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Pendleton appeals ruling that it can't limit shooting hours at gun club

PENDLETON - The Town of Pendleton is getting free legal representation to fight a court ruling that it can't restrict the hours shooting is allowed at the Tonawandas Sportsmen's Club.

In a Sept. 7 ruling, Town Justice Kevin D. Mack threw out six citations the town's building inspectors lodged against the club for allowing shooting either too early in the morning or too late at night. The town has a law limiting shooting at gun clubs to the period between 10 a.m. and sunset.

Mack ruled that the sportsmen's club wasn't subject to the time limit rules because it's been in existence since 1943, and the town ordinance that limited the hours of operation at a rod and gun club wasn't enacted until 1994. As lawyers say, the club is "grandfathered."

There matters stood until attorney Roy A. Mura, who lives near the club, volunteered his services. Mura said when he's home, he can hear shooting from the club "loud and clear." He thinks Mack's ruling is incorrect.

Town Attorney Claude A. Joerg said Mura approached him and offered to handle an appeal of Mack's ruling "pro bono" - for free.

"I said OK," Joerg said, and Mura filed an appeal to Niagara County Court on Oct. 17. Judge Matthew J. Murphy III will hear the appeal, although no court date has been scheduled yet.

The town had cited the gun club for infractions occurring in 2015 on Oct. 21, Nov. 3, Dec. 23, 27 and 30, and Jan. 6. The shooting times ranged from 10 a.m. to 6:22 p.m.

Town prosecutor Edward P. Perlman, who argued the case before Mack, said the issue was whether the town's time limits were enforceable, because they were included in a 1994 town code amendment that required a shooting range to obtain a special use permit from the town.

No one contests that the Tonawanda Sportsmen's Club, in continuous operation for 73 years, doesn't need a special use permit to stay open.

"The town's position is that it can place reasonable restrictions on the hours," Perlman said. "The law is clear that the town can regulate noise under its police power."

"If they're trying to do that through the rod and gun club statute, it's not proper," contended Stacey J. Moar, attorney for the club. "We look forward to defending what we think is a great decision by Judge Mack."

Mura said he questions Mack's jurisdiction. "A justice court, which Pendleton is, doesn't have the authority to decide the enforceability or constitutionality of a town ordinance," Mura said.

Another question is whether the club's current unpopularity in some quarters contributed to the filing of the citations. Last year, the club sold National Fuel an option to buy some of its land as a site for the construction of two powerful compressors to push natural gas along expanded pipelines as part of a plan to export hydrofracked gas from McKean County, Pa., to Canada.

The project has provoked bitter opposition from many Pendleton residents, although the Federal Energy Regulatory Commission ruled in July that it found no significant environmental impact from the project, a decision that could foreshadow federal approval of the entire $455 million, four-county plan.

"After 21 years of not issuing any citations, the National Fuel transactions definitely entered into it," said Moar, the club's attorney. "Whether it's retribution or not, I wouldn't be willing to go that far."

"I don't think the town's motive is to pick on any one group," Councilman Todd Ostrowski said.

Perlman said work is continuing on a new town noise ordinance, which might improve the town's ability to limit the shooting hours.

Perlman presented Mack with a decision from the Appellate Division of State Supreme Court that said a town noise ordinance can be used to regulate a pre-existing gun club. However, Mack was more impressed by the argument that the club's operations are grandfathered, although he said the club still must obey the town's "quiet time" law, which bans unnecessary noise from 9 p.m. to 7 a.m.

Ostrowski said the Planning Board is working on a new version of the ordinance to replace one that drew overwhelming opposition at a crowded meeting in January. Ostrowski said he doesn't know when the draft will be ready for the Town Board's consideration.

"I think it won't be aimed at the Sportsmen's Club," he said. "If we got the right one, it would be a townwide solution."

 

email: tprohaska@buffnews.com

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