2006-143, RESIDENTS DEFENDING THEIR HOMES v. LONE PINE HUNTERS' CLUB, INC.

No. 2006-143 Hillsborough–southern judicial district

relief and remanding the case to the planning board. We vacate and remand.

(planning board), appeal an order of the Superior Court (Hampsey Kelly A. Ayotte Club), the Town of Hollis (town) and the Town of Hollis Planning Board , of Manchester (Bruce W., of Concord (Bryan K. Gould

that RSA chapter 159-B (Supp. 2006) is unconstitutional, granting injunctive page is: http://www.courts.state.nh.us/supreme., J.) ruling a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 BRODERICK, C.J. The defendants, Lone Pine Hunters’ Club, Inc. (the

general, by brief), for the State of New Hampshire, as amicus curiae.

Braley on the brief, and Mr. Gould orally), for the defendants. Brown, Olson & Gould, P.C. and Philip P.

Felmly & a. on the brief, and Mr. Felmly orally), for the plaintiffs. to press. Errors may be reported by E-mail at the following address: McLane, Graf, Raulerson & Middleton, P.A.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as review. See

p. 2 as well as its grant of a special exception subject to planning board site plan

the necessary local land use approvals to lawfully operate as a shooting facility

the superior court and upheld the ZBA’s decision that the Club did not have decision, and the case was appealed to this court. In July 2003, we reversed The Club appealed to the superior court, which vacated the ZBA’s

ZBA on the condition that it seek site plan review before the planning board. In August 2000, the Club applied for and received a special exception from the special exception and site plan review in order to make its operations lawful.

Hollis Board of Selectmen advised the Club in writing of the need to secure a

zoning districts in which the Club operates. In 1999 and again in 2000, the clubs” to the uses permitted by special exception and site plan review in the board. In 1999, the Hollis zoning ordinance was amended to add “sporting

some with and some without permits or approval from the ZBA or planning

Over the years, several other expansions took place on the property,

court ruled that RSA 159-B:4 divested the planning board of jurisdiction over

owned by [the Club] without issuing a variance.” inspector can issue a building permit for the addition to the existing building

by the 1999 amendment to the zoning ordinance. In December 2005, the trial

which stated: “It is the opinion of the Board of Adjustment that the building

absent compliance with the special exception/site plan review process created court arguing, in part, that the Club could not lawfully operate a shooting club citizens owning land surrounding the Club’s property, appealed to the superior

days later, three members of the ZBA signed an unaddressed, handwritten note provide for the establishment of a Fish & Game Club without a variance.” Ten the Club’s application had been denied because the zoning ordinance “does not

the Club’s application because it lacked jurisdiction. The plaintiffs, a group of

building inspector reported to the Hollis Zoning Board of Adjustment (ZBA) that

town’s zoning ordinances relative to the Club’s property and voted to dismiss 159-B:4, as amended in May 2004, preempted its authority to enforce the On the advice of town counsel, the planning board concluded that RSA 2

purpose, which is contrary to provisions of [the] zoning ordinance.” The building inspector denied the application because the proposed use was a “new building to facilitate its use of the property as a fish and game club. The Hollis

the Club applied for a building permit to construct an addition to an existing

2004, submitted its application to the planning board for site plan review. Following remand, the Club suspended all shooting activities and in June

Lone Pine Hunters’ Club v. Town of Hollis, 149 N.H. 668 (2003).

ranges were not permitted uses in either zoning district. In September 1966, district. Under the Hollis zoning ordinance then in effect, gun clubs and firing two zoning districts, a residential and agricultural district and a recreational

case. In June 1966, the Club purchased 118 acres of land in Hollis located in We begin by summarizing the lengthy procedural background of this as a whole.” Franklin v. Town of Newport p. 3 the intent of the legislature as expressed in the words of a statute considered “In matters of statutory interpretation, this court is the final arbiter of

that could not have been intended by the legislature. exempt illegally operating shooting ranges from state and local control, a result apply only to lawfully operating shooting ranges; otherwise, the statute would

see

ordinance in question. The plaintiffs argue that the statute must be read to

time when the range was established, was constructed, or began operations,” compliance with any applicable noise control ordinances in existence at the limiting noise in terms of decibel level, provided that the shooting range is “in

shooting activities have been “in operation” prior to the adoption of the zoning

began operations,” RSA 159-B:1, :2; and (3) agency rules or standards for

conducting site plan review because RSA 159-B:4 only requires that the Club’s On appeal, the Club argues that the planning board is precluded from

existence “at the time the shooting range was established, was constructed, or shooting range is in compliance with any applicable noise control ordinance in related to noise as well as injunctions based upon noise provided that the

not in effect until 1999.

Town of North Hampton v. Sanderson

the [claimant] acquired the property,” RSA 159-B:5; (2) civil or criminal liability

operation,” albeit illegally, since 1966, and the special exception ordinance was 3 regulations to the Club’s shooting range because the range had been “in it lacked jurisdiction to apply the town’s zoning ordinance and site plan

where it legally exists at the date of the adoption of the zoning ordinance.”

was established, constructed, or being used on a regular basis as of the date avoid an absurd or unjust result.” Id shooting ranges from: (1) noise-based nuisance claims “if the shooting range shooting ranges from liability related to noise. The statute protects owners of

159-B:4. It is this latter provision that led the planning board to conclude that, 131 N.H. 614, 620 (1989). “This rule of

“The law is well established that a nonconforming use is permissible only

construe all parts of a statute together to effectuate its overall purpose and

enforcement or proposal of the administrative rule, statute, or ordinance,” RSA shooting range if the range was “in operation prior to the adoption, enactment, prohibit or limit the scope of shooting activities previously conducted at the

appeal followed. site plan approval and remanded the matter to the planning board. This

retroactive application of administrative rules, statutes, or ordinances that RSA 159-B:6. In addition, the statute protects shooting ranges from the

statute unconstitutional, enjoined all shooting activities at the Club pending the Club’s site plan application. The court, however, declared the entire with relevant noise limitations at the time the range was lawfully approved by p. 4 exemption from nuisance action based on noise, if they were in compliance

relevant noise limitations at the time they were lawfully approved actions based on noise from shooting clubs which were in compliance with House Bill 1309 states that “RSA 159-B provides an exemption from nuisance

RSA 159-B relative to shooting ranges and it provides shooting clubs an

and Recreation in March 2004, a summary of testimony received in support of

moving that HB 1309 ought to pass, explained: “This bill repeals and reenacts During floor debate in the senate in April 2004, Senator Sapareto, in

In the report of a hearing held before the Senate Committee on Wildlife

laws and ordinances.”

to apply to lawfully established shooting ranges. legislative history likewise establishes that the statute’s provisions are intended

when they began operation. You can’t go back and shut them down with new

statute is intended to prevent subsequent restrictions of lawful uses. The

or limiting the scope of what shooting ranges “are already doing that was legal David Wheeler explained that the purpose is to prevent towns from prohibiting retroactivity provision now contained in RSA 159-B:4, Executive Councilor

lawful that which was unlawful before the statute was enacted. Rather, the is in violation of laws and ordinances other than noise control ordinances, [the] RSA chapter 159-B was not intended to, nor does it by operation of law, make Indeed, as the defendants conceded at oral argument before this court,

no reason for them to have to leave.” Testifying to the meaning of the

Senator Cohen whether “[s]ince the bill is aimed at noise . . . if a shooting range added). Senator Sapareto responded in the affirmative to a question from property rights of these legally operating shooting ranges. . . .” Id. (emphasis was modeled after legislation in 38 other states and the bill seeks to protect Jour. 729 (2004) (emphasis added). He further stated that “House Bill 1309 the local land use boards of the communities in which they operate.” N.H. S.

regulations that they were provided at the time of their establishment, there is are necessary because “[i]f [shooting ranges] are operating legally and by the added.) Senator Clegg testified that the protections afforded by the legislation

“in operation” is intended to mean in lawful operation. requirement in the statute that an organization’s shooting activities have been illegal, as to do so would reach an unjust result. Accordingly, we hold that the

who have succeeded in evading previous restrictions.” Id

land use boards of the communities in which they are located.” (Emphasis

cannot conclude that the statute was intended to shield a use which was

intended to favor uses which were both existing and lawful, not to aid users law is based on the principle that provisions which except existing uses are

660, 664 (2000). This reasoning directly applies to RSA chapter 159-B. We quotation omitted); see Town of Seabrook v. Vachon Management, 144 N.H.

p. 5 of its property is unlawful under the town’s zoning ordinance, as it has been

constitutional. Regardless of the constitutionality of the statute, the Club’s use

Id

begin with. When it was first approved.

In light of our holding, we need not decide whether RSA chapter 159-B is

use was enacted years before the Club purchased its property.

shooting range could not operate until that permit was issued to SENATOR SAPARETO: Yes Senator, I would assume that the

began operations”?

a variance, because the town’s original zoning ordinance prohibiting the Club’s

the intent is to read that as “lawfully established” or “lawfully

exception, the statute would not preclude the requirement that the Club obtain town from enforcing the 1999 zoning ordinance that made available a special Furthermore, we note that even if RSA chapter 159-B were held to preempt the

include the word “approved” or “lawful.” But you are saying that established, was constructed or began operations”, which doesn’t language of the bill seems to say “at the time the range was

authorize conduct that was illegal, we reverse the trial court’s ruling.

approved, which would suggest a lawful situation, but the

approval, to lawfully operate as a shooting range. We vacate the trial court’s

began its operations.” However, because we hold that the statute does not

makes reference to at the time construction of the range was grandfathered. I am a little confused because the current law SENATOR BELOW: . . . established, then it would be in essence the zoning provisions allowing for a special exception coupled with site plan

because this ordinance was enacted thirty-three (33) years after [the Club] not enforce an ordinance creating a special exception that was enacted in 1999 correct that, with the amended version of RSA Chapter 159-B in effect, it may

Accordingly, the Club must obtain approval from the town, in compliance with

The trial court concluded that “the Planning Board’s interpretation was

SENATOR SAPARETO: Right. It is part of the ordinances.

say the word “lawfully . . .”

. at 730.

noise ordinances at the time it was lawfully . . . I think I heard you

like it does today.” Id bill allows the state and community to enforce its other laws or ordinances just

say something about if a shooting range was in compliance with SENATOR BELOW: . . . Senator Sapareto, I thought I heard you

Vacated and remanded

DALIANIS and DUGGAN, JJ., concurred.

site plan review. ruling and remand for the trial court to instruct the planning board to conduct