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Post by megamerc on Apr 18, 2012 22:16:18 GMT -5
Good evening everyone, I hope everybody is enjoying this nice weather that we've been having the last couple of days. Monday the 23ed is our DAY to show the court our passion for the sport of Drag Racing in Montgomery county! If you would like to come and see the action, we start at 9:00am and Mid America Raceway Park supporter's will be greatly be appreciated. This has been very stressful for you Racer's and Fan's but just hang in there just a little longer and we all will be Winner's! And you drag racer's I'll see at the Winners Circle at M.A.R. where the BIG ONES ARE!!!! Remember this is on the 2ND floor of the Montgomery County Courthouse and leave your cell phone's in your vehicle's please. See you all Monday and have a good weekend. Ronnie Track Manager
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RimDog
Junior Member
"Just A Little Duece Coupe"
Posts: 60
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Post by RimDog on Apr 18, 2012 23:43:16 GMT -5
Don't Forget To Leave Your Pocket Knife's In The Car Also. . .. . . I donated a damn good one to the court, the last time. .. . . .
They said I could pick it up, on leaving the court house. . . trouble was, when I left the court house, none of the law officials were there that took my "trusty Barlow". . .. and know one else, knew anything about it.
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Post by MontgomeryWriter on Apr 23, 2012 8:46:53 GMT -5
Thanks for the update Ronnie. Where did Carolyn run off to? I kinda miss her updates  My husband is a farmer and I help with various things, and I spent two weeks on vacation on the east coast. I'll be there today but have an appointment I can't miss that might last until 10 am. No electronics allowed in the courtroom so not sure how often I'll be able to update. My former employer will be there and will be tweeting and he might be able to things faster than I can, but I've got my notebook and I'll be able to do a very detailed report later. Thanks! Carolyn |
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Post by MontgomeryWriter on Apr 23, 2012 8:49:35 GMT -5
My former employer will be there and will be tweeting and he might be able to things faster than I can, but I've got my notebook and I'll be able to do a very detailed report later. By the way, the website for that is montgomery.countynewslive.com/ |
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Post by WillyMo on Apr 23, 2012 10:36:04 GMT -5
Cant make it, too busy at work, but I wish you all the best..
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Post by MontgomeryWriter on Apr 23, 2012 11:12:53 GMT -5
Judge took case under advisement meaning he's not ruling today. Attorneys have 20 days to submit to him what they think his ruling should be and specific language to be in the Final Judgement. He did not indicate how long after that he expects to rule. Going to lunch with MARP personnel and their lawyer. More details later.
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Post by slingshot on Apr 23, 2012 12:42:12 GMT -5
So the attorneys have 20 days to see who writes the biggest check to the judges reelection campaigne?
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Post by hemiman4262003 on Apr 23, 2012 14:28:03 GMT -5
getting closer,now marp took the holeshot on them,now marp needs to take the win at the stripe without breaking out
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Post by MontgomeryWriter on Apr 23, 2012 15:10:56 GMT -5
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Post by MontgomeryWriter on Apr 23, 2012 15:45:10 GMT -5
Please note: I am no longer employed by any news agency and am not going out of my way to be completely objective! I am also not writing this in as “formal” a fashion as I used to when I was working for CountyNewsLive.
I got to the courthouse at about 10 am because I had an appointment that I could not reschedule. I thought I was going to miss an hour of the trial but turns out there was one case that had to be heard before MARP and I only missed about 15 minutes, which consisted mostly of the lawyers filing their various legal papers and the introduction of a witness. The courtroom was about half full.
The Plaintiffs (the neighbors) did not have any witnesses on the stand. MARP staff told me they only saw one of them present in the courtroom. MARP’s attorney, Jeff Hunt, introduced Albert Westover, an appraiser from St. Peters who has been in practice in excess of 30 years, as his only witness. The County Commission did not present any witnesses either.
Westover discussed zoning issues, such as uses that are permitted and permitted on different types of zoned property such as agriculture. For example, agricultural zoned property can have family homes and day cares, but not factories. He said the purpose of zoning requirements is to “avoid helter-skelter development.”
After some discussion of the types of property and zoning surrounding MARP, Hunt asked Westover if MARP would substantially diminish the Plaintiffs’ property values. Westover unequivocally said no. Hunt asked if he answered that with a reasonable degree of certainty, and Westover said yes. Hunt then asked Westover if MARP would be detrimental to the Plaintiffs’ use and enjoyment of their property, and Westover responded, “Not in any substantial way,” and again affirmed that his answer was to a reasonable degree of certainty.
Hunt entered into evidence a Master Plan for Montgomery County that was prepared by the MoCo Planning and Zoning in October 1995. This loosely sets forth areas that P&Z would intend to have developed in the future and in what capacity – residential, commercial, etc. It was noted that the areas along I-70, including the MARP location, had been earmarked as commercial back in 1995 by Planning and Zoning. It was also discussed that case law has set forth that when a person buys property he/she cannot expect the surrounding area or even their own property to remain the same zoning, and the Master Plan should have alerted the Plaintiffs that their property, which is not far from I-70, would eventually be adjoining or close to commercial zoning and development.
Hunt also entered Plaintiff’s Responses to Request for Admissions into evidence where they admitted that there is no sewer or electric service on their property. “Requests for Admissions” (“RFA”) are part of the discovery process and in this case consisted of questions sent to the Plaintiffs by Hunt that they are required to respond to (admit information pertaining to the lawsuit), and the answers to which are treated as undisputed facts and evidence in court proceedings. The Plaintiffs also said in their RFA responses that none of them are Montgomery County residents, and there are no homes or other residential property on their land.
To be continued…
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Post by MontgomeryWriter on Apr 23, 2012 16:29:36 GMT -5
Trial Part 2 The Plaintiffs’ key argument seems to be that the County Commission erred by not obtaining a “professional” sound study because the one presented at the Conditional Use Permit hearing during the Planning and Zoning process was performed by someone from the University of Missouri’s agronomy department. Agronomy is a branch of agriculture dealing with field-crop production and soil management. However, I was present at that hearing and he did not interpret the sound study results but referenced the professional literature on the matter. The Plaintiffs’ attorney, Mike Seamands, did a short cross-examination (legal speak that just means asking questions) of Westover. He cited an exhibit (that the public did not have access to) that set forth that the “permissible” continuous exposure time for 85 decibels is 8 hours. I believe he was referencing something similar to this page. www.dangerousdecibels.org/virtualexhibit/6measuringsound.html. Seamands asked Westover what could happen if the 8 hours were exceeded and Westover said there could be damage, but was quick to point out that the nature of a drag strip is such that there would never be 8 hours of continuous noise at that level – it would only last 8-12 seconds and then there would be a downtime before the next incidence of noise of that level, and that the 8 hour recommendation pertains to continuous exposure. Seamands asked Westover if the properties to the south of the drag strip will see some impact. Westover said that it is possible, but all of the Plaintiffs’ properties are a minimum of 2000 feet away from the end of the track and that it is downhill, heavily wooded, and the prevailing winds are typically from the southwest, and that these natural elements would impede the amount of sound the Plaintiffs’ would hear. He also pointed out that the County Commission required MARP to install a 200 foot berm at least 15 feet wide at the end of the track, and that this would also mitigate the amount of noise heard from the Plaintiffs’ property. Seamands also asked Westover if the track would affect the enjoyment of the properties to the south if they were residential or recreational. Westover said that they would hear the track but “it’s not all-encompassing” and that some of the sound study stations during the informal noise study that was done prior to the Conditional Use Permit hearing that were located at the south end of the property couldn’t hear the revving engines or discern any difference from normal highway noise from I-70. Seamands pointed out that the noise studies were not done on the Plaintiffs’ property, but on the edge of MARP’s property. I personally did not understand why he made that note, because the Plaintiffs’ property is even further away so therefore the noise levels found in the sound study would be even less – I cannot see how that is a point in the Plaintiffs’ favor. I also think if this is such a big issue to the Plaintiffs that perhaps it would have been more economical to commission a sound study themselves, and if the noise were found to be minimal it would have prevented them all the costs of litigation. But again that is just my personal opinion. Westover pointed out that not all of the Plaintiffs’ properties are actually adjacent to or adjoin MARP’s property and one of them is about a half-mile south, all of which is even further away than the sound studies, and that the lower elevation, heavy trees, etc. help mitigate the sound that will reach them. He also stated that MARP will have other noise abatement elements in place, including billboards in the grandstands which will absorb and reflect sound, and that none of that was in place when the sound study was performed. It was also pointed out that the sound study of an engine revving will be different than a burnout on a hard surface. Westover said the billboards would offset it and it may equal itself out. Hunt asked Westover if there are any zoning ordinances, statues, or any other requirement that a professional sound study has to be done. Westover said no. Seamands’ final question for Westover was whether noise would have an impact on property values for residential or vacation use. Westover said that is an individual opinion and what he thinks has no effect on value. To be continued… |
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Post by MontgomeryWriter on Apr 23, 2012 17:09:18 GMT -5
Trial Part 3 (last one)
The final portion of the trial was the attorneys’ opportunity to present their argument. Seamands spoke for a short time on behalf of the Plaintiffs. He said they are requesting the Court to determine whether the County Commission had substantial and competent evidence to grant the Conditional Use Permit and they are focusing mainly on the noise. Plaintifffs believe the sound level generated by MARP will be detrimental to their use and enjoyment of their property for recreational and residential use as well as the property values. They believe the County Commission did not meet the standard of review to determine this because the sound study performed was not done by professionals in that field. They do not believe the agronomist who performed the study discussed at the Conditional Use Permit hearing was qualified to do it in the first place, and argued that a study was never done from their properties. (Again, I must ask, why not do it yourselves when you may find out that it’s not going to be a problem and save yourself the cost and aggravation of litigation… and if it is bad, then you have additional evidence in your favor. Lol)
Seamands also referenced a sound study he obtained on a different racetrack that stated that 65 decibels and higher is not compatible with nearby residential property and said that his clients are often outside and that MARP will present health and safety problems.
Hunt said he will stand on his trial brief (which he will be emailing to me later in the week – I will have more comments when I read the trial briefs of all parties) and said that the Plaintiffs’ own testimony during the Conditional Use Permit hearing is that there is no solid evidence that MARP would reduce their property values. He said that case law sets forth that in every zoning case there will always be people that have positive and negative opinions on the impact. He also said that Plaintiffs stated in their legal filings that they want the MARP property to be a buffer for their property to I-70, and cited two cases where it was found that property owners can’t rely forever on the current state of zoning in the areas around them. Hunt said the Plaintiffs can’t tie up the development of the entire county and reiterated that the Montgomery County Planning and Zoning Master Plan of 1995 clearly shows that MARP’s property was earmarked for commercial development. He also reiterated that there are no ordinances or other requirements that require Planning and Zoning or a County commission to obtain a sound study and that there are no delineated standards as to what would be a substantial detrimental impact to the use and enjoyment of a person’s property.
Hunt pointed out that the study on the other racetrack cited by Seamands has not been verified or authenticated, and that it is based on an oval track with continuous noise, not a drag strip with intermittent noise. Hunt summed up by saying that the Court must find that there is a *substantial* detrimental impact in order to rule in the Plaintiffs’ favor, but there is not a substantial impact.
The County Commission’s attorney said that a Judge’s standard of review in a Conditional Use Permit case in order to revoke it would be to find that it was granted illegally, was not supported by evidence, or that it was arbitrary and capricious, and none of these apply, and the evidence must be viewed in the light most favorable to the County Commission. The Commission took evidence from both sides and as there is no requirement in an ordinance, statute, or case law that a professional sound study must be done, the Plaintiffs must want to put a new requirement in the books. He also said that the County Commission went above and beyond by commissioning the sound study that was performed, even if it was not completely perfect.
He also reiterated that the Master Plan clearly sets forth that the MARP property was intended for commercial use and that the Plaintiffs chose to purchase land nearby, and that it is unreasonable for them to submit that they intended for their properties to remain the same as it is now.
The Judge said that he would take the case under advisement, meaning that he would not issue a ruling at that time and will review all of the evidence that has been presented and filed. He gave Seamands 10 days to respond to some Motions in Limine that were filed that morning (I have not seen those, but MARP’s attorney is to be faxing these to me this week), and gave all parties 20 days to submit their Proposed Findings of Fact and language to be used in the Final Judgment. In the simplest terms, this means that each attorney must draft what would be their dream judgment – what they would want to see the judge enter as his ruling – and the judge will go through each of these and pick out the items that he agrees with and incorporate them into his final ruling.
Ronnie told me today after court that the surveyors expect to be done soon. They are setting forth all of the property borders and the location the track will be on the property, and measuring various topographical things. When their survey is complete, there will be a meeting with Ronnie and the excavators where they will show all of the elevations on the property and the locations of what needs to be built up and what needs to be lowered in order to have a flat surface. Then the excavators have to take this information in the form of a blueprint so to speak to prepare a plan for how they will do the grading. All of this can take several weeks. I’ll keep you updated as Ronnie keeps me updated.
If anyone has any questions, you can ask here, but I am busy with my two toddlers and am definitely not on here as often as you guys, so email me at carolyngerding@gmail.com and I will answer questions here in MARP’s forums.
Carolyn
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bud SE/JF 5821
Full Member
Well if there is not going to be a track here,Guess I will haft to move back to the west coast.
Posts: 191
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Post by bud SE/JF 5821 on Apr 23, 2012 17:56:24 GMT -5
Thank you Carolyn for all the information, I am inclined to think that this is a stall tactic perpetrated by the plaintiff and the judge, I feel that the Judge is not doing the job he was elected to do and as a alternative give serous consideration to a possible recall of his position in Montgomery county.
Thanks Bud
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Post by sg3526 on Apr 23, 2012 18:15:24 GMT -5
Bud, he is in his last term of office. He is retiring so this all has no impact on him at all. I think he is doing as he needs to do and taking all elements into consideration and hopefully by doing so will stop any further issues that may arise.
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bud SE/JF 5821
Full Member
Well if there is not going to be a track here,Guess I will haft to move back to the west coast.
Posts: 191
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Post by bud SE/JF 5821 on Apr 23, 2012 18:26:37 GMT -5
Thank you for the information, I indeed hope this is the case, I have seen this type of tactic on the west coast in regards to kangaroo mice a 10 year study had to be done to fine out if the drag strip noise would have a ill effect on them.
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Bujang Lah Kau kagak ada btol
