Monadnock Rod and Gun Club v. Town of Peterborough

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Good morning. Good. Uh, we were first here from, uh, Manock Rod and Gun Club, and I understand attorney Dow you observed two minutes for rebuttal. That's correct, your Honor. And then, uh, we'll hear from the interveners to O'Connell for 10 minutes, and then the town, uh, for five minutes. Please proceed, attorney. Uh, Thank you g Uh, Let me just interrupt for the record. I'm not sure I said this for the record. Uh, justice Hans Mark Coney is re is, uh, disqualified on this case. Thank you. Please Proceed. The May please. The court on Kelly do presenting the Ock Rod and Gun Club, um, and again, right focused in, um, one of the big issues here is there was a zoning determination purportedly made by the, uh, code enforcement officer. Um, the lead up to that is it was a site plan application. It was a zoning question. The planning board had they delegated the zoning determination to this code enforcement officer, um, who then came up with the zoning determination letter, which was subsequently appealed, which is one of the appeals here. Um, there's problems in the sense that if we look at the planning board statute, there's nothing that authorizes the planning board to, as a deliberative collective body, like an appeals court delegated its authority on zoning issues to a unitary decision maker. Um, so there's no statutory authorization for that and well, there's nothing To, there's nothing to prevent it though either, is there? Uh, well, municipal municipalities have, do not have inherent authority. All authority of the municipality is delegated by the state through statutory law. Um, and so there's no inherent sovereignty to a municipality. So the idea that there's some implied powers that exist outside of a statute, I think is problematic from the standpoint of looking at a municipal corporation versus say, uh, a so state like New Hampshire or Massachusetts, well, Zone code enforcement officers make zoning determinations all the time. And aren't they routinely appealed if someone has a problem with them to the ZBAI? I guess what I'm trying to say is I don't think the idea that code enforcement officers make zoning determinations is a problem. For example, if someone applies for a building permit and a code enforcement officer makes these zoning determination that that permit should not be issued, that's completely unpro. The issue is there's nothing statutorily that allows the planning board to delegate its authority to a zoning official, especially where you're going from a deliberate body to a unitary body. Um, in this context, there's no enabling statute, there's no statutory authority, there's no inherent power of a building. So the Board simply ask the officer for its recommendation and then deliberate on that. Would that be a problem? There is a case law we cited that an advisory, they're perfectly able to make an advisory opinion and the board can accept it, reject it, whatever they do. I would say that a justification of this, um, there's citations to the Hook Conservation Commission case, which is a 2003 case. But that case, in that case, procedurally, that's what happened with the planning board. But the issues in that case was the standing of the Con Conservation Commission to appeal. There was no, uh, legal analysis of the propriety of that. So we can say, okay, there's a custom, but when we're dealing with, uh, a whole process that's enabled by statute, uh, that's the custom doesn't cut it there because you're, you're not really, there's no authority to act in this way. Is Is a code enforcement officer in a, in, uh, in an administrative officer as defined under chapter 6 76 5? I agree. Yes. Yeah. Well, I'm saying to the court that there, obviously the DBA has a capacity to deal with an appeal of an administrative officer. So how does that not resolve any due process concerns? Well, in terms of the due process issue, there's no statutory notice. Like if you look at the cease and desist statute, there's a strict notice provision for cease and desist orders. So if you get a cease and desist order from a a zone, you know, the, the building inspector, the code enforcement officer, there's strict notice provisions. And so we know that all the effective parties were advised of that determination. And then you can file the appropriate appeal, administrative appeal under the statute site because that's an administrative officer. It's a zoning determination. It goes to them. The issue is, uh, it is, it's, uh, you know, if one files for a variance with the planning board, you would say that's, there's no authority for the planning board to act on that. In this case, you have a planning board. The planning board has statutory authority to design these zoning questions. If they get it wrong, there's an appeal process. There's nothing that allows them to delegate it to this zoning official. And even if, and I agree with the court that in other context, other context where there's statutory authority to do so, the zoning officials make, uh, these zoning determinations all the time in terms of cease and desist, in terms of acting on building permits and, and other capacities. But that's a problem for this. Um, going to the next thing is looking at the decision itself. It's logically incoherent. Uh, in 2019, the town of Peterborough Outlaw outdoor shooting ranges. Um, the zone inspector claims that between 2015 and 2017, the shooters were shooting east to west, and then they changed direction and started shooting north to south. And that the somehow, uh, caused it to be a non-conforming use, even though we're talking about permitted use up until 2019. And there's language about that. The location east to west location was not grandfathered. The north to south location was not grandfathered, but then they were enjoined to far special exception, um, to, if they wanted to pursue this grandfather abuse. Um, so the question first of all, and if we look at the decision on the administrative appeal, which, um, is a day appeal, the ZBA says, uh, there's no, you don't have a grandfather location to shoot east to west, and you don't have a grandfather location for north to south. But this, this is the whole thing is there's no grandfathered location in New Hampshire law. There are grandfathered uses, there are grandfathered structures. Um, so the decision is incoherent, uh, in that you could say, you're either saying you don't have a grandfather views, but if you, if you don't have grandfathered use, why are you saying go file for a special exception to get grandfathered use? And then you can also read it as, you know, saying, we don't like this location filed for a special exception because it's an expansion of use, or something along those lines. Do, do you agree with the proposition that ordinances, permitting grandfathering should be construed narrow? Uh, not, not, no. I mean, I wouldn't say that in the sense that, um, no, not not. And the reason being is when you are talking about grandfathering, you're talking about people's fundamental property rights. And so if you start, you know, you're really basically seeking people's property. If somebody has a long established use, they have a business, they may have, you know, I mean, also you can have, like, if you're talking about industrial capacity, you may have bank financing on you. This other things you can cause unto habit to people's investment backed expectations By now, constrain grandfathering, I I think the court should be protecting property rights and existing property rights. So, um, When, when did the actual, uh, use of the east west shooting range cease The building inspector says 2015 to 2017? Do You take issue with that? Is that incorrect? We do. We, there was no sidewalk, but there's, for example, representation. This is not the record, but it, someone had done a sidewalk that could see the bottom wall that doesn't exist. But this is also the problem with these administrative decisions being done in the basement of the town offices. Um, you know, if the planning board wanted to look at this issue and do fact finding, they could have done a sidewalk, they could have viewed the place, they could have done these, but instead, uh, the building inspector looked at some grain photographs and, and reached this determination. So, so what is the state of the record as to when and if the use of the east west shooting range ceased? Uh, the, the building inspector found 2015 to 2017. The shooting direction changed from east to west to north to south. There was also, there was definitely at, at that time shooting north to south because one of the complications of this is the shooting north to south occurred in the neighbor's property, um, which was a subject of a, a lawsuit. And it's why the interveners are present in this case. Um, uh, but um, the proposal to the reports to the town view was to continue shooting in the north south direction, but obviously without the trespass, without issues for the wetlands. Um, so do You think we should be analyzing this as an abandonment or as a change of use? Change. Use. And why is that? Because They were, um, it was a shooting range. It was an outdoor shooting range, and it was always an outdoor shooting range and there was no abandonment of an outdoor shooting range. And you don't abandon the use because I shoot this way and then I shoot this way the next day. That's not your analysis. There's case law on that. Um, the case law wasn't followed the billing inspector, the ZBA or the trial court. And so we've, you know, put that into the brief. And I don't know, uh, if the court wants me to touch on the firearms business issue, the, the question of that. But you have a statute that says, Let, let me ask you this. Okay. Do you consider it completely irrelevant that the north south range didn't get any site plan approval or any of the permits from the state or permission from the neighbor? Is that relevant? All think it would require site client citation was for cutting down timber. But so I think in terms of legal use, the question is, was the use of legal not, was there legalities in, in any use? So it had a public housing project and somebody disabled the firearm alarm, you have an illegal use going on, but does that mean the town can then shut down the housing project because somebody, you know, knocked out a smoke alarm? I think that's an absurd result. That seems to be where the trial court was going with this. I think the question of use, legal use means a permitted use under a zoning statute. And whether that use was legal at the time, um, the, the Sean Case, the court said, well, you had a lead, there was a change of use. They didn't get ED for a change of use. And the court said, well, it didn't have a permitted use at the time of the zoning change, but this is not a change of use case. This is about an expansion of use. And so I don't think that's the, it's applicable to say that this is abandoned or illegal. It's a permitted use. There were illegal things went on, but you really get to an absurd result where, you know, any kind of, if any minor, you know, someone's arguably someone's parking overnight and, and you know, in a snow storm, now suddenly you have an illegal use and you lose your grandfathering. That's not protecting property rights, not, it's not protecting reasonable investment back expectations. Uh, I I think that's not a direction that we should go in whatever you think of the gun club pro or con. I think the court should just address that. As far as the, what Do you see, um, what do you see effect of chapter 1 59 B which regulates shooting ranges on this case? Uh, if you look at what they say about expansion of use, it's very clear that the town is a complete violation of the existing common law case law for change of views as well as the retroactivity and the expansion of use provisions of 1 55, uh, 1 59 B Does that, is that preemptive 1 59 B? Yes. Yes. I believe that that's preemptive. The other thing I would say to the court have made the argument in the brief, but the statute 1 59 26 1, which allows for the zoning power, it opens up by saying the, to the extent consistent with federal law, and we have a very strict federal definition of what being in the business of firearms is, and it's clear that a shooting range is not engaged in that business. And so we were astounded that the trial court didn't consider that and looking at whether the zoning would apply to a shooting range versus a firearms business, which It does seem since the legislature has separately regulated shooting ranges, that it would be not in 1 59 A and it would be subject to that specific statute. Do you agree with that? I agree with that, absolutely. With the court. And that was one of the main problems that we have with this. Um, beyond the, the law is not followed. We have the zoning determination and um, we had a special exception. Now it's perfectly fine procedurally if the board had allowed the procedure to happen. Oh, I've got the stop light. I'm trying to sit down. I'm sorry. Okay. Thank you. Not attorney. Good morning, may, uh, Mr. Chief Justice, may it please the court. I'm Sean O'Connell. I'm Shahin and Gordon. I represent the interveners Scott and Bridget Perry. Uh, Mr. Perry's in the courtroom today, they own the property upon which the appellant trespassed in building their unpermitted north to south shooting range. Um, Quickly I want to Review the standard of review that's applicable today. 'cause it's always important, especially in zoning cases. Uh, the trial court had to treat the factual fines of the, of the board as proma faial lawful and reasonable and could not, uh, set them aside absent unreasonable error of law in your review, some similarly situated, and you can reverse the trial court's decision only if it's not supported by the evidence or, or legally erroneous. And we would suggest that the peer board zoning, Peter board, uh, Peterborough planning and the superior court order, um, certainly met those standards. Um, judge Messer's order is well considered. It is well written, is supported by the evidence, it's supported by the law and it should be affirmed. Uh, the first thing that I'm going to get into is the range status where you just heard, uh, a bunch from from counsel. The, the thing that I'm gonna start with is the question that you asked, uh, chief Justice McDonald regarding the, um, narrow applicability of zoning, uh, ordinances in this court. In in, um, vaon, which is the case cited by the appellant. This court at page 6 64, uh, wrote in keeping with the general policy of zoning law to carefully limit the extension and enlargement of nonconforming uses, we strictly construe provisions that permit the continuance of such uses. So yes, you, you're, it is very merely construed, uh, by this court and, and, and has been, I would suggest for some period and should be, um, after the, after the range status and notice and the notion that Mr. Hurley's, uh, decision was quote, legally incoherent in subject multiple interpretations. It was not Mr. Hurley. He made two primary, uh, conclusions in his letter. First, that the gun club abandoned its east to west shooting range, be between 2015 and 2017. And under Peterborough zoning ordinances that non-conforming use, uh, if it had ceased for more than one year within three years prior to the application, which was 2021, with the planning board, there's no, uh, grandfathering from that use. So for all purposes, all legal purposes, the gun club stopped its legal uses in at least 2015 or 2017, and there were none after that. Well, How do you reconcile that? There has to be a finding of intent to abandon where they simply change the direction of the range? Well, The, the intent to, first of all, I would remind the, the court regarding the standard review, um, and that the review of that decision is Mr decision. His decision was based on review of the records and plans, aerial photography, things that the notion that they were grainy or something that I don't think is supportable. He made a reason to decision and the, and the zoning board, uh, was fully capable and and entitled to rely on that decision as was just Messer. And both of them did Well, Didn't his decision include that they needed to get a special exception and he was wrong about that in the lens of the appellate, uh, review? Well, I would suggest that that's not part of his decision. And if you read it's part of, I would agree with it, part of his letter, and I would agree that it's wrong because if, if his conclusion is that they haven't, they don't have a legal nonconforming use, then they're not eligible for a special exception. The only thing they're eligible to try for is a variance. That's what they can do under Peter Azarian law, um, judge Messer in her order, mischaracterized the suggestion of the special exception as a suggestion that's at page three of her order. And that if you read his letter, it is that lies paragraph is essentially parenthetical. The rec remainder of it outlines his decision. The two elements I described. It then goes forth and describes the appeal process that Justice McDonald referred to regarding RSA 6 76, uh, five, which, which permitted the, um, uh, appeal to the, to the zoning board. Um, which by the way, the gun club did do. And they, uh, they asked for a reconsideration that decision, which where they did, they did, they lost on both of those, but they tried 'em both, they took advantage of that opportunity. So I would suggest that, um, the, the, the sort of parenthetical at the end of Mr. Hurley's letter is not substantive. And the rest of his letter, if, if read in totality would support that notion. Was there a period when there was no active shooting range operation or, or did it go from east, west to north south without a gap? It, that's not clear from the record. Um, I think the, the east west range was physically removed. There were, shoot, there were berms and other physical characteristics of that range that were eliminated by the gun club. And there are, there are photographs that demonstrate that from before and after, which is what Mr. Hurley he relied upon. So is there a Dispute of fact as to whether or not the direction of the range had changed? No, they definitely changed the direction. But the second, the second range, the north to south range, definitely required site plan review. It had they cut trees, they moved Phil, they moved wetlands and they moved on to a neighbor's property. And for all the reasons that site plans are, are required in New Hampshire to be sure that we're having harmonious use of property and, and use and, and fulfilling our zoning ordinances and so forth. That's why we do site plan review. And if a site plan review had been submitted by the Gun Club Force, north South range, it clearly wouldn't have been approved. I mean, for at, at a minimum, a significant portion of that range was on my client's property. So it, it couldn't have been approved. Had they, when they reoriented, had they stayed within the property bounds, not filled, not cut trees, would that constitute a new use? No, it it, it it would, it would, it would be a new use. Yeah, it it would be a use, it would Be a new use. I I'm sorry. Could that be a new use? It would, it would be a new use. Although I don't think use is, is is a relevant question at this point, because we're saying that they, as Mr. Hurley has said, all legal uses stopped when that, when the East west was eliminated and in all uses after that were done without any permitting which was required. And this is actually very much So what is the basis for a change of use by the reorientation if it, if the club had just stayed within the four corners of its Property, it, it stayed within the four quarters of its property, it still would need to get permitting if it moves the range from one spot to another, to another within the property for all reasons of, well say setbacks, say wetlands, say cutting trees, filling all these different things, town Peterborough and many other municipalities require for permitting if you're going to do anything regardless of where you do it on your property. And they did none of it. Um, the, the Von case, um, actually deals with this fairly, uh, clearly and, and I'm gonna cite to, um, judge Messer, she synopsized it well, and she said, hon stands for the proposition that if a party fails to go through site plan review, uh, when required or otherwise fails to secure appropriate approvals, grandfather's status is not available. And that's discourse decision. On, on, on Vashone. VASH involved a, a, uh, abil, a property owner in Seabrook who had adult entertainment on its property, town of Seabrook, then thereafter adopted a, uh, an ordinance regarding adult entertainment. And they claimed that they had grandfathered status 'cause they had it before, but they weren't permitted before. And that's what this court decided that they're not, they don't get a benefit of an illegal use for grandfathering purposes, which is the same issue. But there's no argument that the east west range was an illegal use. It was illegal use. It was a legal preexisting use That was abandoned and that, and that is the substance of Mr. Hurley's decision, which is, which again, going back to the standard of review, that that decision was helped by upheld twice by the zoning board and, and by Judge Messer and her will reason decision. If you Had a store that had parking and they changed the location of their parking lot, would you say that they had abandoned the original parking lot If they changed the location of the parking lot? Yeah, so they moved in the, your scenario is the parking lot that previous existed is taken out, and then another one is built, They put shrubs in the location of the parking and they changed the location of the parking spot. Yeah, it, It would, because for the same reason that, let's say that parking lot was in a wetlands area, or say that parking lot encroached on the sideline requirements of the lot, or say that put in, like in this case say that parking lot encroach on another person's property or to cut trees, or if they move fill for any of those reasons, that new parking lot requires permitting. So just saying that because they have a parking lot here, I can build one, there isn't the law, And so they would have to go through a site plan process to return to the original parking spot. The, if they, it depends on the, uh, it would depend on the length of the, the zoning ordinance regarding abandonment and, and, and Peterborough is one year and in, in, in the scenario, let's just say it's one year. So if they'd abandoned it for over a year, then yes they would. So why wouldn't that be considered a change of use? It is a change of use. It, it is, it's not the use that is relevant here. It's the grandfathering. Right? Because we're we're saying is that if you have a use and it, and you want to use that use to give you elevated rights as you go forward and you're gonna do some other part of development of your property, you're looking for some special treatment because of your prior use and if you eliminate your prior use, I let, so I'm going to, I'm gonna go ahead and finish the sentence. I, if you eliminate your prior use, you no longer have the benefit of that grandfather. You can't use it to benefit yourself in your next effort, which I think is what rational stands for attorney. Thank you. And may it please the court. My name is attorney Allie Genaro and I'm here representing the town of Peterborough. I would like to first address Chief Justice McDonald's question about RSA 1 59 bees application to this case. Um, the, the, the retroactivity provision of RSA 1 59 B four relies on the premise that it is a legal use of the property. However, this court in residence defendant, their home versus Lone Pine Hunters Club incorporated 1 55 NH 4 86, held that where a use of the property a shooting range was constructed illegally. It cannot conclude that RSA Chapter 1 59 was intended to shield that illegal use. And so this court itself has held where the use of the shooting range is illegal. RX A 1 59 B does not apply. So I can see how that might, uh, pertain to the north south range, but how does that case apply to the east west range? Um, so I would argue that by abandoning the use of the, the east west range and failing to get site plan review, Von says that that use has become illegal. The whole property has now become illegal, and they would need to go back through site plan review through appropriate permitting through variance requests to reconstruct anything on that property. And that goes doubly so here where the zoning ordinance did lawfully change in 2019. And so now there is no lawful use that could be reverted to on that property. They abandoned that use. They created an illegal use by failing to get site plan review. Von very clearly stands for the proposition that if a project fails to get the necessary permitting and specifically fails to get the necessary site plan review, that use is illegal. But the petitioner attempts to convert VASH on into a change of use analysis that simply isn't there. It's a red herring that it went from a commercial real estate, real, real, uh, commercial project to live entertainment. The issue wasn't that the use changed in ion, it's that they failed to get site plan review to change that use. And the same is true here. The petitioner failed to get site plan, uh, site plan review to fill in wetlands to clear cut property and then illegally trespassed onto another person's property, which would never be approved by any ZBA in this state. And so the use became illegal. And because the use is illegal, they cannot benefit from the grandfathering clauses. They cannot benefit from RSA 1 59 B and use that as a shield to, um, protect their illegal activities on the property. Um, I wanna turn our attention to the town's actual authority to enact these types of zoning s but I am prepared to take questions on any part of the brief if you have further questions. Um, the petitioner asserts that RSA 1 59 26 preempts the municipality from enacting any zoning ordinances as it pertains to shooting ranges. However, RSA 1 59 26 does include a provision that reserves the right to municipalities to enact reasonable land use regulations for firearms businesses. And so the question becomes whether she range is a firearms business, which unequivocally, as the trial court found it is under the prevailing statutory by US 18 USC 1921. Is that, is applying a, the federal definition of firearms, is that what we should look to? I don't think so, your Honor. Um, the New Hampshire statutory review, um, standard says that when the language of a statute is clear and ambiguous on its face, the court should not look further than the plain and ordinary language used and the plain and ordinary meaning of the term used. And so the terms firearm business has a plain and ordinary understanding in the English lexicon, think firearms are guns. I don't think there's any dispute there and a business. So it could be defined more broadly than the federal statute defines it? I would say yes, absolutely. Notwithstanding that one 50 nine's reference to federal law, No, because frankly, 1 59 references the entirety of the federal corpus. And so the fact that one statute that happens to criminalize a certain type of arms and munition just distribution in production and does not actually talk about shooting ranges is completely irrelevant as the trial court observed. Just because that's statute doesn't talk about shooting ranges, doesn't mean that a shooting range is not a business. It's simply not in that statute. My, my difficulty is with 1 59 B, the very next chapter, which separately regulates shooting ranges. And it, it would seem odd that one statute incorporates, uh, by its definition what is specifically dealt with in the very, in the very next chapter 1 59 B. That doesn't make sense to me. I think that's a fair point, but I think if you, you look at RSA 1 59 B four, it expressly states that so many ordinances or town ordinances cannot be applied retroactively. And so that inherently implies that a has the authority to regulate two reaches. How going forward, how would you define a private club as a business? Thank you. So, um, as a tr Oh, I'm so sorry. My light is on. Would you like me to answer the question? You can answer it, yeah. So as a trial court observed, a business is anything that exists to generate revenue. And then Nana brought Gun Club exists by its own, own words to generate revenue. If you look at the, um, the, its its presentation before this EBA repeatedly, they stated that they've been in business, they exist to generate revenue, they wanna get operational to generate revenue. And I think they, the reason that they are in fact a business is because that is their model. They sell memberships and they conduct other commercial activities on the property in order to generate revenue. So the fact that they don't con uh, push it onto shareholders or other types of corporate structures doesn't mean they are not a business. They simply are not incorporated in that particular manner. Thank you. That is my time. Thank, and I really appreciate it. Thank you, your honor. Attorney do rebut? Uh, yes. Just briefly. Um, I would point out 1 59 26 1 opens the extent consistent with federal law. That's the opening. So if we're talking about what the plain meeting is, I think the plain meeting is first, what is federal law saying about being engaged in the business of firearms? So I I would reject that. The other one to address the question of a retail store that changes the parking lot and the dispute over the von case von there's site plan review can be triggered by various events. One event that triggers site plan review pretty much always is if you change the use, so your retail store, and now you're going to be, uh, you know, some kind of a hospital or, you know, um, that would be a change in use that would trigger site plan. And, but Sean, you had a used retail, it changed to live entertainment. There was a change of use and they didn't get site plan. The argument in that case was, this is an illegal non-conforming use, and we're talking about use, we're talking about what the permitted use is under the zoning. Um, you, it was illegal because you had this change of use and you never got approval for that. It's not the proposition that you didn't get site plan or that you had a fire code violation or anything like that, Mr. Down, is it, is it your position that either under the constitution or state statute that a municipality can't prohibit? Uh, shooting ranges, for example, in a residential zone? I don't believe that they have zoning power into the extent that there is zoning power. There's restrictions on rental activity and also restrictions on the expansion that are in there. And those don't apply, at least in Peterborough in terms of what the ordinance said. And I don't think, think they can even have zoning regulations. I don't believe they can single out a, a firearms business, uh, and say, you can't have this. But you can have other retail stores, if you look at this ordinance, they single out outdoor shooting ranges from every other use. So the idea that this is an appropriate use of regulation, it's is, is not, is My, before you sit down, is my understanding correct that the constitutional issues under both the federal and state constitution were first raised in your reply in the club's reply brief to the Superior Court? And if so, how, how were they preserved? Uh, well, I was gonna say this. If you look at the reply brief, the argument is statute should be construed to protect against violating constitutional rights. And there's reasons why firearm, a shooting range is treated differently from a, a gun sale, like a retail gun shop. And, um, I thought that was intended to help with the statutory construction. Um, there was a, uh, an issue raised in the motion for reconsider to just expressly raise the constitutional issue. But I think to the extent that we're looking at interpreting a statute, I think the court should look at the constitutional issues and interpret the cons, the statutory, in a way that protects on those. It Was raised in the reply brief. I, it was raised in the reply brief, and I, it was in the context of looking at how we construed the co, the.