TOWN OF HINESBURG

PLANNING COMMISSION

April 9, 2008

Approved April 23, 2008

Commission Members Present:  Jean Isham, Kay Ballard, George Bedard, Rodman Cory, Carrie Fenn, Fred Haulenbeek, Joe Iadanza, Johanna White.

Commission Members Absent: Will Patten.

Also Present: Alex Weinhagen (Director of Planning and Zoning), Karen Cornish (Recording Secretary), Peter Erb (Zoning Administrator), Gary Fenwick, Fiona Fenwick, Scott Johansen, Tim Brown, Kristi Brown, Randy Therrien, Larry Winters, Tom Lyman, David Bouchard, Tonia Bouchard, Judith Laberge, Matthew Laberge, Judy Laberge, Bill Snyder, Tony St. Hilaire, Tim Casey, Dick Francis, Brent Francis.

Noise Performance Standard

Alex explained the Hinesburg Zoning Regulations (section 5.12) include a set of performance standards that define restrictions on hazardous and objectionable things, including noise.  He said the Planning and Zoning department does not address noise issues often.  He said although the issue that arose last year (motor vehicle riding on Hayden Hill) was a point-in-time violation, it sparked a larger discussion within the community including a public forum held by the Select Board (SB).  Following the forum, the SB decided there was not enough support to go forward with a noise ordinance but felt the issue should be addressed by the Planning Commission by reviewing the current zoning regulation. 

Alex said the regulations are an optional zoning tool, with their use granted but not required by Vermont state law.  He noted that Hinesburg’s performance language has changed over time.  At one point it included a specific decibel level limit, but that it was removed.  Alex said input and some specific suggestions have been received from members of the community on ways to address the issue.  For the purposes of the evening’s meeting, Alex said he laid out only discussion items for the Commission (i.e. without specific suggestions).

Jean said the number of noise complaints has been minimal over the years.  Alex said the Zoning Department had not received any complaints before last summer’s issue and noted the Police Department has said they receive a half-dozen a year, generally related to parties.

Joe I. thought that constant noise at a decibel reading of 60 decibels was not unreasonable, but that noise is often not constant, varying in frequency, duration and by its source.  He said he did not wish to include a number limit in the regulation because it would not reflect how the human body takes noise into account.  Alex said when the 60 decibel limit was removed from the regulations it was partly due to the difficulty of enforcement.  He gave the example that some businesses operated with noise above that level that was not deemed objectionable due to their location, the nature of the noise, etc.

Kay asked how farm noise would be regulated.  Joe thought agricultural operations would be exempt (related to the exemption status of agricultural buildings) and also thought vehicular traffic on public roads would be exempt.  Alex said regulations and ordinances used by other towns vary greatly; some have specific exemptions for agricultural properties, some include blanket decibel numbers, some discriminate between night and day, others allow for a distinction between receiving areas and sending areas such as noise from one business to another (in which a higher decibel noise would be allowable).

Jean asked about the performance standard as state statute.  Alex explained Vermont towns can only adopt laws the state permits towns to adopt, i.e. if the state does not give the authority for a certain law, a town can’t adopt it.  (The enabling statute for performance standards can be found under Title 24, Chapter 117, Section 4414, #5.)  He also explained that a separate state statute exists giving police a separate right to respond to disorderly conduct complaints, including complaints about noise.  Rodman asked if the Commission could lay out a mediation plan for neighbors.  Jean said complaints currently go through the police department (as part of the state statute described above) who then initiates mediation among neighbors.

Jean asked if performance standards should be made to apply to those properties that require a permit.  Alex said zoning works well when permitting requirements for land development are defined; if a property subsequently violates a requirement, on an administrative front there is something to go back to, to enforce.  Peter said there is a section that requires permits for some recreational uses but it seems to be intended for a more intentional use of a property, not for the everyday use by an owner.  He thought the problem was how to differentiate those levels of use.

Carrie made a distinction between loud, jarring noise and white noise.  She thought a party held one time a year would not be a problem, but that continuous noise would be hard to define - how often, how long, how loud – as to when it was annoying.

Scott Johansen asked what the mission of the Planning Commission was with respect to performance standards.  He read from the list of potential hazards and said his understanding is that zoning protects residents from hazardous situations.  Jean explained the Planning Commission (PC) writes regulations, the Select Board (SB) approves regulations and the Development Review Board (DRB) ensures regulations are adhered to, particularly during the development phase of a property but also after development has been completed.  She thought as development becomes more mixed (residential and commercial) there would be a greater potential for noise complaints.

Tonya Bouchard said she lives in close proximity to a neighbor who practices an instrument; she described her relationship with him as being friendly and said she is tolerant of the playing even at early/late hours.  She asked the PC to consider that the motorbike riding on Hayden Hill is now scheduled two hours per day, two days per week.  She thought the interpretation of “unreasonableness” is subjective, making it difficult for the PC to clarify.

Tim Casey said he operates a noisy business and would not like to see the regulation go back to including a decibel level limit.  Judy Laberge, a Charlotte resident, said she has a shooting range on her property and noted she became used to the noise until her neighbors complained.  It was only then that she noticed the noise.  Matt Laberge thought the word “unreasonable” was problematic, and also thought decibel levels would have to be set differently in the town (with close-set houses and traffic noise) and rural districts (where houses are more spread out).

Alex said there is a difference of opinion as to what is suitable for rural areas.  He said some people want motor bikes and some people want peace and quiet.  Joe agreed, noting there needed to be balance between the two.  He said his idea of “reasonable” would take into consideration the nature of the noise, the duration of hours and the frequency it occurred.  Alex suggested adding wording to the regulation that spelled out how the “reasonableness” of individual situations could be determined, by examining the duration, frequency, actual decibel level, etc. of a situation. 

Joe said zoning bylaws are in place for all residents and serve to ensure value is retained in residents’ properties.  He thought the word “hazardous” as it pertained to a noise issue could be applied to someone’s mental health as well as physical health.  He said he preferred not to use a decibel limit because sometimes lower decibel noise could be objectionable.  He thought the more the DRB could weigh the particulars of a situation, the better.  Tonya asked how the DRB interacted with the PC.  Joe explained the PC is responsible for writing the bylaws approved by the SB; the DRB uses those bylaws to evaluate any complaint that comes before the Zoning Administrator.

Scott Johansen asked if the PC was charged with issues outside of those pertaining to development (subdivisions, zoning, planning, etc.)  Joe said state statute gives the PC the authority to guide development in part by putting compatible uses together.  Jean said the PC does not address specific activities, only “noise” in the broader sense.  Scott thought it should be as it related to development.  He gave an example of allowing a large development around a farm, that smells may become an issue.  He said when development happens, people who have been there enjoying their land are asked to compromise, that every time a new bylaw is adopted, people’s rights are infringed upon in that respect.

Joe said there is nothing in the bylaws that prohibits motor vehicle riding.  He talked about moderation and how, in the case of Hayden Hill issue, it could be viewed as a quasi-commercial operation (thus falling outside the realm of moderation).  He said an alternative zoning approach could be to set high minimum lot sizes to ensure less rural development, but may have the affect of lower property values.  Alex noted the regulation served to protect all citizens of their rights, that clarifying the regulation did not automatically mean it would be more difficult or even eliminate motor bike riding, for example.

Jean reminded the group that the regulation was not the same as a noise ordinance.  Scott said he was worried this was an attempt to put an ordinance into a bylaw.  Tonya asked about the DRB’s conclusions in the Hayden Hill issue; Alex clarified the DRB decision language.  Jean asked Alex to draft a revision of the regulation that provided clarification and/or further defined “reasonableness”.

Rodman offered that the objective of all the boards was to write a bylaw that protected the rights of all people to enjoy their land, but that it was difficult and not a new challenge for towns.  He said private rights vs. public rights has always been an issue, at the national and state levels.  He noted there was a “reasonable person standard” that existed in law, that in our country when we have come to a conclusion, most people would agree on what is reasonable.  He said although there is a temptation to say the word reasonable is too subjective, he thought it was a perfectly good concept to be part of the bylaw language, stating most people come to an agreement in a particular area.  Jo encouraged keeping the lines of communication open between neighbors.

Jean asked if the commission should consider tying the performance standard to permitting, as issues would then go through Peter and/or the DRB and get addressed at that point.  She thought the process would be clearer for the ZA.  She reminded that the state statute regarding disorderly conduct would still be in existence and people could still make complaints to the police department.  Peter Erb asked the Commission to review and clarify the language “customary residential uses”, specifically to define when the recreational use of property hits a threshold, changing from a customary residential use to one that required a permit.

Alex suggested clarifying what unreasonable actually is, whether it was just the decibel level, or also related to duration and frequency.  He thought simple language that encouraged a review of those three points could help The ZA and the DRB.  He explained that if the PC decided to change the regulation, there would be another meeting in which they would vote on the change, then another public forum, then a Select Board in which the revision would be presented for approval.

Other Business

George MOVED to approve the March 26, 2008 meeting minutes as written.  Carrie SECONDED the motion.  The motion passed 5 -0 with Jean, Kay and Fred abstaining.

The next Planning Commission meeting is scheduled for April 23, 2008.

Alex said he met with the Select Board regarding the Village Growth proposal.  He said they discussed the larger issues (wastewater plan, rural planning) and would schedule another work session (April 21^st) dedicated to the proposal.

The meeting adjourned at approximately 9:10 p.m.

Respectfully Submitted:

Karen Cornish