Granby Commission Denies Application for Special Permit for Dirt Bike Use

As expected, the Granby Planning & Zoning Commission on Tuesday denied an application for a special permit to create a recreation area in a residential zone that would have allowed 12-year-old Dylan Cavaciuti to ride his dirt bike on his parents’ Candlewood Lane property.

Dylan's parents, Tracy and James Cavaciuti, filed the application for a permit to so that their son could ride his dirt bike on their 18 Candlewood Lane property several hours a week after the family received a cease and desist order from Zoning Enforcement Officer Bill Volovski on May 17, 2011.

Town officials received several complaints from at least two of the Cavaciutis neighbors, Susan and James Gnesda of 20 Candlewood Lane and Todd Klein of 19 Candlewood Lane, that Dylan’s dirt bike and several others used on their property at the same time created too much noise and also generated excessive dust.

A public hearing was held on Feb. 28, at which , mostly in favor of using dirt bikes. Nevertheless, the commission in March strongly suggested that, upon further consideration, that .

Despite the denial of the special application, which came in the form of a 4-1 vote with two abstentions, the commissioners made it clear Tuesday evening that they were not against residents riding dirt bikes on their private property.

“The idea that we are against dirt bikes has nothing to do with this,” Commission chairwoman Paula Johnson said.

Instead, the commissioners denied the application for two reasons: first, the zoning regulation under which the Cavaciutis sought to create the recreation area was not suitable for the narrow purpose of a single dirt bike rider, but was more in line with property intended for group usage such as golf courses or playgrounds. What’s more, those uses - golf courses and play grounds - were described by Johnson as “passive” rather than a noise-generating, motorized use.

“The regulation is not designed for this situation,” commissioner Margaret Chapple said. “It just doesn’t seem to fit.”

Commissioner Eric Lukingbeal agreed.

“I don’t think [approving the special permit] is the path to go down,” Lukingbeal said. “I don’t think it works for this sort of thing.”

Second, the commission, in a draft decision written by Lukingbeal, said that it “is uncomfortable licensing an activity that some in the community feel is, or may be, a nuisance.”

The draft decision included a summary of the common law nuisance cause of action, which allows owners injured in their enjoyment of their property to sue in state court for damages and/or an injunction.

“What activity is a nuisance on one property may not be on another property,” the draft decision, which was not adopted by the commission but was included in the meeting minutes, said. “What is a nuisance to one person may not be to another. It is up to a court of law to make the determination of what constitutes a nuisance.”

Lukinbeal noted that even if the commission granted the application, that would not be a sufficient defense if the Cavaciutis were sued under the common law nuisance doctrine. With that said, the commission specifically noted that it did not make any finding as to whether the operation of a dirt bike on the property is a nuisance.”

The lone dissenting commissioner, Paul Lambert, said that he was in favor of approving the application because it was so narrowly tailored for this specific situation.

“I would be happy to try and fit a square peg [into] a round hole,” Lambert said.

Regardless, all of the commissioners acknowledged that the issue - both for the Cavaciutis and the community at large - was far from settled.

The Cavaciutis are still under a cease and desist order issued by the zoning enforcement officer and have a lawsuit pending in Superior Court to challenge the Zoning Board of Appeals’ decision to uphold the order.

Director of Community Development Fran Armentano said that the Cavaciutis’ cease and desist order was based on a number of complaints involving several riders, not just Dylan, and included a track that was built on the property.

Armentano said that if those facts were different - if there was just one rider on his or her own property - then “the (zoning enforcement officer) might decide there is no problem.”

The Cavaciutis’ cease and desist order does not apply to other landowners in town. Still, the draft decision written by Lukingbeal, however, made it clear that under a similar set of circumstances as the Cavacuitis, “the (zoning enforcement officer) might take similar action, and issue a cease and desist order.”

The commission members, recognizing that further clarification was needed on the issue, went on to make several suggestions.

“Our function is to provide guidance to the (zoning enforcement officer),” Johnson said, noting that she believed that operating a dirt bike on one’s own property “should be presumptively allowed in town.”

The draft decision states that, first and foremost, zoning regulations can be changed.

“Anyone can submit a proposal (and pay a required fee) to amend the regulations,” the decision states.

In addition, the commission also suggested setting up a dispute resolution procedure, much in the same fashion that was designed in the 1980s when Granby’s animal regulations were changed.

“On several occasions, disputes were successfully mediated,” the draft decision states. “There was no involvement of Granby’s (zoning enforcement officer) or police, and there were no lawsuits. We think that the same thing could be done now with respect to dirt bikes (and quads, snowmobiles, etc.).”

Finally, the commission suggested that neighbors work among themselves to find a way to amicably resolve their disputes.

“Get to know your neighbor and talk to your neighbor,” Johnson said.