From 1949 until 2015 the Monadnock Rod and Gun (Club) operated an outdoor shooting range in Peterborough. During that time the range was oriented in an east-west direction with a berm on the western edge. Sometime in 2015 the Club constructed a shooting range oriented in a south-north direction with a berm on the northern edge. That construction involved filling, excavating and clearing more than 2,000 square feet of land, work that required site plan approval from the Town’s planning board. The Club did not apply for site plan review or other necessary permits. In 2019 the Town amended its zoning ordinance to require that that shooting ranges must be in enclosed, indoor facilities.
After the Town issued cease and desist orders to the Club in 2019, the Club sought site plan approval from the planning board. The board sought and received an administrative decision from the code enforcement officer that neither the east-west or south-north ranges were grandfathered as nonconforming uses. The ZBA affirmed that decision and also denied a request for a special exception on the grounds the board lacked jurisdiction to grant a special exception for an illegal nonconforming use. The planning board also denied site plan approval. These decisions were affirmed by the Superior Court.
On appeal, the NH Supreme Court focused on whether the Club’s reorientation of its shooting range from east-west to south-north is a continuation of a lawful nonconforming use of the property. Under Part I, Articles 2 and 12 of the NH Constitution and RSA 674:16, a property owner has the right to maintain a lawful nonconforming use and be protected from a retrospective application of zoning ordinances.
The court concluded that because the Club failed to receive site plan approval for the south-north shooting range, it was illegal and therefore ineligible to later qualify as a lawful nonconforming use. Furthermore, when the Town amended the zoning ordinance in 2019 to require shooting ranges to be in an enclosed, indoor facility, the Club’s south-north range was an unlawful use.
The court also rejected the Club’s argument that the zoning amendment requiring shoot ranges be enclosed, indoor facilities was unlawful because it was preempted by RSA 159:26, I and RSA chapter 159-B. The court concluded that RSA 159:26, I does not address shooting ranges and therefore does not preempt the ability of municipalities to regulate shooting ranges through land use regulations. The court also rejected the argument that RSA 159-B:4 barred the retroactive application of the Town’s zoning ordinance since the Club’s shooting range was not a lawful use. Finally, the court declined to address the Club’s argument that Town’s zoning ordinance ban on outdoor shooting ranges violates the Second Amendment to the United States Constitution and Part I, Article 2-a of the New Hampshire Constitution.