noise, sure, it could be irritating at times but you know what, it’s the normal noise in this area.  A lot of the other noises that we experience in this area what I would consider normal noise, however,  my neighbor, at some point might decide that when I get my 11 cord of wood to split, they don’t want to hear my wood splitter going for two solid days, splitting wood from dusk till dawn or until dusk.  Which it does, when we get wood, and we will split wood continuously for over two days solid.  My neighbors might not like the fact that I get my leaf blower out and blow leaves for 4 or 5 hours at a clip.  My neighbors might not appreciate that we have snowmobiles and that my daughter who is a snowmobile phonatic loves to drive around our yard a 100,000 times because it’s really fun.  They might not appreciate that my family is a family of hunters and in order to prepare and participate in hunting, they will shoot shotguns and rifles.  Turkey season starts at dawn and if my family were to shoot a turkey at dawn, that might irritate my neighbor.  So, I would encourage you to be very careful in making a decision that sets a precedent about what is considered something that is irritating to a neighbor.  Because it is very prone to perception.  And, snowmobiles, ATV’s, I can tell you that this year, that there is a lot more ATV’s noise than there is go cart noise.  And to say there is not ATV noise, I would have someone come to my house and sit because there’s a lot of ATV noise.  But, you know what, that’s part of living here.  And if I get to a point where I have an issue with my neighbor, running ATV’s for an hour at a stretch, I’m going to call them up and say, “hey, can you cool it”?  You know, when the go cart place first started up, the kids were excited, they ran them a lot.  Yes, it could get irritating.  The answer is, Roger, it’s loud, you know, do you have to run them like that, can you take a little break now and then?  That’s how you solve those types of problems.  But, it’s really unfortunate that this has escalated to this level that we have to have lawyers sitting in a room to have a discussion amongst ourselves in this small town.  So please, when you make this decision, please understand the ramifications of the decision that you are going to make.  Because it’s incredibly vague and making a decision could have huge ramifications on the remaining residents of this town.  Thanks.

Chair:  Any other testimony?  Any questions of the Board?

Schuerger:  I just had one point of order and that was that Andrew provide a copy of the document that he referred to considerably and just to clarify whether he wanted that admitted that as an exhibit or whether he was just providing it to us so we could copy down the number correctly.

Andrew Peterson:  I would suggest that we submit it as an exhibit.  I think it would be good reading for all involved. Exhibit D

Chair:  Any other questions?

Attorney Carroll:  With permission of the Chair, I would just like to ask two follow-up questions so that when the Board confers here and begins the process of deliberating they can determine whether or not to hold or actually recess this particular hearing for the purposes, the sole purpose, not taking more factual testimony, but awaiting the decision of the Environmental Court and whether that’s a good or bad thing to do or whether they should close the hearing at this point and start the deliberative process.  Those are kind of the two options at this particular point in time.

I just want to follow up my inquiry, a little bit, of you, Mr. Peterson and you, Mr. Putnam in connection with that. My understanding from what you read by the way of the notices or the appeal that’s been taken, pending in E Court, is that one of the questions, the fundamental question, is whether or not the use of this particular go cart track area or whatever you want to call it, actually requires a permit, whether it’s land development, in that it requires some sort of a conditional use permit to allow the continued use of this particular track.  Would you agree with that, Mr. Putnam?

Putnam:  There are two related questions on that point.  One is, does this activity require a permit at all?

The second is, if it does require a permit, is Mr. Scarborough entitled to one?  So, the Court can actually issue him a permit with conditions or it can not issue a permit or it can say no permit is required.  So, that’s one component of the case.

Attorney Carroll:  Would you agree with that, Mr. Peterson?

Andrew Peterson:  You have to help me out here.  My understanding was that it was just the first part that they would determine whether or not they needed a conditional use permit.  I believe that I arrived at that decision, speaking with you.

Attorney Carroll:  Part of your determination about this particular notice of violation.  The part of the issue that you resolved on your own was whether or not in fact a permit is required.  In the first instance, is that right?  Whether or not a permit is required given the level of use that is occurring on the Scarborough’s property is one of the issues that you would have considered in connection with whether or not to issue a notice of violation or not. 

Andrew Peterson:  Yes, that is correct.

Attorney Carroll:  OK.  And that particular issue is now up at the E Court for a decision as part of the two part process.  One to decide whether a permit is necessary based upon the level of use that is currently or historically occurred on the property at this point in time and number two, if a permit is required, a conditional approval is required, then the second question is should it be allowed, and what if any conditions should be imposed?  Would you agree that those are the issues that the E Court is tackling right now?

Andrew Peterson:  Close

Attorney Carroll:  OK, well, in what way is that not accurate?

Andrew Peterson:  Um, whether or not it is a violation of the performance standards, I think would be irrelevant as to whether or not a conditional use permit.  If somebody is doing something that does not require a conditional use permit, but they are violating the noise performance, I am still going to give them a violation.  If they are within the boundaries of a conditional use permit, and violating the performance standards, I am still going issue.  I am going to issue independent of that. 

Attorney Carroll:  Let me ask you this.  Um, if it were determined by the E Court that in fact a conditional use permit is required for the level of use contemplated and testified to by Scarborough’s in this particular case, ok.  Do you agree that the continued use of that without a permit would be a violation, basically for failure to obtain a land development permit?  And, if that’s the case, then it’s very possible  that whatever the E Court is deciding up there, could be quite material, potentially to the outcome of this Board.

Andrew Peterson:  Yes, absolutely.

Brenda McAtee:  Can I ask how long this could take?  Could it take years?

Attorney Carroll:  The E Court has two judges.  Decisions are usually actually made fairly promptly in the E Court historically.  So, this I would say, the hearing I think occurred in August, is that right Mr. Scarborough, in August, mid August, summer?

Roger Scarborough:  We actually had the hearing I think in July.  She came to the house at the track in August. 

Attorney Carroll:  OK, so she held it over to come to the track and then the hearing closed sometime in August.  You would expect that by now, actually, I think we are probably getting pretty close to the time that we would normally expect to get a decision. 

In answer to the question, how long is it going to take?  There is no statutory requirement at E Court.  They will take the time necessary to issue a decision.  All I can say is, that historical we’re getting pretty close to the time to expect a decision out of E Court.  But, that doesn’t necessarily mean much.  It could be tomorrow, it could be two or three months from now.  Alright.

I think that was the only follow up I had, Mr. Chairman.

Chair: OK

Putnam:  I just wanted to respond to one more thing that Mr. Carroll was saying.  We discussed whether a permit is needed as part of the decision.  I just wanted to make very clear that the noise is another issue that will be decided by the Court and that was part of the testimony at trial and Mr. Scarborough testified about the noise and how he attempted to change the go carts, so it’s part of the same process.  I also think no matter how long the Court takes, we going to end this whole dispute sooner if we resolve it all at once because if this Board issues a decision without hearing from the Court, then one of us is going to up there appealing and that’s going to take another twelve months to resolve, so that’s.  I think it’s in everyone’s interest.

Chair:  I think we are going to take a minute or two to deliberate.

Schuerger:  I would like to make a motion to the Chair.  That having heard all your testimony in this matter, that we place the hearing in recess for the sole purpose of having any of the interested parties submit into evidence the decision of the E Court.  Interested parties are those that have been identified on our Interested Parties Service List and then whichever interested party submits that decision into evidence also will be required to provide that document to the other members on the interested parties list. 

Donna Swinington:  Seconded

Accepted by:  Chair and Shelley Glassner

Chair:  This meeting is officially in recess

Putnam:  I have a question.  Is a list of interested parties going to be mailed out after this hearing to the people that participated today?

Attorney Carroll:  Do we have a copier available?  Why don’t we make copies here tonight and make sure that anybody that wants a copy of that get a copy of that interested party list.

I will also just add that based upon the motion that has just been passed here before, that the concept of this is that any interested party can submit a decision of the E Court.  Once it’s submitted and copies are distributed to the other interested parties, that’s your notification that basically the recess, which has been put into place right here, is coming to an end.  That’s the only document they are waiting to receive to begin the deliberations in connection with the decision which will then trigger that 45 day period that exists in the statute where they are required to give a decision, a written decision within that 45 day period.  I just want to make sure that people understand that.  So, the 45 day process is going to begin as soon as that E Court decision hits the town office and copies have been distributed to the other parties.  Is that clear to everybody?

Schuerger:  Also, that interested parties list will be used and a copy of the formal decision will be sent to those listed by regular post. 

Attorney Carroll:  The statute will be followed.

Chair:  With that said, this hearing is now recessed.  8:32 p.m.

Respectfully submitted,

Sandra Trombley

ZBA Secretary