Foster Swift Municipal Law News
In June 2008, the Michigan Supreme Court held that a county must comply with a township’s ordinances when the county sited an outdoor shooting range – even though the range was on county-owned property on which the county had built an indoor firearm training facility. In Herman v Cty of Berrien (Docket No. 134097), Berrien County leased land located in Coloma Township to build a firearms training facility for law enforcement agencies. The county intended to construct a building at the center of the property for a training and support building, and with it also build a parking lot, outdoor lighting, driveway, and several outdoor shooting ranges. Neighboring landowners sued to stop the project, claiming it violated the township zoning ordinance and noise ordinance. The county asserted that it was not subject to the township’s ordinances given the County Commissioners Act (CCA) and the Michigan Supreme Court’s decision in Pittsfield Charter Twp v Washtenaw Cty, 468 Mich 702 (2003), which held that the CCA gives counties priority over local regulations in siting buildings.
The Michigan Supreme Court held that the outdoor shooting range was, in fact, subject to the township’s ordinances. The Court reasoned that Pittsfield Twp did not address whether the CCA gives a county priority regarding a county’s land uses – such as the outdoor shooting ranges here – that are ancillary to a county building. The Court explained that the test in evaluating whether county ancillary land uses are subject to local regulations is this: is the ancillary use indispensable to a county building’s normal use? If the answer is "yes," then the county is not subject to local regulation; if the answer is "no," then the county’s ancillary use is subject to local regulation. Applying that test, the Court noted that the parking lot, lights, and driveway were ancillary but indispensable uses. On the other hand, the outdoor shooting range was an ancillary use that was not indispensable since the normal use of the building was for classroom – i.e., indoor – training. For those reasons, the Court concluded that the county’s outdoor shooting range was subject to the township’s ordinances.
The Supreme Court’s decision in Herman potentially puts township ordinances back in play again when faced with a new county project on land within a township. Specifically, a county siting a building on county property no longer ends the story: an ancillary use to a county building will be subject to local regulation if that ancillary use is not indispensable to the county building’s normal use. As the Herman Court noted, this test requires a case-by-case analysis given its fact-specific nature. If your municipality would like assistance in applying Herman to a situation at issue in your municipality, Foster Swift’s municipal department would be happy to help.