Shooting range battle continues; sheriff proposes option

Kusminsky made his statement as the case of allowing law enforcement training at a Catskill shooting range drags on.

The Greene County Sheriff’s Office was among the departments to use the Sheepdog Warrior Shooting Range, on Haines Road in Catskill, prior to Town Code Enforcement Officer Elliot Fishman citing the facility for a violation in the fall of 2018.

Sheriff’s officers had previously trained on Volunteer Drive in Cairo, Kusminsky said.

“When the solar farm was installed there it was an issue,” Kusminsky said. “We would have to build a berm quite a bit higher to avoid striking a solar panel.”

Sheepdog was approved for a special-use permit in February 2017 as a membership club, which allowed shooting as a recreational activity.

Fishman sent the site a cease-and-desist letter Oct. 30, 2018 after receiving complaints that the range was being used by law enforcement agencies for training.

Following the town zoning board’s decision in March 2019 that law enforcement training does not qualify as a recreational use and therefore was not permitted at Sheepdog, range owner Edward Rivenburg challenged the town’s decision in court.

On Oct. 11 2016, Rivenburg 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 [Rivenburg] 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 or binding agreement, Catskill Town Attorney Michael Smith said at the March 2019 meeting.

“A sketch plan does not constitute a formal submission,” Smith 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 an 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.

“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.

Rivenburg filed a lawsuit against the town’s Zoning Board of Appeals and Fishman, in his capacity as the code enforcement officer in June 2019.

“...when Sheepdog applied for site plan review and special use permit for the project (target shooting facility with law enforcement training), the code enforcement officer necessarily had to make a determination that the use complied with the zoning law prior to transmitting it to the town planning board,” according to the lawsuit.

Fishman determined that the proposal was “acceptable and in accordance with the zoning law and required no variances,” according to the lawsuit.

“At each and every stage of the proceeding, including the pre-application meetings, [Rivenburg] presented that his concept was for a shooting range that would include precision target shooting including use by police, law enforcement and other government personnel for training,” according to the lawsuit. “The scope of the facility was not concealed or hidden from the town.”

Rivenburg’s attorney, David Brennan of Young/Sommer LLC in Albany, requested that the zoning board’s decision be invalidated. No appeal to the planning board’s issuance of the special use permit had been made within the 60-day deadline, therefore the statute of limitations had expired to challenge that decision, according to court papers.

Brennan argued in court documents that use of the facility by law enforcement should be considered an accessory use.

Accessory use is defined in the town code as “a use of building on the same lot with, and of a nature customarily incidental and subordinate to, the principal use or structure.”

Mentions of “recreational use,” were brought up after noise complaints were made, Rivenburg said in court documents.

“Even the actual special use permit signed by Code Enforcement Officer Fishman makes absolutely no reference to recreational uses, as suggested in his Order to Remedy Violation,” according to court documents. “Rather this is an after-the-fact fiction created by Mr. Fishman or others in the town in response to the onset of noise complaints.”

Rivenburg asserted in court documents that the town was made aware of his intentions for the project.

“...we explicitly presented to the town that law enforcement personnel would be shooting and qualifying and being instructed at the shooting range,” according to court documents. “Nothing was hidden or obscured from the town. At each and every opportunity, I presented our proposal as one where training would occur for law enforcement.”

There is no distinction between who uses the range, Rivenburg said in court documents.

“...whether a person is at the shooting range in jeans and a t-shirt, a blue uniform or a grey uniform, they are all participating in the same activity which is shooting at targets,” according to court documents. “There is simply no distinction that should be drawn or imposed to prevent police or government personnel, including long-distance shooters from practicing at our facility as part of their duties.”

The zoning board and Fishman, represented by Richard O’Rourke of Keane & Beane law firm in White Plains, filed a motion to dismiss the lawsuit in August 2019.

State Supreme Court Justice Raymond Elliot III ruled in favor of the town on May 14, 2020.

“[Sheepdog] further contends that ‘government cannot simply backtrack and change its mind, particularly where reliance has been placed on the determinations and permits have been issued,’” according to Elliot’s decision. “This is erroneous...a municipality cannot be prevented from discharging its statutory duties and forced to accept administrative errors simply by passage of time, nor can it be precluded from enforcing its zoning laws because of prior support from the improper use or an earlier contrary ruling or wrongly issued permit.”

Contrary to Brennan’s argument, a municipality can revisit its decisions, Elliot said.

“While a municipality may not be arbitrary in its change of interpretation, it is not bound by an erroneous previous interpretation. Nor does a statue of limitations eliminate a municipality’s inherent authority to revisit its own determinations.”

Membership clubs are defined in the town code as “an organization catering exclusively to members and their guests, or premises and buildings for recreational or athletic purposes, which are not conducted primarily for gain, provided that there are not any vending stands, merchandising or commercial activities except as required generally for the membership and purposes of such club.”

Recreation is defined as “the refreshment of strength and spirits after work,” and is by definition, a diversion or hobby and the opposition of work or duty, according to court documents.

“Even taking [Sheepdog’s] allegations as true, that Fishman and the planning board were aware of and approved of the intention to conduct professional training and certification on the property, such a use would be antithetical to the term recreational,” according to Elliot’s decision. Elliot supported the zoning board’s determination that law enforcement training was not an accessory use of the property.

The range appealed the court’s decision June 25 and the case remains ongoing.