2024 N.H. 61, Monadnock Rod and Gun Club v. Town of Peterborough

p. 3 3

unreasonableness or an identified error of law.” Hannigan v. City of Concord, and reasonable and could not set aside their decisions absent was obligated to treat the factual findings of both boards as prima facie lawful appeals from decisions of the planning board and the ZBA. “The superior court [¶10] This appeal requires us to review the superior court’s order in

constitutionally protected activity.” (Capitalization and bolding omitted.) 159 - B; and (5) section 245 - 4 of the Town’s zoning ordinance “illegally regulates enclosed, indoor facil i ties is preempted by RSA 159:2 6, I, and RSA chapter Town’s 2019 zoning ordinance amendment requiring shooting ranges to be in matter jurisdiction to hear the Club’s special exception application; (4) the the trial court erred in upholding the ZBA’s decision that it lacked subject of use pursuant to New London v. Leskiewicz, 110 N.H. 462, 467 (1970)”; ( p. 3 3) [CEO]”; (2) the ZBA and the trial court “failed to apply the criteria for a change upon “an illegal and unconstitutional ‘zoning determination’ made by the the ZBA and planning board decisions because those decisions were based [¶9] On appeal, the Club argues that: (1) the trial court erred in affirming

Club’s motion for reconsideration. This appeal followed. Superior Court (Messer, J.) affirmed. Subsequently, t he court denied the and ( p. 3 3) the planning board’s denial of the Club’s site plan application. The nonconforming use; (2) the ZBA’s denial of the special exception application; ZBA’s affirmance of the CEO’s decision that the Club did not have a lawful [¶8] T he Club appealed all three decisions to the superior court: (1) the

application. unsuccessfully moved for rehearing of the ZBA’s denial of its special exception failed to get the necessary relief from the ZBA. Thereafter, the Club subsequently denied the Club’s site plan application because the Club had grant a special exception for an illegal nonconforming use. The p lanning b oard ZBA denied the Club’s application on grounds that it lacked jurisdiction to the hearing to June. At the June hearing, on the advice of town counsel, the for its shooting range. The ZBA held an initial hearing in May and continued [¶7] In March 2022, the Club applied to the ZBA for a special exception

decision. CEO’s decision. The Club unsuccessfully moved for a rehearing of the ZBA’s zoning board of adjustment (ZBA). Following a hearing, t he ZBA affirmed the [¶6] In December 2021, the Club appealed the CEO’s decision to the

nonconforming use s. neither the east - west nor the south - north range s were grandfathered as November 2021, the CEO issued an administrative decision concluding that shooting range “is a permitted grandfathered non - conforming use.” In p. 4 4

both existing and lawful, not to aid users who have succeeded in evading provisions which except existing uses are intended to favor uses which were the time a zon ing ordinance is amended — “is based on the principle that law” — that a nonconforming use is permissible only where it legally exists at of Seabrook v. Vachon Management, 1 p. 4 44 N.H. 660, 664 (2000). “[The] rule of and therefore ineligible to later qualify as a lawful nonconforming use.” Town to receive site plan approval for the s outh - n orth shooting range, “it was illegal review and approval from the Town’s planning board. Because the Club failed cleared more than 2,000 square feet of land without first obtaining site plan constructing the s outh - n orth range, the Club filled, excavated, graded, and /or excavation, grading or clearing of any land.” Id. The record supports that in (2,000) square feet of buildings, structures, or parking area, includi ng filling, entail the development, change, or expansion of more than two thousand Ordinance § 233 - 3 (2017) (PZO). Site plan review is required for projects “that change is begun, and before any permits are granted.” Peterborough Zoning required before any construction, land clearing, building development or or change or expansion of the use of land is proposed, site plan approval is [¶13] Pursuant to t he Town’s zoning ordinance, “[w]hen any development

a lawful nonconforming use is on the party asserting that right. Id. at 751. zoning ordinance created the nonconforming use. See i d. The burden to prove use is lawful depends upon the facts existing at the time the change in the zoning ordin ance or amendment thereto. See id. Whether a nonconforming enjoying their property when the ir uses were lawful prior to the enactment of a Alpha Delta, 169 N.H. at 750. P roperty owners may continue using and property owners from a retrospective application of zoning ordinances. See 328, 330 (2001). The right to maintain nonconforming uses is meant to protect ordinance prohibiting that use is adopted. Town of Salem v. Wickson, 1 p. 4 46 N.H. nonconforming use is a lawful use existing on the land at the time an Corp. of Alpha Delta v. Town of Hanover, 169 N.H. 743, 7 50 (2017). A the New Hampshire Constitution and by RSA 674:19 (2016). See Dartmouth [¶12] Nonconforming uses are protected by Part I, Articles 2 and 12 of

pointed their firearms in a different direction.” We disagree. outdoor shooting range is grandfathered, regardless of whether sportsmen that “there was no change in use, and the continued use of the premises for an continuation of a lawful nonconforming use of the property. The Club argues reorientation of its shooting range from east - west to south - north is a [¶11] Resolution of t his appeal turns in large part on whether the Club’s

A. Nonconforming Use

erroneous.” Hannigan, 1 p. 4 44 N.H. at 70. superior court’s decision unless it is unsupported by the evidence or is legally 144 N.H. 68, 70 (1999); see RSA 677:6, :1 p. 5 5, V (2016). “We will uphold the 5

as one on the merits under section 24 p. 5 5 - 30 of th e ordinance. Therefore, we same grounds, we conclude that the decision is more accurately characterized Club’s application on jurisdictional grounds, and the trial court affirmed on the denying the Club’s special exception application. Although the ZBA denied the order to meet the requirements for a special exception, the ZBA was correct in and section 245 - 30 of the ordinance requires a lawful nonconforming use in a lawful nonconforming use at the time the ordinance was amended in 2019, [ZBA].” PZO § 245 - 30(A). Because, as discussed above, the Club did not have of this chapter may be replaced only by a special exception granted by the “[a]ny use of a property made legally nonconforming by the district provisions RSA 67 4:33, IV(a) (Supp. 2023). PZO section 245 - 30 provides, in part, that

with the general or specific rules contained in the ordinance. purpose and intent of the zoning ordinance and shall be in accordance All special exceptions shall be made in harmony with the general and safeguards, make special exceptions to the terms of the ordinance. adjustment, in appropriate cases and subject to appropriate conditions A local zoning ordinance may provide that the zoning board of

[¶17] RSA 674:33, IV(a) states:

of subject matter jurisdiction. ZBA ’s decision to dismiss the Club’s application for a special exception for lack [¶16] The Club argues that it was error for the trial court to uphold the

B. ZBA Denial of Special Exception Application

unsupported by the evidence or legally erroneous. See id. at 7 p. 5 50. the Club’s shooting range was an illegal nonconforming use was not Accordingly, the trial court’s decision affirming the ZBA’s determination that 169 N.H. at 75 1. On this record, the Club has not met its burden. was amended in 2019, it maintained a lawful shooting range. See Alpha Delta, [¶15] The Club ha s the burden to prove that at the time the ordinance

Leskiewicz, 110 N.H. at 467 - 68. after the enactment of an ordinance rendered the use nonconforming. See lawful nonconforming use was changed beyond its original nature and purpose Town of Salem, 116 N.H. 61, 62 - 63 (1976). Nor is it a case where an existing, the enactment of an ordinance rendered the use nonconforming. See Lawlor v. is not a case where an existing, lawful nonconforming use was abandoned after indoor facility, the Club’s south - north range was an unlawful use. Thus, this zoning ordinance in 2019 to require shooting ranges to be in an enclosed, [¶14] In short, the record establishes that when the Town amended the

Club, 1 p. 5 55 N.H. 48 p. 6 6, 488 (2007) (quotation omitted). previous restrictions.” Residents Defending Their Homes v. Lone Pine Hunters ’ 6

207:59. manner as other businesses or to take any action allowed under RSA the purpose of regulating firearms or knives businesses in the same as affecting a political subdivision ’ s right to adopt zoning ordinances for firearms supplies in the state. Nothing in this section shall be construed matter pertaining to firearms, firearms components, ammunition, or possession, transportation, l icensing, permitting, taxation, or other political subdivision may regulate the sale, purchase, ownership, use, otherwise specifically provided by statute, no ordinance or regulation of a ammunition, firearms supplies, or knives in the state. Except as taxation, or other matter pertaining to firearms, firear ms components, ownership, use, possession, transportation, licensing, permitting, Hampshire shall have authority and jurisdiction over the sale, purchase, To the extent consistent with federal law, the state of New

Paragraph I provides: “Firearms, Ammunition, and Knives; Authority of the State.” (Bolding omitted.) statutory section the Club relies on is RSA 159:2 p. 6 6, which is captioned [¶20] We begin with the plain language of the statutes at issue. The

construe them in harmony with the overall statutory scheme. Id. However, we do not construe statutes in isolation; instead, we attempt to construe all parts of a statute together to effectuate its overall purpose. Id. add language that the legislature did not see fit to include. Id. We also whenever possible and will not consider what the legislature might have said or plain and ordinary meaning. Id. We give effect to every word of a statute of the statute itself, and, if possible, construe that language according to its Onge v. Oberten, LLC, 174 N.H. 393, 395 (2021). We first look to the language interpretation. We review the trial court’s statutory interpretation de novo. St. [¶19] R esolution of this issue requires us to engage in statutory

We disagree. therefore, asserts that its shooting range “is not subject to zoning regulations.” i t is preempted by both RSA 159:2 p. 6 6, I, and RSA c hapter 159 - B. The Club, requiring shooting ranges be in an enclo sed, indoor facility is unlawful because [¶18] The Club argues that the 2019 zoning ordinance amendment

C. RSA 159:2 p. 6 6 and RSA C hapter 159 - B

decision if there are valid alternative grounds to support it.”). reaches the correct result, but on mistaken grounds, this court will sustain the See Sherryland v. Snuffer, 150 N.H. 2 p. 6 62, 26 p. 7 7 (2003) (“When a trial court act unlawfully or unreasonably in denying the Club’s special exception request. u phold on alternative grounds the trial court’s conclusion that the ZBA did not 7

shooting activities have been ‘in operation’ is intended to mean in lawful We concluded that “the requirement in the statute that an organization’s Club’s shooting range. See Residents Defending Their Homes, 155 N.H. at 489. shooting ranges to be in an enclosed, indoor facility from being applied to the statute does not pr event the 2019 zoning ordinance amendment requiring RSA 159 - B:4 (2023). Based on our previous interpretation of RSA 159 - B:4, the

the administrative rule, statute, or ordinance. operation prior to the adoption, enactment, enforcement, or proposal of activities previously conducted at a shoot ing range, which was in be applied retroactively to prohibit or limit the scope of the shooting proposed by the state of New Hampshire or its political subdivisions shall No administrative rule, statute, or ordinance adopted, enacted, or

administrative rules against shooting ranges. RSA 159 - B:4 provides: prohibiting the retroactive application of enact ed ordinances and [¶23] However, RSA chapter 159 - B does contain a provision specifically

land use regulations with respect to shooting ranges. statute generally prohibiting municipalities from enforcing otherwise applicable circumstances. See RSA 159 - B:1, :2, :5 (2023). T here is nothing in this shooting ranges immunity from civil and criminal liability in certain Rather, it contains various provisions granting owners, operators, and users of provision reserving all regulatory authority over shooting ranges to the S tate. but for a different reason. In contrast to RSA 159:26, this chapter contains no [¶22] The Club’s arguments with respect to RSA chapter 159 - B also fail,

Ranges,” addresses that subject matter. (Capitalization and bolding omitted.) as a nearly adjacent statutory chapter, RSA 159 - B, captioned “Shooting legislature did not see fit to include”). That it did not makes sense inas m uch St. Onge, 1 p. 7 74 N.H. at 395 (“[w] e . . . will not . . . add language that the ranges within the scope of RSA 159:26, it could have said so specifically. See not address shooting ranges. Had the legislature intended to bring shooting its land use regulations with respect to a shooting range. RSA 159:26, I, does the s tate.” R SA 159:26, I. This case involves the Town’s authority to enforce “firearms, firearms components, ammunition, firearm s supplies, or knives in of no relevance to this case. The plain language of the statute relates to municipalities with respect to the subject matter set forth in RS A 159:26, I, is [¶21] That the legislature has not delegate d any authority to

Piper v. Meredith, 110 N.H. 291, 295 (19 p. 7 70) (quotation omitted). subdivisions of the State and have only the powers the State grants to them.” reflect s the “long established principle under our law that towns are but declared “null and void.” RSA 159:26, II (2023). Taken as a whole, this statute municipal ordinances and regulations not authorize d under paragraph I” are RSA 159:26, I (2023). Paragraph II, in turn, provides in relevant part that “all p. 8 8

BASSETT, DONOVAN, and COUNTWAY, JJ., concurred.

N.H. 321, 322 (1993). Accordingly, we affirm the trial court’s order. concluded that they do not warrant further discussion. See Vogel v. Vogel, 137 [¶27] We have considered t he Club’s remaining arguments, and have

timely). Therefore, the Club’s constitutional arguments are unpreserved. a post - trial response to an objection to a motion for reconsideration was not McClammer, 163 N.H. 430, 439 (2012) (concluding that an issue first raised in Amendment - related arguments at the earliest possible time. See O’Hearne v. record before us, we cannot conclude that the Club raised its Second of Peirano & Larsen, 155 N.H. 73 p. 8 8, 744 (2007) (quotation omitted). On the conclusions and to correct claimed errors in the first instance.” In the Matter time, because trial forums should have a full opportunity to come to sound [¶26] As a general rule, parties must raise issues “at the earliest possible

address the Club’s argument, reasoning that it was not timely raised. 2 - a of the New Hampshire Constitution. In its order, the trial court declined to violates the Second Amendment to the Federal Constitution and Part I, Article first time that the ordinance di scriminates against shooting ranges and thus under RSA 159:26. In its responsive memorandum, the Club argued for the law specifically addressing whether section 245 - 4 of the ordinance is legal final hearing, the court ordered the parties to submit additional memoranda of Club did not raise any Second Amendment - related arguments. Following the Amendment - related arguments. The court held a final hearing at which the into the present case. The Club filed a trial memorandum making no Second Second Amendment - related arguments. The trial court consolidated the cases [¶25] The Club’s three appeals to the superior court did not raise any

Club’s argument is not preserved. We agree with the Town. Article 2 - a of the New Hampshire Constitution. The Town assert s that the violates the Second Amendment to the U nited States Constitution and Part I, [¶24] The Club argues that the PZO’s ban on outdoor shooting ranges

D. Constitutional Arguments

ordinance against the Club. Therefore, RSA 159 - B:4 does not prevent the Town from applying the amended ordinance was amended, the Club’s shooting range was not in lawful operation. operation.” Id. (emphas i s added). As discussed above, at the time the