State of New York
Supreme Court : County of Monroe

- against -

Index No. 1999/5023

ANDREW V. SIRACUSE, J.

The Town of Mendon has brought this action seeking a permanent injunction against John Bartholf, to enjoin him from maintaining and using a motocross (cross-country motorcycle) track on the property where he lives. It is, in fact, Mr. Bartholf's son Shane who uses the track, and there is a good deal of controversy over whether the path where Shane rides, in the back section of the Bartholfs' eleven-acre property, is indeed a "track" of a constructed nature. This court earlier denied the Town's motion for a preliminary injunction. It now finds reason to deny the permanent injunction as well, and to dismiss the complaint.

What is it that zoning laws regulate? The use of land, of course; but what constitutes "use"? On close inspection, the concept dissolves into a graded blending of two very different ideas. At one end is the condition of the land itself, unadorned or unimproved by any structure; at the other is pure activity, with no preceding transformation of the space in which it takes place. Zoning law generally occupies itself with the interplay between these two; activity pure and simple is more often the subject of nuisance litigation, and the maintenance or shaping of landforms themselves is rarely the concern of zoning boards unless it affects the site's drainage.

The present case lies very far towards the end of pure activity, and the papers submitted to the court and vigorously argued by the Town fail to address the peculiar cast that this gives the litigation. The Town claims that Bartholf has constructed and operates a motocross track on his property. Bartholf's responseis that the "track" is used only by his son, Shane, and there is little if any probative evidence to the contrary. Moreover, he denies that what he has done constitutes the building or maintenance of a track at all; it is merely a set of paths on which Shane rides, which have been cleared for reasons of safety and convenience. The Town points to an earth ramp which Shane evidently uses for stunt riding, and claims that Bartholf made use of a bulldozer to build the ramp and perhaps other features. Bartholf does not deny some small modifications of the topography, but he alleges that the "ramps" are largely natural features and that the amount of earth-moving involved was less than occurs in spring ploughing and substantially less than that involved in the many horse farms in the area, none of which required permits. In addition, he argues that the ramp is no more than a "berm" and cannot be considered a structure; for that reason, he says, the zoning code does not apply.

The track itself, though, would surely not have sparked this litigation if it had gone unused. It is Shane's regular though not continuous motorcycle riding that has repeatedly involved the Bartholfs with the Town. Yet the riding in itself would also seem to be permissible. Bartholf has supplied several affidavits from Mendon residents who also ride motorcycles on their property, but the Town rejects this as support for his claim that Shane's motorcycle riding is consistent with a customary accessory use in a residential district such as the one where they live. The Town distinguishes the Bartholfs' use from others because in most of the other cases the riders do not have or use "a track similar to the one on the Bartholf property" (Memorandum of Law, 7; the reply affidavit of the code enforcement officer, Thomas Voorhees, echoes this distinction). In one case the affiant stated that motorcycle riding has created paths similar to "the so-called track on the Bartholf property", and there the Town did find a violation (loc. cit.). It would thus appear that the Town would concede that the mere recreational riding of a motorcycle on private property would in itself not violate the zoning code.

What, then, is the basis for the Town's objection here? If a track itself is nothing that would even come to the Town's attention, and the simple riding of motorcycles on private property an activity that does not offend the zoning code, Mr. Bartholf is apparently being sued for a combination of the two; but the court cannot see how an activity on slightly transformed land can violate a code that permits the same activity on terrain left untouched.

The Town's papers deride the supposed artificiality of Bartholf's claim that the ramps on his property are berms; but this is hardly as strained as the Town's insistence that they constitute structures. In any event, the evidence the Town presents focuses not on the shape of the Bartholfs' land but on the noise made by Shane's riding. It is weak evidence at best; one of the two affiants lives some 400 yards from the property and claims the noise bothers him, but also claims to have seen three motorcycles riding simultaneously--something defendant says has stopped; moreover, neighbors closer to the property have supported the Bartholfs. The other affidavit comes from a developer who owns the adjacent property, and who states that he has not developed this land because the existence of the motocross track "will make it difficult to sell the homes." This conclusory statement is of no probative value at all. More significantly, the noise issue would remain whether the Bartholfs had a track or not. Were the Town to prevail, would it be able to prevent Shane from riding on unimproved paths? Presumably not; and the neighbors would suffer the same noise problems as before.

The evidence before this court leaves little doubt that recreational motorcycle riding is a customary accessory use of residential property in the Town of Mendon. The Town's attempt to cast this action in terms of the track itself is of no avail. The track is not a structure, and more to the point it has no effect at all on the character of Shane Bartholf's activity or on its impact on nearby property owners. If motorcycle riding creates undue amounts of noise a Town noise ordinance would be an appropriate way of limiting it; but no such ordinance appears to have been enacted. The zoning code cannot be forced in to do its job. "Operating a motocross track" sounds like a zoning violation, but in this case its true meaning is "riding a cross-country motorcycle"--and so framed the Town's claim at best sounds in nuisance.

There are close ties between the law of nuisance and that of land use regulation, but the differences are equally strong. As the Court of Appeals wrote in Little Joseph Realty v Town of Babylon (41 NY2d 738):

The law of nuisance and that of zoning both relate to the use of property, but they each protect a different interest. So a use which fully complies with a zoning ordinance may still be enjoined as a nuisance (Sweet v Campbell, 282 NY 146; but see Bove v Donner-Hanna Coke Corp., 236 App Div 37), albeit "the plaintiff assumes a heavy burden of proof" (2 Anderson, New York Zoning Law and Practice, § 23.03).

Nuisance is based upon the maxim that "a man shall not use his property so as to harm another" (Joyce, Law of Nuisance, p 45; see, also, Copart Inds., v Consolidated Edison Co., 41 NY2d 564). It traditionally required that, after a balancing of risk-utility considerations, the gravity of the harm to a plaintiff be found to outweigh the social usefulness of a defendant's activity. ***

Zoning is far more comprehensive. Its design is, on a planned basis, to serve as "a vital tool for maintaining a civilized form of existence" for the benefit and welfare of an entire community (Udell v Haas, 21 NY2d 463, 469; see, also, Comment, Zoning and the Law of Nuisance, 29 Ford L Rev 749, 750-751; Comment, Zoning Ordinances and Common-Law Nuisance, 16 Syracuse L Rev 860). Its provisions must be enforced with these goals in mind (41 NY2d, at 744-745).

The Town has raised one significant issue that would, if resolved in the Town's favor, foreclose the defendant's right to relief. The code enforcement officer, Mr. Voorhees, admittedly served Mr. Bartholf with a notice of violation for the track in July of 1998, and Mr. Bartholf did not appeal this notice. Following the authority of the Third Department case of Town of Coeymans v Malphrus (160 AD2d 1178), the Town argues that Mr. Bartholf is now prevented from litigating the question of the violation's propriety. (A similar holding is found in Town of Somerset v Perry, 115 AD2d 313, a Fourth Department case, which dealt with conditions in a use variance granted by plaintiff Town.)

Mr. Bartholf has contended from the outset of this litigation that he visited Mr. Voorhees once he received the notice of violation and was told that Shane could continue to ride unless further complaints were received. Mr. Bartholf stated, under oath, that he mailed a confirming letter to Mr. Voorhees, and has reproduced this letter. The officer has denied receiving it, and also denies Mr. Bartholf's account of the conversation.

This presents a different situation than the one before the two Appellate Divisions. In the cases cited above the issue of a violation or the conditions for a variance were extensively addressed in meetings between the parties, and the aggrieved defendant failed to bring an Article 78 to challenge the determination that resulted. Here, where the supposed resolution took place in a far less formal context, Mr. Bartholf argument that he had a good-faith belief that no determination was in effect against him is more convincing. (The Town also attempted to bring criminal violation charges but withdrew them.) The court does not find it necessary to decide whose account of the events of July 1998 are correct, but it does hold that it would be improper and inequitable to hold that Mr. Bartholf is now foreclosed from challenging the Town's determination because of any misinterpretation of Mr. Voorhees's advice.

The Town has argued as well that Mr. Bartholf is using his conversation with Mr. Voorhees as a form of estoppel, and seeks to avoid enforcement of the zoning code because Voorhees allegedly excused him from compliance. This is an incorrect characterization of the defendant's argument. The court is fully aware that municipalities are rarely if ever estopped from enforcing their rights, and Mr. Bartholf appears to be equally cognizant of this principle. He does not claim that the municipality is bound by the alleged waiver, only that he ought not be estopped himself from challenging the determination. The court agrees; whether raised against a municipality or an individual, there is always an equitable aspect to estoppel, and the court finds it more in keeping with the equities to address the merits.

The determination of the code enforcement officer is quashed; Mr. Bartholf has not violated the zoning code. Since individual recreational motorcycle riding, at least on substantial tracts of land like the defendant's, is a customary permitted accessory use in the residential and agricultural districts of the Town of Mendon, there can be no violation in a minimal shaping of the land itself to increase the safety and variety of the rider's experience. The complaint is dismissed, with costs. Counsel for Mr. Bartholf is to prepare the order.

DATED: Rochester, New York

February 22, 2000

Andrew V. Siracuse, J.S.C.

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