The Transylvania Times -

By Mark Todd
Staff Writer" 

Parties Wait For Judge's Ruling


Transylvania County argued its request Monday for a permanent civil injunction against the dirt bike track owned by Michael and Charlotte Baxley on Whitmire Road in Cherryfield, saying it continues to violate the county's newly revised noise ordinance.

To handle the lawsuit, the county has retained attorney Sean Perrin with the Charlotte firm of Womble, Carlyle, Sandridge and Rice. He represented the county before Superior Court Judge Mark Powell.

Asheville attorney Edward Bleynat Jr. of Asheville argued on behalf of Baxley that the county's ordinance might be faulty.

Powell listened to their arguments and said he would make a ruling on the motion within a few days.

Perrin said there had been a chance for awhile that the parties could settle the dispute out of court.

"We were close, and we didn't quite get there," he said.

He said the ordinance is "a legitimate exercise of the county's police power," citing several court cases on similar matters in other counties. He presented five affidavits from neighbors who said they could not carry on a normal conversation when the track is in operation.

Perrin also referred to a situation in which a real estate transaction fell through because of the track. Bleynat has presented the court with 19 affidavits collected by Baxley from residents of the area who say the track does not bother them.

Perrin said some of the people who signed for Baxley live as far as two miles away, while his affidavits were signed by people who live as close as a quarter mile away.

"The new noise ordinance was not directed to Mr. Baxley at all," Perrin said.

"We're not interested in shutting him down at this point."

Rather, he said, the ordinance is designed to protect residents from excessive noise.

Bleynat said he questions whether the ordinance was applied constitutionally and with sufficient evidence of violations.

He said there are at least four other dirt bike tracks in the county.

"That appears to be selective enforcement," he said.

"Let us go forward with discovery," Bleynat said, referring to the next portion of the case.

The ordinance does not include decibel limits, but leaves violations up to the discretion of sheriff's deputies who respond to complaints. County officials said there are inherent problems with trying to use machines to gauge sound.

Criminal summons are also part of the case and will be heard in court sometime in January.

The county approved the revised ordinance by a vote of 3-2 on July 14 following months of controversy over the track, which opened in April.

Opponents of the ordinance on the Board of Commissioners argued that it is impossible to legislate what it means to be a good neighbor. Supporters said that in light of the inability of neighbors to reach an agreement with Baxley, they were forced to take action.

Since then, the track owners have been cited for noise ordinance violations at least five times, according to the county's complaint.

In one of the documents, a sheriff's deputy said that residents complained that they were "unable to sit on their front porch and be able to think."

In two appearances before county commissioners, Baxley said he opened the track this spring in good faith, in the absence of any objections by the county or his neighbors.

It was only after the track opened that neighbors began to complain about noise and dust to county commissioners, Baxley said.

He said he has invested $75,000 in the track and planned to take action to recoup his investment.

Commissioners revised the pre-existing noise ordinance on July 14 to provide for civil as well as criminal remedies and injunctions against violations. The older version of the ordinance did not call for any civil penalties or injunctions.

The revisions did not change provisions for barking dogs or people firing guns, but did add a new section dealing in depth with loud motorbikes.

In the past, references to loud vehicular noises were more limited, and legal authorities advised county officials that the ordinance might not be enforceable.


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