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TOWN LAW PREEMPTED BY STATE LAW RE THE DISCHARGE SETBACK FOR A BOW AND ARROW (SECOND DEPT).

The Second Department determined the town ordinance regulating the discharge setback for a bow and arrow was preempted by the conflicting provisions in Environmental Conservation Law (ECL) 11-0931:

The Town incorrectly contends that its ability to regulate the discharge setback of a bow and arrow is expressly authorized by Town Law § 130(27). That statute vests certain municipalities, including the Town, with the power to pass ordinances “prohibiting the discharge of firearms in areas in which such activity may be hazardous to the general public or nearby residents,” provided that “[t]hirty days prior to the adoption of any ordinance changing the five hundred foot rule, a notice must be sent to the regional supervisor of fish and game of the environmental conservation department, notifying him of such intention” (Town Law § 130[27]). However, that statute is premised upon a definition of the term “firearm” that does not include a bow and arrow.

The Town unpersuasively contends that it is free to define for itself the meaning of “firearm,” as used in Town Law § 130(27), so as to include “bow and arrow.” Although Town Law § 130(27) does not expressly define “firearm,” it can be readily inferred that the term is used in the same manner as in ECL 11-0931(4), which explicitly distinguishes between firearms and bows in setting forth discharge setback requirements (see ECL 11-0931[4][a][2]; see also 6 NYCRR 180.3[a] [defining “firearm” for purposes of ECL article 11]). Indeed, the mention of the “five hundred foot rule” in Town Law § 130(27) refers to the five-hundred-foot discharge setback required under ECL 11-0931(4). Construed in pari materia, these two statutory provisions employ the same terminology to regulate the same subject matter, and demonstrate that the Town may not regulate the discharge setback of a bow and arrow in a manner inconsistent with State law. Hunters for Deer, Inc. v Town of Smithtown, 2020 NY Slip Op 04542, Second Dept 8-19-20

 

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