Laws restricting off-roading on private lands to be investigated

The Chisago County Board last week discussed how best to respond to complaints about off-road vehicle nuisances. They were advised there is no simple way to go about keeping the peace, when what private landowners are enjoying their property in a manner that is not "illegal." The county commissioners were advised by the county attorney and a deputy county attorney with years of experience dealing with nuisance matters-- that basic Constitutional rights have to be kept in focus when tackling this area of law.

The commissioners had requested legal review of ATV and dirt bike ordinances following the previous County Board meeting, where yet another complaint about abusive off-road recreational activity came before the Board.

The county comprehensive land use plan specifically allows for "recreation" and depending on which sections of the plan are quoted, 60 to 85 percent of the county is zoned agricultural and suited for "recreation."

Reiter and Asst. County Attorney Fred Fink advised the county commissioners on many aspects of the continuing parade of complaints to the Board about off-road uses. Complaints range from annoying noise, dust, hazardous materials and many other negative things associated with heavy and repetitious use of ATVs and dirt bikes.

According to the county attorney the government unit must have a public health, welfare or safety justification to curtail private land uses. Legally restricting dirt biking or ATV use on private land is a real challenge without proof of some inherent danger to the public.

Reiter also explained any ordinances the county considers must be "non-discriminatory" and can't focus just on dirt bikes or ATVs. Reiter advised motorized land use of snowmobiles (for example) must be treated the same if the county pursues restrictions on noise or hours of operation.

In short-- Reiter said the zoning code is "not well suited" to regulating the activities of a few.

She continued to advise the Board to look at off-road nuisance complaints on a case-by-case enforcement level and added that all citizens have civil remedies at their disposal when they have a neighbor-based issue. But to criminalize dirt biking or ATV uses on private lands is not where the county wants to go, she added.

Attorney Fink explained that there are evidentiary standards that need to be met in order to win any judicial proceeding and he doubts these complaints could meet tests for admissable evidence, or legal issues that can be proven.

Commissioner Mike Robinson said, "Everything I am hearing you say is -- you can't handle this?"

Fink said, "I am not saying we can't handle it," just not criminally and not under zoning code.

Commissioner Bob Gustafson remarked he "...will never vote to hamstring" landowners who want to use their land to run a dirt bike. "We react without common sense," he said. Gustafson feels these complaints are neighbor-to-neighbor civil matters. "People move up here from the city and they expect us to regulate everything" that offends them, he concluded.

Lynn Schultz asked if it would help to narrow the scope of restrictions to address just tracks and uses related to those?

Schultz said the county has made codes for land uses like adult-oriented business and even wind generators, "How did we do those?"

Reiter said the key in ordinances is to be narrow in definition and base the need for restrictions on public safety or decency or other community-held standards.

With Commissioners Rick Greene and Ben Montzka opposed the vote was 3-2 to send the all terrain vehicle and dirt biking nuisance issues to the county's planning commission to see if that group can develop some enforceable ordinances. There'd be a public hearing and the planning commission would draft ordinances for the Board to enact.

Montzka stated he was hearing in that day's legal advice that the matter doesn't belong in zoning purview. Greene stated he needed more information and felt the county board needed better direction for the planning commission and he also wasn't ready to support the motion.

Reiter remarked, "Some people think the criminal justice system is THE answer for everything. Even if we do this (develop an ordinance) it doesn't mean success in court."

Robinson stated, "If we lose in court at least we tried."

Source: http://www.chisagocountypress.com/main.asp?SectionID=1&SubSectionID=1&ArticleID=9736&TM=32607.89

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