I’m going to be real blunt about it. The whole thing stinks to me. I don’t like it.
Pulaski County Board of Zoning Appeals
By MIKE WILLIAMS
Brayden Hughett and his friends can continue riding their dirt bikes behind his family’s home at 5262 Hatcher Road following action taken Tuesday night by the Pulaski County Board of Zoning Appeals.
The five-member BZA, after over two hours of testimony and public comment, voted unanimously to reverse a decision by the county’s zoning administrator charging the dirt bike track in the family’s back yard represented a violation of zoning for the residential district.
Elaine Holeton, Director of Planning and Zoning for the county and administrator of the county’s Unified Development Ordinance (UDO) had issued a Notice of Violation on April 15.
After receiving the notice, Hughett’s parents – Brandon and Tiffany Hughett decided to appeal to the BZA and hired Dublin attorney Mike Barbour to represent them.
In her staff report to the BZA, Holeton said the basis for her determination was that a dirt bike track is not a listed use in the Pulaski County Unified Development Ordinance.
“If a use is allowed it is denoted in the land use table [in the ordinance]. If not allowed, it is note denoted,” Holeton said.
“In evaluation whether or not this is a violation I referenced the UDO and did not see it as a permitted primary use of a piece of property,” Holeton said, noting she then went through the evaluation as to whether or not it could be considered as an accessory use in a residential zoned district.
She determined that it could not.
Following Holeton’s report, Barbour gave the Hughett’s side in the case, starting off with a history of the couple’s property.
According to Barbour, Tiffany Hughett, Director of Rehabilitative Services at LewisGale Hospital Pulaski and Brandon Hughett, a machinist in the county purchased the five-acre piece of property on Hatcher Road in 2006.
“For those who remember Hatcher Road in 2006 it was dirt and gravel and was frequently called ‘Slaughterhouse Road,’” Barbour recalled.
In 2007 the couple installed a well and septic system and built their home there.
In 2008 the couple’s neighbors, Brian and Karen Turpin, volunteered to clear off the back four acres of the Hughett’s property and did so.
According to Barbour, Turpin asked then if the Hughetts would mind if he used his tractor and cut out a course for his children – who at that time were both less than 10 years old – so they could ride their dirt bikes.
The Hughetts agreed, and Mr. Turpin’s children soon began riding on the Hughetts’ property.
Other neighborhood children also rode there. Barbour said some of the children had little four-wheelers.
“The Hughetts were blessed with their first child in 2008, their son Brayden. In 2012, at age 4, Brayden learned to ride a dirt bike. He began riding with the Turpin children and other neighborhood children on their bikes,” Barbour continued.
“At some point around 2010 and 2011, Mr. Turpin created his own dirt bike course on his property adjacent to the back of the Hughetts’ property. He and his children began riding in that area and occasionally on the Hughetts’ property. Brayden, who was quickly becoming an accomplished rider, also would ride on the Turpin course,” Barbour said.
He provided the board with copies of photos showing the courses on the two properties going back to 2011.
By 2019 the Turpins had moved, Barbour stated, adding their course fell into disrepair and Brayden Hughett did not use it any further.
“As time has passed many children in the Hatcher Road – Mt. View area have ridden dirt bikes, ATVs and an occasional go-cart and even a golf cart on the Hughetts’ property. They’ve been welcome to do that,” Barbour noted, adding even Brayden’s classmates and friends at school have ridden there.
Barbour said the back of the Hughett property has had widespread community use over the years. It has been used for countless bonfires, picnics, weddings. It’s been used by numerous church youth groups, including the Ambassador program where children are brought from inner cities – Atlanta, Ga. for instance – and basically had field days in the Hughetts’ back yard and, yes, they rode dirt bikes and ATVs and played any variety of games.
“The Hughetts’ backyard also served as a baseball field for a period of time. It was actually lined off and bases were installed by county recreation employees and became sort of a backup field for the rec program when Randolph Park was full. Rec teams would come and practice in the Hughett’s back yard,” said Barbour.
“So that property has been used in a variety of ways primarily and overwhelmingly for young people for outdoor activities and most significantly for dirt bike riding.
“Brayden is now 13. He is an extremely accomplished rider and participates in competitions throughout the mid-Atlantic states. He is very, very good,” Barbour said.
In early spring Brandon decided to upgrade the course and added some new features.
“What brings us here tonight from the Hughetts’ standpoint really began at the end of March,” Barbour told the board.
According to Barbour, “Brad Rowe – erosion control officer with Pulaski County – came by the Hughett home on March 31 and wanted to look at some of the work that Mr. Hughett had done. In addition to work on the track, he had pulled out some stumps and leveled off some areas of his property that really weren’t part of the track itself.
“Mr. Rowe recommended Mr. Hughett seed and grass the area he had leveled off, and he did that immediately.
“There was no mention of any type of zoning issue or zoning concern at that time,” Barbour said.
Ironically, according to Barbour, Rowe and Hughett spent a great deal of time discussing Rowe’s dirt bike track at his residence in the Town of Wytheville.
“Jump forward to April 22 and Mr. Hughett comes home from work and his wife is there sitting at the kitchen table. She is crying and he asks what was wrong. She had received the notice of violation from Ms. Holeton’s office, which included language that the couple must comply in 30 days or the county was going to take out a criminal warrant against them,” Barbour said.
He then presented a map of the Hatcher Road – Mt. View area with red check marks representing names on a statement from neighbors who say they have no problem with the dirt bike track.
He also presented a letter from the site manager at Bradley Ridge Apartments adjacent to the area stating that residents there have no concerns over the Hughetts’ use of their property.
Barbour continued, saying there have been statements made in regard to noise coming from the dirt bike track.
“I have a letter from Brad Nester, Deputy Director of Pulaski County’s 911 Communication System and he advises that there had been one call for service associated with the Hughetts’ address that related to loud noises. That was on June 13, 2008 at 11:54 pm. Don’t believe the Hughetts have any idea what that might have been, but I’m certain that 3-month-old Brayden was not riding a dirt bike,” Barbour said.
“After 13 years of dirt bike riding, noise does not appear to have been of concern enough to complain to the sheriff’s office. In 40 years of practicing law in Pulaski County, I’ve learned it doesn’t take much to prompt someone to call the Sheriff’s Office and complain,” Barbour said.
Barbour continued that he thinks Holeton’s decision making could be summed up at the end of her report:
“In summary the administrator determined that the use was not commonly, habitually, and by long practice established and reasonably associated with primary use,” he read from the report.
“The property has been used since 2008 for dirt bike riding. There are visible courses on the historic maps of the property. It has been a long practice for children to ride off-road vehicles.
“That was perhaps not known at the time the notice of violation was issued, because at no time did Ms. Holeton contact the Hughetts to have any discussion whatsoever concerning this matter.
“There was nothing done to determine what the history was here. What was commonly done, what was habitually done, what was a long practice,” Barbour charged.
“Everything I just said is depicted on these maps and these folks would have gladly explained this to Ms. Holeton or anyone else associated with the county.”
Barbour also took exception with the final statement in her report.
“The administrator’s decision to issue a notice of violation was carefully considered and evaluated in accordance with standard principles of zoning and the Pulaski County UDO,” he read from Holeton’s report.
“Carefully considered,” Barbour repeated.
“I’m sure you’re all familiar with the Virginia Freedom of Information Act. It promotes transparency in government. Gives all of us an opportunity to see how decisions are made that affect our lives and the lives of fellow citizens. We certainly utilized that in this matter,” Barbour stated.
He then presented copies of emails, all written on April 15, the day the notice of violation was issued.
“What I have here is an email chain that begins at 9:45 a.m. on April 15. The same day the notice of violation was issued. One email is from Anthony Akers, Assistant County Administrator to Jonathan Sweet, County Administrator and all five members of the Board of Supervisors are copied on the email.
Barbour said in the relative part of the email discussing the dirt bike track, Akers states: “Elaine Holeton reports that there is nothing in our UDO or zoning related that regulates this type of activity on the property.”
“That’s at 9:45 a.m. The same day the notice of violation was issued,” Barbour said.
Barbour says the next email chain that bares some scrutiny is at 10:14 a.m. on the same day. About 29 minutes after Akers’ email to Sweet.
Barbour says the email is from Supervisor John Travis to other members of the Board of Supervisors, Sweet and Akers.
“I just got off the phone with Elaine,” Travis says in the email, “And she has talked to Joe (Guthrie) as well. The county does have cause in order to put a stop to the motocross track and will be executing documents and giving them to the owners of the track shortly. This should be headed in the right direction at this point.”
Barbour said he believes “the complaint against the Hughetts originated from a neighbor who built a house where Mr. Turpin’s track had been previously – and they moved into it in May, but they were coming and going in March when the complaints began.”
“Mr. Travis was the listing agent and sold their house in Herrons Landing so that they could move into this new house. So, Mr. Travis had a financial relationship with the source of these complaints,” Barbour said.
“And you can read whatever you wish into his email that this ‘is on the right track.’
“Somehow this has gone from ‘there’s nothing prohibiting this’ to 29 minutes later ‘there’s a violation and I’ve talked to Elaine and Joe’s talked to Elaine,’” Barbour said.
Barbour then discussed another email, from Holeton to Guthrie, at 9:35 a.m. on April 15.
“I received the voice mail you left yesterday evening,” Holeton says to Guthrie. “Yes, we are aware of the ‘dirt bike loop’ on Hatcher Road,” she continues.
“There are two sides to this coin, so it is a bit complicated. Is there a time today that works for your schedule? If so, I can call you at an appropriate time for your schedule,” Holeton tells Guthrie.
Barbour again told the board the matter went from “there are two sides to this coin, so it is a bit complicated” to a violation in less than 30 minutes.
Barbour added that a voice mail between government officials discussing a governmental matter is a public record and subject to the FOIA.
“I asked for this voice mail [in his FOIA request]. Obviously, it was about this matter. Remarkably, Ms. Holeton’s response was ‘I do not have any voice mails to provide. I am unsure where you heard the term ‘voice mails.’
“I didn’t get the voice mail, and I honestly think members of this board, before deciding to uphold this as a violation, ought to have to hear that voice mail,” Barbour stated.
“There is not anything in this UDO that gives a member of the Board of Supervisors any role in determining whether or not a zoning violation exists,” Barbour said. “That authority rests with Ms. Holeton. And presumably her supervisor, the county administrator.”
“For those of you who have been in the military and been involved in the JAG Corps or anything of that nature probably have heard of command influence,” Barbour said. “That’s when people who aren’t involved in the military justice system – ranking officers – put a finger on the scales. And I think it’s pretty obvious from these emails where you have the assistant county administrator quoting Ms. Holeton as saying there’s nothing that prohibits this and two calls from supervisors, and in less than 30 minutes one of the supervisors is proclaiming to all the other supervisors that these people are going to get served with a violation and they’re going to be told 30 days or we’re going to get you a warrant. Thirty minutes! It changed that quickly. We know there were two phone conversations. That is an unfortunate state of affairs to inflict upon these people or any citizen of this county.”
Barbour continued that if Pulaski County “wants to regulate off-road vehicles, use of ATVs, dirt bikes, whatever, the Board of Supervisors can do that. They can amend the UDO, but they’ll get into a process of public hearings, taking comments and taking a vote.
“You’re being asked to regulate the use of dirt bike tracks in this county when 30 minutes before the decision was made to cite these people for violating the ordinance, the zoning administrator is quoted as saying there’s nothing that prohibits this.
“Gentlemen, that’s just wrong,” Barbour stated.
“If the county wants to regulate these types of off-road vehicles and their use, they can pass a regulation to do that. They shouldn’t defacto do that at the expense of Mr. and Mrs. Hughett.”
Brandon Hughett, visibly upset, spoke next.
During his comments, he said he had gone to the home of the neighbor who he know is the primary complainant.
“I knocked on his door and introduced myself. We shook hands and had a seat in a rocking chairs on his front porch. I begin the conversation with the idea we could find some middle ground to allow us both to enjoy our properties,” Hughett said.
Hughett told the board he believes from the conversation with his neighbor that the core complaint is not the track, but that “my son rides his bike on our property.”
Hughett said that judging from the hour meter on the bike, his son rides his bike less than two hours per week.
“It takes five hours to mow my property and my tractor is 20 decibels louder than the bike,” Hughett said.
Board member Howard Sadler asked how many complaints the county had actually received over the track.
Holeton responded that the county had received a series of complaints from at least four different households.
“It was essentially blowing up our phones for a few days there,” she said, noting the calls started about March 30. “We did carefully consider the matter for about 2 weeks. Everything didn’t just happen on April 15,” she said, noting that the identity of the complainant is confidential. “That’s county policy.”
Holeton said there were people in the community with legitimate complaints about noise, dust and the volume of people who started using the site after the Hughetts upgraded their track.
“If I get a call from a Board of Supervisors member it’s typically because they are getting complaints. Typically, they don’t call me if they get a complaint. But if they get multiple complaints that’s when they call me,” Holeton said.
The BZA’s public hearing featured comments from 22 speakers, all supporting the Hughetts.
County Attorney Tim Kirtner said, “there is not a doubt, the Hughetts have used this property to benefit the community. That is not in doubt.”
“Before you tonight is a legal question … if Holeton has properly applied and interpreted the ordinance.
“I can’t explain why there was never a complaint [about the track] before, but there has been now and when a complaint is made the decision falls to Ms. Holeton about the alleged violation.
“Mr. Barbour’s argument is a clever one. If you use something in a way that is not allowable for a long enough period of time, it becomes a permissible use – an allowable use. That is contrary to the law and would be what we’d call spot zoning. That is when you take a specific piece of property within a larger zoning district and treat it as somehow being zoned different or allowed to do different things from the properties around it without a conditional use permit or special use permit,” Kirtner said.
Kirtner discussed what is what is not an accessory use, and what is customarily incidental to a house?
“Basketball goal, pool, trampoline … Really is a dirt bike track customarily incidental to a house? If your answer is no, I would suggest to you that you sustain Ms. Holeton’s opinion,” Kirtner said, urging the BZA to “Focus on the legal question. This is a legal proceeding. Not everything that’s been said tonight is relative.”
Sadler asked, “If they’re just riding around on their five acres a few circles and up a hill, is that an issue with the county?”
Kirtner responded that “it seems the track is being used frequently, and jumps have been installed. It’s more than just kids riding around in the back yard.
“The issue the county has is operation of a dirt bike track in a residential neighborhood.”
Sadler pointed out there is no definition in the county ordinance of what is a dirt bike track.
“The Board of Supervisors can come up with definition of dirt bike track,” he said.
“Ms. Holeton an honorable, hardworking public servant. I admire the work she has done and she should come under no criticism from anybody because of the position she has been put in.
“I have great umbrage toward the fact she is in this position and asking us to make a ruling on a non-defined issue at law in this county and hold these folks accountable up to the point that they are being threatened with criminal conduct. How long would it take Mr. Barbour to get this thrown out of court. About 30 seconds I would think,” Sadler continued.
“I come from the school of being able to confront or talk to my accuser. One complaint has led us to where we are today. As a real estate broker and agent for 40 years in this state, the person who bought the house is subject to the same law the rest of us are when we purchase a property. ‘Let the buyer beware.’ He bought that house knowing, and being able to see the dirt bike track there in front of him, and somehow we have gone from one vigorous complaint to holding an entire community hostage because of their poor decision to move somewhere maybe they shouldn’t have been in the first place. Oh, and by the way guided there by a member of the Board of Supervisors who is an honorable man and a fair-minded person no question about it.
“I’m going to be real blunt about it. The whole thing stinks to me. I don’t like it,” Sadler said.
Holeton said the whole issue comes down to did she interrupt the ordinance correctly.
“There have been a lot of comments today about who complained, a conspiracy theory about the Board of Supervisors, but at the end of the day the determination falls on me. Whether you like it or not I can issue a notice of violation without a complaint. I can be driving down the road and see something and I am well and able to do that. Typically, I do not do that because I do like to give people the freedom to do what they want with their property for the most part because I do have a delicate job of interpreting the ordinance and try to regulate incompatible uses in this county.
“I do not think it is an accessory use that belongs in a residential zoned district based on the district’s standards. Nothing personal to the Hughetts or anybody in this room,” Holeton said.
“I understand accessory uses. I understand there are countless activities that are perfectly acceptable in every category of zoning we have that are not specifically listed as permitted uses,” Barbour said.
“Ms. Holeton understands that too. Mr. Kirtner understands the law. A brilliant attorney. He can’t point you to a single case in Virginia that says people can’t ride dirt bikes on their property in a residential district. That’s because the case doesn’t exist.
“If the county wants to regulate this they can do it, but they have to do it through Board of Supervisors action and as an amendment to the UDO.
“I can’t get past Mr. Akers’ email to the county administrator. Ms. Holeton reports there is nothing in the UDO or zoning that regulates this type of activity. An email at 9:30 on the morning the violation notice went out. And we know that all that happened in the next less than 30 minutes were phone calls from two supervisors.
Barbour likened the situation to his son loving baseball.
“If I could have put an infield in my back yard for him to practice on, I would have. Would that have passed muster with the county ordinance? I don’t know,” he said.
BZA Chairman Don Shelor said the board had three choices: It could affirm the ruling of the zoning administrator, it could reverse the ruling or it could modify the ruling.
Vice Chairman Michael Gay offered the motion to reverse the zoning administrator’s decision, he said, because “this is an accessory use to a single-family dwelling.”
“When my son was at home he had a dirt bike. Where did he ride it? In my backyard. If you don’t consider it an accessory use then there are no places in Pulaski County to ride a dirt bike,” Gay stated.
BZA member Gene Reece seconded Gay’s motion.
The reversal of Holeton’s decision passed on a 5-0 vote.