Features — 03 June 2013


The Difference between Right and Wrong

Following the permit process can eliminate mistakes that may come back to bite you

The Difference between Right and WrongSmall-arms range owners and operators are focused on providing a quality shooting experience for customers and members. At the same time, many of those people running ranges are not familiar with the complex, and often intermingled, environmental laws. In addition, ranges are seeing sharp increases in use, and well-intentioned people are encountering barriers to range expansion and development, including environmental and permitting hurdles for both indoor and outdoor ranges.

Just follow ranges in the news. See the right sidebar of this website, for example, where you can see the day’s range-related headlines. Often, those articles demonstrate that public, environmental regulators and local government agencies have become more involved in the development plans of small-arms ranges. In many cases, the ranges have been around for decades, but as communities encroach on existing ranges their visibility increases. Some environmental political action groups are involved in local land-use planning and are quick to oppose both existing and proposed small-arms ranges.

Two primary types of laws link to range operations and development challenges. The first are environmental laws governing waste, water quality and contamination, which are primarily enforced by state governments. The second are project permits for land use, zoning and building standards, which are administered by local city, township and county governments.

Existing ranges typically encounter environmental regulations if a complaint is lodged. The complaint can come from a new neighbor calling state regulators or notification that someone intends to file a law suit.

Existing and new ranges invite regulators to review their operations and property by filing a building-permit application. The building-permit review process includes both land use and zoning review, and the local government often also wants information describing how the range operators will prevent environmental contamination, implement a range safety program, and potentially mitigate sound . Not surprisingly, outdoor ranges have more environmental and permitting challenges than do indoor ranges.

Environmental regulations and local land-use laws often include provisions for public comment. The nearby property owners may be notified of the range project or environmental concerns when a building-permit application is filed or by environmental regulators completing community right-to-know obligations.

A few examples are provided to demonstrate how existing ranges and proposed ranges have managed environmental and permitting issues. The actual name and location of the ranges are being withheld for their benefit. What you will discover is that failing to follow the permit process can come back to bite you.

 

Example 1 

 

At Range 1 a complaint was called into a local county official, stating a bullet had left the outdoor small-arms range and struck their property. After an investigation there was no direct evidence that the bullet originated from the range. The complaint gained interest of a local public official, however, who wanted additional investigation of the range.

The local official requested permission to inspect the range property, which was denied. The communication between the local official and the range was contentious, and the local official thought the range was trying to hide something. Because of the bad experiences in trying to communicate with the range, the local official requested support from other local, state and federal agencies. The local official became concerned about potential environmental impacts associated with lead, especially since wetlands and ponds existed on the range property.

The public official and regulators engaged local property owners and outside environmental groups. One environmental group filed a citizen law suit in federal court that implicated the range for contaminating wetlands and water with lead, a Clean Water Act violation.

The initial problems with the local official and Range 1 required a couple of years of poor communication to worsen into a larger problem. The county official reviewed the conditional use permit, which was more than 10 years old. Using aerial photographs he looked at changes to the range and determined the range had been modified without the operator obtaining a permit and was now out of compliance with the conditional use permit.

Compiling all of the complaints, with arguable facts, the local official filed legal documents with the county to have a judge make a decision to close the range. Range safety, environmental contamination, and unpermitted use and expansion were among the primary allegations made against Range 1. It took nearly a year for Range 1 to prepare for the court appearance. The range was not successful in court. However, the range was allowed to remain open while the case is being appealed.

 

Example 2 

 

Range 2 is located in a rural locale more than 10 miles outside of town. As a proposed range, it was to be constructed on land leased from the county, next to a landfill. The range developed detailed conceptual design drawings and a written development plan. The development plan included details regarding how the range would be used, hours of operation, types of firearms, competitions and design parameters. In addition, the development plan included law enforcement training requirements for 10 local jurisdictions, further demonstrating the need for this range in the community.

The development plan and the detailed conceptual drawings were promoted at public events (gun shows and Friends of the NRA dinners) to garner interest in the membership range, as well as a fund-raising tool. Range 2 brought documents to the county permitting office for a pre-application meeting, where they received preliminary feedback. The range used the input from the pre-application meeting to prepare engineering documents and permit applications.

Range 2 received the necessary approvals from the county and coordinating state agencies. It started construction by installing storm-water erosion and sediment control as prescribed by the best management practices (BMPs). Because of the size of the range, the project was inspected by state regulators to make sure the BMPs were properly installed and maintained, which they were deemed to be.

Range 2 is working cooperatively with the county to build the project in stages, opening the 100-yard range first and opening subsequent rifle and pistol ranges as money is raised for building materials. Range 2 continues to maintain BMPs, allowing construction to occur as resources are available.

The proactive communication with the county, law enforcement and other community stakeholders allowed Range 2 to answer questions in advance of the permit application. The building permit met all county engineering requirements, and the design incorporated environmental BMPs, which was of significant interest to the county.

 

Example 3 

 

Range 3 was proposed to be built on land owned by a local governmental agency. Range 3 used a similar permitting approach as Range 2, but local residents and environmental groups provided negative input about the project. Like many range projects, Range 3 was a nonconforming land use, requiring a variance. The variance process included an opportunity for written public comment and for a public hearing. The local agency received negative comments from neighbors regarding concerns of noise and of lead migrating off the range. In addition, because the range was being built on public land, the local agency wanted financial assurance money would be available to clean up the lead if the range was to close and that it would not be a burden to tax payers.

During the public meeting required for the nonconforming land-use variance, a couple of nearby property owners dominated the meeting with passionate statements. The local agency incorporated the neighbors’ concerns into a provision of the land-use variance, which focused on noise.

Range 3 reduced the hours of operations to minimize range sounds when the neighbors would be home. In addition, the range was required to conduct a sound study and to complete sound modeling to estimate sound at nearby residences. The results of the sound study and modeling were used to modify the range design to minimize sound from leaving the range.

To relieve the concern about burdening the local agency with the cost of cleanup, the membership club operating the range created an escrow account.

 

Conclusions 

 

The three ranges had varying experiences with local agencies, regulators and the public. One of the key elements affecting the outcome for the ranges was how they managed communication.

Ranges are treated like any other business by local agencies and regulators, including not-for-profit membership ranges. However, these agencies and regulators may not be used to working with operating or proposed ranges. This leads to more questions and may require submitting additional supporting information.

You can improve the image of your range with some easy educational moments. Develop a consistent positive message about your range, using words the public can easily understand. Take the time to educate your staff and business partners about how to describe what you do or will do at the range to the public and regulators. Educate local regulators and agency personnel about the actual risks of lead exposure, the plans the range is implementing or will implement to prevent lead exposure and how your program is successful or why it will be. By discussing how you manage environmental and other public range concerns, you will demonstrate you understand the issues and have addressed them.

For developing indoor ranges in urban areas, consider how much space is being used for retail space, storage and your office, compared to space for the range. More often than not the range space is a smaller part of the available space, so it can be much easier to get approval for your project as a retail store with an accessory firing range. Retail stores are allowed in many zoning definitions.

When an operational range receives a letter stating some group is intending to file suit, don’t panic. The intent-to-sue letter must be provided in advance of an actual law suit. It is, however, time to get busy. Make sure all of your records are in order. Find your insurance policies, which may be used to pay for litigation support. Make the effort to understand the root cause of the complaint. Legal counsel is strongly recommended. Communicate in a professional, business-like manner with the group intending to sue. You may be able to resolve the problem simply by providing factual information that demonstrates the suit is not supported.

The public and regulators are often influenced by the unknown, and educating local regulators and agency personnel often helps. Be prepared for interest from the community, both positive and negative.

 

Doing things by the book from the outset, simply stated, is the route you wish to take.

Myths & Facts 
Myth Fact
My friendship with elected officials will guarantee success. Agencies review all applications with no input from elected officials.
Everyone will like my range. The agency will be friendly, but may not like your range.
I don’t need an engineer. The agency will want to see professionally engineered, “wet-stamped” drawings.
It will be easy to get a permit because the local law enforcement wants to use my range. Local law enforcement does not review building permit applications and does not influence land use and zoning.

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