RSA chapter 159-B primarily protects existing shooting ranges from liability related to noise. The statute protects shooting ranges from, among other things, 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 shooting range was “in operation prior to the adoption, enactment, enforcement or proposal of the administrative rule, statute, or ordinance.” The question before the Court in this case was whether RSA chapter 159-B preempted municipal authority to enforce a zoning ordinance requiring a special exception and site plan review relative to the defendant’s property.
The Lone Pine Hunters’ Club, Inc. (the Club) purchased 118 acres of land in Hollis in June 1966. This land was located in two zoning districts, a residential and agricultural district and a recreational district. At the time of the purchase, gun clubs and firing ranges were not permitted uses in either zoning district. Over the years, the Club completed several expansions on the property, some with and some without permits or approval from the zoning board of adjustment (ZBA) or planning board. In 1999 the 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 operated. In 1999 and again in 2000, the 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 operation lawful.
In 2000, the Club received a special exception from the ZBA on condition that it seek site plan review before the planning board. On the advice of town counsel, the planning board concluded it lacked jurisdiction to consider the site plan application because RSA chapter 159-B preempted its authority over the Club, which had been in “operation” (albeit illegally) since 1966, prior to the 1999 zoning amendments. Citizens owning land surrounding the Club’s property appealed, arguing that the Club could not lawfully operate a shooting range unless it complied with the special exception/site plan review process created by the 1999 zoning amendment.
The Court noted the well-established rule that a nonconforming use is permissible only where it legally exists at the date of the adoption of the zoning ordinance. This rule of law is based on the principle that provisions which exempt existing uses are intended to favor uses that are both existing and lawful, rather than to aid users who have successfully evaded previous restrictions. Further, the Court found that this interpretation was consistent with the legislative history of RSA chapter 159-B indicating that legislators intended the protections of the statute to apply to lawfully approved shooting ranges. Thus, the Court held that “the requirement in the statute that an organization’s shooting activities were previously ‘in operation’ is intended to mean in lawful operation.” Since the Club’s use of its property was not lawful since its inception in 1966, it was not protected from the town’s zoning ordinance and was required to obtain a special exception and site plan approval to lawfully operate as a shooting range.