Paul Kramer, Stroudsburg, for Appellant.
Neil L. Albert, Ephrata, for Appellee.
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge (P.), HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY PRESIDENT JUDGE BROBSON
Jonathan Barris (Barris) appeals from an order of the Court of Common Pleas of Monroe County (trial court), dated May 26, 2020, which granted summary judgment in favor of Stroud Township (Township) and against Barris. In this action, Barris challenges the constitutionality of the Township's Ordinance No. 9-2011 (Ordinance), regulating the discharge of firearms within the Township. For the reasons set forth below, we now reverse the trial court's grant of summary judgment.
I. BACKGROUND
Barris is the owner of a 4.66-acre tract of land in the Township, located at 7335 Pioneer Lane in Stroudsburg, Monroe County, Pennsylvania. In 2011, the Township enacted the Ordinance, which provides, in pertinent part, as follows:
Section 1: Intent and Purpose.
Due to the density of the population in the Township of Stroud, it is necessary that the discharging of firearms be regulated for the protection of the public health and safety and general welfare of the residents, property owners, visitors and others within Stroud Township, and that the unauthorized discharge of firearms be prohibited.1 ....
Section 3: Firing or discharge restricted.
It shall be unlawful to fire or discharge any firearm within the Township ... except as provided in Section 4 Exceptions below.
Section 4: Exceptions.
Exceptions to this Ordinance are as follows, however, in no case shall a firearm be discharged before dawn or after dusk and/or within 150 yards of an adjacent occupied structure, camp or farm, except as provided under paragraphs A., B., indoor facilities under D., and E. below:
A. The use of firearms is permitted when employed by any duly appointed law enforcement officer in the course of his or her official duty.
B. The use of firearms is permitted when necessary as authorized under state and/or federal laws.
C. The use of firearms is permitted when hunting ....
D. The discharging of firearms shall be allowed on indoor or outdoor shooting ranges pursuant to applicable provisions of the Stroud Township Zoning Ordinance, as may be amended, under the supervision of the owner or occupant of that property or his or her duly appointed representative, provided that:
1. All shooting ranges shall be constructed and operated in a safe and prudent manner. If standards, regulations and/or recommended procedures for operation are established or promulgated by any recognized body, such as the National Rifle Association or the American Trap Shooting Association, then such standards, regulations and/or procedures shall be adhered to.
2. Such range is issued zoning and occupancy permits by the township zoning officer, whichpermits shall specify the area or areas designated for shooting range purposes.
E. Farmers engaged in "normal agricultural operation" protecting their "agricultural commodity" from animal predators ....
F. Members of any organization incorporated under laws of this Commonwealth engaged in target shooting upon the grounds or property belonging to or under the control of such organization or affiliated club, such as the Pennsylvania Federation of Sportsmen's Clubs, Inc.
Section 5: Improper use prohibited.
The careless, reckless or improper use of any firearm tending to imperil or cause danger or harm to personal security or to endanger the property of any person within the Township ... is prohibited.
....
Section 7: Violations and penalties.
Any person or persons discharging a firearm in violation of any of the provisions of this ordinance shall be subject to a fine of not more than six hundred dollars ($600.) plus court costs, including reasonable attorney fees. If the defendant neither pays nor timely appeals the judgment, the [T]ownship may enforce the judgment pursuant to the applicable rules of civil procedure. Each day's continued violation shall constitute a separate offense. In default in the payment of any fine imposed hereunder, the defendant shall be sentenced to undergo imprisonment for a period not exceeding thirty (30) days. ...
(Reproduced Record (R.R.) at 12-14 (footnote added) (emphasis added).)
Barris submitted a zoning permit application for a proposed shooting range on his property on December 27, 2012. (R.R. at 47-54.) Relying on the Ordinance and provisions of the Township's Zoning Ordinance (Zoning Ordinance), a Township zoning officer denied the application on January 23, 2013, for the following reasons:
Section 4.200 [of the Zoning Ordinance]—Types of Uses & Schedule I—Regulations Governing the Use of Land provides that "shooting range (indoor, outdoor) (7997)" is allowable only as O-1 Open Space and Preservation Zoning District, and S-1 Special and Recreational Zoning District.
The above[-]referenced property, which is located in an R-1 Low Density Residential Zoning District, is not located in [an] O-1 or an S-1 Zoning District. The proposed use, therefore, is not permitted.
Also Zoning Ordinance Section 5.386 contains specific standards for "shooting ranges," which includes a minimum parcel size of five (5) acres for a shooting range use. The above[-]referenced property does not qualify additionally for that reason.
Ordinance 9-2011—Regulation for Discharging Firearms—Section 4 regulates the discharging of firearms within the Township. Section 4 of this Ordinance is entitled "exceptions, ..." [and] it ... provide[s] that "in no case shall a firearm be discharged ... within 150 yards of an adjacent occupied structure. ..."
The proposed shooting range does not meet the setback requirement from the occupied dwelling structure on the above referenced property.
Ordinance 9-2011—Regulation for Discharging Firearms—Section 4(D)(1) provides that all shooting ranges must comply with the standards and regulations promulgated by either the National Rifle Association or the American Trap Shooting Association.
The Zoning Application submission did not include standards and regulations specific to the firearms to be discharged.
(Original Record (O.R.), Item No. 70 at 3, Trial Ct. Op. 5/26/20 at 3 (citing Zoning Officer Denial Letter, dated January 23, 2013)). Barris did not appeal the denial to the Township's Zoning Hearing Board to review the determination of the Hearing Officer. (Id .)
Instead, Barris filed a complaint (Complaint) in the trial court in September 2015, seeking declaratory and injunctive relief against the Township and claiming that the Ordinance effectively prohibited him from using a portion of his property within the Township as a private shooting range. (O.R., Item No. 4, Complaint ¶¶ 34-61.) The Complaint claimed that the Ordinance: (1) violates the Second Amendment to the United States Constitution;2 (2) violates Article I, Section 21 of the Pennsylvania Constitution ;3 (3) is preempted by Section 6120 of the Pennsylvania Uniform Firearms Act of 1995 (Firearms Act), 18 Pa. C.S. § 6120 ;4 and (4) is preempted by Sections 1 and 2 of what is commonly referred to as the range protection statutes, Act of June 2, 1998, P.L. 452, as amended , 35 P.S. §§ 4501 - 4502.5 (O.R., Item No. 4, Complaint ¶¶ 5-29, 62-123.) In response, the Township filed preliminary objections in the nature of a demurrer—i.e. , challenging the legal sufficiency of the Complaint.
The trial court sustained the Township's preliminary objections and dismissed Barris's Complaint in its entirety. The trial court concluded that the Ordinance was not preempted by the Firearms Act, because the Ordinance regulates only the "discharge" of firearms within the Township, which the trial court concluded was a subject omitted from the scope of the Firearms Act. The trial court also concluded that the Ordinance was not preempted under Pennsylvania's range protection statutes because those statutes only protect owners of ranges from civil actions or criminal prosecutions relating to noise, noise pollution, and nuisance. Given that the Ordinance does not purport to regulate noise, noise pollution, or nuisance, the trial court concluded that it was not in conflict with the range protection statutes and dismissed the claims.
The trial court, in dismissing Barris's state and federal constitutional claims, opined that neither the Second Amendment nor the Pennsylvania Constitution have been construed "to grant an individual the right to discharge a firearm whenever he or she pleases." (O.R., Item No. 16 at 20.) Similarly, the trial court opined that because the Ordinance regulates the discharge of firearms for the safety of individuals within the Township and Barris's "firearms are not being taken away from him," the Ordinance passes muster under District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ( Heller ), wherein the United States Supreme Court held that a handgun ban violated the rights conferred by the Second Amendment. To the extent Barris contends that the Ordinance restricts his ability to defend himself in his home, the trial court dismissed the claim and noted that the Ordinance expressly allows discharge of firearms for self-defense as authorized under Pennsylvania law.
Barris appealed the decision to this Court, arguing, in part, that the trial court should have afforded him the opportunity to amend his Complaint, rather than dismiss it with prejudice. In Jonathan Barris v. Stroud Township , 2017 WL 5505510 (Pa. Cmwlth., No. 218 C.D. 2016, filed November 17, 2017) (en banc) ( Barris I ), we affirmed the trial court's dismissal of Barris's claims alleging violations of the Firearms Act and the Pennsylvania range protection statutes. We vacated the trial court's order as it related to Barris's constitutional challenge to the...
