Appeal from Superior Court, Environmental Division Thomas S.
P. Hehir, Burlington, for Appellants Matthew and Judy
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,
1. 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
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
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
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
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
Environmental Division'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 ...