1. In cases where a county noise ordinance exempts shooting ranges, do the 2017 amendments to W.Va. Code 61-2-23 effectively eliminate any nuisance claim against a shooting range?
2. Can the 2017 amendments to W.Va. Code 61-2-23 be applied retroactively to pending litigation?
In 1976, Petitioners purchased a home in rural Winchester, Virginia, where they lived for over 40 years until retirement. In 2011, Respondent opened a shooting range on an adjoining property which is advertised as “the largest shooting sports complex on the east coast.” During public hearings before the Berkeley County planning commission, it was represented that Respondent would operate at hours that were sensitive to the concerns of neighbors and that noise levels would not exceed 65 decibels. After opening, however, Respondent extended its hours of operation, hosting events as late as 11:30 p.m. Furthermore, Petitioners allege that noise levels at their home were as high as 94 decibels.
On September 21, 2015, Petitioners filed a nuisance suit in Berkeley County. Primarily, Petitioners sought injunctive relief to enforce the operating hours and noise levels as they were presented to the planning commission. Alternatively, they sought damages.
Respondent moved to dismiss, citing the 2017 amendments to W.Va. Code 61-2-23 addressing shooting ranges. Under the amendments, a shooting range is not subject to common law nuisance claims if it is “operating in compliance with all ordinances relating to noise in effect at the time the construction or operation of the shooting range began, whichever occurred earlier in time.” Because the Berkeley County noise ordinance exempts shooting ranges, the trial court concluded that Respondent was, in fact, “operating in a manner consistent with the local noise ordinance.” The amendments could be applied retroactively because Petitioners did not have any vested rights. Petitioners’ claims were dismissed and they appealed.
Petitioners argue that the 2017 amendments were not intended to “eliminate all noise standards for shooting ranges in counties where noise ordinances exempt shooting ranges.” Instead, the goal of the amendments was to “establish an either/or proposition: Either a shooting range must comply with the common law of nuisance or the shooting range must comply with a noise ordinance. It does not eliminate these protections for property owners.” Here, the Berkeley County ordinance did not address the noise levels for shooting ranges. Therefore, Respondent’s operations remain subject to the common law of nuisance.
Even if the trial court’s interpretation of the amendments is correct, applying them retroactively to Petitioners would be unconstitutional. The due process clause guarantees that no vested property rights can be taken by means of retroactive legislation. Under Gibsons v. West Virginia Dep’t of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991), “an accrued cause of action is a vested property right and is protected by the guarantee of due process.” Accordingly, Petitioner’s nuisance claims remain viable.
Respondent attacks Petitioners’ interpretation of the 2017 amendments as “strained” and “nonsensical.” According to Respondent, issues of local land use planning should be decided locally--a key aspect of the amendment’s language. Berkeley County exercised its land use planning power by enacting a noise ordinance that specifically exempts shooting ranges. Under W.Va. Code 61-2-23, as amended, shooting ranges are required to operate “in compliance with all [noise] ordinances.” Respondent asks: “If a shooting range is specifically exempt from a local noise ordinance, how could it possibly be in noncompliance?” Respondent cites cases from Georgia and New Hampshire, which, it says, support this same interpretation.
Regarding the retroactivity issue, Respondent argues that the only claims pled by Petitioners in their complaint were for injunctive relief--claims that are not vested and, therefore, are not entitled to due process protection. Furthermore, under Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 351 (1991), the Supreme Court should presume the constitutionality of the 2017 amendments.
This case presents interesting questions of statutory interpretation and retroactivity. As Justice Oliver Wendell Holmes famously observed, “hard cases make bad law” because the “feelings” of the parties, the judges and the public at large can “distort the judgment.” Clearly, this case has a gun rights overlay to it. Hopefully, the important questions presented by this appeal will not be overshadowed by that hot-button issue.