2008-520, SARA REALTY, LLC v. COUNTRY POND FISH AND GAME CLUB, INC.

The petitioner, Sara Realty, LLC (Sara Realty), appeals an

for the State of New Hampshire, as amicus curiae. Kelly A. Ayotte, attorney general (Lisa S. Walker, attorney, on the brief),

respondent. and Sumner F. Kalman on the brief, and Mr. Kalman orally), for the Sumner F. Kalman, Attorney at Law, P.C., of Plaistow (Thea S. Valvanis

the petitioner. Casassa and Ryan, of Hampton (John J. Ryan on the brief and orally), for to press. Errors may be reported by E-mail at the following address:

COUNTRY POND FISH AND GAME CLUB, INC.

page is: http://www.courts.state.nh.us/supreme. SARA REALTY, LLC

No. 2008-520 editorial errors in order that corrections may be made before the opinion goes Rockingham Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as one for summary judgment and ruled in its favor. p. 2 and unconstitutional. The superior court treated Country Pond’s motion as 159-B. Sara Realty objected, claiming that RSA chapter 159-B is inapplicable

RSA 676:15 (2008). Country Pond moved to dismiss, citing RSA chapter

approval was necessary before proceeding further.

superior court affirmed this decision.

noise mitigation requirements and thus sought injunctive relief pursuant to

approval pending site plan review because they decided that planning board among other things, additional parking. The selectmen later revoked this of selectmen, it undertook to excavate and clear the lot in order to build, determined that Country Pond had met the noise mitigation condition. The Country Pond integrate certain noise mitigation measures. It ultimately later approved the excavation and site plan in 2003 on the condition that that Country Pond had failed to adequately comply with the planning board’s property following the excavation and tree-clearing activities. It also asserted nuisance due to the level of firearm-related noise reaching Sara Realty’s

shooting range and the campground. After receiving approval from the board moving party is entitled to judgment as a matter of law. board retained a sound specialist to help develop a noise mitigation plan. It and, if no genuine issue of material fact exists, we determine whether the

as amended, alleges that Country Pond engaged in a common law private

Counties v. State of N.H., 158 N.H. ___, ___ (decided January 16, 2009). 1999. In 2001, Country Pond purchased a forty-acre, forested lot between its N.H. Assoc. of 2006. Sara Realty purchased a campground west of the shooting range in its first zoning ordinance in 1973 and specific noise ordinances in 2005 and earth between its property and Country Pond’s shooting range. The planning we consider the evidence in the light most favorable to the nonmoving party CONST. pt. I, art. 14. In reviewing the trial court’s summary judgment ruling, its action and violates its State Constitutional right to a remedy, see N.H. and injunctive relief. In September 2007, it amended its petition. The petition, On appeal, Sara Realty argues that RSA chapter 159-B does not apply to

10.75 acres in Newton. It began operation in 1962, well before Newton adopted interested abutter due to its concern over the loss of sound buffering trees and

In April 2007, Sara Realty petitioned the superior court for declaratory

Country Pond owns and operates a “[s]hooting range,” RSA 159-B:8, II, on Sara Realty participated in the planning board proceedings as an

The trial court found or the record supports the following relevant facts.

petitioner’s action and was not unconstitutional. We affirm. upon its conclusion that RSA chapter 159-B (Supp. 2008) barred the increase . . . is directly attributable to non gun shooting activities.”

p. 3 exempts activity . . . exacerbat[ing] the gun shooting noise level . . . where that

scenario and, thus, we “should not read into the statute language which property. It argues that RSA chapter 159-B does not contemplate any such allowing the sound of admittedly protected shooting range activities to reach its

protected shooting range activities, caused the alleged noise nuisance by

intent of the legislature as expressed in the words of a statute considered as a statutory protections when shooting ranges undertake a substantial change in Notably, unlike the approach taken by several other states that withdraw the retroactive application of local and state regulations, see RSA 159-B:4. exempt from state agency noise level limitations, see RSA 159-B:6, and related regulation at the state and local levels. Eligible shooting ranges are RSA chapter 159-B affords protection to shooting ranges from noise-

overall purpose and avoid an absurd or unjust result. Id. Country Pond because the excavation and tree-cutting, and not solely the 486, 488 (2007). We construe all parts of a statute together to effectuate its regulations applicable when it first came into operation. Residents Defending Their Homes v. Lone Pine Hunter’s Club, 155 N.H.

sought to terminate the shooting range activity as relief. In matters of statutory interpretation, we are the final arbiter of the

from actions based upon firearm-related noise.

Sara Realty argues that RSA chapter 159-B affords no protection to civil liability or criminal prosecution if the range complies with noise

excavation, tree-cutting and protected shooting activity, and Sara Realty this dispute because the alleged noise arose “from a combination of” The trial court ruled that RSA chapter 159-B was “plainly implicated” in Hampshire, have enacted legislation specifically protecting shooting ranges

I. Applicability of RSA chapter 159-B

housing units close to [shooting ranges] cause[s] a surge of noise pollution”); 2004, 83:2. 175. The statutory scheme was repealed and reenacted in 2004. See Laws outdoor shooting ranges. See Laws 1987, ch.

enacted in 1987, RSA chapter 159-B generally protects a shooting range from 532, 544 (Ill. App. Ct.), appeal denied, 803 N.E.2d 484 (Ill. 2003). Originally

661 (1969). In response, approximately twenty-nine states, including New Annotation, Gun Club, or Shooting Gallery or Range, as Nuisance, 26 A.L.R.3d Ray TP. v. B & BS Gun Club, 575 N.W.2d 63, 65 (Mich. Ct. App. 1997);

House Bill 229 ought to pass because “in some places the construction of new

expansion into rural countryside increases the prospect of litigation involving We begin by putting RSA chapter 159-B in context. Residential apply

basis as of the date the person acquired the property.

constructed, or began operations,” RSA 159-B:2. We read this condition to ordinance that was in existence at the time the range was established, was

provided the shooting range satisfies any applicable conditions. range was established, constructed, or being used on a regular

RSA 159-B:8, II. regulation predated Country Pond’s continuously operating “[s]hooting range,” 503, 503 (Ga. 2001). It therefore does not apply here because no noise if and only if such regulation exists. See Jenkins v. Clayton, 5 p. 4 42 S.E.2d

RSA 159-B:2 is conditioned upon “compliance with any noise control was established, was constructed, or began operations.

B:2, :5.

shooting range, or the owners, operators, or users of the range, maintain a nuisance action for noise or noise pollution against a A. Private Nuisance

private nuisance and for injunctive relief under RSA 676:15. We address these statutes as they relate to Sara Realty’s claims for

RSA 159-B:5. noise control ordinance that was in existence at the time the range

B:2 provides: Notwithstanding any other law to the contrary, a person may not Two provisions of RSA chapter 159-B bear upon the instant action. RSA 159- RSA 159-B:2. In addition, RSA 159-B:5 provides:

provided that the owners of the range are in compliance with any use or operation of a range on the basis of noise or noise pollution, subject to any action for nuisance and no court shall enjoin the The owners, operators, or users of shooting ranges shall not be

RSA chapter 159-B also affords immunity from most noise-related litigation. In addition to insulating shooting ranges from noise-related regulation,

see RSA 159-B:3. 159-B protects the original portion in use even if subsequent expansion occurs, use, see, e.g., Me. Rev. Stat. Ann. tit. 17, § 2806(1) (West 2006), RSA chapter appeal. Accordingly, it is deemed waived. p. 5 mitigation condition. Sara Realty did not challenge this ruling in its notice of property, or character; to obtain right and justice freely, without

the legislature to make. 5

reasonably and lawfully determined that Country Pond met the sound recourse to the laws, for all injuries he may receive in his person,

Planning Board condition.”

might reach properties that had previously enjoyed buffers. Such a leap is for

open” because it ruled, in a separate action, that the planning board Every subject of this state is entitled to a certain remedy, by having

of the State Constitution, which provides: Sara Realty argues that RSA chapter 159-B contravenes Part I, Article 14 “requiring [Country Pond] to construct a sound barrier as required under the II. Constitutionality of RSA chapter 159-B

“[n]oise,” RSA 159-B:8, I, emanating from a “[s]hooting range,” RSA 159-B:8, II, Comm’n, 157 N.H. 658, 662 (2008). entity-level protection any qualification based upon the variety of ways abutting landowners to enforce compliance with local regulations. See Dupont v. N.H. Real Estate owners, operators, or users of the range . . . .”). We decline to read into this

The trial court ruled that “[t]he [RSA 676:15] issue is . . . no longer . . . independent statutory bars to Sara Realty’s nuisance cause of action.

activities.” It later amended its RSA 676:15 claim to request only an injunction permanent injunctive abatement of Country Pond’s “outdoor gun shooting 676:15. Sara Realty originally invoked RSA 676:15 to seek temporary and

RSA 676:15, entitled “Injunctive Relief,” supplies a cause of action to nuisance action for noise or noise pollution against a shooting range, or the B. RSA 676:15

Accordingly, we conclude that RSA 159-B:2 and :5 operate as

regular basis as of the date [Sara Realty] acquired [its] property,” RSA 159-B:5. See Karch v. Baybank FSB, 147 N.H. 525, 530 (2002). range, or that the range “was established, constructed, or being used on a

be subject to any action for nuisance . . . .”), :5 (“[A] person may not maintain a See RSA 159-B:2 (“The owners, operators, or users of shooting ranges shall not protect, among others, the entity owning and/or operating a shooting range. Once the conditions precedent are met, RSA 159-B:2 and :5 broadly

there is no dispute that the firearm-related noise emanates from its shooting Country Pond plainly satisfies the condition within RSA 159-B:5 because of RSA 159-B:2.

p. 6 summary judgment for Country Pond, we need not reach the constitutionality

nuisance action and the bar within RSA 159-B:5 is sufficient to support 6 B:5. Because RSA 159-B:2 and :5 provide alternative bars to Sara Realty’s immunity. challenging only the constitutionality of RSA 159-B:2, and not that of RSA 159-

chapter 159-B unconstitutionally disfavors the latter class by granting absolute person acquired the property”). We therefore read Sara Realty’s brief as into existence and, thus, are barred from seeking any relief. It argues that RSA Newton that lacked noise control ordinances when the shooting range came

of RSA 159-B:2.

constructed, or being used on a regular basis as of the date the [complaining] prosecute a private nuisance action; and landowners living in towns such as BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred. the range was established, was constructed, or began operations”),

constitutional analysis, we note that the classification is only created by virtue See N.H. Assoc. of Counties, 158 N.H. at ___.

159-B:5 (conditioning protection upon the shooting range being “established, establishment of a shooting range, who can enforce that ordinance or with RSA landowners living in communities with established noise control prior to the “compliance with any noise control ordinance that was in existence at the time with respect to remedies, by disparately treating two similarly situated classes: Compare RSA 159-B:2 (conditioning protection upon

Assuming without deciding that the asserted classification triggers a

Sara Realty argues that RSA chapter 159-B impermissibly discriminates,

N.H. CONST. pt. I, art. 14.

promptly, and without delay; conformably to the laws. being obliged to purchase it; completely, and without any denial;