HomeMy WebLinkAbout015 BricklinFROM:
DATE:
TO
RE
BRICKLIN & NEWMAN LLP
lawyers working for the environment
Jeflerson County Planning Commission.
Bricklin and Newman LLP on behalf of the Tarboo Ridge Coalition
November 7,2018
Amendment to Title 18 Relating to Shooting Facilities.
The Tarboo Ridge Coalition submits this public comment regarding proposed amendments to Title
l8 relating to shooting facilities.
County staff has characterized this amendment as a mere "harmonization" ordinance designed to
prevent inconsistencies between Title l8 (the land use code) and the commercial shooting facilities
ordinance recently passed. This characterization is incorrect. The proposed Title 18 ordinance goes
far beyond mere harmonization. It creates an entirely new land use category in Jefferson County:
gun ranges of unlimited size and intensity. The existing land use code restricts the size of gun
ranges. There is no reason to allow unlimited-size gun ranges. The Tarboo Ridge Coalition urges
you to reject this massive expansion of gun ranges.
Instead, the Tarboo Ridge Coalition encourages the Planning Commission to adopt a series of
common-sense amendments to Title 18 that keep gun ranges in their proper place: as small-scale,
recreation-focused, environmentally safe activities. These amendments are outlined at the end of
this comment.
I. Existing Land Use Code Regarding Gun Ranges
Currently, gun ranges are only allowed as "small-scale recreation and tourist uses." JCC
18.20.350.8.
"Small scale means of a size or intensity which has minimal impacts on the surrounding
area and which makes minimal demands on the existing infrastructure." JCC 18.10.190.
"Small-scale recreation or tourist uses means those isolated uses which are leisure or
recreational in nature; are reliant upon a rural setting or location; do not include any new
residential development beyond that allowed in the underlying land use district." JCC
1 8. l 0.1 90.
These definitions mean that gun ranges are currently limited to recreational users, meaning
no police, no military, and no militia training. Moreover, gun ranges that are allowed must
be small enough that there is minimal impact on the surrounding area.
The Tarboo Ridge Coalition supports these definitions and thinks they should stay. There
is no need in Jefferson County for large gun ranges with unlimited numbers of shooters or
high-intensity shooting such as SWAT or military training. Small, family-friendly gun
ranges in appropriate locations are a great thing to have in Jefferson County. Overnight
militia training compounds are not.
U. Staffs Title 18 Amendment
Staff s proposed amendment to Title 18 does away with these limitations. StafPs proposal
would mean that the "small scale" and "recreational or tourist" rules only apply to personal
gun ranges, that is a gun range in someone's back yard or "back forty" where no fee is
charged.
For commercial gun ranges, meaning ranges where money changes hands, the proposed
amendment provides no limits at all on size, intensity, or duration of use. Under the
proposed rules, a commercial facility could have dozens of gun ranges in operation
simultaneously, with hundreds of shooters, SWAT units and military units firing machine-
guns, night-time shooting, and overnight accommodations for the shooters.
The staff report fails to inform the Planning Commission of the true nature of the Title 1 8
amendment. This amendment fundamentally changes the character of gun ranges in
Jefferson County. If this amendment passes, gun ranges will be totally unlimited in their
size and intensity. For this reason, the Planning Commission should reject the Title 18
ordinance.
III. Inconsistency with the Comprehensive Plan
Under the current zoning laws, gun ranges are allowed as a small-scale recreation and
tourist use on forest lands. In other words, gun rmges and forestry can co-exist, but the gun
ranges have to be small in scale and limited in intensity. The Tarboo Ridge Coalition agrees
that this regulatory scheme makes sense.
Staff s proposed Title l8 ordinance would still allow gun ranges on forest lands, but now,
the gun ranges could be of unlimited size. The switch from limited-size gun ranges to
unlimited-size gun ranges creates an inconsistency with the Comprehensive Plan.
Under the Jefferson County Comp Plan, the County must
NRP 1.1: Designate lands where the preferred and principal land uses are resource-
based economic activities as Natural Resource lands.
NRP 1.2: Require land use activities adjacent to resource lands to be sited and
designed so as to minimize conflicts with resource based economic activities.
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NRP 1.5: Support resource-based economic activities that comply with applicable
federal, state, and local regulations.
NRG 3.0: Conserve and protect Forest Resource Lands for long-term economic use
NRG 4.0: Minimize potential conflicts between forest management activities and
land use activities within or adjacent to designated forest lands.
NRP 4.3: Minimize conflicts with Forest Land activities by developing site and
design requirements for land use activities adjacent to designated forest land.
NRP 4.5: Minimize conflict between primary and secondary forest production
facilities and related developments and forest management activities through siting
and design requirements.
All of these requirements are violated by staffs proposed Title 18 ordinance, because a
gun range of unlimited size is not compatible with the continuing use of forest land for
forestry. Gun ranges require long, open sightlines, where no trees grow. Under staff s Title
18 ordinance, an entire forest lands parcel could be converted to gun range uses, leaving
no land left for forestry.
When a development regulation is inconsistent with a Comp Plan, the development
regulation is unlawful. The Planning Commission should reject stafls proposed Title 18
ordinance.
IV. Tarboo Ridge Coalition Proposes a Better Alternative
The Tarboo Ridge Coalition proposes a better alternative that fixes the Title 8 - Title 18
inconsistency and keeps gun ranges in their existing category: small-scale recreation and
tourist uses.
The Tarboo Ridge Coalition proposes the following changes to the Title l8 ordinance
1. No outdoor night shooting.
2. Limit on number of firing points.
3. No aircraft.
4. No overnight accommodations.
5. Nuisances noise defined and prohibited.
6. Military and law enforcement certification.
7. 500-yard buffer around lakes.
8. 1,000-foot setback from property lines.
9. Clear definition that gun rimges are not essential public facilities.
10. Clear definition that gun ranges are small-scale recreation and tourist uses
The changes recortmended by TRC are aimed at bringing the stafls draft ordinance more into line
with Kitsap County's ordinance, which we consider a model of good gun range regulation that
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Jefferson County should emulate. The Kitsap County ordinance has already been upheld by the
Washington State Court of Appeals. Jefferson County can be confident that the proposed changes
will also withstand legal challenge.
Summary of Changes
1. No outdoor nisht shooting. The risks associated with shooting increase at night due to
decreased visibility. The existing Title 8 ordinance defines "daylight hours" but makes no use of
that definition anywhere. Our amendment adds a requirement that all outdoor shooting at
commercial shooting facilities occur during daylight hours only.
2. Limit on number of firine points. Nothing in the County's existing Title 8 ordinance or
draft Title 18 ordinance limits the intensity of shooting that is allowed at commercial shooting
facilities. Nor is any such limit established by the NRA guidelines. In fact, with the exception of a
single, specific type of shooting called "action pistol shooting," the NRA guidelines do not even
establish a ratio of safety officers to shooters.
Thus, under the stafPs draft ordinance, a commercial shooting facility could legally host dozens
(or hundreds) of shooters firing simultaneously under the supervision of a single range safety
officer. [t is unrealistic to expect a single range safety officer to exercise supervision or control
over an unlimited number of shooters. The staff s failure to propose a limit on the intensity of
shooting creates a safety hazard-
Our proposed amendment, by contrast, sets a limit of t'wenty hring points that may be active at any
one time aboard a commercial shooting facility. Twenty active firing points is a small enough
number that a single range safety officer (all that is required by the NRA) can supervise the
shooters, yet it is large enough to allow families and other groups to shoot together.
3. No aircraft. Neither the new Title 8 ordinance nor the draft Title 18 ordinance does not
address the relationship between aircraft and firearms. We propose to make it unlawful to land an
aircraft at a commercial shooting facility or to discharge firearms from an aircraft at a commercial
shooting facility.
Landing an aircraft at a gun range poses obvious safety risks, in that the arrival of an aircraft
distracts shooters and prevents them by its engine noise from hearing the commands of the range
safety officer. The shooters, in turn, pose a threat to the aircraft due to the danger of bullet
ricochets.
Nor is it safe to discharge firearms from an aircraft, due to the fast and sometimes unpredictable
motion of the aircraft, which can throw off a shooter's aim, and the impossibility of controlling
stray shots by the use of baffles or berms.
4. No overniqht accommodations. Our amendment would prohibit overnight
accommodations at a commercial shooting facility, including a prohibition on camping or the use
of RVs. Staffat commercial shooting facilities need to focus on shooting safety at all times. The
presence of overnight guests both distracts from that mission and increases the number of people
who need to be monitored and controlled.
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Overnight uses, as opposed to day uses, create a fundamentally different sort of shooting practice
on a gun range. With overnight uses, long-term, high-intensity training programs by out-of-county
or out-of-state customers becomes possible. Overnight uses leads to much more intensive shooting
than simple day uses.
5. Nursance uoices defined and prohib . Under WAC 173 -60-060, counties have the
power to regulate noise from any source as a nuisance and that power is not pre-empted by the
state.l Our amendment reiterates that commercial shooting facilities are subject to the existing
Jefferson County regulations regarding public nuisances.
Our amendment leaves untouched the nuisance exemption for firearms discharge not associated
with a commercial shooting facility, such as hunters. It is necessary to treat the noise of commercial
shooting facilities differently than the noise from other shooters such as hunters because of the
high intensity and prolonged duration in a single location of the noise from commercial shooting
facilities. Hunters and other shooters, by contrast, are a welcome and dispersed part of rural life.
6. Military and law enforcement certification. Staffs draft ordinance allows military and
law enforcement units to conduct training at commercial shooting facilities.
The Tarboo Ridge Coalition opposes the amendment of the land use code outside the Planning
Commission process. We also oppose the redefinition of outdoor shooting ranges, regardless of
which amendment process is used. The current small-scale recreation and tourist use designation
is preferable, both in terms of land use and safety. Smaller ranges are inherently safer than ranges
of unlimited size, like those permitted under the staff s draft ordinance.
Our amendment keeps the current definition of outdoor shooting facilities, which precludes
military and police training. However, even though military and police training is already unlawful
under the current definition, we propose to incorporate a measure from the Kitsap ordinance: the
certification of gun ranges by military and police headquarters if any military or police training is
proposed. This certification requirement would take effect if the current definition of shooting
facilities is ever amended such that military and police training becomes possible at commercial
shooting facilities.
This certification requirement is necessary, because military and police training can involve more
intense shooting than other types of shooting sports. Training at an uncertified facility poses a
safety risk, because there is no way to verify that the specific training that will be conducted is safe
at that facility. As such, it is important that military and police units' headquarters confirm that a
commercial shooting facility meets the safety requirements particular to those organizations'
highly specialized types of shooting.
I Th" Court of Appeals has considered this very issue and confirmed that counties can regulate noise from
shooting ranges as a nuisance. Kitsap Countyv. Kitsap RiJle and Revolver Club, 184 Wn. App. 252,280,337 P.3d
328 (2014) (not the same case as the 2017 Kitsap County case cited earlier).
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7. Adoption of a 500-vard buffer zone around lakes. A buffer zone for lakes appears in the
Kitsap County ordinance and should appear in ours. The County staff recommended against
adopting this provision on the grounds that it is unnecessary, since the draft ordinance will orient
shooting ranges away from lakes; unreasonable, because duck hunters can shoot on lakes; and
likely to result in a costly legal challenge and expose the County to liability for property owners'
attomey's fees under RCW 64.40 and 42 U.S.C. 1983. None of these justifications is correct. The
County should adopt the buffer zone.
Orientation of shooting ranges alone will not protect lakes, contrary to the staff report. Bullets do
not always travel in a straight line; they ricochet.2 Nor does the presence of duck hunters on lakes
justify the presence of shooting ranges next to lakes, since duck hunters fire only occasional blasts
of short-range shotgun pellets, whereas gun ranges fire hundreds or thousands of rounds of long-
range rifle bullets. Given the much higher volume of more dangerous projectiles, a Kitsap County-
style lake buffer for shooting ranges is necessary and proper.
Nor is it the case, as the staff report argues, that RCW 64.40 or 42 U.S.C. 1983 create financial
liability for the County if the County adopts a lake buffer. RCW 64.40 applies only to land use
permits that have been denied in violation of the law. It does not apply to changes in the law itself
that occur outside the context of a permit application, as is the case with this ordinance. As for 42
U.S.C. 1983, it only applies when federal rights (here, presumably, Constitutional gun rights or
property rights) have been abridged. But the Kitsap ordinance with its lake buffer has already
survived a Constitutional challenge with regard to gun rights. Kitsap County v. Kitsap Rifle and
Revolver Club,l Wn. App.2d 393,418,405 P.3d 1026 (2017). As forproperty rights, an ordinance
aimed at "safeguard[ing] the public interest in health, safety, the environment, or the fiscal integrity
of the area" is not a Constitutional violation and does not give rise to a claim for damages or
compensation. Guimont v. Clarke,l2l Wn.2d 586, 603, 854 P.2d I (1993). The staff report's fears
are groundless.
8. Adoption of a 1.000-foot setback from oropertv line. A setback of 1,000 feet from the
property line to the nearest edge of any part of the shooting range is critical. It would be easy to
justiff a larger setback than this. As with the setback for lakes, the main issue here is bullet safety.
In addition, a 1,000-foot setback will mitigate (though hardly eliminate) noise impacts from a
commercial shooting facility.
Setbacks are a common feature of land use regulations, even for relatively innocuous land uses
like single-family houses. Imposing a setback on commercial shooting facilities is reasonable to
protect the safety ofpersons on neighboring properties and has the secondary benefit ofreducing
the uniquely noisy impacts of these facilities.
9. Commercial shooting facilities are not essential public facilities. An essential public
facility (EPF) is one that is necessary to serve the public welfare, such as airports, schools, in-
patient facilities, sanitation facilities, and transportation infrastructure such as highways and
2 Footage of tracer bullets ricocheting in various directions after impact:
https://www.youtube.com/watch?v:6ULBX8ut9AU; https://www.youtube.com/watch?v:2SUrl x4Vd74;
https://www.youtube.com/watch?v:UxCpgOkMY-l; https://www.youtube.com/watch?v:gZW9l9Ka2B0;
hffos ://www.youtube.com/watch?v:NHfG E-ks-8.
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airports. These facilities are exempt from most zoning laws, because they are "difficult to site" but
also provide services necessary for the public welfare. WAC 365-196-550.
A commercial shooting facility might be difficult to site, but it is not essential to the public welfare
of Jefferson County. There are plenty of gun ranges within reasonable driving distance at which
County law enforcement can train and civilians can shoot for fun. There is no basis for granting
any commercial shooting facility EPF status. There is no history in Jefferson County or any other
county or city in Washington State of granting EPF status to commercial shooting facilities.
Therefore, our draft ordinance includes a statement that commercial shooting facilities are not
EPFs, and thus are not exempt from zoning laws.
10. Commercial shooting facililies remain small-scale recreational tourist uses. The land
use code currently provides that all gun ranges must be small-scale recreational tourist uses. JCC
18.15.040, Table 3-1. We believe this is an appropriate designation for commercial s\ooting
facilities. Such facilities should be kept small, be aimed at recreational (as opposed to professional)
uses, and have a tourism (as opposed to training) focus. Our draft ordinance proposes retaining
this long-standing designation. And naturally, small-scale recreational tourist shooting facilities
must still comply with the new safety and land-use regulations proposed for shooting facilities.
We oppose any attempt in the County's draft ordinance to re-designate commercial shooting
facilities as something other than small-scale recreational tourist uses. Gun ranges in this county
have always been small-scale recreational tourist uses. There is no basis for changing that
designation. Recreational shooting will always be welcome in our county; sprawling training
facilities will not.
Thank you for your consideration ofthese concerns and proposals