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ZBA: Law enforcement training not recreational use

Town attorney Michael Smith, center, reads the Zoning Board of Appeals’ interpretation. The zoning board determined that law enforcement training is not a recreational use. Sheepdog Warrior Shooting Range will have to apply for a use variance to have that type of shooting at its facility.
March 14, 2019 10:18 pm

CATSKILL — The Zoning Board of Appeals ruled Wednesday that law enforcement training is not a permitted use at a local gun range.

Sheepdog Warrior Shooting Range, on Haines Road in Catskill, was approved for a special-use permit in February 2017 as a membership club, which allowed shooting as a recreational activity.

Catskill Town Code Enforcement Officer Elliot Fishman sent the site a cease-and-desist letter last Oct. 30 after receiving complaints that the range was being used for law enforcement training.

Sheepdog Owner Edward Rivenburg appealed the decision Nov. 7.

The Greene County Sheriff’s Office used the facility to train for about 20 days in October, police snipers from Connecticut have honed their skills there and the Saugerties Police Department used it for about a week, Rivenburg said in November, when range representatives appeared before the zoning board for an interpretation of the zoning code.

The site is also under review by the town planning board to extend the 450-yard range to 1,000 yards to make it a sniper-training facility.

“The Zoning Board of Appeals hereby upholds the interpretation of the Town of Catskill Code Enforcement Officer that law enforcement weapons training or testing, military weapons training or testing and or other activities that are not customarily regarded are recreational use are not permitted in the RA zoning district and are outside of the property’s special use permit,” zoning board Chairwoman Lynn Zubris said.

The board unanimously supported the interpretation. Vice Chairman Gary Harvey recused himself because he performed the survey on the property.

Town attorney Michael Smith read the zoning board’s in-depth interpretation for the record.

“These are the facts,” Smith said. “In September 2016 the CEO received complaints that a gun range was being constructed.”

Fishman advised Rivenburg to cease operations and apply for a special-use permit, Smith said.

On Oct. 11 2016, the applicant presented a sketch plan to the planning board and an oral presentation that included law enforcement training. Meeting minutes from the planning board reflect that Rivenburg indicated his plans for the property.

“The Sheriff’s Department does not have a range, and he had built the Hudson police range,” according to the minutes. “He would allow the Catskill Police Department to use the site at no cost and he will be building a nice state-of-the-art outdoor range. The NYS Police have an SRT unit, but no place to train and they have interest in training at the proposed site, as well as the members of Homeland Securities Aviation.”

A sketch plan conference is not a formal nor binding agreement, Smith said.

“A sketch plan does not constitute a formal submission,” he said. “It is not binding nor otherwise controlling subsequent to an applicant’s submission.”

At a later consultation, Fishman advised Rivenburg that because the range was not a permitted use, it might best fit into the zone as a membership club as a special use, Smith said.

On Jan. 11 2017, Rivenburg submitted his special use application.

“He identified it as a membership club,” Smith said. “There was no reference to law enforcement training.”

Rivenburg also did not seek a ZBA interpretation of what recreational use meant at that time, nor did he request a use variance, which would allow uses not included in the permit, Smith said.

“The planning board lacks the authority to approve a use not permitted by the zoning code,” he said. “That can only happen by a use variance or an amendment to the zoning code.”

“During the presentation at the January [2017] meeting, the applicant made no reference to law enforcement training,” Smith said.

Rivenburg also made no reference to this intended use at the public hearing Feb. 14, 2017, Smith said.

In February 2018, Fishman received a complaint about new construction at the range.

A special use permit becomes null and void a year after it has been issued, Smith noted.

“The applicant said the equipment was being used for maintenance of berms and he was not in violation of the permit,” Smith said.

Upon investigation, Fishman determined the range was operating at distances greater than the 450 yards it had been approved for.

“The CEO advised the applicant he needed to go back before the applicant to get approved for the longer distance,” Smith said.

Rivenburg applied for a modification to his permit to add 1,000 and 3,000 yard ranges.

On Oct. 5 2018, Fishman received a complaint about constant gunfire after dark, Smith said.

“Upon investigation, the CEO discovered there was police testing occurring after 9 p.m. and it was scheduled to happen each night that week,” Smith said.

The zoning board reviewed the public’s comments at two hearings, on Dec. 12 and Jan. 9, regarding the range.

The board’s interpretation addressed comments made by Rivenburg’s attorney, Scott Olson, which indicated that law enforcement training was an accessory use for the range.

“He mistakenly identifies the shooting range as the primary use,” Smith said. “The primary use of the property is a membership club.”

There was no further discussion on the matter after the vote.

Rivenburg was disappointed with the outcome, he said Thursday.

“I was absolutely shocked,” he said. “Why would the town, for any reason, restrict law enforcement training when it benefits the community?”

Rivenburg plans to move forward with applying for a use variance, he said.

“It will just be a longer process,” he said.

Greene County Sheriff Greg Seeley strongly disagreed with the zoning board’s decision.

“I think it is utterly ridiculous,” he said. “I don’t know how they had the authority to do that.”

Discriminating against law enforcement is unconstitutional, Seeley said.

“There’s no difference between law enforcement or private citizens being there,” he said. “It’s unconstitutional to only let certain people [shoot] there.”

The sheriff’s office has other local ranges to use for training, Seeley said.

“[Sheepdog] was very nice, very safe,” he said. “It was very convenient. It’s a sad day for the people of Greene County that the town of Catskill would do that.”

A great deal of opposition to the gun range came from weekenders, Seeley said.

“Most of the people that had a problem with it don’t even live Greene County,” Seeley said. “They have a problem with people exercising their Second Amendment rights.”

The sheriff’s office may have its own range at the new jail facility, to be built on Route 9W in Coxsackie, Seeley said.

“We’re contemplating on it,” he said.