In re Nov

Citation2016 VT 99
Decision Date02 September 2016
Docket NumberNo. 2015-430,2015-430
PartiesIn re LaBerge NOV
CourtUnited States State Supreme Court of Vermont

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Environmental Division

Thomas S. Durkin, J.

Brian P. Hehir, Burlington, for Appellants Matthew and Judy LaBerge.

E.M. Allen of Stetler, Allen & Kampmann, Burlington, for Appellee Town of Hinesburg.

Claudine C. Safar of Monaghan Safar Ducham PLLC, Burlington, for Appellees Gary and Fiona Fenwick.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. ROBINSON, J. The LaBerges appeal the Environmental Division's affirmance of a Notice of Violation (NOV) issued by the Town of Hinesburg Zoning Administrator (ZA) for violation of a Town noise ordinance arising from use of a motocross track on their property. On appeal, the LaBerges assert that the ordinance is unconstitutionally vague and that the Environmental Division's conclusion that the LaBerges violated the ordinance is clearly erroneous. We affirm.

¶ 2. After a trial and site visit, the Environmental Division made the following findings. The LaBerges and the Fenwicks own and live on adjoining parcels of land in the Town of Hinesburg. The LaBerges maintain a motocross track on their property, and the track is situated near the parties' shared boundary line. The properties are located in a rural section of town where properties are mostly wooded, except for the areas surrounding their home.

¶ 3. On July 22, 2013, the Zoning Administrator (ZA) visited the area at the Fenwicks' request and observed motocross motorcycles being ridden on the LaBerge property. At the time, the ZA and the Fenwicks stood on the Fenwicks' land near the common boundary line with the LaBerge property. The ZA and one of the Fenwicks measured the sound emitted from the motorcycles using a sound meter purchased by the Fenwicks. For a period in excess of an hour, the noise levels exceeded 80 dBA for a period of ten to fifteen seconds every five minutes, during times when the motorcycles were closest to the common boundary line. Although the ZA personally observed the motorcycle noises only on July 22, 2013, during conversations that day, Mr. LaBerge confirmed that his two sons had also ridden their motorcycles with similar noise levels and for similar duration on June 3 and July 7.

¶ 4. The Fenwicks hired a noise expert, who installed noise meters on their property. That expert confirmed, based on his testing, that the motorcycles on the Laberge track resulted in noise at the Fenwick's property in excess of 80 dBA. The trial court credited the expert's testimony that in industrial settings where noise levels exceed 80 dBA, all workers are required to use ear protection.

¶ 5. The Laberges' sons ride motorcycles regularly on their motocross track, although the frequency has diminished over the last seven years, as their sons are not competing in motocross as much as they once did. Six years earlier, in 2007, the ZA issued and the Development Review Board (DRB) upheld a NOV to the LaBerges for violating the Town's prior noise-related performance standards due to motorcycle use. The LaBerges did not appeal that violation, and they have not received any other Notice of Violation since that time.

¶ 6. The vast majority of property owners in Town do not operate motorcycles or ATVs on their residential property, and the ZA has not received any other noise complaints concerning motocross bikes or ATVs ridden on any other residential property in Town.

¶ 7. The Town has a noise ordinance that states: "Unreasonable noises are not permitted. A determination of 'unreasonable' shall include factors such as intensity, duration, and frequency (i.e., how often it occurs)." The ordinance exempts "usual and customary residential activities or property maintenance."

¶ 8. Based upon his visit on July 22, 2013, and the reports of two other recent instances in which the Laberges' sons rode for similar durations and generated similar levels of noise, the ZA issued an NOV to the Laberges. In his notice to the Laberges, the ZA lamented that the noise ordinance "contain[ed] no guidelines on what a reasonable duration or frequency might be," and said, as a consequence, "I recognize that my application of the regulations is arbitrary."

¶ 9. The LaBerges timely appealed the ZA's NOV to the DRB. After a hearing, the DRB found that: (1) the LaBerges' motorcycle use constituted a "usual and customary residential activity"; and (2) the noise emitted from the use of the motocross track was intense, but in light of its limited frequency and duration, it was not unreasonable. The Fenwicks appealed to the Environmental Division of the Superior Court.

¶ 10. The Fenwicks' statement of questions to the Environmental Division identified three questions. First, does the dirt biking and/or motocross use of the LaBerges' property violate Section 5.12, specifically 5.12.1, of the Town's regulations? Second, does the LaBerges' dirt biking and/or motocross use of their property constitute unreasonable noise as defined in the regulations? Finally, does the LaBerges' dirt biking and/or motocross use of their property constitute a usual and customary residential activity, particularly in light of the EnvironmentalDivision's decision in In re Fowler, No. 159-10-11 Vtec (Vt. Super Ct. Envtl. Div. Feb. 4, 2013) (Durkin, J.)?

¶ 11. The Environmental Division addressed each in turn. With respect to the first two questions, the court rejected the LaBerges' argument that the ordinance was unconstitutionally vague, concluding that it was not standardless, and that it struck a reasonable balance between notice to the landowner and flexibility for the municipality. The court further held that the noise level from the motocross track for ten to fifteen seconds every five minutes for up to two hours at a time was excessive, especially for a residential setting, considering such noise level often warrants hearing protection in a more industrial setting. It noted that 80 dBA was 10 dBA higher than—or twice as loud as—the highest specific decibel limit the court had seen in any Vermont zoning regulation. Regarding the third question, the court concluded that dirt biking and motocross riding are not so customary and incidental to residential use that they can escape the limits of a noise ordinance specifically designed to regulate the competing claims of neighbors. The court noted the absence of any evidence that the repeated riding of motocross motorcycles was a usual and customary practice in Town. Accordingly, the court affirmed the NOV.

¶ 12. On appeal to this Court, the LaBerges make two overarching arguments. First, they contend that Section 5.12.1 of the Hinesburg Zoning Regulations is so vague and lacking in notice that it violates due process and equal protection. Second, they argue that the court's conclusion that the limited, sporadic, seasonal use of the LaBerges' rural property is unreasonable is clearly erroneous and unsupported by the evidence. In connection with this argument, the LaBerges specifically challenge several of the court's findings. We begin with the constitutional challenge to the ordinance, then turn to the LaBerges' objections to the trial court's findings and conclusions.

I. Constitutionality of Hinesburg's Performance Standards

¶ 13. The LaBerges argue that the noise restrictions in Section 5.12.1 of the Town's noise ordinance are vague, ambiguous, and standardless and, accordingly, are void and unenforceable on their face. The Fenwicks respond on the merits, but also argue that the constitutional issues were not properly preserved. We reject the contention that the constitutional issues were not properly preserved, but affirm the trial court's determination that the noise ordinance is not unconstitutionally vague.

¶ 14. On the preservation question, the Fenwicks argue that the constitutional issue was never properly presented to the Environmental Division because the LaBerges did not cross-appeal the DRB's decision in their favor with their own statement of questions addressing the constitutionality of the Town's noise ordinance. The Fenwicks assert that the Environmental Division was without jurisdiction to consider the constitutional questions, and we cannot consider them on appeal.

¶ 15. The Fenwicks are correct that as a general rule the statement of questions defines the Environmental Division's jurisdiction on appeal. See V.R.E.C.P. 5(f) (stating that appellant "may not raise any question on the appeal not presented in the statement as filed"); In re Garen, 174 Vt. 151, 156, 807 A.2d 448, 451 (2002) (noting appeal to Environmental Division is confined to issues raised in statement of questions). However, as we recognized in In re Jolly Assocs., the Environmental Division may consider matters that are intrinsic to the statement of questions, even if they are not literally stated in the statement of questions. 2006 VT 132, ¶ 9, 181 Vt. 190, 915 A.2d 282. The first question presented in this appeal is whether the dirt biking and/or motocross use of the LaBerges' property violates Section 5.12.1 of the Town's regulations. This question requires the court to consider the meaning and reach of this ordinance, and that consideration directly implicates the LaBerges' argument that the ordinance is so vague that it has no discernible meaning.

¶ 16. Moreover, the goals of our preservation rules are satisfied in this case. The purpose of our preservation rule "is to ensure that the original forum is given an opportunity to rule on an issue prior to our review." In re White, 172...

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