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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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A county’s authority under the county commissioner’s act (CCA) to “site” and “erect” buildings and ancillary items consist of ancillary items specifically adapted to support the use of the buildings, such as parking lots, shrubs, and lighting, says the Michigan Court of Appeals in consolidated appeals in <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160906_C325226_69_325226.OPN.PDF" target="_blank" rel="noopener">Coloma Charter Township v Berrien County, No. 325226 and No. 325335</a>.&nbsp; Shooting ranges are not a normal and indispensable use of county buildings, and constructing a county building next to it does not allow the shooting range to qualify as an ancillary item under the CCA.

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This appeal derived from the discussion of whether a county’s authority under CCA to “site” and “erect” buildings has priority over zoning ordinance of the township with respect to using open-air, three-sided structure within which the Berrien County Sheriff’s Department conducts firearms training for law enforcement officers. &nbsp;The shooting range used is one of six outdoor shooting ranges that were the subject of prior litigation, in which the Michigan Supreme Court ruled in favor of the township residents seeking to enforce the township ordinance in Herman v Berrien Co.&nbsp; The Court held that the scope of CCA’s priority over local regulation is limited to ancillary land uses that are indispensable to the building’s normal use.&nbsp; The Court reasoned that the outdoor shooting ranges were not indispensable because the indoor training and support could be conducted without the shooting ranges.&nbsp; The Court remanded the case to the circuit court for further proceedings consistent with its opinion, and on remand, the circuit court entered a permanent injunction on November 10, 2008, enjoining the county from utilization of the shooting ranges.&nbsp; A copy of the injunction was filed by the clerk’s office but apparently the county was never served with the injunction, and no proof of service was filed in the circuit court file.

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After the Herman decision, the county began conducting necessary law enforcement firearms shooting training at an existing private gun club in the township, known as the Coloma Rod and Gun Club (CRGC).&nbsp; CRGC constructed six additional shooting ranges for the use of law enforcement firearms training and other firearms shooting.&nbsp; In October 2010, the township brought an action to enjoin CRGC’s expansion of its nonconforming use.&nbsp; On November 27, 2012, the circuit court ruled in the township’s favor by finding that CRGC’s expansion of its gun ranges by adding and using six new pistol bays was a nuisance per se that the court abated.&nbsp;

The county passed a resolution on August 2013 to construct a shooting range building at the outdoor range property.&nbsp; The resolution noted that Herman had decided outdoor ranges were not indispensable to the indoor training building and that the county had unsuccessfully attempted to obtain a special land use permit from the township.&nbsp; Based on the resolution, the county constructed an open-air, pole-barn style structure consisting of a covered cement slab that was completely open on one side, facing the shooting ranges.&nbsp; The Herman plaintiffs filed a motion seeking enforcement of the 2008 injunction and asking that the circuit court hold the county in civil and criminal contempt for violating it.&nbsp;

The circuit court held a number of joint hearings, and issued a series of rulings in 2014 that modified the 2008 injunction, ruled in favor of the county to allow use of the shooting range building, and found, after a trial, that the county was not guilty of criminal contempt.&nbsp; The circuit court found that firearms assessment and training for the sheriff’s deputies is necessary and that the use of the building for live-fire training improved the safety and reduced noise.&nbsp; The circuit court entered an order modifying its 2008 injunction to permit the sheriff and actively employed sheriff’s deputies to use the outdoor shooting range.&nbsp;

The circuit court issued a modified opinion and order on October 23, 2014 that stated as a matter of law, the shooting range structure is a county building and whether the shooting range building is “necessary” is a legislative decision.&nbsp; The circuit court granted summary disposition to the county and concluded that the county’s authority under the CCA to site necessary county buildings trumps the township’s zoning and noise ordinances.&nbsp; Plaintiffs appealed.&nbsp; The Michigan Court of Appeals consolidated the appeals to advance the efficiency of the appellate process.

The Court of Appeals concluded that the problem with the building constructed in front of the existing shooting range is that it is ancillary to the use of the shooting range, as opposed to the shooting range being ancillary to the normal use of the building.&nbsp; The shooting range existed long before the building and was utilized without the existence of the building.&nbsp; The shooting range was and is the main feature of this activity, making the building subordinate to, or ancillary to, the shooting range.&nbsp; The Court of Appeals opined that the county used an after the fact building in an attempt to statutorily shield its non-conforming land use. &nbsp;The Court of Appeals reversed the trial court’s orders to the extent it ruled that the county could operate the shooting range under the authority of the CCA, and remanded for entry of summary disposition in favor of plaintiffs.&nbsp; The Court of Appeals also reversed the trial court’s modification of the injunction.

Judge Jane Market <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160906_C325226_70_325226P.OPN.PDF" target="_blank" rel="noopener">wrote separately</a>, concurring in part and dissenting in part, stating that the circuit court correctly ruled that the adjacent shooting range is ancillary and indispensable to the normal use of the building, thus giving the county use of the building and the adjacent shooting range priority over township ordinances.

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Jason L. Byrne

Labor and Employment

COA:  County’s use of a shooting range does not have priority over township ordinance

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COA: County’s use of a shooting range does not have priority over township ordinance

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