Court Finds Shooting Range Not a Legal, Nonconforming (“Grandfathered”) Use

The New Hampshire constitution allows a landowner to continue an existing, lawful use of property after the municipality amends its zoning ordinance to prohibit the use. What happens if a landowner continues the same use but fails to obtain site plan approval triggered by something other than the use itself?

Background

The Monadnock Rod and Gun Club (the "Club") operated an outdoor shooting range in an east-west orientation on its property in Peterborough, New Hampshire, since its incorporation in 1949. In 2015, the Club reoriented the shooting range to a south-north direction. The Club needed to fill, excavate, grade and/or clear more than 2,000 square feet of land to accomplish the reorientation, triggering site plan review, which the Club did not obtain.

In 2019 the town amended its zoning ordinance to require all shooting ranges be enclosed and indoors. This change rendered outdoor ranges noncompliant, raising the question whether the Club’s south-north reoriented range could be considered a lawful nonconforming ("grandfathered") use.

Superior court decision

As a threshold question, the superior court found the Club’s south-north reoriented range was not lawful because it lacked site plan approval. The Club had argued that reorienting the shooting range did not alter the nature of its use and that it should retain its grandfathered status, despite the change in orientation.  The court then ruled nonconforming use protections apply only to uses that were both lawful and existing at the time the zoning ordinance was amended. Since the Club’s south-north range was constructed without planning board approval, it did not qualify as a lawful nonconforming use.

Supreme Court decision and reasoning

The Supreme Court upheld the superior court’s decision, concluding the Club’s south-north reoriented range did not qualify as a lawful nonconforming use at the time of the 2019 zoning amendment.

Nonconforming use protections are intended to prevent retroactive application of zoning changes on lawful, pre-existing uses. For a use to be “grandfathered,” it must be lawful at the time the zoning change occurs. An unlawful or unapproved use cannot later become a protected nonconforming use.

The Town’s zoning ordinance required site plan approval for the amount of land being disturbed by the new orientation.  The Club’s failure to secure this approval meant that the south-north range was never lawful under the Town’s ordinance.

Since the south-north range was constructed without site plan approval, it was considered an illegal use at the time of the 2019 zoning amendment. The nonconforming use doctrine protects only those uses that were legal at the time the zoning ordinance took effect. Because the Club’s south-north range lacked the necessary approval, it could not be grandfathered.

Arguably, if reorientating the range had not triggered site plan review, the north-south orientation would have been protected.  Also, the decision does not indicate whether the Club raised the question whether the east-west orientation was still valid, given the Club continued operating, albeit in the faulty north-south direction.  Did the failed attempt to reorientate the range constitute an abandonment of the east-west range?  Perhaps that issue will appear in a future ruling.

Monadnock Rod and Gun Club v. Town of Peterborough, 2024 N.H. 61.

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