This club has been closed since last year due to a suit filed by homeowners. The club did not have the proper permits but had been in operation since the mid 60's.
We begin by summarizing the lengthy procedural background of this
case. In June 1966, the Club purchased 118 acres of land in Hollis located in
two zoning districts, a residential and agricultural district and a recreational
district. Under the Hollis zoning ordinance then in effect, gun clubs and firing
ranges were not permitted uses in either zoning district. In September 1966,
the Club applied for a building permit to construct an addition to an existing
building to facilitate its use of the property as a fish and game club. The Hollis
building inspector denied the application because the proposed use was a “new purpose, which is contrary to provisions of [the] zoning ordinance.” The building inspector reported to the Hollis Zoning Board of Adjustment (ZBA) that the Club’s application had been denied because the zoning ordinance “does not provide for the establishment of a Fish & Game Club without a variance.” Ten days later, three members of the ZBA signed an unaddressed, handwritten note which stated: “It is the opinion of the Board of Adjustment that the building inspector can issue a building permit for the addition to the existing building owned by [the Club] without issuing a variance.”
Over the years, several other expansions took place on the property,
some with and some without permits or approval from the ZBA or planning
board. In 1999, the Hollis zoning ordinance was amended to add “sporting
clubs” to the uses permitted by special exception and site plan review in the
zoning districts in which the Club operates. In 1999 and again in 2000, the
Hollis Board of Selectmen advised the Club in writing of the need to secure a
special exception and site plan review in order to make its operations lawful.
In August 2000, the Club applied for and received a special exception from the
ZBA on the condition that it seek site plan review before the planning board.
The Club appealed to the superior court, which vacated the ZBA’s
decision, and the case was appealed to this court. In July 2003, we reversed
the superior court and upheld the ZBA’s decision that the Club did not have
the necessary local land use approvals to lawfully operate as a shooting facility as well as its grant of a special exception subject to planning board site plan review. See Lone Pine Hunters’ Club v. Town of Hollis, 149 N.H. 668 (2003).
Following remand, the Club suspended all shooting activities and in June
2004, submitted its application to the planning board for site plan review.
On the advice of town counsel, the planning board concluded that RSA
159-B:4, as amended in May 2004, preempted its authority to enforce the
town’s zoning ordinances relative to the Club’s property and voted to dismiss
the Club’s application because it lacked jurisdiction. The plaintiffs, a group of
citizens owning land surrounding the Club’s property, appealed to the superior
court arguing, in part, that the Club could not lawfully operate a shooting club
absent compliance with the special exception/site plan review process created
by the 1999 amendment to the zoning ordinance. In December 2005, the trial
court ruled that RSA 159-B:4 divested the planning board of jurisdiction over
the Club’s site plan application. The court, however, declared the entire
statute unconstitutional, enjoined all shooting activities at the Club pending
site plan approval and remanded the matter to the planning board. This
appeal followed.
RSA chapter 159-B, as amended in 2004, primarily protects existing
shooting ranges from liability related to noise. The statute protects owners of
shooting ranges from: (1) noise-based nuisance claims “if the shooting range
was established, constructed, or being used on a regular basis as of the date
the [claimant] acquired the property,” RSA 159-B:5; (2) civil or criminal liability
related to noise as well as injunctions based upon noise provided that the
shooting range is in compliance with any applicable noise control ordinance in
existence “at the time the shooting range was established, was constructed, or began operations,” RSA 159-B:1, :2; and (3) agency rules or standards for
limiting noise in terms of decibel level, provided that the shooting range is “in
compliance with any applicable noise control ordinances in existence at the
time when the range was established, was constructed, or began operations,”
see RSA 159-B:6. In addition, the statute protects shooting ranges from the
retroactive application of administrative rules, statutes, or ordinances that
prohibit or limit the scope of shooting activities previously conducted at the
shooting range if the range was “in operation prior to the adoption, enactment, enforcement or proposal of the administrative rule, statute, or ordinance,” RSA159-B:4. It is this latter provision that led the planning board to conclude that it lacked jurisdiction to apply the town’s zoning ordinance and site plan regulations to the Club’s shooting range because the range had been “in operation,” albeit illegally, since 1966, and the special exception ordinance was not in effect until 1999.
On appeal, the Club argues that the planning board is precluded from
conducting site plan review because RSA 159-B:4 only requires that the Club’s
shooting activities have been “in operation” prior to the adoption of the zoning
ordinance in question. The plaintiffs argue that the statute must be read to
apply only to lawfully operating shooting ranges; otherwise, the statute would
exempt illegally operating shooting ranges from state and local control, a result
that could not have been intended by the legislature.
“In matters of statutory interpretation, this court is the final arbiter of
the intent of the legislature as expressed in the words of a statute considered
as a whole.” Franklin v. Town of Newport, 151 N.H. 508, 509 (2004). “We
construe all parts of a statute together to effectuate its overall purpose and
avoid an absurd or unjust result.” Id.
“The law is well established that a nonconforming use is permissible only
where it legally exists at the date of the adoption of the zoning ordinance.”
Town of North Hampton v. Sanderson, 131 N.H. 614, 620 (1989). “This rule of
law is based on the principle that provisions which except existing uses are
intended to favor uses which were both existing and lawful, not to aid users
who have succeeded in evading previous restrictions.” Id. (brackets and
quotation omitted); see Town of Seabrook v. Vachon Management, 144 N.H.
660, 664 (2000). This reasoning directly applies to RSA chapter 159-B. We
cannot conclude that the statute was intended to shield a use which was
illegal, as to do so would reach an unjust result. Accordingly, we hold that the
requirement in the statute that an organization’s shooting activities have been
“in operation” is intended to mean in lawful operation.
Indeed, as the defendants conceded at oral argument before this court,
RSA chapter 159-B was not intended to, nor does it by operation of law, make
lawful that which was unlawful before the statute was enacted. Rather, the
statute is intended to prevent subsequent restrictions of lawful uses. The
legislative history likewise establishes that the statute’s provisions are intended to apply to lawfully established shooting ranges.
In the report of a hearing held before the Senate Committee on Wildlife
and Recreation in March 2004, a summary of testimony received in support of
House Bill 1309 states that “RSA 159-B provides an exemption from nuisance
actions based on noise from shooting clubs which were in compliance with
relevant noise limitations at the time they were lawfully approved by the local
land use boards of the communities in which they are located.” (Emphasis
added.) Senator Clegg testified that the protections afforded by the legislation
are necessary because “f [shooting ranges] are operating legally and by the
regulations that they were provided at the time of their establishment, there is
no reason for them to have to leave.” Testifying to the meaning of the
retroactivity provision now contained in RSA 159-B:4, Executive Councilor
David Wheeler explained that the purpose is to prevent towns from prohibiting
or limiting the scope of what shooting ranges “are already doing that was legal
when they began operation. You can’t go back and shut them down with new
laws and ordinances.”
During floor debate in the senate in April 2004, Senator Sapareto, in
moving that HB 1309 ought to pass, explained: “This bill repeals and reenacts
RSA 159-B relative to shooting ranges and it provides shooting clubs an
exemption from nuisance action based on noise, if they were in compliance
with relevant noise limitations at the time the range was lawfully approved by
the local land use boards of the communities in which they operate.” N.H. S.
Jour. 729 (2004) (emphasis added). He further stated that “House Bill 1309
was modeled after legislation in 38 other states and the bill seeks to protect
property rights of these legally operating shooting ranges. . . .” Id. (emphasis
added). Senator Sapareto responded in the affirmative to a question from
Senator Cohen whether “ince the bill is aimed at noise . . . if a shooting range is in violation of laws and ordinances other than noise control ordinances, [the] 5 bill allows the state and community to enforce its other laws or ordinances just like it does today.” Id. at 729-30. In addition, the following exchange occurred:
SENATOR BELOW: . . . Senator Sapareto, I thought I heard you
say something about if a shooting range was in compliance with
noise ordinances at the time it was lawfully . . . I think I heard you
say the word “lawfully . . .”
We begin by summarizing the lengthy procedural background of this
case. In June 1966, the Club purchased 118 acres of land in Hollis located in
two zoning districts, a residential and agricultural district and a recreational
district. Under the Hollis zoning ordinance then in effect, gun clubs and firing
ranges were not permitted uses in either zoning district. In September 1966,
the Club applied for a building permit to construct an addition to an existing
building to facilitate its use of the property as a fish and game club. The Hollis
building inspector denied the application because the proposed use was a “new purpose, which is contrary to provisions of [the] zoning ordinance.” The building inspector reported to the Hollis Zoning Board of Adjustment (ZBA) that the Club’s application had been denied because the zoning ordinance “does not provide for the establishment of a Fish & Game Club without a variance.” Ten days later, three members of the ZBA signed an unaddressed, handwritten note which stated: “It is the opinion of the Board of Adjustment that the building inspector can issue a building permit for the addition to the existing building owned by [the Club] without issuing a variance.”
Over the years, several other expansions took place on the property,
some with and some without permits or approval from the ZBA or planning
board. In 1999, the Hollis zoning ordinance was amended to add “sporting
clubs” to the uses permitted by special exception and site plan review in the
zoning districts in which the Club operates. In 1999 and again in 2000, the
Hollis Board of Selectmen advised the Club in writing of the need to secure a
special exception and site plan review in order to make its operations lawful.
In August 2000, the Club applied for and received a special exception from the
ZBA on the condition that it seek site plan review before the planning board.
The Club appealed to the superior court, which vacated the ZBA’s
decision, and the case was appealed to this court. In July 2003, we reversed
the superior court and upheld the ZBA’s decision that the Club did not have
the necessary local land use approvals to lawfully operate as a shooting facility as well as its grant of a special exception subject to planning board site plan review. See Lone Pine Hunters’ Club v. Town of Hollis, 149 N.H. 668 (2003).
Following remand, the Club suspended all shooting activities and in June
2004, submitted its application to the planning board for site plan review.
On the advice of town counsel, the planning board concluded that RSA
159-B:4, as amended in May 2004, preempted its authority to enforce the
town’s zoning ordinances relative to the Club’s property and voted to dismiss
the Club’s application because it lacked jurisdiction. The plaintiffs, a group of
citizens owning land surrounding the Club’s property, appealed to the superior
court arguing, in part, that the Club could not lawfully operate a shooting club
absent compliance with the special exception/site plan review process created
by the 1999 amendment to the zoning ordinance. In December 2005, the trial
court ruled that RSA 159-B:4 divested the planning board of jurisdiction over
the Club’s site plan application. The court, however, declared the entire
statute unconstitutional, enjoined all shooting activities at the Club pending
site plan approval and remanded the matter to the planning board. This
appeal followed.
RSA chapter 159-B, as amended in 2004, primarily protects existing
shooting ranges from liability related to noise. The statute protects owners of
shooting ranges from: (1) noise-based nuisance claims “if the shooting range
was established, constructed, or being used on a regular basis as of the date
the [claimant] acquired the property,” RSA 159-B:5; (2) civil or criminal liability
related to noise as well as injunctions based upon noise provided that the
shooting range is in compliance with any applicable noise control ordinance in
existence “at the time the shooting range was established, was constructed, or began operations,” RSA 159-B:1, :2; and (3) agency rules or standards for
limiting noise in terms of decibel level, provided that the shooting range is “in
compliance with any applicable noise control ordinances in existence at the
time when the range was established, was constructed, or began operations,”
see RSA 159-B:6. In addition, the statute protects shooting ranges from the
retroactive application of administrative rules, statutes, or ordinances that
prohibit or limit the scope of shooting activities previously conducted at the
shooting range if the range was “in operation prior to the adoption, enactment, enforcement or proposal of the administrative rule, statute, or ordinance,” RSA159-B:4. It is this latter provision that led the planning board to conclude that it lacked jurisdiction to apply the town’s zoning ordinance and site plan regulations to the Club’s shooting range because the range had been “in operation,” albeit illegally, since 1966, and the special exception ordinance was not in effect until 1999.
On appeal, the Club argues that the planning board is precluded from
conducting site plan review because RSA 159-B:4 only requires that the Club’s
shooting activities have been “in operation” prior to the adoption of the zoning
ordinance in question. The plaintiffs argue that the statute must be read to
apply only to lawfully operating shooting ranges; otherwise, the statute would
exempt illegally operating shooting ranges from state and local control, a result
that could not have been intended by the legislature.
“In matters of statutory interpretation, this court is the final arbiter of
the intent of the legislature as expressed in the words of a statute considered
as a whole.” Franklin v. Town of Newport, 151 N.H. 508, 509 (2004). “We
construe all parts of a statute together to effectuate its overall purpose and
avoid an absurd or unjust result.” Id.
“The law is well established that a nonconforming use is permissible only
where it legally exists at the date of the adoption of the zoning ordinance.”
Town of North Hampton v. Sanderson, 131 N.H. 614, 620 (1989). “This rule of
law is based on the principle that provisions which except existing uses are
intended to favor uses which were both existing and lawful, not to aid users
who have succeeded in evading previous restrictions.” Id. (brackets and
quotation omitted); see Town of Seabrook v. Vachon Management, 144 N.H.
660, 664 (2000). This reasoning directly applies to RSA chapter 159-B. We
cannot conclude that the statute was intended to shield a use which was
illegal, as to do so would reach an unjust result. Accordingly, we hold that the
requirement in the statute that an organization’s shooting activities have been
“in operation” is intended to mean in lawful operation.
Indeed, as the defendants conceded at oral argument before this court,
RSA chapter 159-B was not intended to, nor does it by operation of law, make
lawful that which was unlawful before the statute was enacted. Rather, the
statute is intended to prevent subsequent restrictions of lawful uses. The
legislative history likewise establishes that the statute’s provisions are intended to apply to lawfully established shooting ranges.
In the report of a hearing held before the Senate Committee on Wildlife
and Recreation in March 2004, a summary of testimony received in support of
House Bill 1309 states that “RSA 159-B provides an exemption from nuisance
actions based on noise from shooting clubs which were in compliance with
relevant noise limitations at the time they were lawfully approved by the local
land use boards of the communities in which they are located.” (Emphasis
added.) Senator Clegg testified that the protections afforded by the legislation
are necessary because “f [shooting ranges] are operating legally and by the
regulations that they were provided at the time of their establishment, there is
no reason for them to have to leave.” Testifying to the meaning of the
retroactivity provision now contained in RSA 159-B:4, Executive Councilor
David Wheeler explained that the purpose is to prevent towns from prohibiting
or limiting the scope of what shooting ranges “are already doing that was legal
when they began operation. You can’t go back and shut them down with new
laws and ordinances.”
During floor debate in the senate in April 2004, Senator Sapareto, in
moving that HB 1309 ought to pass, explained: “This bill repeals and reenacts
RSA 159-B relative to shooting ranges and it provides shooting clubs an
exemption from nuisance action based on noise, if they were in compliance
with relevant noise limitations at the time the range was lawfully approved by
the local land use boards of the communities in which they operate.” N.H. S.
Jour. 729 (2004) (emphasis added). He further stated that “House Bill 1309
was modeled after legislation in 38 other states and the bill seeks to protect
property rights of these legally operating shooting ranges. . . .” Id. (emphasis
added). Senator Sapareto responded in the affirmative to a question from
Senator Cohen whether “
SENATOR BELOW: . . . Senator Sapareto, I thought I heard you
say something about if a shooting range was in compliance with
noise ordinances at the time it was lawfully . . . I think I heard you
say the word “lawfully . . .”
