County board rules businessman violated zoning by building racetrack

Published 1:02 pm Wednesday, October 11, 2017

By Josh Bergeron

SALISBURY — A Rowan County man violated zoning ordinances when he built a dirt track in the eastern part of the county, a county board has ruled.

After a two-day hearing, the Zoning Board of Adjustment voted Tuesday night to uphold a staff decision that the track is inappropriate on land zoned rural agricultural.

Specifically at issue was whether the facility could be described with the term “racetrack,” a use not allowed in areas zoned rural agricultural. Racetracks are allowed in commercial-business-industrial and industrial areas, with an extra permit.

By upholding the staff decision, the Zoning Board of Adjustment unanimously ruled that David Eller violated the zoning designation by building a racetrack for ATVs and motorcycles on a 10-acre plot on Deer Creek Drive. The board’s ruling came after eight hours of discussion over two days.

Eller, who owns Salisbury-based Makson Inc., reacted to the ruling by saying he thinks the county government treated him like a “common criminal.”

Carolyn Christian, who lives near the racetrack, said she was pleased with the zoning board’s decision. Christian said she believes in property rights, but there should be limits to what people are allowed to do on their property.

Dave Pokela, an attorney for Rowan County, argued that Planning Director Ed Muire followed the common definition of a racetrack when Muire wrote a letter to Eller asking for operations to cease on the track. The zoning ordinance does not specifically define a racetrack. Instead, county staff used the common dictionary definition of racetrack.

Meanwhile, Eller and his attorney, Randy Reamer, argued that the track was built as a place where Eller’s son and his friends could practice riding ATVs and motorcycles. They said races are not held at the site and that the zoning ordinance does not specifically define the term “racetrack.”

Reamer tried to create uncertainty about the exact nature of the 10-acre site.

“I look at that thing and I can’t tell what it is,” Reamer said. “They think it’s a racetrack because (Eller) has a race team and his kids are out there riding on it, but we disagree.”

Reamer presented Eller’s case Monday, and the county presented its case on Tuesday. Neighbors of the racetrack were allowed to speak before the zoning board rendered its decision.

Christian was among the neighbors who spoke Tuesday. She said she bought a decibel reader to measure sound coming from ATVs on the dirt track. She also timed track use and said riders averaged using the track one hour and 20 minutes, longer than Eller and his friends had pledged that such activity would last.

Also testifying Tuesday was Planning Director Muire, whom Reamer quizzed about whether he contacted Eller to inform him of the violation, the best way to come into compliance and whether racetracks in other parts of the county comply with the county’s zoning ordinance.

Muire said a letter asking Eller to cease and desist was the first communication between the two, that Eller could remove any racetrack features to come into compliance and that racetrack examples used by Reamer were not under the county’s control or were grandfathered in.

Meanwhile, neighbors who testified Tuesday mostly disapproved of Eller building a dirt track in a residential area. About a dozen people spoke during the public-comment portion of the meeting.

One man said he could hear noise from the ATVs with all his doors and windows closed.

Another person said she is not particularly bothered by the noise and that she spoke with Eller about when might be the best time for people to use the racetrack.

A third person said the dirt track fundamentally changed the way that groundwater drains in the area.

A fourth person said he considers racetracks to be a place where people pay admission to watch a race, and that the dirt track is only a practice facility.

Eller said during his testimony that neither the racetrack nor the racing team he helps operate is a money-making venture.

In closing arguments, Reamer mostly reiterated points made during the two-day hearing. He asked the board to use common sense and “everyday experience” to determine whether the dirt track fits the definition of racetrack.

Reamer argued that the site is “just a bunch of dirt that had been piled up.”

He said Eller and his wife are good parents trying to provide a facility for their son and his friends to use.

Dave Poleka, an attorney for Rowan County, made a more nuanced argument. Poleka framed the dirt track as a piece of a much larger racing program Eller hopes to create. Poleka said Eller owns a professional racing team.

“If you find that it’s not a racetrack, then you would have to find a use and apply that,” Poleka told the zoning board. “There’s no use other than a racetrack.”

Multiple times during the two days of hearing, Pokela noted that Eller didn’t correct a friend in a text message exchange when the friend called the facility a racetrack.

Commenting before the final vote, a number of zoning board members said the facts of the case spoke for themselves.

Board member Keith Knight emphasized that Tuesday’s vote was tough and that he supports private property right. But Knight said it looks like a racetrack, neighbors think it’s a racetrack and owners have called it a racetrack.

Contact Josh Bergeron at 704-797-4246.