336 A.3d 909
N.H.2024Background
- Monadnock Rod and Gun Club operated an outdoor shooting range in Peterborough, NH, oriented east-west, for decades.
- In 2015, the Club reoriented the range to a south-north direction without obtaining required site plan approval, and encroached onto a neighbor’s land (the Perrys).
- Environmental concerns and trespass litigation ensued; the town amended its zoning ordinance in 2019 to require shooting ranges to be indoors.
- The Club's attempts to seek local approvals (ZBA, planning board) for continued or modified use were denied, citing lack of a lawful nonconforming use and inability to grant a special exception for an illegal use.
- Superior Court affirmed local decisions; Club appealed, raising nonconforming use, preemption by state law, and constitutional arguments.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Lawful Nonconforming Use | Range is grandfathered as nonconforming because use continued, just in different direction | Range as reoriented was illegal due to lack of site plan approval | Not a lawful nonconforming use; Club failed to prove legality at time ordinance changed |
| ZBA/Special Exception | ZBA erred in denying special exception; CEO’s determination was unconstitutional | ZBA can’t grant exceptions for illegal uses; Club’s range not lawful nonconforming | ZBA reasonably denied application; no jurisdiction for illegal use |
| Preemption by State Law | State law (RSA 159:26, Ch. 159-B) wholly preempts zoning power over shooting ranges | Zoning about shooting ranges not preempted under cited statutes | Statute doesn’t address shooting ranges; no preemption |
| Constitutionality of Zoning Ordinance | PZO’s prohibition on outdoor ranges infringes Second Amendment rights | Club’s constitutional claims were waived as not timely raised | Constitutional claims were unpreserved; not considered |
Key Cases Cited
- Town of Salem v. Wickson, 146 N.H. 328 (defines nonconforming uses and the requisite for lawfulness at time of ordinance)
- Dartmouth Corp. of Alpha Delta v. Town of Hanover, 169 N.H. 743 (burden of proof for nonconforming use, and property rights)
- Residents Defending Their Homes v. Lone Pine Hunters’ Club, 155 N.H. 486 (retroactive application of zoning to shooting range and meaning of “lawful” operation)
- New London v. Leskiewicz, 110 N.H. 462 (what constitutes change in nonconforming use)
- Sherryland v. Snuffer, 150 N.H. 262 (affirming on alternative grounds if trial court reached right result)