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RANGE OPERATOR LIABILITY: NOISE, NUISANCE AND ZONING
Michael K McCabe
(This article is reprinted from the First National Shooting Range Symposium, 1990 with permission from International Association of Fish and Wildlife Agencies, Wildlife Management Institute and U.S. Fish and Wildlife Service.)
With the expansion of suburbia and second homes in rural settings, in recent years some shooting ranges have become the unwelcome center of attention in their local community. Factors such as zoning requirements inconsistent with shooting ranges, and noise from shooting ranges, have caused the majority of complaints. These complaints, for the most part, come from neighbors or neighborhood associations whose members live in the vicinity of the shooting ranges, or from town zoning boards.
Overview of Zoning Law
In order to fully understand zoning law as it applies to shooting ranges, it is necessary to first give an overview of zoning law as it exists in the United States. Zoning is enacted and enforced under what is commonly called the "police power". This expression does not limit itself to those in police uniform but, on the contrary, it has a much broader and wider significance. The term "police power" embraces virtually all of the functioning governmental rights of states and their political subdivisions. It might well be expressed as the "community power".
Within the police power is embraced the right to provide for the public safety, health and welfare, including supplying water to the public, the construction and regulation of streets and highways, the establishment and maintenance of police and fire departments, the construction and operation of sewers, the regulation of land use, the establishment of hospitals and health regulations and, indeed, the innumerable branches through which a government carries on most of its required operations.
Most commonly, zoning control is given from the states to the lower levels of government for enforcement. This is usually accomplished by state constitutional provisions or state statutes that confer limited components of police authority to inferior units of government. Therefore we have counties, cities and towns that may also exercise the "police power" through zoning authority conferred by state law.
The Fifth Amendment to the U.S. Constitution provides that "private property shall not be taken for public use, without just compensation." Most state constitutions also contain "taking" clauses, and the Fourteenth Amendment makes the federal taking clause applicable to the states. Such clauses raise the all-important taking issue in land use regulation. Local governments enact land use regulations under their police power, which does not require the payment of compensation. When a land use regulation excessively restricts the use of land without compensation, the restricted landowner can, at least theoretically, argue that a taking of his land without compensation has occurred. If the position that the land use regulation violates the taking clause is judicially sustained, the law requires compensation for the taking for the period of time the regulation was in effect.
For at least 20 years prior to 1987, the Supreme Court tended to approve a broad variety of government regulations as legitimate exercises of the police power. When reviewing decisions prior to this time, be reminded that the Court took a new and rather unexpected turn in 1987.
In Nollan v. California Coastal Commission, (483 U.S. 825 (1987) the California Coastal Commission had imposed as a condition to approval of a rebuilding permit, the requirement that the owners provide lateral access for the public to pass across their property. The U.S. Supreme Court ruled such a condition was not a valid regulation of land use but an "out and out plan of extortion." Justice Scalia's majority opinion held that unless a land-use restriction placed on a property "substantially furthers" permissible ends, the regulation will be considered a taking for which compensation must be made.
Structure of Zoning Ordinances
Typical of county or municipal zoning ordinances comprehensively assign compatible land uses to zoning districts throughout the community. The zoning ordnance contains a text and a map. The map designates the location of zoning districts. The text contains use, density and site development regulations for land use permitted in each district. It also contains administrative and enforcement provisions. The comprehensive zoning ordinance satisfies this land use structure. It divides the municipality into a number of zoning districts that separate residential, commercial and industrial uses.
However, there are detailed led special exceptions in which one may use property in a way that does not conform with the zoning plan. The first of these is the pre-existing non-conforming use (sometimes referred to as "grandfather" status). The nonconforming use is a difficult problem in zoning administration. The mixed land use pattern that exists in built-up cities means that some uses will not conform to newly adopted or amended zoning ordinances. These uses will thus be entitled to exist; however, a change, expansion, repair, or reconstruction typically results in the forfeiture of the non-conforming use status.
In the case of Prevost v. Township of Macomb, 6 Mich. App. 462, 149 N.W.2d 453 (1967), the owner of a gun club wanted to expand his building to include a new rifle range. The court denied this because the gun club was a pre-existing nonconforming use. To change or alter its use would be in violation of the law, as it would be a different use than that originally allowed.
The second exception to a zoning plan is called a conditional use. The zoning board grants a "conditional use" permit, which is usually quite specific. A zoning board will typically authorize the approval of a conditional use only if it is compatible with the surrounding area. Violation of any of the conditions would result in a loss of the permit. Such was the case in Town of Richmond v. Murdock, 70 Wisc.2d 642, 235 N.W.2d 497 (1975), where the owner of a shooting range was only allowed to use two of his five trap fields. However, he violated these conditions by using all five of the fields, thus voiding his permit to operate the shooting range entirely.
A permitted conditional use is not always appropriate; a problem is that some zoning boards insist on conditional zoning permits in circumstances where the ordinance is sufficiently broad to permit the use. In Town of Carmel v. Willow Wood Rifle & Pistol Club, Inc., 496 NYS 548, 115 A.D.2d 742 (1985), the court ruled that the restrictive interpretation of the zoning law imposed by the zoning board was so arbitrary and capricious that they had to be struck down.
The third exception to the zoning plan is the variance. The provision that most states have adopted reads: "To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done."
This provision authorizes a hardship variance. About 1/2 of the states also authorize a variance because of "practical difficulties", a standard applied principally to area variances. The variance and conditional use have a tendency to be confused, but the distinction should be clear. "A variance is an authority to a property owner to use property in a manner forbidden by the ordinance while a conditional use allows the property owner to put his property to a use expressly permitted by the ordinance." North Shore Steak House Inc. v. Board of Appeals, 282 N.E.2d 606, 609 (N.Y. 1972). Typically, the indoor shooting ranges do not encounter as many zoning problems as do outdoor ranges. However, the expense involved with an indoor range is quite substantial when compared with an outdoor range, thus making indoor ranges less financially attractive. With an ever increasing population, there is a demand for more building of residential neighborhoods. It seems inevitable that shooting ranges and residential neighborhoods must live amongst each other. Hence, there will be more of a dependency on zoning laws to ensure a peaceful cohabitation.
General Principles of Nuisance Law
The general premise of the law of nuisance regulation is that no person is absolutely free to perform acts that others find offensive or that interfere with others' rights to safety and the quiet enjoyment of their own property. As noted in one case, "literally, nuisance means annoyance, and in its broadest sense, it is that which annoys or gives trouble or vexation, that which is offensive or noxious; anything that works hurt, inconvenience or damage. The term signifies in law such a use of property or such a course of conduct as, irrespective of actual trespass against others or of malicious or actual criminal intent, transgresses the just restrictions on use or conduct which the proximity of other persons or property in civilized communities imposes on what would otherwise be rightful freedom."
Nuisance activities can be classified in one of three ways: those which are considered nuisances in themselves or nuisances per se; those which are not nuisances per se, but which become nuisances because of the place where the activity is conducted; and those activities which in their nature may be nuisances, but as to which there may be honest differences of opinion.
To be considered a nuisance per se, the activity must of itself and by reason of its inherent capabilities cause injury or threaten the enjoyment of life or property of others, or be restricted by statute. It has been held that trap and skeet shooting ranges are not a nuisance per se when conducted in either rural or suburban areas, Schneider v. Clothier, 52 Lanc. L. Rev. 113 (1950), although this cannot be declared a universal view.
An activity that is classified as a nuisance because of it S location is an activity that is lawful in its own right, but which becomes objectionable because of the location, circumstances or surroundings where it is conducted. In what constitutes a nuisance, courts have placed a paramount importance on the time and locality factors of shooting ranges. In Oak Haven Trailer Court, Inc. v. Western Wayne County Conservation Association, 3 Mich. App. 83, 141 N.W.2d 645 (1966), The residents of a trailer park complained of noise from a gun club. The club was located in a rural area, and residents of the trailer park were the only persons complaining of the noise. The court, in holding for the gun club, stated "that which might be actionable or abateable in one place or locality might not be such in another. The oft quoted observation of the Supreme Court comes to mind here: nuisance may be merely the right thing in the wrong place, like a pig in the parlor instead of the barnyard."
Another description of nuisance activity distinguishes between public and private. In this context the difference lies in the scope of those affected by the acts. If the public at large is affected, the activity is classified as a public nuisance. Such was the situation in which dust from the road to the defendants' gun club caused a nuisance to the public at large. Davie v. Izaak Walton League of America, 717 P.2d 984 (Colo. App. 1985). If only a limited number of people are affected, such as only one person or a few people, the activity is considered a private nuisance. In this context, the activities differ only in the extent or scope of the detrimental effect.
In a case where neighbors of a shooting range brought a private nuisance action against a gun club because of the noise, the court held it to be a private nuisance and stated "the law is clear that where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his property, a wrong is done to a neighboring owner for which an action lies at law or equity. In such cases it makes no difference that the business was lawful and one useful to the public and conducted in the most approved method." Edmonds v. Murphy, 573 A.2d 853 (Md. App. 1990).
In some contexts a nuisance may be both a public and private nuisance. Such an activity may injure many people as a public nuisance, but also create a special injury to select individuals beyond those injuries suffered by the general public. To those suffering special injury, the activity becomes a private nuisance, while those who suffer the general injury consider it to be a public nuisance. Those activities which are both public and private nuisances are generally referred to as a mixed nuisance.
A suit to abate a nuisance by means of an injunction generally requires that without the intervention of the injunction, the activity will be ongoing, and irreparable harm without a remedy compensible in money damages will occur. Injunctions to abate such activity are granted only where necessary and where caution and judgment indicate to the trial judge that the exercise of the court's discretion to grant the injunction is warranted by clear and convincing grounds. Stated another way, an injunction will be issued only where there is no adequate remedy at law.
In defending an action, disproving any of the elements needed to demonstrate an actionable nuisance activity are available to a defendant. Another defense that has been successful are those that argue that a neighbor's claim of private nuisance must yield to activities, the conduct of which are in the public interest, or a matter of public necessity. In the case where opponents wanted to close down a shooting range because of noise, the court held that the approval of an unclassified use permit by the zoning authority was reasonable; the facility would fulfill a recreational need in the community
in a manner compatible with the surrounding neighborhood. The zoning board found that, "if this use were not permitted to exist in a residential area the end result is that in a total urbanization of this kind all recreation would be excluded because no property could be used in such a manner. The Board does not feel that urbanization of society should be permitted to destroy kinds of recreation, such as in the instant case."" Evergreen State Builders, Inc. v. Pierce County, 9 Wash. App. 973, 516, P.2d 775, 778 (1973).
A final argument raised in a challenge to continuing activity is that conducting an activity over a period of time creates the right to continue it, even if it is later held to be a nuisance activity. This argument is a philosophical parallel to prescriptive rights granted under the concept of adverse possession; however, few courts have recognized this concept in support of a defendants right to continue a public nuisance activity. In the case of private nuisance activity, however, the argument parallels the concept of "laches" and has met some measure of acceptance and recognition if all the required elements of adverse possession have been met.
In summary, it has been generally accepted that shooting ranges are not in and of themselves nuisances. To determine a nuisance, courts rely heavily on time and location factors regarding the shooting range. Nuisance can be both public and private, the former affecting the public in general, whereas in the latter only a limited number of people are affected. The most common way to abate a nuisance is by an injunction, which if permanent could totally close a shooting range. Finally, some defenses to a nuisance action include the fact that the activity benefits a public necessity, and the "first in time, first in right" argument, both of which have been very effective in some courts, yet, have held little weight in others.
Range Protection Statutes
A minority of states have taken the legislative initiative, passing statutes to protect shooting ranges from civil action and criminal prosecution in matters relating to noise or "noise pollution" resulting from operations of the range.
Most of these statutes are very broad. For example, Pennsylvania's statute calls for immunity from all criminal and civil action in any matter relating to noise or noise pollution. Furthermore, it adds that no court shall enjoin any shooting range on the basis of noise. 35 PA. CONS. STAT ( 450.1 (1985). Another broad statute is Minnesota's, which prevents any local government from regulating the noise and location of a shooting range. Minn. Stat. (116.07 (1978). Missouri also has a broad range protection statute, which calls for immunity from both civil and criminal liability with limited protection for ranges that may open in the future. Mo. Rev. Stat. 9 537.294 (1988).
Other states are not as broad. New Hampshire calls for the noise to be in compliance with the state laws, and also allows local governments to regulate the noise. N.H. Rev. Stat. Ann. (159-B (1990). Additionally, Maryland provides immunity as long as shooting occurs between 9:00 am and 10:00 pm and only if the gun club stays on the same parcel of land as they occupy at the passage of the statute. Md. Ann. Code. art. 4 (3-401. Whether narrow or broad, these statutes have worked greatly to protect the owners of shooting ranges from noise liability.
State Noise Control Laws
State noise laws are an outgrowth of the Federal Noise Control Act of 1972 (49 U.S.C. (( 4901 et seq.) and the tremendous increase in interest regarding noise abatement and control which the Act has precipitated. There are generally three main types of noise control laws. The first is a codification of the common law of nuisance. The Washington State Noise Control Act of 1974 is a prime example of this first type. It states:
"The department is empowered as follows: (1) The department after consultation with state agencies expressing an interest therein, shall adopt, by rule, maximum noise levels permissible in identified environments in order to protect against adverse affects of noise on the health, safety, and welfare of the people, the value of property and the quality of environment." Rev. Code of Wash. 70 ( 70, 107 (1974).
The Delaware Noise Control Act is another example of a common law statute. It states:
"Noise disturbance means any sound which (1) endangers or injures the safety or health of humans or animals (2) annoys or disturbs a reasonable person of normal sensitivities, or (3) jeopardizes the value of property and erodes the integrity of the environment. Del. Code Title 7 ( 71. Thus, these types simply adopt their common law into statutes.
The second type of noise control statutes are the newer type, where special standards have been set up. Here a specified decibel level is used. The decibel is a unit used to express the magnitude of a change in sound level. The most common approach is to break down an area into zones and then set maximum decibel levels for each zone for both day and night. Colorado has taken such an approach:
Table 1. Colorado noise control statute broken down into zones and decibel levels.a
Zone 7:00 am to next 7:00 pm to next
7:00 pm 7:00 am
Residential 55 dB (A) 50 dB (A)
Commercial 60 dB (A) 55 dB (A)
Light Industrial 70 dB (A) 65 dB (A)
Industrial 80 dB (A) 75 dB (A)
aCol. Rev. Statutes, Title 25 ( 12 (1973).
The final type of noise control statute is the kind set up and enforced by a regulatory authority. In this type we have a commissioner of the given regulatory authority as the author of the substantive standards adopted pursuant to the statute. An example of this type is Alabama's regulations:
"By authority vested in me as commissioner of Conservation and Natural Resources by the Code of Alabama 1975, ( 33-5-28, I do hereby establish and promulgate the following regulation which has the force and effect of law. The penalty for violating this regulation is provided for by the Code of Alabama 1975 ( 33-5-3511 Marine Police Regulations, 79-MP-2 (1979); and Code of Alabama, Title 33 Ch. 5, Navigation and Watercourses, ( 33-5-23.
The increase in reliable monitoring equipment available to local governments, coupled with definitive standards incorporated into local noise control ordinances, should result in ordinances that are more easily enforceable than in the past.
Digest of State Range Protection Laws
Illinois Statutes, Title 111-1/2% ( 1025 (1970).
However, no Board standards for monitoring noise or regulations prescribing limitations on noise emissions shall apply to skeet, trap or shooting sports clubs chartered and operational prior to January 1, 1975, which are situated in the same location in which they were situated prior to January 1, 1975 or to any sanctioned motor racing event at a motor racing facility in existence prior to January 1, 1975, or any other sporting event sanctioned by the American Athletic Union, the National Collegiate Athletic Association, or the Illinois High School Association.
Maryland Statutes, Title 4, ¤ 3-401 (5)(i).
The sound level limits and noise control rules and regulations adopted under this subsection may not prohibit trapshooting, skeetshooting, or other target shooting between the hours of 9 am and 10 pm on any range or other property of a shooting sports club that is chartered and in operation as of July 1, 1983. However, this prohibition does not apply if the sports shooting club moves to a parcel of land that is not contiguous to the location of the club on July 1, 1983.
Minnesota Statutes ( 116.07, subdiv. 2a., [EXEMPTIONS FROM
No standards adopted by any agency for limiting levels of noise in terms of sound pressure which may occur in the outdoor atmosphere shall apply to skeet, trap or shooting sports clubs. Nothing herein shall prohibit a local unit of government from regulating the location and operation of skeet, trap or shooting sports clubs.
Missouri Statutes, Title 537.294 (1988).
As used in this section, the term "firearm range" means any rifle, pistol, silhouette, skeet, trap, blackpowder or other similar range in this state used for discharging firearms in a sporting event or for practice or instruction in the use of a firearm, or for the testing of a firearm.
All owners of firearm ranges in existence on the effective date of this section shall be immune from any criminal liability arising out of or as a consequence of noise or sound emission resulting from the normal use of any such firearm range. Owners of such firearm ranges shall not be subject to any action for public or private nuisance or trespass and no court in this state shall enjoin the use or operation of such firearm ranges on the basis of noise or sound emission resulting from the normal use of any such firearm range. The term "normal use" of a firearm range, as used in this subsection, means the average level of use of the firearm range during the twelve months preceding the effective date of this act.
All owners of firearms ranges placed in operation after the effective date of this section shall be immune from any criminal liability and shall not be subject to any action for public or private nuisance or trespass arising out of or as a consequence of noise or sound emission resulting from the normal use of any such firearm range, if such firearm range conforms to any one of the following requirements:
1) Any area from which any firearm may be properly discharged is at least one thousand yards from any occupied permanent dwelling on adjacent property;
2) Any area from which any rifle or pistol may be properly discharged is enclo enclosed by a permanent building or structure that absorbs or contains the sound energy escaping from the muzzle or firearms in use; or
3) If the firearm range is situated on land otherwise subject to land use zoning, the firearm range is in compliance with the requirements of the zoning authority regarding the sound deflection or absorbent baffles barriers, or other sound emission control requirements.
New Hampshire Statutes, Chapter 159-B, Noise Pollution from Shooting Ranges.
159-B:l Exemption. Notwithstanding the provisions of RSA 644.2 9 III(a) or any other law to the contrary, all owners of rifle, pistol, silhouette, skeet, trap, blackpowder or other similar ranges in the state shall be immune from any civil action or criminal prosecution in any matter relating to noise or noise pollution resulting from the ranges, provided that the owners Of the ranges are in compliance with any applicable noise control laws or ordinances in existence at the time construction of the range was approved.
159-B:2 Nuisances and Injunctions. The owners of the ranges shall not be subject to any action for nuisance, and no court in the state shall enjoin the use or operation of the range on the basis of noise or noise pollution, provided that the owners are in compliance with any noise control laws or ordinances in existence at the time construction of the range was approved.
159-13:3 Exemption from State Standards; Local Regulation Permitted. No standards in rules adopted by any state agency for limiting levels of noise in terms of decibel level which may occur in the outdoor atmosphere shall apply to the ranges exempted from liability under the provision of this chapter. Nothing in this chapter shall prohibit a town or city from regulating the location and operation of a shooting range after the effective date of this act.
Pennsylvania CONS. STAT. 35 5 450.1 (1985).
All owners of rifle, pistol, silhouette, skeet, trap, blackpowder or other similar ranges in this Commonwealth shall be exempt and immune from any civil action or criminal prosecution in any matter relating to noise or noise pollution resulting from the ranges, provided that the owners of the ranges are in compliance with any applicable noise control laws or ordinances extant at the time construction of the range was initiated.
Section 2. Nuisances and Injunctions
The owners of the ranges shall not be subject to any action for nuisance and no court in this Commonwealth shall enjoin the use or operation of the ranges on the basis of noise.