Suffolk County Trap And Skeet Range May Be Silenced By Town Noise Ordinance

January 06, 2020

BANG!  Yaphank, New York.  In November 2019, after years of protracted ligation, Hunter Sports Shooting Grounds, Inc., (“HSSG”) the operator of the Suffolk County Skeet, Trap & Sporting Clays Range (“Range”), was dealt another blow by the Supreme Court, Suffolk County in Hunter Sports Shooting Grounds, Inc. v Foley.

Acquired by Suffolk County (“County”), in 1963 , the Range is a recreational trap, skeet and sporting clays facility located in the Town of  Brookhaven (“Town”), and operated by various licensees of the County since 1982.  In 1962, there were no homes constructed in the area of the Range, as depicted in aerial photographs. Another aerial photograph taken in 1984 shows three residences.  A 1994 photograph depicts eleven homes in the area of the facility. Today, the Range vicinity remains largely uninhabited, as shown in this Google maps satellite view.

In 1987, the Town enacted a noise ordinance which, among other things, authorized the imposition of fines upon entities that emit sound in excess of 65 decibels.  In 2006, HSSG began operating the trap and skeet shooting range.  In November and December 2006, the Town commenced a series of proceedings in the Sixth District Court, Suffolk County, alleging that HSSG was in violation of the Town’s noise ordinance.  In 2007, HSSG commenced this action against the Town seeking, among other things, a  judgment declaring that the Town’s actions in enforcing the noise ordinance against it were unconstitutional, and that the noise ordinance was unlawfully and improperly applied to HSSG.

In somewhat of a “shotgun” approach, HSSG’s causes of action alleged: (i) the Range is a preexisting, nonconforming use pre-dating the Town’s enactment of its noise ordinance and, therefore, is exempt; (ii) implementation of the noise ordinance is an unlawful exercise of police power denying a reasonable rate of return and destroying the property’s economic value, thus constituting a confiscatory taking; (iii) enactment and enforcement of the Town’s noise ordinance constitutes an administrative taking of a vested property interest, and the summonses are without force or effect; (iv) the “public interest immunity” bars application of the Town’s noise ordinance because it conflicts with the County’s noise ordinance; and (v) Municipal Home Rule and the Legislature’s delegation to manage parks to counties dictate that the County’s noise ordinance supersedes and controls, rendering the Town ordinance unconstitutional and inapplicable to the Range.

As to the Municipal Home Rule/delegation argument, the County acknowledged its control of the park’s facilities came from the state’s delegation, and it exercised that control by enacting an ordinance exempting shooting facilities from its own noise ordinance. Thus, the County in effect attempted, by its noise exemption ordinance, to insulate itself from the effects of the Town’s noise ordinance under the umbrella of this general management delegation from the state.

The Court held that the concept of a prior, non-conforming use is relevant only if there is a zoning regulation prohibiting such use. Thus, in order to find that HSSG possessed a vested, non-conforming use protected by the Fourteenth Amendment, the Court must find that the Town’s noise ordinance is a zoning ordinance. If, on the other hand, the municipal ordinance is merely a valid exercise of the Town’s police power to protect the health, safety and welfare of the residents, HSSG’s operation of the Range cannot serve as a basis for establishing a constitutionally protected property interest.  The Court determined that the noise ordinance was not a zoning regulation but rather a legitimate exercise of the Town’s police power in the form of a noise ordinance.  As a result, the Court found that even though the Range was a long-term, pre-existing, non-conforming “grandfathered” use, that cannot be used to shield HSSG or the County from the Town’s enforcement of its noise ordinance.

In general, when there is a clash between local governmental use regulations, this conflict may be resolved with a “balancing of public interests” analytic approach, often referred to as the “Monroe Doctrine”.   (See, Matter of County of Monroe [City of Rochester], 72 NY2d 338,  [1988].  Using the Monroe Doctrine here, the Court was not “inspired by this record” to afford HSSG or the County an exemption from the Town’s noise ordinance. The Court determined that a recreational trap and skeet shooting range is neither the type nor magnitude of general use or benefit comparable to a regional airport as discussed in Monroe, tipping the scales in favor of the Town’s noise ordinance.

Regarding the denial of reasonable return and administrative taking claims, the Court rejected these claims too, because HSSG did not assert a traditional takings claim for compensation; rather, it sought only to be exempt from the Town’s noise ordinance. The Court also noted the Range cannot be developed because it is parkland and also a repository of significant lead contamination, so it has no value of which to be deprived.

Throughout its decision, the Court also discussed the issue of HSSG  operating the Range as licensee after the Town’s noise ordinance had been in effect for 20 years.  The Court stated that statutes or ordinances in effect at the time title of property is taken by a subsequent owner deprives that owner of an opportunity to avail itself of the takings analysis in Penn Central Trans. Co. v. New York City, 438 U.S. 104 [1978] because it is not a taking; it is an existing condition which impacts upon the value of the property prior to its purchase.  The Court’s line of reasoning seems to ignore the United States Supreme Court’s Palazzolo v Rhode Island, 533 U.S. 606 [2001] decision, which held that a person’s purchase of property already affected by adverse regulations does not bar a challenge of those regulations.  Regardless, the Court here held that HSSG’s attempt to argue one prong of Penn Central’s three-part test (i.e. economic impact) fails to suffice a claim for taking. The Court also held that since HSSG is only the licensee of the Range, it had no real property rights of which to be deprived.

As the gun smoke clears from this 42-page decision, HSSG is facing a difficult decision of whether to pursue an appeal, figure out a way to comply with the Town’s noise ordinance, or close its operations at the park.