Monadnock Rod and Gun Club v. Town of Peterborough

The Petitioner then applied to the ZBA for a special exception to construct the newly proposed East-to-West shooting range. App. III at 6-17. The ZBA held a hearing on May 2, 2022. Id. at 22-24, 37. After hearing approximately an hour of testimony from the Petitioner, much of which concerned the ZBA’s jurisdiction to consider the special exception application, the ZBA continued the hearing to June 6, 2022. Id. at 47. At the June 6 hearing, the ZBA concluded that it lacked subject matter jurisdiction because a variance, not a special exception, was required and thus, it denied the application. Id. at 78. The Petitioner filed a request for rehearing, which the ZBA denied. Id. at 107. As a result of the two decisions of the ZBA, the Planning Board also denied the Petitioner’s site plan application. App. II at 105-06. The Petitioner appealed the administrative decision, the denial of the site plan application, and the denial of the application for special exception to the superior court. App. IV at 3-35. The Superior Court (Messer, J.) consolidated the appeals. App. IV at 14. The superior court held a final hearing on the merits on February 9, 2023. Pet.’s Add. at 71. The superior court issued a narrative Order, affirming all decisions of the ZBA and Planning Board. See Pet.’s Add. at 71-100. In addition, the trial court observed that the Petitioner had failed to timely raise a constitutional argument related to PZO §425-4 and, consequently, declined to consider it. Id. at 95, fn. 4. The Petitioner moved for reconsideration, which the Court denied. Id. at 101. This appeal followed.

The CEO had the authority under RSA 676:5 and PZO §233-44 to determine whether the Petitioner’s proposed East-to-West outdoor shooting range was grandfathered. The CEO’s decision was not “advisory” but was a valid administrative decision subject to appeal under RSA 676:5, I. The administrative appeal process provided the Petitioner meaningful notice and an opportunity to be heard before the ZBA prior to the administrative decision becoming final; as such, the Petitioner was afforded adequate due process under both the Federal and State Constitutions.

The ZBA did not consider whether there was a change in use on the Property; rather, it considered whether the original, lawful nonconforming East-to-West range had been abandoned and whether the replacement range was legally nonconforming. After careful review of the historical use on the Property, the CEO and ZBA correctly concluded that the lawful East-to-West shooting range had been abandoned and that the South-to-North shooting range was constructed illegally. Because the South-to-North shooting range was constructed without receiving site plan review, without receiving proper permits from NHDES, and because the construction illegally trespassed over the abutting property (including the Intervenors’ property), the South-to-North range was not constructed legally and, thus, could not be considered legally nonconforming. Accordingly, the CEO and the ZBA did not err in concluding that the new East-to-West shooting range was not legally nonconforming as of the amendment to PZO §245-4 in 2019. As a result, the CEO and ZBA did not err in concluding that such a use was not grandfathered and, therefore, not allowed under the zoning ordinance. PZO §245-30 governs the ZBA subject matter jurisdiction over special exception applications. PZO §245-30 only allows special exceptions for “use of a property made legally nonconforming” by a subsequent zoning provision. Because the use on the Property was not legally nonconforming, the ZBA did not err in concluding that it lacked subject matter jurisdiction to hear the Petitioner’s application for special exception. RSA chapter 159 preempts gun control regulations within the state. However, RSA 159:26, I, carves out an exception that allows municipalities to regulate “firearms businesses” through local zoning ordinances “in the same manner” as other businesses. A shooting range is a “firearms business” within the meaning of RSA 159:26, I. Accordingly, the Town had the authority to regulate the shooting range “in the same manner” as other businesses. Regulating the business “in the same manner” does not require the Town to regulate the business identically to other business. Rather, the Town must employ the same regulation considerations related to health and public safety as it does in regulating any other business. Thus, the Town properly considered the dangerous nature of shooting ranges when enacting PZO §245-4, as it is required to do by RSA 674:17.

Finally, the Petitioner’s constitutional argument was not raised at the earliest possible opportunity and is, therefore, unpreserved. If the Court were to conclude that it was properly preserved or were it to waive preservation, then the Court should conclude that the Petitioner failed to raise sufficient facial or as-applied constitutional challenges because PZO §245-4 is a land use regulation rather than a gun control regulation and the Petitioner has failed to develop a sufficient record to support an as-applied constitutional challenge.

The Supreme Court’s “review in zoning cases is limited.” Dietz v. Town of Tuftonboro, 171 N.H. 614, 618 (2019). “The party seeking to set aside the ZBA’s decision bears the burden of proof on appeal to the trial court.” Id. “The factual findings of the ZBA are deemed prima facie lawful and reasonable and will not be set aside by the trial court absent errors of law, unless the court is persuaded, based upon a balance of the probabilities, on the evidence before it, that the ZBA’s decision is unreasonable.” Id. “The trial court’s review is not to determine whether it agrees with the [ZBA’s] findings, but to determine whether there is evidence upon which they could have reasonably been based.” Id. The Supreme Court “will uphold the trial court’s decision on appeal unless it is not supported by the evidence or is legally erroneous.” Id. The Court’s review of Planning Board decisions is equally limited. Trustees of Dartmouth College v. Town of Hanover, 171 N.H. 497, 503-04 (2018). The factual findings of the Planning Board are treated as “prima facie lawful and reasonable and the Court cannot set aside its decision absent unreasonableness or an identified error of law.” Id. at 504. The Court will only reverse a trial court’s decision “if it is not supported by the evidence or is legally erroneous.” Id. The Court “review[s] the trial court’s decision to determine whether a reasonable person could have reached the same decision as the trial court based on the evidence before it.” Id

The Petitioner first argues that the CEO was not authorized to consider the Petitioner’s site plan to determine whether the proposed use was grandfathered, and, therefore, permitted despite the 2019 amended zoning ordinance. Id. at 35-36. As an initial matter, the Town and Intervenors (the “Respondents”) assert that this argument is insufficiently developed in the Petitioner’s brief, and the Court should decline to consider it on appeal. See White v. Auger, 171 N.H. 660, 665 (2019) (The Court “will not address arguments that a party has not sufficiently developed in its brief.”). However, should the Court address the issue based on the Petitioner’s limited argument, it should conclude that the CEO had the authority to consider the zoning question and to issue an administrative decision.

Site plan review is governed by PZO §233. PZO §233-44 provides that the Planning Board has the authority to administer site plan review regulations and the CEO has the power to enforce them. Here, the Planning Board asked the CEO to determine “whether the East-to-West range was grandfathered.” App. II at 74. In other words, the administrator of site plan regulations empowered the enforcer of site plan regulations to make an administrative decision concerning the zoning ordinance. Id. Nothing within the Town ordinances nor any statute prevents the Planning Board from doing so as part of its review process. See RSA 674:43 (empowering a planning board “to review and approve or disapprove site plans for the development or change or expansion of use of tracts for nonresidential uses.”); c.f. Hookset Conservation Commission v. Hooksett Zoning Bd. of Adjustment, 149 N.H. 63, 64 (2003) (involving an administrative decision of the code enforcement officer that the planning board requested during the course of site plan review). Furthermore, RSA 676:5, II (b) contemplates that an administrative officer has the power to make a decision “involving construction, interpretation or application of the terms of the ordinance.” Provided that an administrative decision involves one or more of these types of determinations, that decision may be appealed to the ZBA. RSA 676:5, I. Accordingly, the CEO had the authority to render an administrative decision at the direction of the Planning Board.

The Petitioner next argues that the CEO’s decision was an “advisory opinion” not a binding administrative decision. See Pet.’s Br. At 36-38. The Petitioner points to Accurate Transport, Inc. v. Town of Derry, 168 N.H. 108 (2015)3 to support its position that “an advisory opinion to a local land use board is not an administrative decision for purposes of RSA 676:5 subject to appeal.” Id. at 37. As the trial court observed, Pet.’s Add. at 78-79, Petitioner’s reliance on Accurate Transport is misplaced. The Accurate Transport case is easily distinguished from the case presently before this Court. In Accurate Transport, a company submitted a preliminary site plan to the Town of Derry’s planning board for approval to operate a new business. Accurate Transport, 168 N.H. at 110. Prior to the planning board’s review, the Technical Review Committee (“TRC”) comprised of Town representatives, which included the Town code enforcement officer, evaluated the proposed site plan. Id. During the TRC’s review and acting in his capacity as a member of that committee, the code enforcement officer opined that he “believed that the proposed use of the property was permitted.” Id. The TRC and the Planning Board approved the proposed plan. Id.

An abutter appealed asserting that code enforcement officer’s decision that the proposed use was a permitted use was error. Id. The ZBA considered the appeal and determined that it lacked jurisdiction over an appeal of the code enforcement officer’s decision because the appeal was untimely. Id. at 110-11. On appeal, the Court in Accurate Transport concluded that the ZBA did not err in denying the appeal because the code enforcement officer did not make an administrative decision but “simply opined that the proposed use was permitted.” Id. at 116. In other words, the Court concluded that, the code enforcement officer was not acting in his capacity as a code enforcement officer, but rather as a member of the TRC. Id.

In the present appeal, the CEO was not acting in an advisory capacity as a member of a committee, but rather was acting in his capacity as Code Enforcement Officer. In this capacity, the CEO reviewed and applied a zoning ordinance. Thus, the CEO did not render an advisory opinion, but instead, as expressly stated in his letter to the Petitioner, the CEO made a lawful administrative decision subject to the appeal procedure set forth in RSA 676:5.

The Petitioner next argues that the CEO’s administrative decision deprived him of “notice and hearing” prior to a final determination being made. See Pet.’s Br. At 38-41. He asserts that a “post hoc means for review of a ‘zoning determination, ’ given the non- existent statutory notice provision, ... is illegal and violates due process under the U.S. Constitution and Part I, Article 2 and 15 of the New Hampshire Constitution, as there can be no due process without express provisions that ensure notice to all directly affected parties.” Id. at 41. The Petitioner raises this claim under both the New Hampshire and Federal Constitutions. Because “due process under Part I, Article 15 of the New Hampshire Constitution provides individuals at least as much protection as the fourteenth amendment to the United States Constitution, ” this brief conducts its analysis under the New Hampshire Constitution alone as a separate, federal, analysis would be duplicative. See Brag v. Director, New Hampshire Dept. of Motor Vehicles, 141 N.H. 677, 678 (1997).

Part I, Article 15 of the New Hampshire Constitution provides that “[n]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land ….” N.H. CONST. Part I, Art. 15. The term “‘law of the land’ means due process of law.” Gantert v. City of Rochester, 168 N.H. 640, 647 (2016). In determining whether a particular procedure satisfies due process requirements of the Constitution, the Court will “engage in a two- part analysis.” Id. First, the Court will “determine whether the individual has an interest that entitles him or her to due process protection; and second, if such an interest exists [the Court will] determine what process is due.” Id. “The ultimate standard for judging a due process claim is the notion of fundamental fairness.” Id. “Fundamental fairness requires that government conduct conform to the community’s sense of justice, decency and fair play.” Id.

There is no dispute that the Petitioner has a constitutionally protectable interest in developing the Property. Thus, the Court’s analysis should focus on whether the process afforded to the Petitioner was sufficient under Part I, Article 15. Id. “To determine what process is due, [the Court] balance[s] three factors: (1) the private interest that is affected; (2) the risk of erroneous deprivation of that interest through the procedure used and the probable value of any additional or substitute procedural safeguards; and (3) the government’s interest, including the fiscal and administrative burdens resulting from additional procedural requirements.” Id. at 647-48. “The fundamental requisite of due process is the right to be heard at a meaningful time and in a meaningful manner.” Bragg, 141 N.H. at 679.

Because the Petitioner has a limited, constitutionally protectable interest in developing its property, the Court must consider whether there is a risk of erroneous deprivation through the procedure used, and whether the government should bear the burden of providing additional process. Id. The CEO issued his administrative decision to the Petitioner by letter which informed the Petitioner that it would have 30 days to appeal the decision to the ZBA under RSA 676:5. App. I at 10-11. The Petitioner timely appealed that decision and was granted a hearing in front of the ZBA, wherein it was afforded a meaningful opportunity to present its case and, in fact, did present its case before the full Board. See App. I at 50-62. The Petitioner then had an opportunity to request a rehearing before the decision became final. RSA 677:3, I. The record reflects that the Petitioner was afforded full due process, including a hearing on the merits, prior to the administrative decision becoming final. As the trial court pointed out, “[t]he demands of due process do not require a hearing, at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective.” See Pet.’s Add. at 79 (quoting Opp Cotton Mills v. Adm’r of Wage and Hour Div. of Dept. of Labor, 312 U.S. 126, 152 (1941)). Given that the Petitioner received a hearing prior to the decision becoming final, the Petitioner faced no risk of the erroneous deprivation of the Petitioner’s right to develop the Property as a result of the process provided. Furthermore, providing hearings to individuals who may be affected by an administrative decision prior to the administrative decision being made would be unduly burdensome to the Town. If the Court were to impose such a requirement, the CEO would be overwhelmed by the obligation to hold a hearing prior to performing the most basic tasks of his office, such as issuing code violations. Imposing such a requirement would be unduly burdensome, both fiscally and administratively, and would create no better safeguard to the erroneous deprivation of rights than the system already in place. When the relevant factors are weighed, it is apparent that the current administrative appeals process provides sufficient due process. Gantert, 141 N.H. at 647. Not only does the current process pose little risk of erroneous deprivation of rights, but the process also provides a meaningful opportunity to be heard at a meaningful time — i.e., prior to the decision becoming final. Bragg, 141 N.H. at 679; Opp Cotton Mills, 312 U.S. at 152. Accordingly, because the CEO had the authority to issue the administrative decision and because the Petitioner’s meaningfully availed itself of the administrative appeals process which provides adequate due process under the State and Federal Constitutions, the Petitioner’s due process rights have not been violated.

In 2019, the Town changed the definition of “recreational facility” in PZO §245-4, to require that shooting ranges be entirely enclosed indoor facilities. Because of the change in the definition of recreational facility, when the Petitioner filed a site plan application with the Planning Board, the Planning Board asked the CEO to consider whether either the Petitioner’s East-to-West or South-to-North range was grandfathered in accordance with PZO §245-30. Under this standard, the CEO concluded that the Petitioner had “abandoned their existing non-conforming use of the East-to-West Shooting range” and further concluded that the South-to-North shooting range “is not grandfathered because continuing the use would be an expansion of an illegal nonconforming use of the site.” App. I at 10-11. The ZBA agreed, concluding that “[t]he location of the original shooting range was abandoned when it was relocated to the new location and orientation on the site.” App. I at 71. It further concluded that “[t]he new location is not grandfathered as it was relocated without approvals by the Town of Peterborough.” Id.

The Petitioner contends the ZBA erred in concluding that there was a “change of use” on the Property. Pet.’s Br. At 41-48. The Petitioner’s argument misconstrues both the ZBA and the superior court’s decisions, which each expressly stated that they did not and would not consider the change of use factors established in New London v. Leskiewicz, 110 N.H. 462 (1970), because the question was not whether the use had changed but, rather, whether the legal use had been abandoned and whether the existing illegal use was grandfathered in accordance with PZO §245-30. See Pet.’s Add. at 87; see also App. I at 61.

Under the applicable standard, the ZBA did not err in affirming that the CEO’s determination that the East-to-West shooting range was abandoned in 2015. App. I at 10. A previously existing nonconforming use can be lost by abandonment. Lawlor v. Salem, 116 N.H. 61, 62 (1976). “Abandonment depends upon the concurrence of two factors: (1) an intention to abandon or relinquish the use, and (2) some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the use.” Id. “The decisive test is whether the circumstances surrounding such cessation of use are indicative of an intention to abandon the use and the vested rights therein.” Id. Here, the CEO based his decision on review of aerial photographs of the site stemming from 1997-2017. App. I at 10. The CEO observed that in 1997, 2000, 2005, and 2010, the shooting range was oriented in an East-to-West direction with a berm built on the western edge of the Property. App. I at 10, 13-18. The photographs showed that between 2015-2017, the western berm was removed and that there was “no evidence of continued use of the shooting range from East-to-West” after the berm was removed. App. I at 10, 19-20. Accordingly, the CEO did not err in his administrative decision conclusion that the East-to-West shooting range was abandoned in 2015 and, therefore, not grandfathered in 2019 when the definition of “recreational facility” was amended. Likewise, the ZBA did not err in affirming the CEO’s decision that the South-to- North shooting range was an illegal non-conforming use and thus was not grandfathered. Id. at 11. “The New Hampshire Constitution and State statute both recognize that an established use of land is not disturbed by a subsequent land restriction.” Town of Seabrook v. Vachon Mgmt., Inc., 141 N.H. 660, 664 (2000) (citing N.H. CONST. pt. I, Arts. 2, 12 and RSA 674:19). “To qualify for such a protection, a nonconforming use must lawfully exist at the time the restriction is adopted and have continually existed since that time.” Id. “In keeping with the general policy of zoning law to carefully limit the extension and enlargement of nonconforming uses, [the Court] strictly construe[s] provisions that permit the continuance of such uses.” Id. “Accordingly, the party asserting that a proposed use is not new or impermissible bears the burden of proof.” Id.

Here, the lawful use of the Property was abandoned in 2015. When the amended zoning ordinance was passed, what did exist on the Property was illegal. The Petitioner constructed the South-to-North shooting range, having failed to request and obtain site plan review under PZO §233-3, having failed to request and obtain the necessary permits from NHDES, and having trespassed onto abutting property including the Intervenors — at the time the amendment went into effect. Because the existing use of the Property was illegal, it could not be considered grandfathered under the zoning ordinance and was not entitled to constitutional protection. Id.

The Petitioner relies extensively on Vachon in an effort to convert the grandfathering analysis to a change of use analysis. See Pet.’s Br. At 44-45. However, the Petitioner misconstrues the central holding of Vachon, which, as the trial court observed, “stands for the proposition that if a party fails to go through site plan review when required or otherwise fails to secure appropriate approvals, grandfathered status is not available.” Pet.’s Add. at 83. Thus, contrary to the Petitioner’s assertions, Vachon is analogous to the present appeal and supports the conclusion that the South-to-North shooting range is not grandfathered.

In Vachon, the petitioner owned a multi-unit building. Vachon, 144 N.H. at 661. As of 1990, one of the units in that building was operating as a retail store. Id. at 661-62. In 1991, the retail store began offering live entertainment, a change of use that required site plan review. Id. at 662. The owner failed to request a site plan review. Id. In 1994, the Town enacted a new zoning ordinance which regulated the operation of “sexually oriented businesses, ” the adoption of which rendered the live entertainment nonconforming. Id. In 1997, the Town filed a request for injunction with the superior court. Id. at 662-63. On appeal, the Court considered whether the live entertainment constituted a pre-existing nonconforming use. Id. at 663-65. The Court concluded that the store’s change in use from retail to live entertainment required site plan review. Id. at 664. The Court explained that “because the change in use did not receive site plan approval, it was illegal and therefore ineligible to later qualify as a lawful nonconforming use.” Id. (emphasis added). In short, Vachon specifically stands for the proposition that because the use was not properly authorized by the Town at the time the new ordinance was enacted, the use was illegal and, therefore, nonconforming.

Vachon is directly analogous to the present appeal. After the East-to-West shooting range was abandoned, the Petitioner attempted to construct a South-to-North shooting range. In constructing this range, the Petitioner excavated trees and filled in wetlands without obtaining site plan review, as required by PZO §233-3, and without obtaining the necessary permits from NHDES; further, the South-to-North construction illegally trespassed onto the Intervenors’ abutting property. The Petitioner never sought any permits from NHDES or the Town to fill in the wetlands and never sought site plan review. The Petitioner’s failure to seek site plan review and proper DES permitting, not to mention the Petitioner’s illegal expansion onto the Intervenors’ property, rendered the South-to-North shooting range illegal as of the 2019 amendment and, therefore, not grandfathered. Vachon, 144 N.H. at 644. Accordingly, the Court should affirm the decision of the superior court and the ZBA.

The Petitioner argues that it was “entitled to due process and a full public hearing and deliberation on its application” because “RSA 674:33 IV provides the [ZBA] with subject matter jurisdiction to act on an application for special exception.” Pet.’s Br. at 48- 49. However, while RSA 674:33, IV does establish that a ZBA may “make special exceptions to the terms of an ordinance, ” it further establishes that special exceptions can only be made “in accordance with the general or specific rules contained in the ordinance.” RSA 674:33, IV(a). The Town zoning ordinance only allows special exceptions for “use of a property made legally nonconforming by the district provisions of this chapter.” PZO §245-30. Accordingly, because the existing use on the Property, at the time of the Petitioner’s site plan application, was not legal, the ZBA properly concluded that it lacked subject matter jurisdiction to hear the application for special exception.

“Subject matter jurisdiction is jurisdiction over the nature of the case and the type of relief sought — the extent to which a court can rule on the conduct of persons or the status of things.” N.H. Alpha of SAE Trust v. Town of Hanover, 174 N.H. 269, 274 (2021). “In other words, it is a tribunal’s authority to adjudicate the type of controversy involved in the action.” Id. “A tribunal lacks power to hear or determine a case that concerns subject matter over which it has no jurisdiction.” Id. “Thus, in the absence of subject matter jurisdiction, a tribunal’s order is void and the appellate tribunal acquires no jurisdiction of the merits upon appeal.” Id. “A party may challenge subject matter jurisdiction at any time during the proceeding, including on appeal, and may not waive subject matter jurisdiction.” Id.

Because subject matter jurisdiction is granted to the ZBA both by statute and by ordinance, the Court must engage in both statutory interpretation and zoning ordinance interpretation. The interpretation of a statute is a question of law, which the Court reviews de novo. Avery v. Comm’r, N.H. Dept. of Corr., 173 N.H. 726, 733 (2020). When interpreting a statute, the Court “first look[s] to the language of the statute itself, and, if possible, construe[s] that language according to its plain and ordinary meaning.” Id. The Court interprets “legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. The Court “construe[s] all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result.” Id. The Court does not “consider words and phrases in isolation, but rather within the context of the statute as a whole.” Id.

Likewise, “[t]he interpretation of a zoning ordinance is a question of law, which [the Court] review[s] de novo.” Batchelder v. Town of Plymouth Zoning Bd. of Adjustment, 160 N.H. 253, 256 (2010). Interpretation of a zoning ordinance is governed by traditional statutory construction; as such, “the words and phrases of an ordinance should be construed according to the common and approved usage of the language.” Id. “When the language of an ordinance is plain and unambiguous, [the Court] need not look beyond the ordinance itself for further indications of legislative intent.” Id. The Court “will not guess what the drafters of the ordinance might have intended or add words that they did not see fit to include.” Id.

RSA 674:33, which grants the ZBA subject matter jurisdiction over special exceptions, provides: A local zoning ordinance may provide that the [ZBA], in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance. All special exceptions shall be made in harmony with the general purpose and intent of the zoning ordinance and shall be in accordance with the general or specific rules contained in the ordinance.

RSA 674:33, IV (a). By its plain language, the ZBA is only authorized to grant a special exception when authorized to do so by “general or specific rules contained” in a zoning ordinance. Id. Thus, subject matter jurisdiction over the consideration of a special exception application is explicitly governed by the Town zoning ordinances. PZO §245-30 allows that the ZBA may grant a special exception for “[a]ny use of a property made legally nonconforming by the district provisions of this chapter.” By its plain language, special exceptions are only allowed if the property was made “legally nonconforming” by the zoning ordinance. Id. As established above, the South-to-North shooting range on the Property was not legally constructed because the Petitioner failed to obtain site plan review, failed to obtain DES permits, and illegally trespassed on abutting property. Thus, at the time the use became prohibited in 2019, the use on the Property was illegally nonconforming. Because PZO §245-30 only allows for special exceptions for legally nonconforming uses, the ZBA did not have subject matter jurisdiction to hear a special exception application. Id. Accordingly, the ZBA did not err in concluding that it lacked subject matter jurisdiction to hear the application. The Petitioner asserts that it was denied a public hearing prior to the ZBA rendering its decision on subject matter jurisdiction. Pet.’s Br. at 48-49. The Petitioner, however, was given an opportunity to be heard on this issue at the ZBA’s May 2, 2022, public hearing. App. III at 37- 47. For this reason, as the trial court concluded, see Pet.’s Add. at 89, the Petitioner’s assertion that it was not afforded an opportunity to be heard lacks merit.

Finally, the Town notes that the Petitioner also asserts that “the Zoning Board of Adjustment specifically prejudged the application” and accuses the ZBA of prejudice. Pet.’s Br. at 48-49. The brief does not sufficiently articulate the grounds upon which the Petitioner rests its assertions, and for this reason alone, the Court should decline to consider the argument. White, 171 N.H. at 665. However, reading the Petitioner’s argument generously, the Town believes it is referring to a nonpublic meeting the ZBA held prior to the June 6, 2022, public hearing. The ZBA specifically held the nonpublic meeting to consider written legal advice provided to it by Town counsel. RSA 91-A: 3 makes an exception to the general prohibition against nonpublic sessions for public bodies to consider legal advice. See RSA 91-A:3, II(l). As such, the ZBA was well within its statutory authority to conduct a nonpublic session for the limited purpose of considering legal advice.

The Petitioner next argues that the Town is preempted from regulating an outdoor shooting range by RSA 159:26, I. 4 Pet.’s Br. at 49. In the Petitioner’s view, RSA Chapter 159 exclusively regulates the use of firearms, and the Town is, therefore, preempted from regulating the construction of an outdoor shooting range by statute. Id. at 49-53. The Petitioner posits that the operation of a shooting range is not a “firearms business” within the meaning of RSA 159:26, I, and is, therefore, not subject to zoning regulations. Id. In fact, the operation of a shooting range clearly falls within the plain meaning of the term “firearms business” and is, therefore, subject to zoning regulation. “The preemption doctrine flows from the principle that municipal legislation is invalid if it is repugnant to, or inconsistent with, state law.” Girard v. Town of Plymouth, 172 N.H. 576, 585 (2019). “Preemption may be express or implied.” Id. “Because preemption is essentially a matter of statutory interpretation and construction, whether a state statute preempts local regulation is a question of law, which [the Court] review[s] de novo.” Id.

The Petitioner asserts that PZO §245-4 is preempted by RSA 159:26, I, which provides: To the extent consistent with federal law, the state of New Hampshire shall have authority and jurisdiction over the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, firearms supplies, or knives in the state…. Nothing in this section shall be construed as affecting a political subdivision’s right to adopt zoning ordinances for the purpose of regulating firearms or knives businesses in the same manner as other businesses or to take any action allowed under RSA 207:59. In the Petitioner’s view, this statute expressly preempts the Town from using its zoning ordinances to regulate an outdoor shooting range in any capacity. Pet.’s Br. at 49-50. However, RSA 159:26 expressly carves out an exception to the statute’s preemption by allowing municipalities to “adopt zoning ordinances for the purpose of regulating firearms…businesses in the same manner as other businesses….” RSA 159:26, I. Thus, the question is whether an outdoor shooting range is a “firearms business” within the meaning of the statute.

As established above, the interpretation of a statute is a question of law, which the Court reviews de novo. Avery, 173 N.H. at 733. When interpreting a statute, the Court “first look[s] to the language of the statute itself, and, if possible, construe[s] that language according to its plain and ordinary meaning.” Id. “Absent an ambiguity, ” the Court “will not look beyond the language of the statute to discern legislative intent.” Rankin v. South St. Downtown Holdings, Inc., 172 N.H. 500, 503 (2019).

RSA Chapter 159 does not define the terms “firearms business, ” “firearm, ” or “business.” Thus, the Court should look to the common meaning of these words to determine the definition of the term, “firearms business, ” in context. “Firearm” is defined as “a weapon from which a shot is discharged by gunpowder.” Webster’s Third New International Dictionary 845 (Unabridged Ed. 2021). “Business” has numerous common definitions in the English language; relevant to this statute, the definitions most applicable include “a commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of judgment and power of decision, ” “a commercial or industrial enterprise, ” “a place where [a commercial or industrial] enterprise is carried on.” Id. at 302. Thus, as the superior court observed, the word “business has a broad definition that encompasses the generation of revenue through commercial activity.” Pet.’s Add. at 91. While the Petitioner does not sell firearms, it is chartered as a non-profit corporation, its members pay annual dues and others pay the Petitioner entry fees for the privilege of engaging in outdoor sports, including shooting firearms. The Petitioner generates revenue by collecting money from members and from individuals using the shooting range on a given day. These actions are generally within the scope of a commercial activity encompassed by the plain meaning of the word “business.” Indeed, the Petitioner itself has recognized that it is a firearms business. At a February 7, 2022, ZBA meeting, the Petitioner stated that it had been “in business” for a long time. App. I at 51-52. The Petitioner represented to the ZBA at its May 5, 2022, meeting that it was “trying to get operational so [it] can generate revenue and meet the state requirements and clean up the property.” App. III at 40. (emphasis added). The Petitioner also stated, “we need to get operational to raise funds to begin the restoration to both the Petitioner’s and the abutter’s property” and “we’ve been trying to get operational which we view as driven by Best Management Practices and protecting the environment but also generating revenues into this cleanup.” Id. at 44 (emphasis added). At a November 8, 2021, Planning Board meeting, the Petitioner described turning away interested potential members “with checks in their hands” because the Petitioner’s club was not operational, adding “our objective is to try to allow the Club to open and generate revenue ….” App. II at 73 (emphasis added). Thus, in the Petitioner’s own words, it operates a business, whose goal is to generate revenue. By any definition of the term “firearms business, ” the Petitioner’s operation qualifies. Accordingly, the Town may regulate the Petitioner’s business through local zoning ordinances. RSA 159:26, I.

The Petitioner asserts that the term “firearms business” is defined by 18 USC §921 because RSA 159:26, requires that any State regulation be “consistent with federal law.” Pet.’s Br. at 50-52. As stated above, the New Hampshire cannons of statutory interpretation do not allow the Court to look outside the plain language of a statute to interpret its meaning if that statute is unambiguous. Rankin, 172 N.H. at 502-03. Because the meaning of “firearms business” is not ambiguous under New Hampshire principles of statutory interpretation, the Court should decline to import a federal definition into the statute.

That said, even if the Court were to look beyond the plain language of RSA 159:26, I, to 18 USC §921, it would not find support for the Petitioner’s position that it does not operate a “firearms business.” Title 18 of the U.S. Code Service controls “Crimes and Criminal Procedure.” 18 USC §§1-6005. Chapter 44 of Title 18 concerns “Firearms.” 18 USC §§921-934. Chapter 44 includes a definitions section. 18 USC §921. This definition section does not contain a definition of the term “firearms business.” Id. Rather, it explains the definition of the term “engaged in the business” as it relates to specific entities that conduct business related to the manufacture, import, and sale of firearms and ammunition — conduct that is criminally regulated under the federal law. 18 USC § 921 (21) (A)-(F); see also 18 USC §922. The Petitioner is correct that this particular definition section does not reference a shooting range. However, as the superior court observed: The fact that the definition section addresses entities involved in manufacturing, dealing in, importing, or otherwise engaging in activities related to firearms and ammunitions and does not otherwise address shooting ranges, does not mean that a shooting range is not a business. It simply was not made part of that particular federal statute.

Pet.’s Add. at 93.

Furthermore, 18 USC §921 relates specifically to 18 USC §§922 and 923, which criminalize the unlicensed shipping, transportation, or receipt of firearms and ammunition. 18 USC §§922, 923. This particular statute does not relate in any way to the operation of commercial shooting ranges, and, therefore, has no bearing on whether shooting ranges would be included in the definition of “firearms business” contained in RSA 159:26, I.

Accordingly, because a shooting range is a “firearms business” within the plain meaning of RSA 159:26 the Court should conclude that the Town is authorized to regulate shooting ranges via local zoning ordinances and affirm the decision of the trial court and the ZBA.

The Petitioner next argues that PZO §245-4 is inconsistent with RSA 159:26 because it “regulate[s] ‘firearms businesses’ differently from other businesses.” Pet.’s Br. at 55. In the Petitioner’s view, because other recreational facilities are permitted to be both indoor and outdoor but shooting ranges may only operate indoor facilities, PZO §245-4 regulates shooting ranges differently than other businesses. Id. at 54-57. Petitioner functionally asserts that RSA 159:26 requires “firearms businesses” to be regulated identically to other businesses. Id. However, the plain language of RSA 159:26, I, requires only that such businesses to regulated “in the same manner as other businesses, ” a statutory provision that does not require identical treatment, merely consistent application of regulations allowed under the law.

Towns derive their authority to enact zoning ordinances from RSA 674:16, and RSA chapter 674 outlines the scope of that authority. Specifically, RSA 674:17, I, provides that: “Zoning ordinances shall be designed: …(b) To secure safety from fires, panic and other dangers; (c) To promote health and the general welfare.” (Emphases added). It is well established in the New Hampshire rules of statutory construction that “the word ‘may’ makes enforcement of a statute permissive and that the word ‘shall’ requires mandatory enforcement.” Horton v. Clemens, 173 N.H. 480, 485 (2020) (quotation omitted). Accordingly, RSA 674:17, I, mandates that municipalities enact zoning ordinances for the purposes of “securing safety from…dangers” and to “promote health and general welfare.” As such, the Town is statutorily obligated to regulate land uses that can have an adverse impact on the health, safety, and welfare of its residents and the environment.

Consistent with this legislative mandate, the PZO was enacted in part “to promote and conserve the health, safety, convenience, and general welfare of the inhabitants of the Town of Peterborough….” PZO §245-1. Indeed, the PZO is replete with examples of regulation that “singles out” certain types of businesses and regulates them in accordance with the mandates of RSA 674:17, I. For example, the PZO expressly regulates “sexually oriented businesses” to “promote the health, safety, and general welfare of the citizens of the Town of Peterborough.” See PZO §245-24.4 (A). It also expressly prohibits certain activities within the Ground Water Protection Overlay Zone to “protect public health, safety, and general welfare.” See PZO §245-14 (A), (G). Commercial farms are also “singled out” by PZO §245-8 (E)(2), which only allows Agricultural Business Enterprises by conditional use permit if the use is “appropriate for the sites they are on and…the Uses and the sites they are on are designed to: ensure public safety….” PZO §245-8 (E)(2)(a)(ii).

The PZO, illustrated by the examples above, regulates all uses within the Town consistent with the safety mandates of RSA 674:17, I. By necessity, zoning ordinances must single out certain types of uses, including commercial, because the Town is obligated to use its zoning code to ensure the health and safety of the community. See RSA 674:17, I (b)-(c); RSA 674:16; RSA 672:1, III (declaring that the purpose of planning and zoning regulation are to “enhance the public health, safety and general welfare and encourage the appropriate and wise use of land”). Thus, by taking into consideration the type of recreating occurring at shooting ranges when drafting PZO §245-4 and regulating it for the purposes of promoting health and safety, the Town is regulating shooting ranges “in the same manner as other businesses.” RSA 159:26, I. While the regulations may not be identical to other recreational facilities, the health and safety factors taken into account when enacting the regulation are. As the trial court observed: RSA 159:26, I does not require that all businesses be regulated identically. Rather, RSA 159:26, I requires towns to regulate firearm businesses, as with all businesses, according to the community needs for safety and welfare, and consistent with their statutory authority. See RSA 674:16, I. PZO § 245 -4 does just that.

Pet.’s Add. at 94. Accordingly, the Court should conclude that PZO §245-4 regulates shooting ranges in the same manner as all other businesses within the Town in accordance with RSA 159:26, I.

The Petitioner failed to raise its constitutional arguments at the earliest possible opportunity and, therefore, its argument related to the Second Amendment of the United States Constitution and Part I, Article 2-a of the New Hampshire Constitution is unpreserved. “To trigger a constitutional analysis on appeal, the appealing party must raise the constitutional issue below.” In re Peirano, 155 N.H. 738, 743 (2007). “As a general rule, issues must be raised at the earliest possible time, because trial forums should have a full opportunity to come to sound conclusions and to correct claimed errors in the first instance.” Id. at 744 (emphasis added). While the Petitioner repeatedly argued that PZO §245-4 was unlawful and precluded by RSA 159-26, see App. I at 23-24, 79-81; App. III at 39, 96-98; App. IV at 10-12, 21-23, 32-33, 90-92, the Petitioner did not assert that PZO §245-4 is unconstitutional until he filed a reply to the Respondents’ “Joint Memorandum of Law on Legality of Peterborough ZO Sec. 245-4.” See App. IV at 301, 308-314; Pet.’s Add. at 95, fn. 4. Raising this issue for the first time in a reply brief only afforded the Respondents 10 days to respond to what amounted to a complex new claim of a constitutional violation — a claim that had not been raised with the ZBA, included in the complaints, or briefed in the Petitioner’s earlier trial memorandum. See N.H. Super. Ct.

Raising the issue for the first time in a response brief is insufficient to put the parties and the trial court on notice that the Petitioner intended to raise a constitutional issue. The Petitioner, as master of the suit, had multiple opportunities to put the parties and court on notice of an alleged constitutional violation. It could have raised the question before the ZBA; it did not. See Apps. I-III. It could have raised the question in any of its three complaints filed in superior court; it did not. See App. IV at 3-35. It could have raised the question in its trial memorandum; it did not. See App. IV at 81-95. Rather than raise the issue during any of these early opportunities — opportunities that would have put the opposing parties on notice of such a claim and provided the superior court with an opportunity to adequately consider it — the Petitioner raised this argument for the first time in a response brief on an issue that it had claimed in its complaint regarding the legality of PZO §245-4. Id. at 301, 308-313. Accordingly, because the Petitioner failed to raise the constitutional question at the earliest opportunity, the superior court was correct in declining to consider the issue. Peirano, 155 N.H. at 743; Pet.’s Add. at 95, fn. 4. This Honorable Court should likewise decline to consider it.

Should the Court reach the constitutional question on appeal, however, it should find that the Petitioner has failed to articulate a Second Amendment challenge to PZO §245-4. In order to regulate firearms, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 19 (2022). The test established in Bruen, like the holding in District of Columbia v. Heller, 554 U.S. 570 (2008), specifically concerns the right of citizens to “keep and bear arms for self defense” Id. at 17. Thus, the first question the Court must consider is whether the zoning ordinance regulates the “right to keep and bear arms.” PZO §245-4 does not regulate an individual’s “right to keep and bear arms.” The zoning ordinance does not restrict the ownership of guns or the use of guns for self- defense. It does not ban the construction of a shooting range within Town limits or restrict an individual’s right to gather at a shooting range to practice the use of a gun for the purpose of self-defense. Instead, PZO §245-4 imposes reasonable restrictions on the development of new shooting ranges in the Town to protect the health and safety of the residents of the Town of Peterborough. This is not a gun use regulation; it is a land use regulation, and it is a reasonable one. Uses of property that involve potentially dangerous or hazardous consequences to the public, whether they involve inherently dangerous features such as stray projectiles or contamination of soil and groundwater are primary concerns in all planning and zoning determinations. RSA 674:16; PZO §245-24.4 (A). Accordingly, the constitutional question, untimely raised by the Petitioner, is not applicable to the zoning ordinance at issue on appeal. The Petitioner also argues that “as a practical matter” the Town’s shooting range regulation “serves to prevent all private citizens from target shooting outdoors within city limits.” Pet.’s Br. at 62. Petitioner’s argument amounts to an “as-applied” constitutional challenge, rather than a facial challenge, to PZO §245-4. See Pet.’s Br. at 60-62. An “as- applied challenge to a statute…concedes that the statute may be constitutional in many of its applications but contends that it is not so under the particular circumstances of the case.” Huckins v. McSweeney, 166 N.H. 176, 179 (2014). Thus, an “as-applied” challenge to a regulation requires a factual record sufficient to demonstrate that the challenged regulation unreasonably restricts a constitutional right. Id. As the superior court observed, the factual record relevant to a constitutional challenge to PZO §245-4 has not been sufficiently developed such that it could render a decision. See Pet.’s Add. at 95-96, fn. 4. Accordingly, the Petitioner has failed to provide the Court with a record sufficient to decide this issue on appeal, and the Court should decline to consider it. See Peirano, 155 N.H. at 743 (the party appealing the issue “has the burden of providing a sufficient record on appeal and demonstrating that he raised his issues in the trial court.”).

The Petitioner asserts that PZO §245-4 “on its face and as applied is in direct contradiction to RSA 159-B:3 and 4, with respect to expansion/change of use and retroactivity of regulations rendering it void.” Pet.’s Br. at 66. The protections contained in RSA 159-B:3 and RSA 159-B:4 rely on the premise that the shooting range was lawfully in operation at the time the new regulation was enacted. See Residents Defending Their Homes v. Lone Pine Hunters’ Club, Inc., 155 N.H. 486, 489 (2007) (explaining that the Court “cannot conclude that [RSA chapter 159-B] was intended to shield a use which was illegal, ” and concluding that RSA chapter 159-B “is intended to prevent subsequent restrictions of lawful uses.” (emphasis added)). As established in detail above, the shooting range at issue in this case was not lawfully in operation when the Town enacted PZO §245-4. Accordingly, RSA Chapter 159-B does not prohibit the Town from requiring the Petitioner to comply with the relevant zoning ordinances as it seeks to construct what amounts to a new shooting range. Because the Town has not retroactively applied any new regulations to a lawfully operating shooting range, the Court should conclude that the retroactive restrictions contemplated by RSA Chapter 159-B do not restrict the Town from enforcing its zoning ordinances in this instance.

At its heart, this case concerns whether a business can benefit from statutory provisions and special use exceptions to continue and expand an illegal nonconforming use. The Petitioner has not sufficiently advanced any argument that would justify expanding the interpretation of New Hampshire law to allow for illegal uses to be grandfathered such that it should not have to develop and use its property in conformance with local zoning ordinances. Because the Petitioner has failed to carry its burden to show that the ZBA and Planning Board erred, this Honorable Court should affirm the appeal of the CEO’s administrative decision, the ZBA’s denial of the special exception application, and the Planning Board’s denial of the Petitioner’s site plan review application. See Dietz v., 171 N.H. at 618; Trustees of Dartmouth College, 171 N.H. at 503-04.