A three-judge panel of the Michigan Court of Appeals has overturned the Berrien County Trial Court ruling that allowed Berrien County Sheriff’s Deputies to operate a shooting range in Coloma Township. The Court of Appeals 2-to-1 decision not only reverses the decision in favor of a group of local businessmen and women, it also vacates the attorney fees that had been charged to those people by the earlier ruling.
Business owners have been battling the shooting range for years, calling it disruptive to the nature of their destination attraction businesses clustered nearby — businesses like wineries, chocolate makers, u-pick farms and more.
In December of 2014, Berrien Trial Court Judge John Dewane issued an opinion that concluded those business people failed to prove beyond a reasonable doubt that the county was guilty of criminal contempt for resuming shooting at the gun range on Angling Road south of Coloma.
Appellate Court Judges Christopher Murray and Peter O’Connell issued the reversal, after reviewing the case with a third judge, Markey, saying, “We reverse the trial court’s orders to the extent it ruled that the county could operate the shooting range under the authority of the county commissioners act, and remand for entry of summary disposition in favor of plaintiffs.” Additionally, the said, “We reverse the trial court’s modification of the injunction, and vacate and remand on the issue of attorney fees in light of our conclusion that the county acted in violation of Herman v. Berrien Co,” concluding, “We affirm the trial court’s ruling on criminal contempt.”
The justices point out, “Our disagreement only lies with respect to the trial court’s ruling granting summary disposition to the county, as well as the related issues of modifying the permanent injunction and plaintiffs’ request for attorney fees.”
Saying, “The county’s argument has the tail (a small structure) wagging the dog (the previously constructed and utilized range, or stated differently, the county used an after the fact building in an attempt to statutorily shield its non-conforming land use, something the Herman Court stated was impermissible under the county commissioners act. No matter the intentions of the county in seeking to comply with Herman, the facts reveal a belated attempt to protect a land use by siting an adjacent building. This it cannot do.”
The court reversal adds, “For these reasons, in both dockets we reverse 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 remand for entry of summary disposition in favor of plaintiffs. For these same reasons, we reverese the trial court’s modification of the injunction, and vacate and remand on the issue of attorney fees in light of our conclusion that the county acted in violation of Herman and MCL 46.11(b) and (d). We affirm the trial court’s ruling on criminal contempt.”
Plaintiffs in the case included Joe & Sue Herman of Karma Vista Winery…Jay, Sarah & Jerry Jollay of Jollay Orchards, and their companies, Tony & Liz Peterson of Contessa Wines, Randy & Annette Bjorge of Bjorge Farms, Tina Buck of the Chocolate Garden, and Neal Kreitner from Kreitner Farms.
In December of 2014, Judge Dewane found that the business community had proven beyond a reasonable doubt that the county had violated the order when they resumed shooting, but they had failed to prove that the violation was willful. The Court of Appeals reverses that stance.
*****UPDATE*****2:30PM*****UPDATE*****2:30PM*****
Sheriff Paul Bailey has essently shut the gun range down completely today as a result of the ruling…issuing a brief statement that says simply:
“Due to the 2-1 ruling by the State of Michigan Court of Appeals, I am suspending any further shooting at the Berrien County Training Facility until further direction from the Circuit Court or any result from a possible appeal.”
