Country Pond owns and operates a shooting range on 10.75 acres in Newton, New Hampshire. It began operation in 1962, before Newton had adopted its first zoning ordinance in 1973 and specific noise ordinances in 2005 and 2006. Sara Realty purchased a campground west of the shooting range in 1999. In 2001, Country Pond purchased a forty-acre lot between the shooting range and the campground. Country Pond received approval from the board of selectmen and began excavating and clearing the lot however, the approval was later revoked, pending site plan review. Sara Realty participated in the planning board proceedings because of concern over the loss of sound buffering trees between the two properties. The planning board retained sound specialists to help develop a noise mitigation plan and the excavation and site plan was approved in 2003 on the condition that Country Pond integrate certain noise mitigation measures. It was determined that Country Pond had met the noise mitigation measures, which was affirmed by Superior Court.
Although New Hampshire RSA 159-B bars noise related nuisance causes of action as long as the shooting range fulfills any applicable conditions and is conditioned upon “compliance with any noise control ordinance that was in existence at the time the range was established, constructed, or began operations,” the Court held that because there was no noise regulation present when Country Pond began its operation, the statute does not apply. The Court noted, however, in upholding summary judgment for Counry Pond, that since the trial court held that the planning board had reasonably determined that Country Pond had met the sound mitigation conditions, Sara Realty had waived their opportunity to challenge the original ruling in regards to RSA 676:15.
Sara Realty, LLC v. Country Pond Fish and Game Club, Inc., 2009 WL 940382 (N.H. 4/9/2009).
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2009/sara047.pdf
