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154556-7 - Coloma Charter Twp v Berrien County

​  154556
Coloma Charter Township,
Michael D. Homier
(Appeal from Ct of Appeals)
(Berrien – Dewane, J.)
Berrien County and Berrien County Sheriff’s Department,
Thomas G. King
Landfill Management Company, Inc., and Hennessy Land Company,
Christopher W. Tracy
Joe Herman, Sue Harman, Jay Jollay, Sarah Jollay, Jerry Jollay, Neil Dreitner, Tony Peterson, Liz Peterson, Randy Bjorge, Annette Bjorge, and Tina Buck,
James R. Poll
Berrien County,
Thomas G. King


In 2005, Berrien County leased property in Coloma Charter Township to build a training facility and four outdoor shooting ranges, where Berrien County Sheriff’s Department officers would receive firearms training. A number of residents sued the county, alleging that the county was not authorized to build the outdoor shooting ranges without first complying with the Township Zoning Act (TZA), MCL 125.271 et seq. [now repealed]. The county argued that the County Commissioners Act (CCA), MCL 46.1 et seq., had priority over any conflicting provisions of the TZA. See MCL 46.11(b), (d). The lawsuit resulted in a Supreme Court decision holding that the county had authority under the CCA only to “site” and “erect” buildings and for any ancillary land use that is indispensable to the building’s normal use. Herman v Berrien Co, 481 Mich 352 (2008). The Court concluded that the outdoor shooting ranges were not indispensable to the normal use of the classroom training facility and, therefore, the township’s ordinances controlled. The case returned to the circuit court, which entered a permanent injunction in late 2008, enjoining the county from using the shooting ranges. Thereafter, the county began conducting law enforcement firearms training at a private gun club in the township. To accommodate the additional use, the gun club sought to construct six additional outdoor shooting ranges. In 2010, the township filed this action to enjoin the gun club’s expansion of a nonconforming use. The circuit court granted summary disposition to the township and ordered the nuisance abated. In 2013, the county board of commissioners passed a resolution to construct a shooting range building near the training facility, which it claimed would be consistent with the “indispensable use” standard of Herman. The residents who had brought the earlier lawsuit moved to enforce the 2008 injunction and asked the circuit court to hold the county in civil and criminal contempt for violating the order. In addition, the township filed a new action, seeking to enjoin the county and the sheriff’s department from discharging firearms at the site. The circuit court granted summary disposition to the county and sheriff’s department, allowed the use of the building for firearms training, modified the permanent injunction to allow such use, and dismissed the township’s civil contempt claim. The township and the residents filed separate appeals, which were consolidated. In a split published opinion, the Court of Appeals reversed, holding that the circuit court’s orders were inconsistent with MCL 46.11(b) and (d), and with the Herman decision. The Court of Appeals remanded for entry of summary disposition in favor of the township and the residents, reversed the circuit court’s modification of the injunction, and vacated and remanded on the issue of an award of attorney fees pursuant to MCL 600.1721. The Court of Appeals affirmed the dismissal of the criminal contempt claim. The Supreme Court has granted leave to appeal to address: (1) whether the gun range currently used by the Berrien County Sheriff’s Department has priority under the CCA, MCL 46.11(b) and (d), over a conflicting township zoning ordinance, see Herman v Berrien County, 481 Mich 352 (2008); if so, (2) whether the Court of Appeals erred by reversing the circuit court’s revision of the existing permanent injunction based on changed circumstances; and (3) whether the Court of Appeals properly vacated the circuit court’s decision to deny the request for attorney fees pursuant to MCL 600.1721.