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HomeMy WebLinkAbout2019 10 15 Comment to Planning Commission TO: Jefferson County Planning Commission FROM: Bricklin and Newman LLP on behalf of the Tarboo Ridge Coalition DATE: October 15, 2019 RE: Proposed Gun Range Regulations The Tarboo Ridge Coalition submits this memorandum regarding proposed amendments to its gun range regulations. The Coalition urges the Planning Commission to recommend the same substantive regulations the Commission previously recommended in its November 19, 2018 report to the Board of County Commissioners. I. Description and Purpose of the Commission’s Recommendations In its November 19 report, the Planning Commission recommended the following substantive regulations: • Both commercial and non-commercial shooting facilities would continue to require a conditional use permit, as they have for many decades in Jefferson County. • All shooting facilities would continue to be small-scale, recreational and tourist uses, as they have for many decades in Jefferson County. This means the use of the facility must be “leisure or recreational in nature” and be of a size that “has minimal impacts on the surrounding area and which makes minimal demands on the surrounding infrastructure.” • Shooting at outdoor commercial shooting facilities would be allowed only during daylight hours. • Police, military, and paramilitary organizations would not be allowed to conduct unit training. Individual members of these organizations could shoot. • Commercial shooting facilities must provide a minimum 500-foot buffer around any lake greater than 20 acres in size. • All shooting ranges must be surrounded by a sixteen-foot-high, above-grade noise barrier berm or wall, plus an eight-foot fence. • No aircraft at may land at commercial shooting facilities, nor may anyone shoot from an aircraft. Public Comment of Tarboo Ridge Coalition Re: Proposed Gun Range Regulations October 15, 2019 2 A copy of the November 19 report is attached as Exhibit A to this comment. The Commission’s recommended regulations, summarized above, appear on the first and second-to-last pages of the report. All of these recommended regulations are aimed at the same goal: protection of public health, safety, morals, and general welfare.1 They accomplish this in multiple ways: • The requirement for a conditional use permit ensures that the facility will have minimal impacts on its environment and neighbors, and will remain consistent with the Comprehensive Plan. • Likewise, the requirement to keep shooting facilities small and recreational minimizes the impacts of noise, traffic, and lead, because smaller facilities produce fewer impacts. • The requirement to shoot only during daylight hour protects neighbors from unreasonable noise and reduces the risk of accidents. • The restriction against unit training minimizes environmental impacts and noise. • The lake buffer minimizes the transport of lead and copper (from expended bullets and casings) into the waters of the state. It also protects lake users from errant bullets and reduces noise impact on nesting birds and wildlife and preserves lakes as pleasant places for public recreation. • The sixteen-foot berm and eight-foot fence prevents bullets from exiting and trespassers from entering. • The prohibition against aircraft reduces noise and the risk of accidents. The Board of County Commissioners voted to reject the Planning Commission’s November 19 recommendations. We urge the Planning Commission to re-adopt the recommendations and include in its report to the Board a reminder that these recommended regulations are constitutional, reasonable, and necessary to protect public health, safety, and the general welfare. Beyond the recommendations above, all of which were previously adopted by the Planning Commission, we also urge the Commission to prohibit overnight accommodations at shooting facilities. Prohibiting overnight guests will increase the security of shooting facilities, reduce noise and traffic, and make it easier for law enforcement to detect unauthorized residential uses. We also urge the Planning Commission to set a maximum number of firing points allowed at shooting facilities. This is consistent with the Commission’s previous recommendation to keep shooting facilities small and recreational in nature. We recommend a maximum of ten firing points. An objective (numerical) limit will provide clarity and certainty, making it easier for the applicant to comply. 1 Under Washington law, a zoning ordinance is constitutional and will be upheld if the ordinance has a substantial relation to the “public health, safety, morals, or general welfare.” Davidson Serles & Assoc. v. City of Kirkland, 150 Wn. App. 616, 638, n. 14, 246 P.3d 822 (2011); City of University Place v. McGuire, 144 Wn.2d 640, 648, 30 P.3d 453 (2001); Duckworth v. City of Bonney Lake, 91 Wn.2d 19, 26, 586 P.2d 860 (1978). Public Comment of Tarboo Ridge Coalition Re: Proposed Gun Range Regulations October 15, 2019 3 As a final protective measure, we urge the Planning Commission to recommend that shooting facilities be limited to one shooting range per parcel, as was the case for many decades under the County’s previous gun range regulations. Again, the purpose of this limitation is to minimize the noise, environmental, and traffic impacts, and to prevent shoot facilities from having multiple, sprawling gun ranges that would interfere with commercial forestry. Protection of commercial forestry is a requirement of the Growth Management Act and the County Comprehensive Plan. II. Constitutionality of the Proposed Regulations The proposed gun range regulations do not violate the Second Amendment right to bear arms or the Washington State equivalent. The proposed gun range regulations do not unfairly single out any one property or person. A. The Proposed Regulations Do Not Infringe on the Right to Bear Arms. The most recent federal appellate case to address the constitutionality of gun range regulations is Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). In that case, the City of Chicago adopted ordinances that A) required gun owners to complete training on gun ranges as a prerequisite to gun ownership; and B) banned all shooting ranges from Chicago city limits. The Seventh Circuit held that these ordinances operated together to create a functional ban on gun ownership in Chicago, an infringement of the right to bear arms. These proposed regulations are nothing like the Chicago regulations. First, the proposed regulations do not prohibit gun ranges in Jefferson County. Second, the proposed regulations do not require any gun owner to train at a gun range who does not want to. Thus, the proposed regulations, unlike the Chicago regulations, do not infringe on the right to bear arms. The state courts have upheld gun range regulations similar to these, most recently in Kitsap County v. Kitsap Rifle and Revolver Club, 1 Wn. App. 2d 393 (2017). The Kitsap court rejected a right- to-bear-arms challenge and upheld Kitsap County’s prohibition on night shooting, prohibition on unit training, parcel-size limitations, lake and wetland buffers, bullet-containment measures, and noise-control measures. These proposed regulations are deliberately written to be similar to the regulations from the Kitsap case. It is not the case that gun ranges are somehow exempt from “bright-line” rules. As the Kitsap case shows, bright-line regulations for gun ranges are well within the County’s powers. In fact, bright- line regulations can be very effective in providing clarity to the property owners and gun users, and to protect health, safety, and the general welfare. B. The Proposed Regulations Do Not Single Out Any One Property or Person. Equal protection means laws must apply equally to all persons and properties similarly situated. However, different classes of persons and properties may be treated differently. For example, gun ranges may be regulated differently than other land uses. As the Eighth Circuit put it, there is an Public Comment of Tarboo Ridge Coalition Re: Proposed Gun Range Regulations October 15, 2019 4 “obvious difference in implications for public safety between gun shops and other retail establishments” and “the implications for public safety warrant regulating and zoning firearms dealerships differently than other retail establishments and gun shows.”2 Of course, it is impermissible to adopt a regulation that essentially creates a class of one person or property, and then treat that so-called “class of one” differently. However, so long as all members of a particular class are subject to the same regulation as all the other members of that class, then there is no “class of one” violation, even if the burden of a regulation falls more heavily on some class members than others. For example, the Ninth Circuit upheld an ordinance prohibiting gun stores within 500 feet of residences, even though a gun store owner complained that the ordinance created a “class of one” with only his gun store affected.3 Because all gun stores were equally subject to the ordinance, there was no “class of one” violation, even if some gun stores were affected by the 500-foot-rule while others were not. These proposed regulations apply countywide to all gun ranges. All gun range operators are equally subject to the regulations. The regulations do not designate one particular parcel, one particular person, one particular lake, or one particular anything that would, alone, be subject to these regulations. Therefore, there is no “class of one” violation. III. Conclusion The Commission got gun range regulation right in November 2018. Its recommendations were constitutional, reasonable, and necessary. We urge the Commission to re-submit its recommendations and to supplement them with the additional items listed above. 2 Koscielski v. City of Minneapolis, 435 F.3d 898 (8th Cir. 2006). 3 Texeira v. County of Alameda, 822 F.3d 1047 (9th Cit. 2016).