Posted by: Patricia Salkin | February 10, 2014

OR Appeals Court Finds County Ordinance Requiring Conditional Use Permit to Operate Shooting Range Is Not Preempted by State Law

The Conradys own land that is zoned “T-C” for timber conservation and intended to operate a shooting range on the property. The county code allows for a “firearms training facility” as a conditional use in areas zoned for timber conservation, but the property owner must apply for the conditional use permit. The Conrady’s argued that they did not need to obtain a conditional use permit because the ordinance was void under state law. They relied on three statutes to support their position that the “county was preempted from requiring conditional use permits for shooting ranges.” The county disagreed with the Condrady’s preemption argument and maintained its position that a conditional use permit was required to operate a shooting range. The Conrady’s then filed an action to determine whether state law preempts the county from requiring a conditional use permit to discharge a firearm on rural property.

The first statute the Conrady’s relied on in support of their preemption argument was enacted in 1995 and states that the state is authorized to regulate, in relevant part, the use of firms, but not a local government, except if expressly authorized by the legislature. The second statute was also enacted in 1995 and provides that counties have the authority to regulate the discharge of firearms with the exception that the ordinance cannot apply to areas such as public or private shooting range. The third statute enacted in 1997 states that counties are permitted to enforce particular ordinances governing the discharge of firearms that were enacted prior to the previously mentioned statutes, but contains an exception for shooting ranges.

Delving deep into both the State House and Senate legislative history of the statutes, the court found that there was no concrete evidence as to one way or the other. Because the legislative history was so ambiguous, the court turned to the “relevant canons of construction to determine the meaning of the statute,” and assumed that the legislature did not intend such an unreasonable result as the one the Conrady’s were suggesting. The court found that state law did not preempt the ordinance, which required property owners to obtain a conditional use permit to operate a shooting range on their property. The ordinance was “not an ordinance regulating, restricting or prohibiting the discharge of firearms on a shooting range or in a shooting gallery or other area designed and built for the purpose of shooting,” and as such did not fall within the scope of preemption. Moreover, one of the state statutes contained a savings clause, which the court applied and subsequently affirmed the circuit court’s declaratory judgment.

Conrady v Lincoln County, 2013 WL 6665597 (OR App. 12/18/2013)

The opinion can be accesed at: http://www.publications.ojd.state.or.us/docs/A150995.pdf


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