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Michigan Supreme Court Lansing, Michigan

Opinion
JOE HERMAN, SUE HERMAN, JAY JOLLAY, SARAH JOLLAY, JERRY JOLLAY, NEAL KREITNER, TONY PETERSON, LIZ PETERSON, RANDY BJORGE, ANNETTE BJORGE, and TINA BUCK, Plaintiffs-Appellants, v COUNTY OF BERRIEN, Defendant-Appellee.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JUNE 18, 2008

No. 134097

BEFORE THE ENTIRE BENCH CAVANAGH, J. This case involves further analysis of the issue presented in Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702; 664 NW2d 193 (2003), in which we held that the county commissioners act (CCA)1 has priority over the Township Zoning Act (TZA).2 Today we are asked to gauge the scope of that priority, which relates to a

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MCL 46.1 et seq.

MCL 125.271 et seq. The TZA has since been replaced with the Michigan Zoning Enabling Act (MZEA) MCL 125.3101 et seq., but that new act expressly (. . . continued)

county's power to "site" and "erect" "building(s)," by defining the CCA's term "site." In defining that term, we hold that land uses that are ancillary to the county building and not indispensable to its normal use are not covered by the CCA's grant of priority over local regulations. Therefore, in this particular case, Berrien County's outdoor shooting ranges do not have priority over the township ordinances that plaintiffs rely on because they are land uses that are not indispensable to the normal use of the county building. Accordingly, we reverse the decision of the Court of Appeals and remand this case to the circuit court for further proceedings consistent with this decision. I. FACTS AND PROCEDURE This case involves a piece of property that is located in Berrien County and Coloma Township. The property consists of a 14-acre parcel of land. The property is controlled by defendant, Berrien County, under a 20-year lease from a party that is unrelated to this case. The county entered into the lease in March 2005. The county leased the property with the intention of using it for a firearms training facility, which various law enforcement agencies would use for training exercises. Accordingly, in May 2005, the county contracted with DLZ Michigan, Inc., to design a master plan and conduct a feasibility study for the proposed facility. This master plan included constructing a building of more than 3,000 square feet at the center of the parcel to serve as a training and support building. This building would have a parking lot with (continued . . )
provides that all claims, such as the one at bar, that were pending when the
Legislature replaced the TZA with the MZEA are subject to the TZA.
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24 standard parking spaces (and three handicapped spaces), multiple outdoor light poles, and a driveway. The facility would also have numerous outdoor shooting ranges. The ranges were to be set up like the spokes of a wheel that require the shooter to fire out from the center of the parcel. The center of the parcel is where the building would be located. See aerial photograph infra at note 4. The county initially planned on building the ranges first and erecting the building later.3 During

The feasibility study's executive summary contains the following description of the project: The Master Plan . . . will be implemented in two phases. Phase One involves the development of the practice facility itself . . . . A new building for training and support will be established later as funding becomes available. . . . DLZ also analyzed the cost of and benefits of constructing an indoor range. A single indoor range would cost an estimated $1.3 million to construct [compared to the $591,556 for the outdoor range] and would not eliminate the need for an outdoor firing range(s). At oral argument, the county argued that the building was actually erected before the shooting ranges were constructed. We have found no support for this contention or the opposite contention. Nonetheless, the sequence of construction is not dispositive to our analysis. However, it is worth noting that the initial plans for the facility clearly indicate that the shooting ranges were the first and most prominent aspect of the facility to be constructed. 3


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the course of this litigation, construction of both the shooting ranges and the building was started and is now completed.4 Operation of the county's shooting ranges would contravene several local ordinances. First, under the township's zoning ordinance, the shooting ranges are not a permitted land use given the property's current zoning status (primary agricultural). Additionally, gun clubs are not permitted in this zoning status unless the Coloma Charter Township Board has issued a special land use permit, which the county has

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not received. Finally, the gun ranges produce noise levels that purportedly exceed the township's anti-noise ordinance.5 The shooting range facility has been the topic of a hotly contested public debate. Its supporters note that it provides an invaluable public service by simulating real-life conditions that law enforcement officers encounter in the field, preparing them to better serve the citizenry. Further, the supporters argue that indoor shooting ranges are simply inadequate to properly mimic field conditions. Opponents of the shooting ranges raised myriad concerns relating to the proximity of the ranges to other civilian land uses: (1) Annually, 221,000 rounds will be fired. (2) Automatic guns, semi-automatic guns, handguns, shotguns, and rifles are used. One type of gun used, the .308 caliber rifle, can fire a bullet 2.4 miles. (3) The ranges all point outward from the property's center, toward the surrounding privately owned parcels. (4) There are children's sports fields within one mile of the ranges. (5) The ranges are within 2.4 miles of the Coloma schools and within one mile of over 50 homes.

The parties have not litigated the merits of whether the shooting ranges violate the anti-noise ordinance because, up to this point, the main dispute hinged on whether the shooting ranges were immune from this ordinance. Nonetheless, the county's own feasibility study predicted that the gun range would produce noise levels above 87 decibels extending to approximately 370 of the surrounding acres. This apparently violates the anti-noise ordinance, which prohibits noise levels above 65 decibels between 7:00 a.m. and 10:00 p.m. and 55 decibels at all other times. 5


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(6) Seasonally, up to 200 farm workers and their children are within range of the .308 rifle, and four migrant-worker residences are within 1,500 feet. (7) The sheriff estimates that 25 percent of the training events will be conducted after dark. (8) Property values within one mile of the range are estimated to have declined by an aggregate of $2.5 million; real estate agents report difficulty selling homes in close proximity to the facility. Apparently having been persuaded by the local residents' concerns, in October 2005, the Coloma Charter Township Board voted unanimously not to support the facility. However, in November 2005, the county approved the facility, and

construction on it proceeded. Plaintiffs are a group of individuals who own property located in close proximity to the shooting ranges. In late November 2005, plaintiffs filed a The

declaratory judgment action that aimed to stop operation of the facility.

complaint alleged that the county's facility was prohibited by the township's zoning ordinance; and the plaintiffs' amended complaint additionally alleged that the facility violated the township's anti-noise ordinance. After various circuit court proceedings, the parties filed cross-motions for summary disposition. The trial court, relying on Pittsfield, supra, simultaneously granted the county's motion for summary disposition and denied plaintiffs' dispositive motion. Plaintiffs appealed, and the Court of Appeals affirmed in a published, split decision. Herman v Berrien Co, 275 Mich App 382; 739 NW2d 635 (2007). The Court of Appeals majority also relied on 6


Pittsfield, holding that the county is exempt from the township's regulations because they conflict with its express legislative authorization to site county buildings, which includes the county's shooting ranges. Id. at 384, 388-389. We granted plaintiffs' application for leave. Herman v Berrien Co, 480 Mich 961 (2007). II. STANDARD OF REVIEW The case involves interpretation of the CCA. "Questions of statutory

interpretation are questions of law, which will be reviewed de novo." In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999); see also Cardinal Mooney High School v Michigan High School Athletic Ass'n, 437 Mich 75, 80; 467 NW2d 21 (1991). III. ANALYSIS We are again called on to analyze a purported conflict between the powers given to intermediate government entities and the powers given to local government entities. Specifically, this case involves the relationship between a county's power, under the CCA, to site county buildings and the powers given to local governments under the TZA and the Township Ordinance Act, MCL 41.181 et seq.6 While this particular case includes novel nuances, the broad question is one that we have previously encountered. In Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978), we analyzed a conflict between the Michigan Department of

The relevant anti-noise ordinance was promulgated by Coloma Township pursuant to the Township Ordinance Act,

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