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HomeMy WebLinkAboutAgenda 09-10-19 Item 1 - Presentation Regarding the Potential Regulation of the Discharge of Firearms in Areas of the County with High Residential Unit Density 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 10, 2019 Action Agenda Item No. 1 SUBJECT: Presentation Regarding the Potential Regulation of the Discharge of Firearms in Areas of the County with High Residential Unit Density DEPARTMENT: County Attorney ATTACHMENT(S): INFORMATION CONTACT: A. Map Showing How Regulation Based on Housing Density May Look John Roberts, 919-245-2318 B. State Laws Limiting Local Government Firearms Regulation C. Prior Durham County Ordinance D. Current Durham County Ordinance PURPOSE: To receive a presentation from the County Attorney and discuss options related to the potential regulation of firearms discharge in limited urbanized areas of the County. BACKGROUND: This issue was briefly discussed by the County's Firearms Safety Committee at its meetings a few years ago. However, those discussions did not result in any substantive recommendations on this specific issue to the Board of Commissioners in the Committee's final recommendations. The Committee did recommend that the Orange County Code of Ordinances be amended to: a) prohibit the discharge of firearms while an individual is impaired; b) require discharged projectiles to remain on the property on which they were discharged; and c) require individuals discharging firearms to maintain adequate backstops. These recommendations were adopted by the Board of Commissioners. The Board of Commissioners continues to receive complaints from residents related to the discharge of firearms near populated areas and directed the County Attorney to examine this issue and provide a presentation for Board discussion. North Carolina General Statute 153A- 129 specifically authorizes counties to regulate the discharge of firearms (Attachment B). Other statutes limit the extent to which counties may regulate firearms in general and the discharge of firearms, particularly with respect to the discharge of firearms on "sport shooting ranges." In examining this issue, the County Attorney determined the only lawful means to regulate the discharge of firearms in urbanized areas in a manner by which the regulation would apply to discharge of firearms in general and on existing shooting ranges is to regulate the discharge of firearms within specified distances of high density urbanized areas. To show where such regulations could be implemented, Planning Department staff developed a county map showing areas of the County with residential housing densities of 10 or more residential units per 10 acres (Attachment A). This map is for illustrative purposes only and shows where an ordinance of this type could be applicable. Although each grid square is not visible, each red 2 grid square represents a 10 acre tract within which there are at least 10 residential units. The enclosed green areas on the map are areas in which there are clusters of at least four red grid squares within approximately one mile of each other. Regulated areas could be established through reference to existing roads in the area or GPS coordinates with enforcement focused on discharges occurring within a designated distance from a residential unit located within one of the regulated areas. As is apparent from the map, focusing only on dense areas would create small islands of enforcement and, at least at the density selected for the example, would result in enforcement areas only in the southern portion of the County. Durham County previously implemented an ordinance similar to this in which the ordinance only applied to the discharge of firearms within 600 feet of a residence within one of many high density areas. Durham also had a permit process for shooting ranges that existed in the regulated areas prior to the adoption of the ordinance (Attachment C). According to the Durham County Attorney, enforcement proved exceptionally difficult, and in December 2018, Durham County amended its ordinance to remove the references to high density areas and now restricts firearms discharge throughout the county if it occurs within 900 feet of the property lines of properties containing houses, schools, and churches (Attachment D). The County Attorney consulted the Orange County Sheriff's Office on this issue and, as in prior discussions of this topic, the Sheriff's Office indicates enforcement would be difficult due to the nature of the regulated activities, that being generally short in duration and, unless visually observed by a deputy, difficult to precisely locate. Pursuant to North Carolina law, any regulation such as that discussed in this presentation would not apply to the discharge of firearms for lawful hunting activities, when occurring in the defense of person or property, or pursuant to the lawful directions of law enforcement officers. FINANCIAL IMPACT: There is no financial impact associated with this discussion. SOCIAL JUSTICE IMPACT: There is no Orange County Social Justice Goal impact associated with this discussion. ENVIRONMENTAL IMPACT: There is no Orange County Environmental Responsibility Goal impact associated with this discussion. RECOMMENDATION(S): The Manager recommends the Board receive the presentation from the County Attorney, discuss this issue and provide any direction to staff. Attachment ) Housing Density DRAFT 3 ----—------ -- - — ------------------------- ----------- Il f 49 15 I II rl 86 ■ 1 f � I ■ lr N ■ 57 � ■ 1 FA ■ ■j' I a 70� MEN j f� ■ 1 IS I j a ■ I� ti 751 ■ L MEN II 1' I l� ■ I f� 1` I ■ as ■ 54 15 1 501 � I G 1=� 0 City Limits 0 1 in=3 miles ETJ N QRANGE Miles Housing Units per 10 Acres COUNTY 0 3 Orange County Planning and Inspections 10 Units BC 7r1512019 - � ';;f:1HouEmg GensiP�Fro�ectWoic�ing Dere�'��.�- 4 Attachment B State Law Related to Local Government Firearm Regulation General State Prohibition on Local Regulation: 14-409.40 (b) "Unless otherwise permitted by statute, no county or municipality, by ordinance, resolution, or other enactment, shall regulate in any manner the possession, ownership, storage, transfer, sale, purchase, licensing, taxation, manufacture, transportation, or registration of firearms, firearms ammunition, components of firearms, dealers in firearms, or dealers in handgun components or parts." Special Local Legislation Authorizes the County to prohibit hunting with a firearm while an individual is under the influence of alcohol. Codified at Section 24-1(h) of the Code of Ordinances. Authorizes the County to prohibit hunting within 150 yards of government buildings including schools. Codified at Section 24-1(i) of the Code of Ordinances. Possession: 14-415.23(a) "A unit of local government may adopt an ordinance to permit the posting of a prohibition against carrying a concealed handgun...on local government buildings and their appurtenant premises." 14-415.23(b) "A unit of local government may adopt an ordinance to prohibit, by posting, the carrying of a concealed handgun on municipal and county recreational facilities that are specifically identified by the unit of local government." 14-409.40(f) Counties may "prohibit the possession of firearms in public-owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas." This applies to open carry. Public Display and Discharge: 153A-129. (Effective October 1, 2017) Firearms. (a) Except as provided in this section, a county may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place except in any of the following instances: (1) When used to take birds or animals pursuant to Chapter 113, Subchapter IV. (2) When used in defense of person or property. (3) When used pursuant to lawful directions of law-enforcement officers. (b)A county may by ordinance prohibit hunting on Sunday as allowed under G.S. 103-2, provided the ordinance complies with all of the following: (1) The ordinance shall be applicable from January 1 until December 31 of any year of effectiveness. (2) The ordinance shall allow for individuals hunting in an adjacent county with no restriction on Sunday hunting to retrieve any animal lawfully shot from the adjacent county. (3) The ordinance shall be applicable to the entire county. (c) A county may regulate the display of firearms on the public roads, sidewalks, alleys, or other public property. 5 (d) This section does not limit a county's authority to take action under Article 1A of Chapter 166A of the General Statutes. Primary limitation on regulation of firearms discharge as a nuisance such as through a noise ordinance. Sport Shooting Range Protection Act of 1997. 14-409.45. Definitions. The following definitions apply in this Article: (1) Person.—An individual, proprietorship, partnership, corporation, club, or other legal entity. (2) Sport shooting range or range. —An area designed and operated for the use of rifles, shotguns, pistols, silhouettes, skeet, trap, black powder, or any other similar sport shooting. (3) Substantial change in use. —The current primary use of the range no longer represents the activity previously engaged in at the range. 14-409.46. Sport shooting range protection. (a) Notwithstanding any other provision of law, a person who owns, operates, or uses a sport shooting range in this State shall not be subject to civil liability or criminal prosecution in any matter relating to noise or noise pollution resulting from the operation or use of the range if the range is in compliance with any noise control laws or ordinances that applied to the range and its operation at the time the range began operation. This subsection prohibits enforcement of state or local noise laws against qualifying shooting ranges. (b) A person who owns, operates, or uses a sport shooting range is not subject to an action for nuisance on the basis of noise or noise pollution, and a State court shall not enjoin the use or operation of a range on the basis of noise or noise pollution, if the range is in compliance with any noise control laws or ordinances that applied to the range and its operation at the time the range began operation. This subsection limits civil liability for qualifying shooting ranges in lawsuits by private parties based on noise. (c) Rules adopted by any State department or agency for limiting levels of noise in terms of decibel level that may occur in the outdoor atmosphere shall not apply to a sport shooting range that was in operation prior to the adoption of the rule. This subsection limits the application of state agency noise rules against qualifying shooting ranges. (d) A person who acquires title to real property adversely affected by the use of property with a permanently located and improved sport shooting range constructed and initially operated prior to the time the person acquires title shall not maintain a nuisance action on the basis of noise or noise pollution against the person who owns the range to restrain, enjoin, or impede the use of the range. If there is a substantial change in use of the range after the person acquires title, the person may maintain a nuisance action if the action is brought within one year of the date of a substantial change in use. This section does not prohibit actions for negligence or recklessness in the operation of the range or by a person using the range. This subsection limits civil liability of qualifying shooting ranges to subsequent purchasers of neighboring properties. (e) A sport shooting range that is operated and is not in violation of existing law at the time of the enactment of an ordinance shall be permitted to continue in operation even if the operation of the sport shooting range at a later date does not conform to the new ordinance or an amendment to an existing ordinance, provided there has been 6 no substantial change in use. (1997-465, s. 1; 2015-195, s. 5(a).) This subsection preempts the enforcement of any local law against a qualifying shooting range that is in compliance with previously existing law even if its continued operation violates new or amended local laws as long as there is no substantial change in use of the qualifying shooting range. 14-409.47. Application of Article. Except as otherwise provided in this Article, this Article does not prohibit a local government from regulating the location and construction of a sport shooting range after September 1, 1997. 7 ATTACHMENT C DURHAM COUNTY GUN DISCHARGE ORDINANCE • Sec. 17-51.-Intent. The board of commissioners has determined that the health and safety of those citizens of the county who live in predominantly residential areas of the county require that the discharge of firearms and airguns in or near those predominantly residential areas be prohibited,and that there be restrictions on the discharge of firearms in the remaining areas of the county. It is,therefore,the intent of the commissioners by this division to protect the health and safety of its citizens and their property, and to promote the quiet enjoyment of their property. (Ord. of 9-13-93, § 1) • Sec. 17-52.-Definitions. The following words,terms and phrases,when used in this division, shall have the meanings ascribed to them in this section,except where the context clearly indicates a different meaning: Airgun means any weapon that discharges a projectile or cluster of shot by the use of mechanical spring, compressed air or compressed gas, and shall include BB and pellet rifles,pistols and revolvers. Firearm means any weapon that discharges a projectile or cluster of shot by the use of exploding gunpowder and shall include rifles,shotguns,pistols and revolvers. Predominantly residential district means a residential area of not less than five homes created and constructed in accordance with approval of the county commissioners pursuant to the subdivision ordinance of the county(appendix B of this Code),a plat of which appears of record in the office of the register of deeds of the county. It shall include the subdivisions named in the ordinance from which this division is derived,which is on file in the county offices. (Ord. of 9-13-93, § 2) Cross reference—Definitions generally,-§-1-2. • Sec. 17-53.-Discharge of firearms within predominantly residential areas of the county prohibited; exceptions. It shall be unlawful for any person to discharge a firearm within 600 feet of a residence located within a predominantly residential area of the county,except when the firearm is discharged: (1) In the lawful defense of person or property. (2) By,or at the lawful direction of,a law enforcement officer,or authorized military personnel. (3) Within a firing range for which a permit has been issued in accordance with section 17-53.1,below. (Ord. of 9-13-93, § 3;Ord. of 6-27-94) 8 • Sec. 17-53.1.-Permits for operation of firing ranges in effect prior to effective date of the ordinance. The board of commissioners may permit the owner of a firing range within a subdivision,which was in existence prior to July 13, 1994,to discharge a firearm on such firing range subject to the following conditions: (1)The firing range must have been in existence and in use prior to October 21, 1993. (2)All owners of property within 600 feet of the firing range must be given notice of at least 14 days and an opportunity to be heard at a public meeting of the board on the application for the permit. (3)The permit is nontransferable and may be revoked if the conditions under which it is granted are violated. (4)There shall be no discharge of a firearm on a permitted range at any time on Saturdays, Sundays or legal holidays and on any other day,except within the hours from 8:00 a.m.to 6:00 p.m. (5)The applicant shall show evidence of and maintain sufficient liability insurance,either through a homeowner's policy or some other insurance,in sufficient amount to cover claims which may arise from the use of the firing range. (6)The authority granted under the permit shall be to the permit holder only and to members of his immediate household. (Ord. of 6-27-94, § 3A) Editor's note—An ordinance adopted 6-27-94 did not specifically amend the Code. Therefore,inclusion of§ 3A as 1� 7-53.1 was at the discretion of the editor. • Sec. 17-53.2.-Application for permit to use firing range. (a) Applications may be in letter form,and must be filed in the office of the clerk to the board of county commissioners on or before September 1, 1994. There will be no applications accepted after that date. (b) Each application must set forth a general description of the firing range,must be verified on oath by the applicant and must be accompanied by at least two affidavits of other individuals attesting that the firing range was in use prior to October 21, 1993. (c) Each application must be accompanied by evidence of insurance as specified in subsection 17-53.1(5), above. (d) The board of commissioners will act on the application after giving all owners of property within 600 feet notice and opportunity for comment,and a certified copy of the minutes of such meeting reflecting the approval of the application by the board shall serve as the permit. (Ord. of 6-27-94, § 313) Editor's note—An ordinance adopted 6-27-94 did not specifically amend the Code. Therefore,inclusion of§ 3B as § 17.53.2 was at the discretion of the editor. • Sec. 17-54.-Discharge of airguns within predominantly residential areas of the county by minors restricted. It shall be unlawful for any person under the age of 16 years to discharge an airgun within 600 feet of a residence located within a predominantly residential area of the county,unless at the time of such discharge the minor is accompanied by a parent,guardian or other adult who acknowledges responsibility for the supervision of the minor in the act of shooting. (Ord. of 9-13-93, §4) 9 • Sec. 17-55.-Negligent discharge of firearms in the county outside of predominantly residential areas prohibited. It shall be unlawful for any person to discharge a firearm or airgun outside of a predominantly residential area of the county: (1) Negligently,carelessly,or heedlessly in wanton disregard for the safety or others; (2) Without due caution or circumspection and in a manner so as to endanger any person or property, and resulting in property damage or bodily injury; or (3) When the individual who discharges the firearm or airgun is under the influence of an impairing substance or does so after consuming sufficient alcohol that he has, at any relevant time after the discharge of the firearm or airgun,an alcohol concentration of 0.08 or more. In Any case where a violation of this section also constitutes a violation under G.S. 113-290 et seq.,then the provisions of that article are intended to apply to the violation. (Ord. of 9-13-93, § 5) • Sec. 17-56.-Penalty for violation. Violation of this division shall be a misdemeanor,punishable upon conviction as provided in section 1-6. (Ord. of 9-13-93, § 6) 10 ATTACHMENT D ORDINANCE AMENDING ARTICLE II OF CHAPTER 17 OF THE DURHAM COUNTY CODE OF ORDINANCES OFFENSES INVOLVING FIREARMS AND OTHER WEAPONS WHEREAS, Chapter 1115 of the 1951 North Carolina Session Laws authorizes the Board of County Commissioners of Durham County to "regulate, control, restrict, and prohibit the use and discharge or any and all firearms of every kind, nature, make and description outside the incorporated limits of any municipality in Durham County"; and WHEREAS, G.S. 153A-121 allows a County, by ordinance to define, regulate, prohibit, or abate, acts, omissions, or conditions detrimental to the safety or welfare of its citizens; and WHEREAS, in 1993, the Board of County Commissioners adopted Article II of Chapter 17 of the Durham County code of Ordinances, to regulate and restrict the use of firearms and other weapons within Durham County, which ordinance has been amended over the years; and WHEREAS, G.S. 14-409.40, allows a County, by ordinance, to prohibit the possession of firearms in public-owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas; and, WHEREAS, G.S. 14-415.23 allows a County, by ordinance, to prohibit the possession of concealed weapons in County buildings and recreational facilities, and their appurtenant premises; and, WHEREAS, the Board of County Commissioners wishes to amend Article II of Chapter 17 in recognition of changes in the laws of North Carolina and conditions in Durham which have occurred since it was first adopted, and to address concerns of public safety; and, WHEREAS, the purpose of this Ordinance is to protect the public safety by regulating the discharge of weapons within the unincorporated areas of Durham County, and the possession of weapons on County property; NOW, THEREFORE, THE BOARD OF COMMISSIONERS FOR THE COUNTY OF DURHAM DOTH ORDAIN: 1. That Durham County Code of Ordinances Chapter 17, Article II—Offenses Involving Firearms and Other Weapons, which was adopted in 1993, and subsequent amendments thereto, is hereby repealed in its entirety and replaced with the following: Secs. 17-31-1750. -Reserved Sec. 17-51 Intent. The Board of Commissioners has determined that the health and safety of its citizens requires certain restrictions be placed on the discharge of firearms and airguns and on the possession and display of weapons on county owned and controlled property. This is in recognition of the fact that each person discharging a firearm is responsible for exhibiting reasonable regard for the safety and property of other persons and for discharging the firearm in such a manner as to assure that all projectiles come to rest 1 11 safely within the boundary or boundaries of the property or properties on which the person is authorized to be shooting. Sec. 17-52. Jurisdiction. This Ordinance shall apply to all County property, wherever located, and to all unincorporated areas of Durham County. Sec. 17-53. Definitions. The following words, terms, and phrases, when used in this Article, shall have the meanings ascribed to them in this section, except when the context clearly indicates a different meaning: Airgun is defined as any weapon that discharges a projectile or cluster of shot by the use of mechanical spring, compressed air or compressed gas, and shall include BB and pellet rifles, pistols and revolvers. County property is defined as any building owned by the county or that portion of privately owned property leased by or under the legal possession and control of the county for the transaction of the activities of the county and the appurtenant premises to such a building, to include parking lots and decks. The term also includes the Durham County Memorial Stadium and its appurtenant premises. Firearm is defined as any weapon or similar instrument that discharges a projectile or cluster of shot by the use of exploding gunpowder and shall include rifles, shotguns,pistols and revolvers. Sec. 17-54. Prohibited discharge of weapons near other property. It shall be unlawful for any person to discharge a firearm or airgun within 900 feet of the property or boundary line of any of the following: (a) A dwelling house; (b) A school; (c) A church or religious institution; (d) Any other type of building, while occupied; (e) A public or private park or recreation area; (f) Any other type of public gathering place. Sec. 17-55. Prohibition on possession of weapons on County property Except for law enforcement officers, members of the national guard, members of the armed forces, or a county employed security agency, or as permitted by state law, it shall be unlawful for any person to possess or display a firearm or airgun at any time on County property. 2 12 Except for law enforcement officers, members of the national guard, members of the armed forces, or a county employed security agency it shall be unlawful for any person to display a firearm or airgun at any time in County parks and recreation areas. Sec. 17-56. Prohibition of discharge of weapons over roads, sidewalks, and public vehicular areas. It shall be unlawful for any person to discharge a firearm or airgun in such a way as will result in the projectile therefrom passing across a sidewalk, or across a highway, street, or other public vehicular area. Sec. 17-57. Restrictions on discharge of weapons near livestock. It shall be unlawful for any person to discharge a firearm or airgun within 900 feet of any domestic livestock not belonging to him unless such person has on his person written permission for such activity from the owner of the livestock. Sec. 17-58. Discharge of weapons by minors restricted. It shall be unlawful for any person, being a parent or guardian of, or standing in loco parentis to, any child under twelve (12) years of age, to permit such child to have possession or custody of, or use in any manner whatsoever, any firearm, whether such firearm is loaded or is not loaded without direct, active adult supervision of the child at all times the child is holding the firearm. It shall be unlawful for any person being a parent or guardian of, or standing in loco parentis to, any child between twelve (12) years of age and fifteen (15) years of age, to permit such child to discharge a firearm without direct, active adult supervision of the child at all times the child is firing the firearm. Sec. 17-59. Exemptions. Section 17-54 of this Ordinance shall not apply to any of the following: (a) A person discharging a shotgun with any type of shot or load except "slugs," provided that the shooter is 500 feet or more from any of the types of places or structures listed in Section 17-53(a) - (f). (b) A rifle, pistol, skeet or trap range, operated by a law enforcement agency, which firing range is substantially in accordance with specifications promulgated by the National Rifle Association or by an equivalent nationally recognized firearms safety authority for the type and caliber of firearms being fired; (c) a person target shooting on his own property(or on another's property if he has on his person written permission for the activity from the owner of the property) exhibiting reasonable regard for the safety and property of other persons (i) if such person is using a backstop substantially in accordance with specifications promulgated by the National Rifle Association or any equivalent nationally recognized firearms safety organization for the type and caliber of firearms being fired, and (ii) if such person has on his person written permission for such activity from all persons owning any of the types of places or structures listed in Section 17-54(a) - (f)which are located within 900 feet of the target shooting activity; 3 13 (d) a person hunting on his own property (or on another's property if he has on his person written permission for the activity from the owner of the property) exhibiting reasonable regard for the safety and property of other persons if such person has on his person written permission for such activity from all persons owning any of the types of places or structures listed in Section 17-54(a) - (f)which are located within 900 feet of the hunting activity; (e) law enforcement officers, members of the national guard, members of the armed forces, or a county employed security agency discharging firearms in the line of duty; (f) persons discharging firearms for the purpose of shooting or killing any dangerous animal or reptile; (g) person discharging a firearm in self-defense; (h) firing ranges regulated by the Unified Development Ordinance (UDO). Sec. 17-60. Posting of signs. The County Manager is hereby ordered to post appropriate signage on each park, parking lot or deck, building or portion of a building now or hereafter owned, leased as lessee, operated, occupied, managed or controlled by the county, as well as the appurtenant premises to such buildings, and the Durham County Memorial Stadium, indicating the prohibitions applicable therein. Such signs shall be visibly posted on the exterior of each entrance by which the general public can access the county owned building, appurtenant premise, parking lot or deck, park, and the Durham County Memorial Stadium. The County Manager shall exercise discretion in determining the necessity and appropriate location for other signs posted on the interior of the county owned building, appurtenant premise or park. Sec. 17-61. Penalty The violation of any provision of this Ordinance declaring certain actions to be unlawful shall be a misdemeanor and may be punishable upon conviction as provided in Sec. 1-6. Sec. 17-62. Severability. It is hereby declared to be the intention of the Board that the sections, paragraphs, sentences, clauses and phrases of this Ordinance are severable and that if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared unconstitutional or invalid by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality or invalidity shall not affect any remaining phrases, clauses, sentences, paragraphs, and sections of this Ordinance, as the same would have been enacted by the Board without incorporation in this Ordinance of any such unconstitutional or invalid phrase, clause, sentence, paragraph, or section. Secs. 17-63-120. -Reserved. 2. This Ordinance shall be effective upon its adoption. Approved by the Durham County Board of Commissioners by Ordinance this day 4 14 of , 2019. SIGNED: Wendy Jacobs, Chairperson Durham County Board of Commissioners 5