SALEM, Ohio – The buzzing sounds of ATV and dirt bike engines at Lo-Conn Motocross track were silenced April 15 after Judge R.G. Lile issued a permanent injunction against the track’s owners from allowing commercial motor sports at the site.
Proprietors Thomas and Elizabeth Burick of Hartville were faced with a nuisance suit from neighbors of the track, located on Route 83 south of Wooster, who alleged the operation of the facility would create “unreasonable noise, odors, dust, congestion and other offensive behavior, all of which collectively will substantially and unreasonably interfere with residents’ use and enjoyment of their property.”
Latest ruling. In his ruling of absolute nuisance, Lile concluded “the defendants’ use of the property … constitutes an absolute nuisance for the reason that the operation … generates excessive noise which causes a substantial and unreasonable interference with the … plaintiffs’ use and enjoyment of their property, all of which would be offensive or inconvenient to any person of ordinary tastes and sensibilities.”
Lile cited a prior Ohio case that defined absolute nuisance as “the doing of anything, or the permitting of anything under one’s control or direction to be done without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal rights.”
The permanent injunction was ordered only for commercial motocross use of the property, and cannot prohibit the Buricks and their family from operating their personal motocross equipment there.
The ruling also ordered the Buricks to pay all court costs related to the case, excluding attorney fees.
On appeal. The Buricks, represented by attorney John Boggins of Canton, have appealed the ruling and will forward the case to the Ninth District Court in Summit County.
“There are a few central issues that we will look into, one being that Lile held the case as absolute nuisance. It is inherently inconsistent and illogical that he would permit private use but not commercial use” of the land for riding purposes if it was an absolute nuisance, Boggins said.
Boggins also felt that the judge considered evidence stricken from use when making his decision.
“We are going to pursue the appeal and then abide by that ruling,” he said.
Filed suit. Residents of the Johnny Appleseed housing development and surrounding areas filed the suit March 16, 2001, in Wayne County Common Pleas Court, citing interference with the use and enjoyment of property and diminished property values.
“We were very pleased with the outcome. We believe it is clearly correct since the defendants’ activity was extremely disruptive to literally hundreds of people,” said Doug Drushal, attorney for the plaintiffs.
The 104 individual plaintiffs sought attendant and incidental money damages, including attorney fees. However, no money was awarded to the plaintiffs for decreased property values, according to Drushal.
Testimony. During testimony, the plaintiffs described the sound emanating from the racetrack as “unrelenting and high pitched,” “nerve wracking,” and “aggravating,” according to court reports.
Residents with homes between 1,000 feet to one mile from the track testified, some saying they could hear the motorcycles from inside their homes, even with all the windows shut, and that the noise interfered with family gatherings planned outdoors and interrupted conversations.
According to court reports, one plaintiff testified that although he could hear the noise from the track during its weekend use, he was not going to let the noise bother him and that the sound didn’t affect his use of the property.
Noise testing. Expert witnesses testified regarding noise measurements taken in the track’s vicinity.
Sound testing by an acoustics and noise consultant last July revealed noise levels reaching a maximum of 92 decibels at the defendant’s property line.
A two-hour test at another nearby residence in September measured a maximum of 44.5 decibels for large bikes and 71.9 decibels for small bikes. At the same time, measured traffic noise from Route 83 reached a maximum of 61.4 decibels, according to court reports.
An expert testified that at a sound level of 65 decibels, it would be difficult for two people to converse over the sound at a distance of one meter. He also testified that a sound level of 35 decibels and above interferes with sleep, and noise ordinances typically establish nighttime noise limit caps of 50 decibels.
Credibility. Analyses by another community noise assessment firm revealed a greater amount of noise was found to be produced by road traffic than by motocross track usage at test sites in June and November.
Reports from the same firm concluded “that given the limited duration of the motocross operation in time during the day over a long period of time over a year, assessing that into the community noise that already exists out there, it [the motocross operation] will have no effect upon the long term community noise levels that are existing at this point.”
The report also stated that the noise levels would comply or fall within residential categories of standards set forth by the American National Standards Institute.
Testimony of other witnesses was determined to be more credible by the court than that of William Hannon, who conducted the latter testing and filed the reports.
Background. The Buricks purchased the 82-acre site at auction with plans to develop a portion of it into a riding track for dirt bikes and ATVs.
Despite the lawsuit, Lo-Conn opened in June 2001 and had “great attendance,” with riders coming from Medina, Akron and Canton, and as far away as Cleveland and Columbus, Elizabeth Burick said earlier this year.
In December 2001, Lo-Conn Motocross filed a trespass and nuisance complaint in Wayne County Common Pleas Court against neighboring property owners George Topovski and Eloise Bell, plaintiffs in the other lawsuit, and four other unnamed defendants. The suit is still pending.
(You can contact Andrea Myers at 1-800-837-3419, ext. 22, or by e-mail at amyers@farmanddairy.com.)
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