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Conrady v. Lincoln County

Court of Appeals of Oregon

December 18, 2013

GERALD ALEX CONRADY, Plaintiff-Appellant,
v.
LINCOLN COUNTY, Defendant-Respondent. and KATHY ANN CONRADY, Plaintiff,

Argued and submitted on June 06, 2013.

Lincoln County Circuit Court, No. 111143 Charles P. Littlehales, Judge.

Russell L. Baldwin argued the cause and filed the briefs for appellant.

Kristin H. Yuille argued the cause and filed the brief for respondent.

Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Armstrong, Judge.

DUNCAN, P. J.

Under Lincoln County's zoning regulations, a "firearms training facility" is allowed as a conditional use within areas zoned for timber conservation, and a property owner who wishes to establish a firearms training facility in such an area must apply for a conditional use permit. The question in this case is whether that permit requirement is preempted under state law--more specifically, under ORS 166.170, ORS 166.171, and ORS 166.176, three statutes that concern preemption of local firearms regulation. The circuit court issued a declaratory judgment ruling that the county's ordinance was not preempted. For the reasons that follow, we agree and affirm the judgment of the circuit court.

I. BACKGROUND

For purposes of this appeal, the relevant background facts are not in dispute. Plaintiffs own real property in Lincoln County that is zoned for timber conservation (T-C), and they intended to operate a shooting range on that property.[1] The county insisted that, in order to operate a shooting range lawfully, plaintiffs first had to obtain a conditional use permit for a "firearms training facility, " as required by county code. The relevant ordinance, Lincoln County Code (LCC) 1.1375(2)(m), was enacted in 1994 and provides:

"(2) Conditional Uses Permitted
"The following uses may be permitted [in a T-C zone] subject to provisions of subsection (3) of this section and applicable provisions of LLC 1.1401 to 1.1499, 1.1501 to 1.1599, 1.1601 to 1.1699, and 1.1901 to 1.1999:
"* * * * *
"(m) Firearms training facility."

LCC 1.1601, in turn, provides that the "[l]ocation and operation of designated conditional uses shall be subject to review and authorized only by issuance of a Conditional Use Permit, " and LCC 1.1605 to 1.1630 set forth additional standards and procedures for obtaining a conditional use permit.

Plaintiffs took the position that LCC 1.1375(2)(m) was void under state law and that the county could not lawfully require them to obtain a conditional use permit prior to using the property as a shooting range. To support their position, plaintiffs relied on three statutes that, in their view, established that the county was preempted from requiring conditional use permits for shooting ranges. As detailed below, the first of those statutes, ORS 166.170, was enacted in 1995 and sets forth a general rule that the state--and not a local government--is authorized to regulate the sale, acquisition, transfer, ownership, possession, storage, transportation, or use of firearms, except when expressly authorized by the legislature. The second statute, ORS 166.171, was enacted at the same time and provides express authority for counties to regulate the discharge of firearms within their boundaries, but that authority is subject to exceptions--notably, an exception that preempts counties from applying their ordinances to "[a] person discharging a firearm on a public or private shooting range, shooting gallery or other area designed and built for the purpose of target shooting." ORS 166.171(2)(d). The third statute, ORS 166.176, was enacted two years later and, generally speaking, allows counties to enforce certain ordinances related to the discharge of firearms that were adopted before the earlier statutes, ORS 166.170 and ORS 166.171, went into effect. However, ORS 166.176 also includes an exception concerning shooting ranges. ORS 166.176(2) ("Subsection (1) of this section does not apply to * * * [o]rdinances 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 target shooting.").

The county disagreed with plaintiffs' reading of those preemption statutes, particularly with regard to the scope of the shooting-range exceptions in ORS 166.171(2)(d) and ORS 166.176(2), and adhered to its position that the permit requirement in LCC 1.1375(2)(m) was valid. Eventually, plaintiffs filed this action to resolve the parties' dispute regarding the effect of ORS 166.170, ORS 166.171, and ORS 166.176. Their complaint requested a declaration "that [the county] is preempted by state law from requiring plaintiffs to have a conditional use permit prior to lawfully discharging firearms on plaintiffs' rural property."

The parties essentially agreed that the preemption question could be decided as a matter of law, and plaintiffs and the county each filed a motion for summary judgment. Plaintiffs, for their part, argued that the preemption statutes demonstrated clear legislative intent to exempt shooting ranges from all county regulation. The county, on the other hand, argued that, although the shooting-range exceptions in the preemption statutes limit the county's ability to regulate what happens on an established shooting range, the county still has the authority to decide whether to ...


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