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145144 - People (Addison Twp) v Barnhart

The People of the Township of Addison,
 
Robert C. Davis
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeals)
 
 
(Oakland – Bowman, L.)
 
Jerry Klein Barnhart a/k/a Jerry Cline Barnhart
 
K. Scott Hamilton
 
Defendant-Appellant.
 

Summary

In 1993, Jerry Barnhart requested permission from Addison Township to construct a shooting range on his property. According to the township supervisor’s later testimony, Barnhart represented that he tested firearms for various companies and that he and his family would use the range. The township granted permission and Barnhart built the range.

 

But in 2005, the township cited Barnhart for violating township ordinance no. 300, by operating a shooting range without a zoning compliance permit. Starting in 2004, the township began getting complaints about the shooting range; the township supervisor testified that different residents brought him advertisements indicating that Barnhart was offering firearms classes at the range. The supervisor believed that this use violated the township’s zoning ordinances, in that the classes amounted to a “commercial or public use” to which the township had not agreed. Moreover, Barnhart’s property was zoned agricultural and so did not permit a shooting range, according to the township.

 

At the March 2006 trial, a sergeant of the Oakland County Sheriff’s Department testified that he had been to Barnhart’s range a number of times for training, but had never paid to use the range and did not know if it was being run as a commercial venture. He added that he had seen other people using the range. A neighbor testified that he could hear multiple guns being fired at once, that he found a web site advertising classes, prices, and class schedules at the range, and that Barnhart used a loudspeaker to give instructions. The neighbor also stated that the shooting would begin as early as 8:00 a.m. on Saturday mornings and 9:00 a.m. on Sunday mornings, and that it lasted until “almost dark.” The shooting on the range also occurred during the week.

 

Barnhart argued that the range was in existence in 1993, and therefore, he was entitled to expand the use of the range under a 1994 amendment to the Sport Shooting Ranges Act, MCL 691.1541 et seq. The district court judge agreed and dismissed the charge.

 

The testimony “established that persons other than the defendant’s immediate family did, in fact, use the range subsequent to November 1993,” the judge said. But it was undisputed that the range existed before the July 5, 1994 effective date of an amendment to the Sport Shooting Ranges Act, the judge noted. “MCLA 691.1542a, subsection 2(c), provides that a sports shooting range that is in existence as of the effective date of this section and operates in compliance with generally accepted operation practices, even if not in compliance with an ordinance of a local unit of government, shall be permitted to expand or increase opportunities for public participation and expand or increase events and activities.” Accordingly, Barnhart was permitted to “expand or increase opportunities for public participation” at his range, the judge concluded. The township moved for reconsideration, but the judge denied the motion, and the circuit court upheld the district court on appeal.

 

But in an unpublished opinion, the Court of Appeals reversed the circuit court and remanded the case for further proceedings.

 

MCL 691.1542a(2)(c) addresses the intensity of use of an existing facility, the appellate court said, and two requirements must be satisfied: “[1] defendant must have been operating a sport shooting range and [2] must be in compliance with generally accepted operation practices.”

 

The statute defines “sport shooting range” as “an area designed and operated for the use of archery, rifles, shotguns, pistols, silhouettes, skeet, trap, black powder, or any other similar sport shooting.” MCL 691.1541. Using this definition, and the definition of “sport” from the Random House Webster’s College Dictionary (1997) (“athletic activity” or “diversion, recreation”), the Court of Appeals said that “the statute appears to apply to a recreational shooting range, to the exclusion of all other types of shooting ranges.” Therefore, the court held that, “to the extent that there was testimony to suggest that defendant’s operation of a shooting range was for business or commercial purposes, MCL 691.1542a(2)(c) does not provide freedom from compliance with local zoning controls.”

 

As to the second requirement, the district court had “failed to address whether the proofs established that defendant was operating a sport shooting range in compliance with generally accepted operation practices,” the appellate panel stated. “Consequently, it is unclear if generally accepted operation practices require barriers to prohibit errant firing onto neighboring properties and the height requirement of any such barriers or if distance requirements from neighboring occupied properties are imposed.”

 

Moreover, the Court of Appeals said, the district court did not take into account that the SSRA does not preempt all local regulation. MCL 691.1543 provides that, “Except as otherwise provided in this act, this act does not prohibit a local unit of government from regulating the location, use, operation, safety, and construction of a sport shooting range.” In light of MCL 691.1543, the district court should consider whether MCL 691.1542a(2) “applies to local ordinances attempting to regulate shooting ranges … including zoning ordinances.” The appellate panel also looked to Fraser Township v Linwood-Bay Sportsman’s Club, 270 Mich App 289 (2006), lv den 477 Mich 1030 (2007), saying that it was the only other case to construe the SSRA. In Fraser, the Court of Appeals held that “despite the broad language of the introductory phrase in § 2a(2)(c), the Act does not free sport shooting range operators from local zoning controls regarding construction of new facilities. Rather, it provides that ranges may allow more use of existing facilities to support more membership, participation, events, or activities.”

 

On remand, the township filed a motion to enforce the ordinance. In an August 4, 2008 order, the parties stipulated that Barnhart’s property “was used for recreational and business shooting range purposes, prior to the [SSRA]” and that “[r]ecreational uses started before the business use[,] but both came before the [SSRA].”

 

In a December 22, 2008 opinion and order, the district court again ruled in Barnhart’s favor, finding that the “gun range was operated as a sport shooting range as that term is defined in MCL 691.1541(d) because it was operated for recreational purposes in addition to business purposes.” The court also held, based on an evidentiary hearing, that Barnhart was operating the range in compliance with generally accepted practices in the National Rifle Association Range Source Book, portions of which were endorsed in a 1997 Department of Natural Resources memorandum. Hence, Barnhart was entitled to the protection of MCL 691.1542a, the district judge held.

 

In a series of appeals to the circuit court, the township challenged this and a second ruling by the district judge in favor of Barnhart. The circuit court ultimately overturned the district court’s decision, ruling “to the extent that there was testimony to suggest that defendant’s operation of a shooting range was for business or commercial purposes, MCL 691.1542a(2)(c) does not provide freedom from compliance with local zoning controls.”

 

Barnhart appealed to the Court of Appeals a second time. In an unpublished decision dated April 10, 2012, the Court of Appeals affirmed the circuit court ruling. The panel rejected Barnhart’s argument that the question whether his range was a “sport shooting range” was one of fact, saying that it was a question of law because it was the circuit court’s application of the SSRA definition to the undisputed facts that Barnhart was challenging, not any specific factual determination. Given that Barnhart had expressly acknowledged his various business uses for the range before and after the SSRA was amended, “the law of the case required the conclusion that defendant’s range was not a sport shooting range within the meaning of the SSRA.”

 

Barnhart appealed, and in an order dated September 26, 2012, the Supreme Court said that it would hear oral arguments “on whether to grant the application or take other action.” The Court directed the parties to “address whether the Court of Appeals erred in Addison Twp v Barnhart, unpublished opinion per curiam of the Court of Appeals, issued March 13, 2008 (Docket No. 272942) (Barnhart I), when it held that, ‘to the extent that there was testimony to suggest that defendant’s operation of a shooting range was for business or commercial purposes, MCL 691.1542a(2)(c) does not provide freedom from compliance with local zoning controls.’”