Off-road tracks on private land at issue

So Robinson assumed he would be grandfathered when Pima County adopted an ordinance in 2005 barring off-road vehicle tracks on lots smaller than 10 acres.

Instead, he found himself in a long legal battle with Pima County that could determine whether the law applies to the dozens of off-road enthusiasts who built tracks on their own property before 2005.

The pending lawsuit over his refusal to rip out the track also calls into question how far government can go to regulate recreational activity on private property.

Is Robinson's track an "accessory use," no different from riding horses or having a barbecue or any of a hundred activities not listed in the zoning code that we assume we are allowed to do on our own property?

Or is it more like running an auto-repair shop out of your garage, a business that could annoy neighbors?

And for many Pima County residents annoying doesn't begin to describe the reaction when it comes to ATVs.

There is the insistent whine, the snort of revving engines, the dust, the extensive grading and damage to the desert. That's how Patricia Perry felt when she moved in next door to the Robinsons in July 2005.

"I would challenge anyone to come sit on my porch when they are riding and tell me that's an appropriate use in a residential area," she said. "You could not be outside."

She called the Pima County Sheriff's Department numerous times to complain about the noise.

When she heard the county adopted an ordinance barring off-road tracks on lots smaller than 10 acres and requiring a permit for tracks on larger lots, she filed a complaint.

Robinson became the first person cited under the new ordinance. But instead of leveling the berms and jumps, revegetating the track and paying a $750 fine, he fought back.

"It's a matter of principle," he said. "I'm not going to roll over and die because one person comes in and complains."

Robinson moved to his home in 1990 and started building the track for himself and his four boys in 1991. He said he's always tried to be considerate. They don't ride early in the morning or late at night, they control the dust and most of his property remains vegetated.

He said he never received a complaint until Perry moved in.

"It's private property," said his wife, Janice Robinson. "We're not doing anything wrong."

Robinson contested the citation, ultimately appealing to the Board of Supervisors, who sent him to the Board of Adjustment to seek a variance.

The Board of Adjustment narrowly ruled in his favor, not only granting him the variance, but finding the county's chief zoning inspector, Pat Thomas, erred in not grandfathering Robinson.

But if Robinson could keep his track, then so could anyone else who built a track before the ordinance.

County officials didn't want to set that precedent, so the supervisors sued the Board of Adjustment and the Robinsons in Superior Court.

Supervisor Ray Carroll said he was sympathetic to Robinson's case but concern for precedent overruled his sympathy.

"I thought possibly he should be grandfathered in as well, but this is an issue that is countywide," he said. "The county attorney thought the other cases were in jeopardy."

The key legal issue is whether the track was allowed before 2005. The zoning code said nothing one way or the other.

Robinson said he asked the county if he needed a permit before he built the track and was told he didn't. But he has no written proof.

County officials say because off-road tracks were not listed as a permitted use, that means they actually were prohibited.

The zoning code spells out what uses are allowed in each type of zoning, but it also allows "accessory uses," which are compatible with the main use.

It's up to the chief zoning inspector to interpret those rules. Thomas said the county has never considered off-road tracks acceptable in residential areas.

However, a review of off-road-vehicle zoning complaints over the last five years showed just two before the ordinance passed. Both were pursued as grading-permit violations, not off-road violations.

Eight complaints have been investigated as off-road vehicle tracks without permits since the ordinance passed.

Several homeowners complied, but other cases are on hold pending the outcome of the Robinson case.

Thomas said she sees no inconsistency in the county's not pursuing off-road violators before the ordinance was on the books.

Zoning enforcement is complaint-driven, and the passage of the ordinance raised awareness, leading to more complaints, she said.

Thomas Parsons, a partner with the land-use law firm of Stubbs and Schubart, said the county is on questionable legal ground.

"As long as it wasn't a prohibited use — and Arizona is a free-use-of-land state — you can recreate on your own private property," he said.

He compared the off-road track to a horse trail or a volleyball court.

"The courts look with a jaundiced eye on these kinds of restrictions," he said. "They better have a very strong case for public health, safety and welfare."

But Frank Bangs, a land-use attorney with Lewis and Roca, said, "it's not a black and white case."

While the lack of previous enforcement would be relevant, the county could argue standards have changed, and what was once considered acceptable is now incompatible.

"As we become more urban, these clash-of-lifestyle situations are only going to be more common," he said.