Thursday, November 2, 2006
Zoning denies horse racing
By SUE WATSON
Two operators of horse racing tracks and their business associates were denied their formal request for a variance to conduct “match races” by the Marshall County Planning Commission Board, Thursday.
The operators asked for a permit from zoning to operate horse racing events after being ordered by Chancellor Glenn Alderson several weeks ago to not operate any business on their properties subject to the litigation until all administrative remedies were exhausted.
The Marshall County Board of Supervisors was plaintiff in the suit brought against defendants Estaban Cancino and Jose C. Rodriguez and defendants Thomas Tello and Tommy Reel.
Cancino and Rodriguez operated a race track off Humphrey Road while Tello operated a track on Petty Road (off St. Paul Road) on land owned by Reel.
By mutual agreement, the defendants agreed with the court order until the matter of a land use variance had been fully heard by zoning and appealed before the board of supervisors.
The zoning board denied both parties their requests for a permit in successive hearings and unanimous votes. The parties have 10 days or until November 3, to file for an appeal of the decision at the chancery clerk’s office, according to zoning board president Joe Hurdle.
The Petty Road race track
Olive Branch attorney Joe McIlvain, representing Tello and Reel, made several points before the zoning board on behalf of his clients.
He said Tello, the track operator, had operated horse racing events over a period of one year; no signs of betting on races were evident; operators have a state beer license; events were held on Sunday afternoons between the hours of 2 and 4 p.m. every other week; and Reel leased the property to Tello, the business operator.
“As far as horse racing, I can find nothing that says racing is illegal,” he said. He agreed Tello must have a county permit to sell beer.
McIlvain made some other points including alleging that zoning is “penalizing a man who is operating a business.”
He said AR (agricultural residential) zoning allows operation of stables and riding academies and that regulations do not limit the number of people who can attend, nor specify that horse racing is not a permitted use.
“A big concern is what I call the nuisance factor - noise and traffic on Sunday afternoon,” he said.
Noise is something American society is coming to be expected to tolerate, he said, citing noise created in his neighborhood on ball game nights at the nearby school and airport noise as examples.
He also noted a zoning variance granted to Annie Moffitt to hold four-wheeler racing events.
“Look at what you are allowing them,” he said. “I think you are being inconsistent in what you are trying to do.”
He added that the race track operators posted ‘no betting’ signs.
“But you cannot guarantee someone on the side is not (betting),” McIlvain said. “There’s a sign in the coliseum that says no beer, but you cannot guarantee someone is not drinking.”
Zoning board attorney Gene Brown pointed to a letter from the American Society for the Prevention of Cruelty to Animals relative to the treatment of horses, proof of vaccinations and other requirements that pertain to equine events and health matters.
“How do you address that?” Brown asked.
“I assume you have to comply with state regulations,” McIlvain said.
“It’s unregulated,” said Bill Kinkade, zoning board member.
“Do you have a copy of your state beer permit?” asked board member Flick Ash.
Kinkade agreed a person can get a state beer license prior to getting county permit to sell beer.
“You have to go to the sheriff for it,” he said.
“That’s something I haven’t had a chance to clarify,” McIlvain said.
Tello said he had not gotten a local license to sell beer but has a state license.
“So, the beer you sold out there was illegal (sold illegally), I suppose,” Ash said.
“If we think we are in violation, we shut down,” McIlvain said. “We are not trying to buck the system.”
Hurdle disagreed with McIlvain’s argument about tolerating noise, saying airports and schools serve a lot of people.
“It applies to Ms. Moffitt, too,” he said. “One complaint and she gets shut down.”
Kinkade said he has a problem with the lack of a county beer permit.
He pointed out that Zoning allows only one horse per acre of pasture.
“You are not using the 65 acres for the track, perhaps five acres,” Kinkade said. “The noise tolerance is a point of fact - why we live in Marshall County in a quiet area. If you choose to live in an airport area, it’s a choice. As for Moffitt, who has 300 acres (actually 131, according to the zoning office), I was not sold on it. We put stipulations, which for you would be you may not be betting. You referenced that in a naive manner.”
“I refer (to betting) to say we are not ignoring it,” McIlvain said.
“You keep referencing other areas, noise factors of airports,” Kinkade said. “That’s irrelevant. We are talking about an agricultural area, not Olive Branch or Memphis or an airport.
“My opinion is, with racing, I have no problem with that. The concerns are the ancillary things that come with that.”
“There has to be some tolerance for noise and traffic, no matter where you are,” McIlvain said. “I’m saying if you are going to have a noise policy, it needs to be applied across the board.”
Precedent setting is important, Kinkade said.
“If we establish a precedent, we have no way to backtrack,” he said.
If noise is not a factor, “why do governments spend millions to quiet airports?” asked Hurdle.
“For buffers, yes,” McIlvain said.
“And there’s no buffer on the loud speaker (at the races),” Hurdle said.
“I must say, I have visited and it has been done well,” Kinkade said.
The case is for the board of supervisors to decide because of the beer license involved, Ash said.
“So, I make a motion to deny,” he said.
The motion passed 5-0.
The Humphrey Road race track
Zoning director Conway Moore was asked to read the public comments relative to letters sent to residents who live in the Humphrey Road area near the track operated by Cancino and Rodriguez.
She sent 118 letters and received five answers approving the race track, 37 objections, two petitions (one with 22 signatures and the other with 26) and a letter of concern from Sherry Rout, Legislative Liaison for the SPCA, Southern Region.
Some objections included that Humphrey Road is too narrow for that much traffic; the county has no provisions for regulating horse racing; the community is for families; and horse racing attracts other types of activities.
Brown interrupted to say that a board member had asked if it is necessary to hear the same conversations already covered in the Petty Road race track matter.
“Do you have anything different to offer?” asked zoning board member Agnes Foster.
“I’m seeing a lot more complaints,” Kinkade said.
“We are here because we were asked to exhaust remedies,” said Buck Dougherty, attorney representing Cancino and Rodriguez.
He said Cancino and Rodriguez co-owned 20 acres and Rodriguez owned another 100 acres.
There was mention of structures that were built without permits, Dougherty said.
He noted that zoning documents are vague and complex.
“In our situation, we have about 100 acres and two horses. There are some valid issues, complex (ones), when you start talking about alcohol and regulations,” he said.
He addressed other activities allowed by special exception - country clubs, parks, playgrounds and riding academies.
Racing would fall under riding academies as a special exception, Dougherty said.
“We appreciate the opportunity to tell you where we’d like to go,” he said. “It seems to be a permitted use under (zones) 2-A1, as well as eight and nine which allow country clubs and golf courses.
He said his clients intend to comply with alcohol regulations and understand the issues around noise.
“We respect that,” Dougherty said.
“If we had a gospel revival and it caused a public nuisance, we would stop that,” Kinkade said.
Hurdle said a public park might draw 600 to 800 people on an afternoon, “nothing like what you’re talking about.”
Hurdle motioned to deny and Agnes Foster seconded. The motion passed 5-0.
Hurdle said the parties could appeal to the board of supervisors.
“How do we appeal?” asked Penny Risner, a resident opposing the race tracks.
“Before the board of supervisors,” Hurdle said.
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