The West Tisbury zoning board of appeals (ZBA) has overturned a ruling by town zoning officer Ernest Mendenhall, who found that use of a dirt-bike track on Nip ‘n Tuck Farm does not violate town bylaws.
Acting February 10, on the advice of town counsel Ron Rappaport, the ZBA instructed Mr. Mendenhall to order a halt to the use of farm property for racing dirt bikes.
The order may be moot. Following a ZBA hearing on January 19, farm owners Fred and Betsy Fisher announced that they were voluntarily halting motor bike racing on their property.
Last week’s ZBA hearing was a continuation of last month’s public hearing, which was suspended in order to provide ZBA members with an opportunity to consult legal counsel.
Neighbors Louisa Williams and Chris Brooks, who originally filed the appeal, continued the appeals process in order to obtain a ruling from the ZBA.
In his November 3 ruling, Mr. Mendenhall said that the dirt-bike riding did not violate town bylaws 8.5-1 and 8.5-2 that limit accessories that may be used on agricultural property.
Preceding the vote, ZBA chairman Tucker Hubbell read the four-page opinion (available at mvtimes.com) provided by Mr. Rappaport.
In his opinion, Mr. Rappaport analyzed the legal definition of what constitutes a “customarily incidental accessory use,” and referenced a decision in which the Supreme Judicial Court ruled against a private property owner who wanted an airplane landing strip on his property in a residential zone.
Mr. Rappaport also referenced a decision in Dukes County Superior Court against a Chappaquiddick property owner who claimed that landing his helicopter was an accessory use.
Mr. Rappaport wrote, “Here, on the facts we have been provided, the volume and degree of use described in the minutes is not minor. Nor does the record reflect that dirt-bike tracks are common in West Tisbury (or even exist elsewhere in town). While the riders’ use is sanctioned by the owner of the site, it is not the owner himself who is doing the riding for occasional recreational enjoyment. Rather, the use is organized, systematic, and scheduled.”
Mr. Rappaport said a group of 20 riders, including children, approaches what would be defined in the zoning bylaws as a “membership club.” As such, he said, members could only use the land in a rural community for recreational purposes if the ZBA granted a special use permit.
Mr. Rappaport recommended the ZBA direct the zoning officer to issue a cease and desist order “until such time as a special permit is obtained allowing for recreational use as a membership club.”
He continued, “In the meantime, the property owner will also have to resolve the restrictions in the APR (agricultural preservation restriction) before the use is allowed to resume.”
What is noise
Mr. Mendenhall also ruled that the noise created during the dirt-bike riding for 2.5 hours on Saturday and Sunday afternoons, while loud, did not violate bylaw section 3.2-1, which prohibits a nuisance to the community or the neighborhood due to noise vibrations.
Mr. Hubbell said the ZBA did not ask Mr. Rappaport for an opinion on section 3.2-1, because the ZBA could not provide Mr. Rappaport ample facts on which to rule. The board did not make a site visit while riding was occurring, and the town lacks the tools needed to conduct a sound check to measure the volume of noise being created, he said.
“Obviously if someone applied for a special permit, then the noise issue would certainly be a factor — probably a big factor — in our decision about a special permit,” Mr. Hubbell said.
ZBA members discussed the issue prior to their unanimous vote.
“Speaking personally, I do not see how I could vote for a dirt-bike track pretty much any place in town,” Eric Whitman said. “I live a mile and a half away, and I could hear it every time they rode. It seems like it is too noisy for a residential area. We are not going to vote on anyone applying tonight, but it is a pretty good example for everybody of what to expect if someone does apply.”
The ZBA vote was unanimous, including chairman Tucker Hubbell, Toni Cohen, Nancy Cole, Eric Whitman, and Tony Higgins. Robert Schweir was present but did not attend the previous hearing and did not vote. Larry Schubert was not present.
Mr. Hubbell said that the Fishers also need to address the restrictions on the use of the property imposed by the terms of an existing Agricultural Preservation Restriction (APR) agreement.
The Fishers entered into the APR in 1986, when they sold development rights on 49 acres of the Nip n’ Tuck Farm to the state Department of Agriculture (DOA) for $475,000. The APR restricts the use of that land to strictly agricultural purposes (Feb. 10, “The catalogue of tax-favored property on the Vineyard“).
The DOA, the West Tisbury selectmen, and the town conservation commission share oversight of the property under the terms of the agreement. DOA officials inspected the Fisher property Wednesday.
Following the ZBA hearing, Wayne Greenwell, one of the neighbors who first appealed to selectmen in October to halt the activity, told The Times, “I hope this decision gives the town the impetus needed to address the other noise issues in town to prevent any recurrences of this in the future.”
Mr. Hubbell told The Times, “I think the process played out the way it should. The zoning inspector made a ruling, that’s his job. The residents appealed, and we made a decision.”
Richard Knabel, chairman of the selectmen, attended the hearing. In comments following the meeting, he said dealing with noise issues would require a Solomon. “Noise is a recurring and difficult issue,” he said. “My guess is that while we would like to deal with it, it will be very difficult to come up with a bylaw that will avoid this issue.”