Posted by: Patricia Salkin | October 2, 2016

VT Supreme Court Finds Landowners Violated Town Noise Ordinance

The LaBerges and the Fenwicks owned and lived on adjoining parcels of land in the Town of Hinesburg. The LaBerges maintained a motocross track on their property, and the track was situated near the parties’ shared boundary line. The Zoning Administrator (ZA) found 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, and issued an NOV to the Laberges. In his notice, the ZA stated that the noise ordinance “contained 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.” The LaBerges timely appealed the ZA’s NOV to the Development Review Board (DRB). The DRB found that: the LaBerges’ motorcycle use constituted a “usual and customary residential activity”; and 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, which concluded that the LaBerges violated the town noise ordinance.

On appeal, the LaBerges argued that the noise restrictions in Section 5.12.1 of the Town’s noise ordinance were vague, ambiguous, and standardless and were void and unenforceable on their face. Specifically, they asserted that the noise ordinance did not contain sufficient guidance as to how the identified factors—intensity, duration, and frequency—should be analyzed, measured or weighted, therefore opening the door to arbitrary enforcement. Second, they argued that because of this lack of clarity, a landowner of common intelligence had no way of knowing what conduct was acceptable under the ordinance.

The court found that in addition to incorporating an objective “reasonableness” standard, the ordinance in this case identified key factors in assessing reasonableness: intensity, duration, and frequency—guidance that further focused the reasonableness inquiry, guards against arbitrary enforcement, and put individuals on notice of the law’s requirements. The ZA’s statement in his NOV letter to the LaBerges that his application of the ordinance was “arbitrary” did not change this outcome, since, in the same letter, the ZA described and considered the three listed factors. He stated that he observed noise measurements in the high 80 Db range coming from motorbikes ridden on your property for approximately 10 to 15 seconds, and its frequency was about every five minutes while he was present. The frequency of the use of the track, was reported to be on or about June 3, July 7 and July 22. The combination of all of these factors established that there was an unreasonable noise.

Additionally, the trial court did not rely exclusively on decibel measurements in reaching its conclusion. The court specifically credited Ms. Fenwick’s testimony that the noise was “extremely loud, irritating, assaultive, and disruptive.” The trial court also noted that the anticipated expert testimony could lend credibility to Mr. Fenwick’s measurements, as Mr. Fenwick’s 80 dBA reading was subsequently corroborated by an expert’s measurements. Accordingly, the trial court’s finding that the sound levels at the property line were 80 dBA was not clearly erroneous.

In re LaBerge NOV, 2016 VT 99 (Vt. Sept. 2, 2016)

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