Clay target range weathers legal challenge

An opinion was issued Monday in an appeal challenging the Wadena County Board's conditional use permit (CUP) for the Park Rapids Clay Dusters' shooting range.

Opposing the CUP were Randy and Tami Wenthold, owners of nearby Went North LLC, a bed and corral business catering to horse trail riders.

In an unpublished opinion on behalf of a three-judge panel with the Minnesota Court of Appeals, Judge Tracy M. Smith upheld the Clay Dusters' CUP.

According to Minnesota Statutes Section 480A.08 (2018), unpublished opinions of the court of appeals do not set legal precedent, and there are restrictions on how they can be cited in subsequent cases.

History of the case

According to the facts stated in Smith's opinion, the issue started with the Clay Dusters being gifted 40 acres of unproductive farmland bounded on three sides by the Huntersville State Forest, and on the north by farmland owned by the donor of the property. Previous coverage identifies the donor as R.D. Offutt Co.

In February 2018, the Clay Dusters applied for a CUP to build and operate a shooting range for high school clay target leagues, firearm training and safety courses and public use. The application included a noise assessment based on computer modeling of how sound would travel around the property.

In March 2018, the Wadena County Planning Commission heard testimony from community members at a public hearing about the Clay Dusters' CUP request. In their findings of fact, the planning commission found that the application failed to satisfy three of seven requirements for a CUP by depreciating and impeding development of nearby properties and not doing enough to control noise. The request was tabled to allow further study.

During a subsequent site visit, planning commission members observed the effect of gunfire on the property. They had a second public hearing, after which they reversed two of their negative findings but still found that not enough was being done to prevent offensive noise.

Nevertheless, they approved the CUP with conditions limiting the gun range's hours, limiting the types of firearms used, prohibiting shooting during horse-riding events, prohibiting anyone under 18 from shooting a handgun, requiring a safety officer to be on site whenever the range was open and requiring incidents to be reported to the sheriff's office.

When the permit came before the Wadena County Board last April, county staff recommended as an additional condition that a buffer of three or four rows of trees be planted around the perimeter of the shooting range to absorb noise.

Following the county board's approval of the CUP, the Wentholds appealed, arguing that the shooting range is not a conditional use in the A-2 "mixed agriculture-forestry" zoning district, and that the county board acted arbitrarily or capriciously by finding that adequate measures would be taken to control the offensive noise and the environmental harm caused by shotfall.

The appeals court concluded that the Wadena County Board did not act arbitrarily or capriciously by permitting the shooting range as a conditional use. Nor, Smith wrote, was it unreasonable for the county board to find that the shooting range will not injure the use or enjoyment of nearby property.

Shooting range a conditional use

According to the opinion, the Wentholds argued that the clause of the county zoning ordinance cited by the county board to permit the shooting range, referring to uses "not listed," means the use cannot be listed anywhere in the ordinance. However, shooting ranges are listed as a conditional use in a recreational district.

The panel found that the meaning of "not listed" is ambiguous in the ordinance. Based on the customary reading of zoning ordinances, they preferred the interpretation "not listed in that section of the ordinance" as less restrictive.

The Wentholds also argued that using the "not listed" clause as a catchall would give the county unbridled discretion, and that a lack of clear standards for granting or denying a CUP made the county's decision "vulnerable to a finding of arbitrariness."

The judges said they did not have jurisdiction over these points.

Shotfall on adjoining property

Regarding shotfall entering the Huntersville State Forest, the appeal cited the National Rifle Association's "Range Source Book," which the state Shooting Range Protection Act calls the basis of "best practices for shooting range performance standards."

The Wentholds argued that the county failed to address the fact that the shooting range fell short of "Range Source Book" standards by allowing its shotfall zone to encroach on neighboring DNR forestry land.

Smith wrote that the county is not responsible to enforce the Shooting Range Protection Act; that the county did address shotfall, finding that the state forest will not be impacted by occasional shotfall; and that the "Range Source Book" does not include shotfall zones based on the club's rules for shooting, which could limit how much shotfall enters the forest.

The Wentholds also called it unreasonable for the county board to rely on a letter from the DNR supporting the shooting range and agreeing to accommodate shotfall in the forest. The Wentholds said this would (first) expose public land to live ammunition and (second) expose the DNR to federal environmental liability.

The judges found the first argument invalid because the DNR already permits recreational shooting on state forest land. The second argument failed because it was based on precedents that do not apply here.

Noise control

Regarding noise from the shooting range, the Wentholds argued that the county disregarded state law by finding that the shooting range would take adequate steps to control noise.

Specifically, they argued that the county's noise study did not comply with Minnesota Statutes section 87A.05 "Noise Standards" as to how noise is measured and what noise levels are permitted on surrounding properties.

The judges acknowledged that the county's noise study did not follow section 87A.05. However, they denied that the county must deny a permit for a shooting range if the noise exceeds 87A.05 standards.

While a CUP requires that steps will be taken to prevent noise from becoming a nuisance, the judges said the law does not define noise exceeding 87A.05 levels as a nuisance.

While compliance with Chapter 87A's provisions "immunizes a shooting range operator from liability for nuisance," they said, "that provision does not define noncompliance to be a nuisance per se."

Finally, the judges found that the county documented a reasonable factual basis for its decision regarding noise levels.

Although section 87A.05 does not dictate the standards a county must follow, they said, the study predicted noise levels in some areas that would be within the section's standards, and the county could reasonably conclude that noise exceeding those standards in other areas will not be a nuisance.

Also, based on evidence from its site visit, the county imposed a condition to plant trees around the property to absorb noise. Therefore, the judges concluded, the county did not act arbitrarily or capriciously by approving the CUP.