Greater Pittsburgh Gun Club Gets Preliminary Injunction Against Enforcement of Zoning Ordinance

From Drummond v. Robinson Township, decided yesterday by Judge  Marilyn Horan (W.D. Pa.), following up on the Third Circuit's earlier decision in this case:

Findings of Fact

[1.] The subject property …, known largely as the "Greater Pittsburgh Gun Club" (GPGC), operated as a commercial gun club, with certain gaps in operation, from the mid-1960's until January 2018. The Property consists of approximately 265 acres situated in Robinson Township, Washington County, Pennsylvania.

[2.] Historically, GPGC operated as a commercial gun club and shooting range. It consisted of a clubhouse and restaurant, as well as the living quarters of its manager and the manager's family, four trap ranges, three skeet ranges, a 26-yard pistol range, a 100-yard rifle-sighting range, and a 400-yard rifle range. It sold memberships, range time, firearms, ammunition, targets, food and beverage, and provided firearm training and safety courses to the public. The GPGC had  as many as 800 members at any one time but did not require a membership to shoot on its property. Patrons who did not own their firearms, or who wished to try out different firearms, could rent firearms at the range. In addition to members and civilian patrons, police and military personnel used the range for training. At its range, GPGC allowed the use of pistols, shotguns, and center-fire rifles up to .50 caliber.

[3.] On December 17, 2017, William Drummond entered into a lease with his uncle, Joseph Donald Freund, Jr., for the 265-acre parcel located at 920 King Road in Robinson Township "for purposes of operating a gun club, the retail sale of firearms, and operating a shooting range."

[4.] Mr. Drummond planned for the gun range to be managed by GPGC and to sell memberships, range time, firearms, ammunition, targets, food and beverage, and to offer firearm training and safety courses to the public.

[5.] Mr. Drummond intended for the gun range to permit patrons "to shoot ordinary firearms of the kind in common use for traditional lawful purposes, including pistols, shotguns, and center-fire rifles up to .50 caliber."

[6.] At all times material hereto, the property was zoned as an Interchange Business Development (IBD) district.

[7.] Prior to April 9, 2018, Robinson Township Zoning Ordinance specified that "Sportsman's Clubs" were a permitted use within IBD districts, but the Ordinance did not define a "Sportsman's Club."

[8.] On February 19, 2018, the Township Board of Supervisors approved Resolution 08-2018, which authorized the Board to begin the process to amend the Zoning Ordinance, as it related to Sportsman's Clubs.

[8.] On March 15, 2018, Mr. Drummond submitted an Application for Zoning Permit, representing to the Township that he intended to operate a Sportsman's Club on the premises.

[9.] On April 9, 2018, the Board of Supervisors enacted Ordinance 01-2018, to amend the Township's Zoning Ordinance in three respects:

[a.] A definition of "Sportsman's Club" was added to Section 601 of the Zoning Ordinance, which provided that a "Sportsman's Club" is "[a] nonprofit entity formed for conservation of wildlife or game, and to provide members with opportunities for hunting, fishing, or shooting."

[b.] Paragraph D was added to Section 311  of the Zoning Ordinance, regulating "Sportsman's Clubs," which provided that "[o]utdoor shooting activities shall be limited to pistol range, skeet shoot, trap and skeet, and rim-fire rifles;" and

[c.] "Section 208, Table 208(A) IBD Interchange Business Development District Table of Allowed Uses shall be amended to reflect the zoning change set forth herein. Specifically, a Sportsman's Club shall no longer be allowed as a Permitted Use in an IBD Interchange Business Development District, and shall instead only be allowed as a Conditional Use in an IBD Interchange Business Development District."

[10.] The Township Board of Supervisors' stated purpose for the amendment was "to avoid nuisances and provide for and protect the public health, safety and welfare for the residents within the geographic limits of the Township."

[11.] On April 13, 2018, Mr. Drummond received notice that his Application for Zoning Permit had been denied, as his application did not indicate that the GPGC was organized as a not-for profit entity….

Conclusions of Law …

[4.] The right to bear arms "implies something more  than mere keeping; it implies the learning to handle and use them;  … it implies the right to meet for voluntary discipline in arms." D.C. v. Heller (2008).

[5.] … Sections 311(D), 601, and 208, Table 208A implicate the right of GPGC's customers to acquire firearms and maintain proficiency in their use….

[6.] As regards the appropriate means-ends scrutiny, when a law limits one's ability to defend oneself at home by banning "arms in common use" at the time of the founding, such law triggers strict scrutiny. When a law limits other uses of firearms, or defense that takes places in public, the law triggers intermediate scrutiny. Generally, most purchase and practice restrictions trigger intermediate scrutiny.

[7.] Although the courts owe "substantial deference" to local zoning decisions, restrictions on rights guaranteed by the Second Amendment rights must still satisfy intermediate scrutiny.

[8.] It is the government's burden to prove  that the challenged regulation satisfies intermediate scrutiny.

[9.] Although Sections 311(D), 601, and 208, Table 208A do not burden the core Second Amendment conduct of the right to bear arms in the home, they still infringe upon the GPGC's customers' ancillary Second Amendment rights to acquire firearms and maintain proficiency in their use, such regulations trigger intermediate scrutiny.

[10.] "To survive intermediate scrutiny, a law must clear two hurdles. First, it must serve a 'significant, substantial, or important' government interest.' Second, 'the fit between the asserted interest and the challenged law must be 'reasonable' and 'may not burden more conduct than is reasonably necessary.'"

[11.] Although the health, safety, and welfare are substantial government interests, the Township must provide some evidence of how the amendments to the Zoning Ordinance serve those substantial government interests. The government must "persuade us that 'the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.'"

[12.]  At this stage and for purposes of the Motion for Preliminary Injunction, the Township has not provided evidence that the challenged Ordinance provisions, Sections 311(D), 601, and 208, Table 208A, in fact serve the asserted government interests of health, safety, and welfare….

[14.] At this stage, and for purposes of the Motion for Preliminary Injunction, the Township has not provided evidence to establish a fit between the Ordinance provisions, Sections 311(D), 601, and 208, Table 208A, and the substantial government interest of health, safety, and welfare, and the Township does not explain why it eschewed more targeted alternatives….

Order

Based on the foregoing findings of fact and conclusions of law, Plaintiffs' Preliminary Injunction is hereby GRANTED as follows:

Defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction are enjoined from enforcing Robinson Township Zoning Ordinance Sections 311(D), 601, and 208, Table 208(A)….