STATE OF MICHIGAN

IN THE MICHIGAN SUPREME COURT

CHARTER TOWNSHIP OF COLOMA,

Plaintiff-Appellee,

v

BERRIEN COUNTY, BERRIEN COUNTY

SHERIFF’S DEPARTMENT, LANDFILL

MANAGEMENT CO., and HENNESSY LAND

CO.,

Defendant-Appellants,

JOE HERMAN, et al,

Plaintiff-Appellees,

v

BERRIEN COUNTY

Defendant-Appellants.

Court of Appeals Docket No. 325226

Lower Court Case No. 13-0317-CZ-D

Berrien County Circuit Court

Supreme Court Docket No. 154556

Court of Appeals Docket No. 325335

Lower Court Case No. 05-3247-CZ-M

Berrien County Circuit Court

SCOTT A. DIENES (P53066)

MICHAEL D. HOMIER (P60318)

LAURA J. GENOVICH (P72278)

Attorneys for Plaintiff-Appellee Coloma Township

Gregory G. Timmer (P39396)

Michael C. Walton (P26121)

James R. Poll (P70191)

Attorneys for Plaintiff-Appellees Herman, et al

THOMAS G. KING (P34006)

Kreis, Enderle, Hudgins & Borsos P.C.

Attorneys for Defendant-Appellants County of

Berrien, Berrien County Sheriff’s Department

P.O. Box 4010

Kalamazoo, MI 49003-4010

(269) 324-3000

CHRISTOPHER E. TRACY (P46738)

Honigman Miller Schwartz and Cohn LLP

Attorney for Defendant-Appellants

Landfill Management Co. and Hennessy Land

Co.

350 E. Michigan Ave., Ste 300

Kalamazoo, Michigan 49007

(269) 337-7708

DEFENDANT-APPELLANTS BERRIEN COUNTY, BERRIEN COUNTY SHERIFF’S

DEPARTMENT, LANDFILL MANAGEMENT CO., AND HENNESSY LAND CO.’S

BRIEF ON APPEAL

(Oral Argument Requested)

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................................................... iii

STATEMENT OF QUESTIONS PRESENTED ........................................................................... iv

JURISDICTIONAL STATEMENT ............................................................................................... v

PREFACE ....................................................................................................................................... 1

STATEMENT OF FACTS AND MATERIAL PROCEEDINGS ................................................. 2

STANDARD OF REVIEW ............................................................................................................ 8

ARGUMENT ................................................................................................................................ 10

I. THE CURRENT GUN RANGE IS ENTITLED TO PRIORITY UNDER THE COUNTY

COMMISSIONERS ACT, MCL 46.1 ET SEQ., SPECIFICALLY MCL 46.11(b) AND

(d), OVER A CONFLICTING TOWNSHIP ZONING ORDINANCE. .......................... 10

a. The Court of Appeals did not correctly apply the Indispensable Test, as adopted and

expressly set forth by this Court in Herman; therefore, the Court of Appeals decision

directly conflicts with Herman. ............................................................................................ 10

b. The Court of Appeals erred in ruling that the Current County Range is not ancillary to

the normal use of the Gun Range Building. .......................................................................... 17

II. THE COURT OF APPEALS ERRED BY REVERSING THE BERRIEN CIRCUIT

COURT’S REVISION OF THE EXISTING PERMANENT INJUNCTION BASED ON

CHANGED CIRCUMSTANCES. ................................................................................... 20

a. The Court of Appeals erred by reversing the Circuit Court’s modification the Permanent

Injunctive Order under MCR 2.612(C)(1)(e). ....................................................................... 21

III. THE COURT OF APPEALS IMPROPERLY VACATED THE CIRCUIT COURT’S

DECISION TO DENY THE PLAINTIFFS’ REQUEST FOR ATTORNEY FEES

PURSUANT TO MCL 600.1721. .................................................................................... 22

a. The Court of Appeals erred in vacating and remanding the Circuit Court’s ruling

wherein it determined that the Plaintiff-Appellees were not entitled to attorney fees under

MCL 600.1721. ..................................................................................................................... 22

CONCLUSION ............................................................................................................................. 24

STATEMENT OF RELIEF SOUGHT ......................................................................................... 25

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INDEX OF AUTHORITIES

Cases Black v Liquor Control Comm, 323 Mich 290, 296; 35 NW2d 269 (1948) ................................. 20

Charles Reinhart Co v Winiemko, 444 Mich 579, 600 n 38; 513 NW2d 773 (1994)................... 20

Herman v Berrien County, 481 Mich 352 (2008) .................................................................. passim

In re Bradley, 494 Mich 367, 371; 835 NW2d 545 (2013) ............................................... 23,24, 25

Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d 900 (2007) ................................................. 9

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999) ................................................... 9

Michigan AFSCME Council 25 v Woodhaven-Brownstown School Dist, 293 Mich App 143, 146;

809 NW2d 444 (2011); .......................................................................................................... 9,22

Opal Lake Ass’n v Michaywe Ltd Partnership, 47 Mich App 354, 367; 209 NW 2d 478 (1973).

.............................................................................................................................................. 21,22

People v Babcock, 469 Mich 247, 283; 666 NW2d 231 (2003) ..................................................... 9

Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702; 664 NW2d 193 (2003) ................ 5, 8, 11

Tuttle v Dep’t of State Hwys, 397 Mich 44, 46; 243 NW2d 244 (1976) ........................................ 8

Statutes MCL 28.602 et seq ........................................................................................................................ 18

MCL 46.1 et seq ............................................................................................................................. iv

MCL 46.11 (d) .............................................................................................................................. 11

MCL 46.11(b) and (d) ............................................................................................................ passim

MCL 691.1401 et seq ................................................................................................................ 7, 23

MCL 691.1407(1) ......................................................................................................................... 23

Rules MCR 2.116(I)(2) ............................................................................................................................. 7

MCR 7.303(B)(1) ............................................................................................................................ v

MCR 7.305(H)(3). .......................................................................................................................... v

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STATEMENT OF QUESTIONS PRESENTED

The questions presented in this Application for Leave to Appeal of the Court of Appeals

decision, are as follows:

I. Whether the Gun Range currently used by the Berrien County Sheriff’s Department is

given priority under the County Commissioners Act, MCL 46.1 et seq., specifically

MCL 46.11(b) and (d), over a conflicting Township Zoning Ordinance.

a. Whether the Court of Appeals correctly applied the “indispensable” test, as

adopted by the Michigan Supreme Court, in Herman?

Defendant-Appellants answer: No

Plaintiff-Appellees answer: Yes

Court of Appeals majority answers: Yes

b. Whether the Court of Appeals erred in finding that the Current County Range is

not ancillary and indispensable to the normal use of the Gun Range Building?

Defendant-Appellants answer: Yes

Plaintiff-Appellees answer: No

Court of Appeals majority answers: No

II. Whether the Court of Appeals erred by reversing the Berrien Circuit Court’s revision

of the existing permanent injunction based on changed circumstances.

Defendant-Appellants answer: Yes

Plaintiff-Appellees answer: No

Court of Appeals majority answers: No

III. Whether the Court of Appeals properly vacated the trial court’s decision to deny the

Plaintiffs’ request for attorney fees pursuant to MCL 600.1721.

Defendant-Appellants answer: No

Plaintiff-Appellees answer: Yes

Court of Appeals majority answers: Yes

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JURISDICTIONAL STATEMENT

The Defendant-Appellants bring this Appeal upon leave granted in accordance with MCR

7.303(B)(1), which grants jurisdiction to the Supreme Court for appeal by leave granted from a

decision of the Court of Appeals.

The Court of Appeals decision appealed from is dated September 6, 2016. This Leave to

Appeal was authorized by this Court pursuant to its Order entered on September 22, 2017 in the

above-captioned cases and therefore, this Court has jurisdiction pursuant to MCR 7.305(H)(3).

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PREFACE

These consolidated appeals relate to a county’s authority under the County Boards of

Commissioners Act, being MCL 46.11 et seq (hereinafter the “CCA”) to “site” and “erect”

buildings, as more specifically set forth in MCL 46.11(b) and (d), and whether the decision of a

county has priority over a conflicting township zoning ordinance, with respect to the erection of

a building (the “Gun Range Building”) and its use of an ancillary outdoor target area; where

Berrien County and the Berrien County Sheriff’s Department,( hereinafter collectively referred

to as “the County”), uses the Gun Range Building and its ancillary outdoor-target area to conduct

the mandatory firearms training of law enforcement officers. The law enforcement officers’

training entails the discharging of firearms, from inside the Gun Range Building, which is

located at one end of a previously existing shooting range, toward targets which are located at

the opposite end of the same previously existing shooting range (the “Current County Range”).

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STATEMENT OF FACTS AND MATERIAL PROCEEDINGS

In 2005, Berrien County entered into a Lease Agreement with Landfill Management Co.

(an affiliate corporation of Hennessy Land Co., the property owner) to lease property located

adjacent to their landfill with an address of 7110 Angling Road (the “Property”), for the purpose

of constructing a classroom training-facility building (the “Classroom Training Facility”) and

certain outdoor training facilities. As part of the outdoor training facilities, the County

constructed, near the Classroom Training Facility, four (4) outdoor-firing ranges (the “County

Ranges”). The County believed, pursuant to the provisions of the CCA, that it not only had the

authority to construct the Classroom Training Facility, but also the County Ranges.1

In 2005, Joe and Sue Herman, Jay and Sarah Jollay, Jerry Jollay, Neal Kreitner, Tony and

Liz Peterson, Randy and Annette Bjorge, and Tina Buck (the “Herman Plaintiffs”) sued the

County, in Berrien County Circuit Court, Case No. 05-3247-CZ-M. The Herman Plaintiffs

alleged, among other things, that the County was not authorized to construct the County Ranges

without first obtaining the zoning approval from Coloma Charter Township (the “2005 Case”).

Coloma Charter Township was not a party to the 2005 Case. The Circuit Court’s decision, in the

2005 Case, was appealed to the Court of Appeals, and ultimately to this Court.

On June 18, 2008, this Court entered its opinion on the 2005 case in which it determined

that the County Ranges were subject to the Coloma Charter Township Zoning Ordinance;

therefore, the County must obtain approval from Coloma Charter Township (the “Township”), in

order to operate the County Ranges. Herman v Berrien County, 481 Mich 352; 750 NW2d 570

(2008) (“Herman” or the “Herman Opinion”).

1 The County Ranges were constructed by excavating dirt from the Property and as a result, were constructed as depressions in the surrounding

land and while they are extensively referred to as “surrounded by berms”, in the testimony and record, the berms in question are actually

depressions in the ground, as opposed to the traditional style of berm which would consist of dirt piled along the edges of a construction. See attached Appendix 2a-4a, and the photograph in the Herman case, at p. 356.

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In Herman, this Court remanded the 2005 Case, back to the Circuit Court. On or about

November 10, 2008, the Berrien County Circuit Court entered a permanent injunction enjoining

the County from utilizing the County Ranges as shooting ranges (hereinafter referred to as the

“Permanent Injunctive Order”).2 The County’s attorney at the time may have reviewed and

approved the injunction, as to form, prior to its entry; however, the Permanent Injunctive Order

was never served on the County, after its entry, and no proof of service was filed (December

2013 Transcript, Appendix 63a, L: 18-25; 64a, L: 1-17).

In 2008, after the Herman Opinion and still in need of a place to conduct its mandatory

firearms training for law enforcement officers, the County contacted the owners of a previously

existing-private gun range located in the Township, known as Coloma Rod and Gun Club

(hereafter referred to as “Coloma Rod and Gun” or “the Club”) regarding the possibility of the

County using a portion of the Club’s existing gun ranges (the “Existing Coloma Rod and Gun

Ranges”) for the Sheriff’s Department’s mandatory firearm training. The County, along with the

other customers of Coloma Rod and Gun, utilized the Existing Coloma Rod and Gun Ranges for

firearms training and shooting.

Later in 2008, Coloma Rod and Gun constructed six (6) additional ranges (the “New

Coloma Rod and Gun Ranges” or “New Ranges”) and the County (as well as other Coloma Rod

and Gun customers) also utilized the New Ranges to conduct outdoor firearms training and other

firearms shooting.3

On or about October 25, 2010, the Township brought an action, in Berrien County Circuit

Court, Case No. 10-0378-CH-D, seeking to enjoin the operation of the New Coloma Rod and

2 See the Permanent Injunctive Order dated November10, 2008, attached hereto as Appendix 5a-7a. See also Motion for Contempt of Court;

Motion to Modify December 5, 2013 Transcript Appendix 38a, L: 14-16. 3 See Opinion on Abatement of Nuisance Per Se dated October 17, 2013 attached hereto as Appendix 27a-32a.

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Gun Ranges (the “Coloma Rod and Gun Case”).4 On November 27, 2012, the Circuit Court

determined that the construction and use of the New Coloma Gun and Rod Ranges violated the

Coloma Charter Township Zoning Ordinance and enjoined the New Coloma Rod and Gun

Ranges from being used as outdoor firearm shooting ranges.5 The County and the Berrien

County Sheriff’s Department did not take part in the construction of the New Coloma Rod and

Gun Ranges, nor were they parties to the Coloma Rod and Gun Case; therefore, neither had the

ability to appeal any decision in that lawsuit.

By the end of November 2012, the County was, for the third time, faced with the lack of

a training facility necessary to maintain the certification of its law enforcement officers and was

forced to look for a reasonably suitable location in which it could conduct the mandatory

firearms training.6 As part of its attempt to find a reasonably convenient, safe and quiet outdoor

firearms training facility, a review of this Court’s decision, in Herman, was undertaken, to

determine if there was a way for the Berrien County Sheriff’s Department to operate a facility,

on the Property, to conduct the mandatory firearms training, in full compliance with the Herman

Opinion. A reading of this Court’s Herman Opinion, reveals that the Court determined that the

County Ranges were subject to the township zoning ordinance because this Court found that the

use of the County Ranges was not “indispensable” to the operation of the “Classroom Training

Facility” on the Property; thus, the County Ranges did not have priority over the township

ordinance as part of the County’s authority to “site” and “erect” a building under MCL 46.11(b)

4 During the course of the subsequent litigation, there has been some confusion as to whether the County had constructed four (4) or six (6)

ranges, as part of the County Ranges, and it appears that this confusion arises out of the separate litigation that was going on between Coloma Township and Coloma Rod and Gun, relative to the New Coloma Rod and Gun Ranges, which were six (6) in number. See Opinion and Order

Declaring Nuisance Per Se, dated November 27, 2012 (the “Nuisance Order”) attached hereto as Appendix 8a-19a. 5 See Nuisance Order, Appendix 8a-19a. 6 See December 2013 Transcript, Appendix 42a-44a; 57a-60a.

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and (d). Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702; 664 NW2d 193 (2003) and

Herman v Berrien County, 481 Mich 352 (2008).7

This review resulted in the design of a building that the County Administration believes

complies with the Herman Opinion and enhances the safety, acoustics, and comfort of the

County’s employees involved in firearms training as well as the neighboring community. The

Sheriff again approached the County and its Board of Commissioners, seeking approval for the

construction of the aforementioned building.8

On August 8, 2013, the County, through its Board of Commissioners, after a review of

the Sheriff’s Department’s needs (which included the desire to reduce noise and noise

complaints emanating from any firearms training, enhancing the safety of persons on and near

the site, and providing a partially enclosed area from which to discharge firearms), passed a

resolution, authorizing the construction of a gun range building, which is more fully described

below (the “Gun Range Building”).9 The Gun Range Building would be constructed at the end

of the longest of the County Ranges (the “Current County Range”).10

The Gun Range Building consists of a 43x20 foot concrete pad11

with a 42x16 foot

building and is comprised of eight (8) 6x6 posts, five (5) 4x6 posts, and a full roof constructed

over the concrete pad. Each post is permanently cemented into the ground.12

Partial walls exist

on three (3) sides of the Gun Range Building with open areas at the top and bottom of each wall.

An overhang and awning-type structure exists along the fourth-open wall (front side), which

allows for shooting from inside the Gun Range Building out to the Current County Range. The

Gun Range Building is designed to provide sound baffling, additional safety, cover from weather

7 See December 2013 Transcript, Appendix 41a, L: 11-13. 8 See December 2013 Transcript, Appendix 40a, L: 21-22; Appendix 56a, L: 15-21. 9 See attached Appendix 20a-21a.

10 See December 2013 Transcript, Appendix 39a, L: 6-9.

11 See December 2013 Transcript, Appendix 54a, L: 7-16. 12 See December 2013 Transcript, Appendix 45a-50a.

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conditions, and as a shelter for firearms training participants. The walls, ceiling, and overhang

are permanent in their construction. The open areas allow for proper ventilation and drainage,

while at the same time, allowing for adequate firearms training, including live firing of weapons.

The firearms training and the actual discharging of the firearms are conducted from within the

Gun Range Building, with the targets being located at the other end of the Current County

Range.13

In September of 2013, the Gun Range Building on the Property was completed.14

At this

point, the Sheriff’s Department and its law enforcement officers began using the Gun Range

Building and the Current County Range to complete the mandatory firearms training, as

described above.15

The County was unaware and did not understand that the Permanent Injunctive Order

remained in place in September of 2013 (due to it never being served on the County or Sheriff’s

Department) and was broad enough in its language that it needed to be set aside or modified in

order for the firearms training at the Gun Range Building and Current County Range to be

permitted.16

In late 2013, the Township filed a complaint (Case No. 13-0317-CZ-D), in which the

Township sought to enforce the Permanent Injunctive Order as well as civil and criminal

contempt against the Defendants for violation of the Permanent Injunctive Order (the “2013

Case”) (December 13, 2013 Transcript, Appendix 38a, L: 21-24). The County responded by

filing a motion to modify the Permanent Injunctive Order and an answer in the 2013 Case. The

Herman Plaintiffs also sought to enforce the Permanent Injunctive Order, through new filings in

13 The Gun Range Building can be seen from the photographs attached hereto, Appendix 22a-26a. 14 See December 2013 Transcript, Appendix 51a-52a, L: 1-13; 18-25. 15 See December 2013 Transcript, Appendix 61a, L: 15-25 and Appendix 33a-36a, Affidavit of Sheriff L. Paul Bailey. See December 2013

Transcript, Appendix 53a, L: 2-5; Appendix 55a, L: 11-13. Note that only one of the 4 County Ranges comprises (along with the Gun

Range Building) part of the Current County Range and used for mandatory firearms training. 16 See December 2013 Transcript, Appendix 62a, L: 1-6.

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the 2005 Case. The cases were not formally consolidated at the Circuit Court level, but the

Court held several joint hearings.17

In October, 2014, after the filing of briefs and a number of hearings and arguments, the

Circuit Court issued its opinion and order granting Defendants summary disposition under MCR

2.116(I)(2) in both the 2005 case and the 2013 case related to the County’s ability to use the Gun

Range Building and Current Gun Range. After a hearing regarding the applicability of

governmental immunity to the Plaintiffs’ claim for attorney fees, the Circuit Court determined

that the Governmental Tort Liability Act (“GTLA”) (MCL 691.1401 et seq.) was applicable and

granted the Defendants summary disposition as to that claim. The Circuit Court also denied the

Township’s request for declaration of violation of the Permanent Injunctive Order and denied the

Herman Plaintiffs’ request to enforce the Permanent Injunctive Order. The Circuit Court also

partially modified the Permanent Injunctive Order, allowing the County to use the Current

County Range, because it found that there had been a change in circumstances that made the

injunction no longer equitable and determined that the County’s use satisfied this Court’s test as

set forth in Herman. On October 23, 2014, the Circuit Court sua sponte, issued a corrected

opinion, changing the word “civil” to “criminal” on page 12 (in the penultimate paragraph) of the

order (see Appendix 65a-76a)(the “Corrected Order”).

On December 2, 2014, as provided for in the Corrected Order, a trial was held in the

Berrien County Circuit Court to determine whether Berrien County and the Berrien County

Board of Commissioners were guilty of criminal contempt. After the trial, the Court held that

the County Board of Commissioners and the County were not guilty of criminal contempt for

violating the Permanent Injunctive Order.

17 The Trial Court, however, has treated these cases as consolidated.

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The Township and the Herman Plaintiffs appealed the Circuit Court’s rulings to the Court

of Appeals, in separate appeals. The Court of Appeals consolidated these appeals to advance the

efficient administration of the appellate process. The Court of Appeals affirmed the Circuit

Court’s criminal contempt ruling but reversed all other holdings (Appendix 77a-99a). The Court

of Appeals majority reversed the Circuit Court’s order to the extent that the Circuit Court held

that the County could operate the Current County Range under the authority of the CCA, and

remanded for entry of summary disposition in favor of the plaintiffs. The Court of Appeals

majority also reversed the Circuit Court’s modification of the Permanent Injunctive Order and

vacated and remanded the Circuit Court’s ruling that plaintiffs were not entitled to attorney fees.

It is from the Court of Appeals opinion dated September 6, 2016, (Appendix 77a-99a)

wherein the majority erroneously reversed the Circuit Court on almost every issue, (excluding

the Court’s affirmation of criminal contempt ruling), that the Defendants sought and received

leave to appeal to this Court.

STANDARD OF REVIEW

The Michigan Supreme Court reviews matters of law de novo. Pittsfield Charter Twp v

Washtenaw Co, 468 Mich 702, 707; 664 NW2d 193 (2003). This Court reviews findings of fact

for clear error. Tuttle v Dep’t of State Hwys, 397 Mich 44, 46; 243 NW2d 244 (1976).

The Supreme Court reviews decisions regarding injunctive relief for an abuse of

discretion. Michigan Coalition of State Employee Unions v Michigan Civil Service Comm’n,

465 Mich 212; 634 NW2d 692 (2001).

The Court of Appeals shall review a circuit court’s decision to modify a prior judgment

granting injunctive relief for an abuse of discretion. Michigan AFSCME Council 25 v

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Woodhaven-Brownstown School Dist, 293 Mich App 143, 146; 809 NW2d 444 (2011); Ligon v

Detroit, 276 Mich App 120, 124; 739 NW2d 900 (2007). A circuit court abuses its discretion

only when the court’s decision is outside the range of reasonable and principled outcomes.

Michigan AFSCME Council 25, 293 Mich App at 146. A circuit court’s decision to modify an

injunction is not an abuse of discretion as long as there are facts to support a modification and

the decision is within the range of reason and principled outcomes. A circuit court does not

abuse its discretion if it uses a different principled outcome than the reviewing court would have

chosen. People v Babcock, 469 Mich 247, 283; 666 NW2d 231 (2003).

The Court of Appeals was required to review de novo the Circuit Court’s decision on a

motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817

(1999). Pursuant to MCR 2.116(C)(7), summary disposition is appropriate when a claim is

barred by governmental immunity. Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d

897 (1998). This Court reviews de novo questions of law. Odom v Wayne County, 482 Mich

459; 760 NW2d 217 (2008).

Defendant-Appellants assert that the Court of Appeals majority in this case did not

conduct an appropriate legal analysis in reversing the Trial Court, and without conducting any

review of the factual findings of the Circuit Court reversed said findings, even though no clear

error had occurred at the Trial Court level. Defendant-Appellants assert that the Court of

Appeals erred by failing to properly apply the test expressly adopted and clearly outlined by this

Court in Herman v Berrien Co, 481 Mich 352; 750 NW2d 570 (2008), and by either completely

failing to review or improperly reviewing and reversing the Circuit Court’s factual findings

relative to the normal use of the County’s Gun Range Building and the relationship of the

Current Gun Range to that building’s use.

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ARGUMENT

I. THE CURRENT GUN RANGE IS ENTITLED TO PRIORITY UNDER THE

COUNTY COMMISSIONERS ACT, MCL 46.1 ET SEQ., SPECIFICALLY

MCL 46.11(b) AND (d), OVER A CONFLICTING TOWNSHIP ZONING

ORDINANCE.

This Court, in the case of Herman, established the definitive test to be used in order to

determine whether a land use utilized in connection with a building sited and constructed

pursuant to the provisions of MCL 46.11(b) and (d) is entitled to priority over a conflicting

zoning ordinance. (this test shall be referred to herein as the “Indispensable Test”). When

properly applying the Indispensable Test to the changed facts as they existed, the Circuit Court

properly concluded that the conflicting Township Zoning Act was subordinate to the County’s

rights to site and construct the Gun Range Building and to use the Current County Range as an

ancillary use necessary to make normal use of the Gun Range Building. As will be shown

below, the majority opinion of the Court of Appeals not only fails to properly apply the

Indispensable Test but completely failed to even determine the normal use of the Gun Range

Building, a requirement in order to undertake a proper application of that test.

a. The Court of Appeals did not correctly apply the Indispensable Test, as

adopted and expressly set forth by this Court in Herman; therefore, the

Court of Appeals decision directly conflicts with Herman.

The Court of Appeals only focused on the portion of the Herman decision that stated that

the outdoor shooting range was an ancillary use that was not indispensable to the normal use of

the Classroom Training Facility (which was the only building on the property at the time). The

Court of Appeals did not conduct a separate analysis or a proper review of the factual findings of

the Circuit Court based upon the 2013 construction of the new Gun Range Building, and ignored

this Court’s instruction that this standard would invariably require a case-by-case analysis in

future applications. Herman, at 369. In addition, the test utilized by the Court of Appeals,

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focused on the timing of the construction of the Gun Range Building, as it related to the date of

the construction of the outdoor portion of the Current County Range. This analysis was wholly

inconsistent with the test formulated by this Court; therefore, the Court of Appeal’s opinion is

inherently flawed because it never first determined the normal use of the Gun Range Building, as

Herman so requires.

Under the CCA, the County Board of Commissioners has the power to “site” and to

“erect necessary buildings for jails, clerks’ offices and other county buildings.” MCL 46.11(b)

and (d)18

. This Court, in Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702; 664 NW2d 193

(2003), held that the CCA has priority over Township Zoning Ordinances (TZA)19

In Pittsfield,

this Court held that the CCA and the County’s authority to “site” and “erect” county buildings

superseded and are immune from the regulation under a township’s zoning ordinance. Id. at

710-712. This Court in Pittsfield, reasoned that, if counties were required to follow the local use

regulations, then the CCA’s grant of power, to site and erect county buildings, would effectively

be “mere surplusage.” Id. at 713-714. In Herman, this Court reiterated its holding in Pittsfield

decision and further held that the scope of the CCA’s priority over the TZA (now MZEA) is

limited to the construction of buildings and to ancillary land uses that are indispensable to the

building’s normal use. Thus, such ancillary land uses will have priority over the TZA (now

MZEA) if they are indispensable to the building’s normal use. Herman, at 369.

This Court established the “Indispensable” Test as follows:

18

It should be noted that the MCL 46.11(d) relating to the erection of buildings does not specifically state

“courthouses.” Plaintiffs-Appellees have repeatedly used a courthouse as an example of a building that can be

erected while at the same time, arguing that the Gun Range Building at issue is not such a building. This argument

was rejected by both the Circuit Court and the Court of Appeals and Defendants rely upon and incorporate the well-

reasoned analysis of the Circuit Court and the loss articulated holding of the Court of Appeals and their

determination that the Gun Range Building constitutes a building for purposes of any analysis under the CCA and

Herman. 19

The TZA has now been repealed and replaced by the Michigan Zoning Enabling Act (MZEA). MCL 125.3101 et

seq. This analysis is unaffected by this change.

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“Next, we must articulate a standard to test whether a particular ancillary

land use is encompassed in the use of the building such that it is given priority

under the CCA. To answer that question, a court must ask whether the

ancillary land use is indispensable to the building’s normal use.”

***

“Thus, we hold that the scope of the CCA’s priority over the TZA is

limited to ancillary land uses that are indispensable to the building’s normal

use. Accordingly, the ancillary land use will only have priority over local

regulations if it is indispensable to the building’s normal use. This standard

will invariably require a case-by-case analysis in future applications.”

***

“Turning to the present case, the ancillary land use in question is the

outdoor shooting ranges on the county’s leased property. Using the

“indispensable” test, we must decide if that ancillary land use has priority over the

township’s zoning and anti-noise ordinances. In order to decide if this ancillary

land use is indispensable to the normal use of the county’s building, we must

define the normal use of the county’s building.”

Herman, at 368-369 [emphasis added].

The Circuit Court acknowledged that the Indispensable Test must be used in determining

“whether a particular ancillary land use is indispensable to the use of the building, such that it is

given priority under the CCA.” As can be seen above, this Court indicated that in order “to

answer this question, a court must first determine the normal use of the building in question and

then ask whether the ancillary land use is indispensable to the building’s normal use.” Herman,

at 36820

.

Utilizing the Indispensable Test, a deciding court’s first step must be, to determine the

normal use of the county’s building. A building’s normal use only extends to the actual uses

of the particular building, as this is the extent of power granted to a county under the CCA.

20

The ancillary use in Herman, like in this case, was an outdoor shooting range. Herman, based upon a fair reading

of that case, did not determine that the outdoor shooting range was not ancillary to the classroom training facility,

but only that it was not indispensable to that type of building. Herman at 369.

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Herman, at 369. The second step under the Herman Indispensable Test is to determine

whether any ancillary use is indispensable for the building’s normal use. Herman, at 370.

The Circuit Court followed these steps and first determined that the normal use of the

County’s new Gun Range Building was “to facilitate safe and quiet outdoor firearms training for

sheriff’s deputies,” a factual decision which was not overturned by the Court of Appeals. (See

Appendix 74a, and Court of Appeals decision Appendix 77a-99a). The Circuit Court also

noted the distinction between the normal use of the Gun Range Building, which is the building at

issue in the present case, and the normal use of the nearby Classroom Building, which was at

issue in Herman. This Court, in Herman, found that the normal use of the Classroom Building

was “to conduct classroom (or indoor) training, which is different from the outdoor firearms

training that occurs in the shooting ranges.” Id. at 370. The Circuit Court appropriately

recognized that the County’s new Gun Range Building “could not be used for outdoor firearms

and training assessment without shooting.” (See Appendix 74a) Accordingly, the Circuit Court

held that Current County Range is indispensable to the normal use of the County’s Gun Range

Building.

It is of great significance to note that the Court of Appeals majority never applied the

Indispensable Test, adopted by this Court in Herman. The Court of Appeals majority only

referenced the Supreme Court’s holding that “ancillary” land uses fell within the County’s siting

power, under the CCA, to allow for the normal use of a building. The Court of Appeals majority

disregarded this Court’s Indispensable Test and disregarded the steps expressly outlined by this

Court to conduct that test. In fact, the Court of Appeals failed to review and analyze the Circuit

Court’s finding regarding the normal use of the County’s new Gun Range Building. Instead the

Court of Appeals abruptly concluded that the new Gun Range Building is ancillary to the use of

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the Current County Range, as opposed to the Current County Range being ancillary to the Gun

Range Building. It is astounding that the Court of Appeals majority failed to review, consider, or

determine the normal use of the Gun Range Building, and even more so that the majority then

attempted to support its decision by claiming to apply the “Indispensable” Test, in holding that

the Gun Range Building was ancillary to the Current Gun Range because the Current Gun Range

(absent the Gun Range Building) was constructed first. The Court of Appeals stated as follows:

“The problem with the building constructed in front of the existing shooting range

is that it is ancillary to the use of the shooting range, as opposed to the shooting

range being ancillary to the normal use of the building. See Random House

Webster’s College Dictionary (2003) (“ancillary” is defined as “subordinate” or

“subsidiary”). Indeed, the shooting range existed long before the building, and

was utilized (until the courts stopped its use) without the existence of the building.

The evidence shows that the shooting range was and is the main feature of this

activity, making the building subordinate to, or ancillary to, the shooting range.

The county’s argument has the tail (a small structure) wagging the dog (the

previously constructed and utilized range). See State v Stark, 354 Or 1, 11; 307 P

3d 418 (2013). 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 CCA. 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.”

Court of Appeals opinion, 317 Mich App at 135. (Appendix 79a-80a) [emphasis added]

Again, the majority’s analysis does not utilize the Indispensable Test; therefore, this

holding is in direct conflict with the test formulated by this Court in Herman. This Court did not

state that one should look at the land use and determine whether the building is ancillary and

indispensable to it. The first step should have been a determination of the normal use of the

building because this determination is necessary in order to determine whether any ancillary land

uses are indispensable to said building. It is the normal use of the particular county building that

controls whether the county’s priority over local regulations will extend to related land uses.

The Court of Appeals incorrectly interjects a timing element into the Herman analysis,

which, again, is contrary to this Court’s prior decision. The timing of the building’s construction

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is not determinative of whether a use is ancillary or indispensable because the timing of the

building’s construction is irrelevant. See Herman, at 355 fn 3. Yet the Court of Appeals majority

based its entire decision on which came first, the Gun Range Building or the Current Gun Range.

The only “tail wagging the dog” here is that the Court of Appeals relies exclusively upon the

timing of construction in determining what uses are indispensable to the Gun Range Building; a

building that the Court of Appeals found, somewhat backhandedly and without specifically

stating was a “county building” as that term is used in MCL 46.11(d).21

Additionally, this

interjected time-element essentially negates a County’s option, or opportunity, to utilize any

previously existing infrastructure as an ancillary part of a newly constructed building.

The Court of Appeals majority in focusing exclusively on the sequence of construction,

reasoned that because the Current County Range was constructed before the County sited and

erected the Gun Range Building, the Gun Range Building is ancillary to the Current County

Range and that the opposite cannot be true. This reasoning is flawed and this argument was

addressed and disposed of by this Court, in Herman. When this Court addressed the parties’

arguments concerning the sequence of events (whether the Classroom Training Facility or the

County Shooting Ranges were erected first), the Court specifically determined that “the sequence

of construction was not dispositive to the analysis.” The Court stated as follows:

“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.” Herman at 355, fn 3.22

21

See Court of Appeals opinion, (Appendix 79a-80a). 22

It should be noted that there are practical reasons for this Court’s determination that the sequence of construction

is not dispositive. In addition to the construction sequencing issue in the Herman case, it is not unusual for a county

to acquire land and use it as overflow parking while it determines how best to develop or construct a county building

on that property. If the parking facilities in the County Gun Ranges in Herman were constructed before the

building, under the Court of Appeals ruling, they could never be an indispensable use ancillary to the new building,

even though parking is one of the examples given in Herman, and the County Gun Ranges were specifically at issue

in that case. See Herman at 368 and 369.

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The Court of Appeals majority, in an attempt to validate its improper conclusion with an

additional reason why the County cannot prevail, “the Supreme Court has spoken: shooting

ranges are not a normal or indispensable use of a county building.” Court of Appeals opinion,

317 Mich App at 133(Appendix 80a). The Court of Appeals failed to acknowledge that this

Court’s decision, in Herman, was based on an analysis (using the Indispensable Test) of the

particular facts and circumstances, as they existed at that time. This Court’s decision in Herman

was not intended to be a complete prohibition of all outdoor shooting ranges under the CCA,

without conducting an analysis of the particular circumstances or determining the county

building’s normal use. In fact, this Court explicitly limited its holding to the facts of Herman as

they then existed (finding that the Classroom Training Building’s normal use was for indoor

classroom firearms training and that the ancillary use of the outdoor shooting range was not

indispensable to conducting the indoor training), by stating that its analysis and “this standard

will invariably require a case-by-case analysis in future applications.” Herman, at 369.

As detailed above, and found by Judge Markey’s dissent in the Court of Appeals

decision, the Circuit Court conducted an appropriate analysis of the facts and properly applied

the Supreme Court’s Indispensable Test (Appendix 89a-90a, 95a). As a result, it correctly ruled

that the construction of the Gun Range Building brought the County’s use of the Current County

Range under the priority granted the county under the CCA. As previously stated, the Court of

Appeals failed to analyze the normal use of the Gun Range Building, neglected to consider the

Circuit Court’s factual analysis on the issue, completely ignored portions of the Indispensable

Test, and interjected a new element in the Herman decision. Therefore, the Court of Appeals

majority opinion is in direct conflict with the holding and test that this Court established in

Herman. If the Court of Appeals had followed this Court’s clear declaration, that the sequence

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of construction is not dispositive to the analysis, and had properly applied the Indispensable Test,

it would have come to the inescapable conclusion that, under the case by case analysis and the

changed circumstances of this case, that the Current Gun Range is an ancillary and indispensable

land use required for the normal use of the Gun Range Building.

b. The Court of Appeals erred in ruling that the Current County Range is not

ancillary to the normal use of the Gun Range Building.

As outlined in the previous section, the Court of Appeals majority erroneously held that

the Gun Range Building was ancillary to the Current County Range, as opposed to the Current

County Range being ancillary to the Gun Range Building. The majority indicated that this

determination was made because Current County Range existed before the Gun Range Building

was erected (together with the Court’s additional, but also incorrect, claim that the Supreme

Court held that shooting ranges could never be a normal or indispensable use of a county

building). The Court of Appeals erred in reversing the Circuit Court’s factual finding, that the

County’s use of the Current County Range adjacent to the new Gun Range Building, is ancillary

and indispensable to the building’s normal use.

In Herman, this Court acknowledged that “the power to site a building is worthless if the

entity that sites the building cannot make normal use of the building” and that a County is

permitted to conduct ancillary land uses to make normal use of the building. The Circuit Court,

after conducting a hearing, properly found that the normal use of the Gun Range Building was to

facilitate safe and quiet outdoor firearms assessment and training for Sheriffs’ Deputies, a factual

finding not explicitly overruled as clear error or even analyzed by the Court of Appeals. This

Court held that the scope of the CCA’s priority over local zoning ordinances is limited to

ancillary land uses that are indispensable to a building’s normal use and that a court, in making

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this determination, must first define the normal use of the county’s building and then determine

whether the “ancillary” use is “indispensable” to the building’s normal use. That is exactly what

the Circuit Court did and the Court of Appeals majority simply ignored the factual findings,

refused to analyze or determine a normal use of the Gun Range Building and failed to properly

apply the Indispensable Test.

It is clear that the normal use of the Gun Range Building is to facilitate safe and quiet

outdoor firearms training for Sheriff’s Deputies. This training includes conducting the

assessments set forth by the Michigan Commission on Law Enforcement Standards for Active

Duty Law Enforcement Officers (“MCOLES”). The MCOLES standards are set to ensure that

officers possess the requisite firearms skills. The firearms proficiency training and assessment

MCOLES standard lays out the minimum level of competency in order to enhance officer and

citizen safety.23

This mandatory training and assessments are conducted by the Berrien County

Sheriff’s Department by discharging the firearms from within the confines of the Gun Range

Building while aiming their firearms toward the targets, located at the opposite end of the

Current County Range. The Current County Range is essential for this training because the

targets are placed at the end of this range. It is only by use of the targets set up, at the end of

Current County Range that the Gun Range Building can fulfill its purpose and normal use, as

determined by the Circuit Court. Without the Current County Range, there would not be a safe

and secure location in which to place the targets and the officers would not be able discharge

firearms from within the Gun Range Building. This would frustrate the Gun Range Building’s

normal (and quite frankly, sole) use. The proper analysis, using the Indispensable Test, would

have been for the Court of Appeals to review the Gun Range Building’s normal use (as the

Circuit Court and Judge Markey did) to determine whether the Circuit Court committed clear

23

See 1965 PA 201, MCL 28.602 et seq.; see also: http://www.michigan.gov/mcoles.

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error, and then to analyze the uses related to the Gun Range Building and determine whether

such uses are ancillary and indispensable to the building’s normal use. The Court of Appeals

majority failed to conduct any such analysis.

As the Honorable Judge Markey stated, in her thorough and well-reasoned dissenting

opinion, the proper analysis would be for a court to begin by determining the normal use of the

“sited” and “erected” county building and then determine whether any non-building use is

indispensable to the building’s normal use. Herman at 369-370. Judge Markey also correctly

stated that the normal use of the County’s Gun Range Building is to discharge firearms for the

purpose of law enforcement officer training and the adjacent outdoor shooting range is an

indispensable ancillary use to the building’s normal use. In her dissent, Judge Markey also

highlights that there is nothing in the CCA or existing case law that precludes a county from

exercising its authority to site and erect a building to take advantage of a previously existing

infrastructure.24

In fact, one could argue that it is a financially prudent use of taxpayer dollars to

do so and avoid additional construction and property acquisition costs. Judge Markey and the

Circuit Court both conducted an appropriate analysis of the facts and circumstances and correctly

applied the Indispensable Test, in accordance with Herman.

Additionally, the County’s authority to site and erect buildings encompasses its authority

to determine the building’s normal use. The County passed and acted through a resolution,

under which the County Commissioners decided to site and erect the Gun Range Building. This

is a legislative decision that the judiciary should not second guess, as properly noted by the

Circuit Court and Judge Markey’s dissenting opinion. Judge Markey correctly stated:

“The circuit court correctly ruled that although the county acted through a

resolution to move its agents to erect and site the shooting range building, this

action was legislative. See Blank v Dep’t of Corrections, 462 Mich 103, 122; 611

24

See: Court of Appeals opinion, (Appendix 82a).

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NW2d 530 (2000) (KELLY, J., opining that “passing a resolution to override

rules promulgated by an executive branch agency is an inherently legislative

action”); Bengston v Delta Co, 266 Mich App 612, 621-622; 703 NW2d

122(2005) (noting legislative acts include passing an ordinance or resolution).

Judicial review of legislative acts is deferential. For example, judicial review of

the constitutionality of legislation is generally limited to whether the legislation

has a rational basis. “Under rational-basis review, courts will uphold legislation

as long as that legislation is rationally related to a legitimate government

purpose.” Crego v Coleman, 463 Mich 248, 259; 615 NW2d 218 (2000).

“Rational-basis review does not test the wisdom, need, or appropriateness of the

legislation, or whether the classification is made with ‘mathematical nicety,’ or

even whether it results in some inequity when put into practice.” Id. at 260

(citation omitted). “[I]f constitutionally empowered to act, “the propriety,

wisdom, necessity, utility, and expediency of legislation are exclusively matters

for legislative determination.’” Charles Reinhart Co v Winiemko, 444 Mich 579,

600 n 38; 513 NW2d 773 (1994), quoting Black v Liquor Control Comm, 323

Mich 290, 296; 35 NW2d 269 (1948). So, whether the shooting range building

was “necessary” was a legislative decision that the judiciary should not second

guess. Id. [footnote omitted]

The Court of Appeals majority did not follow the Indispensable Test from Herman, nor

did it provide any reasoning or determination regarding the Circuit Court’s factual finding

related to the Gun Range Building’s normal use. Instead, the majority independently determined

that the Current County Range is the “main feature” of the County’s activity and that the Gun

Range Building is “subordinate, or ancillary to, the shooting range,” this determination was

entirely based on the fact that the Gun Range Building was erected after the Current County

Range. This is in direct violation of, and wholly ignores this Court’s decision in Herman. As a

result, this Court should reverse the decision of the Court of Appeals and reinstate the opinion

and orders entered by the Circuit Court as it properly followed this Court’s decision in Herman

and thereby reached the proper conclusion.

II. THE COURT OF APPEALS ERRED BY REVERSING THE BERRIEN

CIRCUIT COURT’S REVISION OF THE EXISTING PERMANENT

INJUNCTION BASED ON CHANGED CIRCUMSTANCES.

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a. The Court of Appeals erred by reversing the Circuit Court’s modification

the Permanent Injunctive Order under MCR 2.612(C)(1)(e).

The Court of Appeals reversed the Circuit Court’s modification of the Permanent

Injunctive Order; however, the majority did not provide an analysis or discuss any reasoning for

making this determination. The majority merely stated that this ruling was made for the same

reasons it reversed the other issues.

The Circuit Court held an evidentiary hearing and, after determining that there had been a

change in circumstances, issued an opinion and order modifying the Permanent Injunctive Order.

The Circuit Court was permitted to make such a modification as “an injunction is always subject

to modification or dissolution if the facts merit it.” Opal Lake Ass’n v Michaywe Ltd

Partnership, 47 Mich App 354, 367; 209 NW 2d 478 (1973). If the circuit court finds that “it is

no longer equitable that the judgment should have prospective application,” then a modification

to the order is appropriate. MCR 2.612(C)(1)(e).

The Circuit Court correctly determined that the facts of this case had changed since the

Permanent Injunctive Order was issued. After hearing all of the evidence and conducting an

analysis of the County’s authority under the CCA, the Circuit Court found that the CCA allowed

for the “siting” and “erecting” of county buildings, such as the Gun Range Building. The normal

use of the new Gun Range Building, to facilitate outdoor firearms assessment and training for

law enforcement officers, made the County’s ancillary use of the Current County Range

indispensable.

Using the test laid out by this Court, in Herman, the Circuit Court ruled that the County’s

new Gun Range Building, along with the use of the Current County Range, now had priority

over the township zoning ordinances. 481 Mich at 362, 369-370. The Circuit Court recognized

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that the circumstances had changed such that the County’s use of the Current County Range now

had priority over the local ordinances. Id. at 362, fn 11.

The reason the Circuit Court initially entered the Permanent Injunctive Order was to

enjoin the County from using the Current County Range, because it was not an indispensable

ancillary use under the CCA, at that time. This reasoning was no longer present when the Circuit

Court ordered the modification of the injunction, as the County’s use of the Current County

Range was now an ancillary use that was indispensable to the new Gun Range Building’s normal

use; therefore, the Circuit Court properly found that the Permanent Injunctive Order was no

longer equitable.

The Circuit Court did not abuse its discretion in modifying the Permanent Injunctive

Order, based on the change in circumstances. Thus, the Court of Appeals erred in reversing the

Circuit Court’s modification of the Permanent Injunctive Order. MCR 2.612 (C)(1)(e); Opal

Lake Ass’n, 47 Mich App at 367; Michigan AFSCME Council 25, 293 Mich App at 146.

III. THE COURT OF APPEALS IMPROPERLY VACATED THE CIRCUIT

COURT’S DECISION TO DENY THE PLAINTIFFS’ REQUEST FOR

ATTORNEY FEES PURSUANT TO MCL 600.1721.

a. The Court of Appeals erred in vacating and remanding the Circuit Court’s

ruling wherein it determined that the Plaintiff-Appellees were not entitled to

attorney fees under MCL 600.1721.

The Court of Appeals vacated and remanded the Circuit Court’s ruling with regard to

denying the Plaintiffs attorney fees, pursuant to MCL 600.1721. Again the Court of Appeals

majority did not discuss its reasoning or provide an analysis, it simply stated that it did so based

on its conclusion that the County acted in violation of and MCL 46.11(b) and (d).

The Supreme Court, in Bradley, held that in a civil contempt action against a government

agency, where the plaintiff is seeking attorney fees, the government agency is immune from tort

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liability under the GTLA. MCL 691.1401 et seq. “Tort liability” includes claims for

indemnification or compensatory damages under MCL 600.1721. Bradley, 494 Mich at 371-

372.

It follows that a party that elects to pursue the statutory remedy available under

MCL 600.1721 will be barred from obtaining relief against governmental

agencies because those entities are entitled to immunity from “tort liability” under

MCL 691.1407(1) of the GTLA. The logical result of this conclusion is that

courts are prohibited from exercising their contempt powers by punishing a

governmental agency’s contemptuous conduct through an award of

indemnification damages under MCL 600.1721. [Bradley, 494 Mich at 393-394].

Under MCL 600.1721, if contemptuous misconduct “caused an actual loss or injury to

any person the court shall order the defendant to pay such person a sufficient sum to indemnify

him.” The Plaintiffs requested that the Circuit Court hold the County in civil contempt and

argued that they were entitled to attorney fees. The Circuit Court held a hearing with regard to

the civil contempt, on the basis of governmental immunity. The Circuit Court followed this

Court’s authority and held that such a penalty cannot be imposed on a governmental entity,

pursuant to the GTLA. In re Bradley, 494 Mich 367, 371; 835 NW2d 545 (2013); MCL

691.1407(1).

The Plaintiffs’ claim for attorney fees, under MCL 600.1721 in an action for civil

contempt, is controlled by this Court’s decision in Bradley. This Court expressly held that a

governmental agency (e.g., a county), is immune from such actions under the GTLA. Therefore,

the Circuit Court’s decision to grant the County’s motion for summary disposition with regard to

the Plaintiffs’ civil contempt claim was consistent with this Court’s holding in Bradley.

Accordingly, the Court of Appeals majority decision is in direct conflict with this Court’s

decision, in Bradley; therefore, it should be reversed.

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CONCLUSION

The Court of Appeals majority ignored this Court’s holding in Herman and failed to

apply the Indispensable Test. This failure led to the Court of Appeals incorrectly deciding

multiple critical issues in this case and, as a result, its decision is in direct conflict with this

Court’s Herman decision.

The Court of Appeals did not conduct a proper analysis, and completely failed to

correctly identify the building’s normal use. Subsequently, the Court of Appeals majority erred

in ruling that the Current County Range was not ancillary and indispensable to the normal use of

the Gun Range Building. The Court, in its reasoning, also relied almost exclusively on the

sequence of events, which as this Court indicated, in Herman, is not dispositive to the analysis.

The Court of Appeals erred in reversing the Circuit Court’s modification of the

Permanent Injunctive Order. The Court of Appeals did not conduct a proper analysis of this

issue and failed to recognize that the Circuit Court had proper grounds and the authority to

modify the injunctive order, as there had been a change in circumstances which made the

injunction no longer equitable.

Finally, the Court of Appeals erred in vacating and remanding the Circuit Court’s ruling

wherein the Circuit Court correctly determined that the Plaintiffs were not entitled to attorney

fees because a county is immune from such actions under the Government Tort Liability Act.

The Court of Appeals majority did not properly analyze this issue; if it had, it would have

determined that the Circuit Court properly denied the Plaintiffs’ action on the basis of

governmental immunity.

The Defendant-Appellants respectfully request that this Court find that the Court of

Appeals majority erred in each of the aforementioned holdings and incorrectly reversed the

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Circuit Court’s rulings, as detailed herein. In addition, Defendant-Appellants request that this

Court hold that the Circuit Court and the in-depth and well-written dissenting opinion of the

Honorable Judge Markey, conducted a proper analysis and arrived at the correct holding on each

issue.

STATEMENT OF RELIEF SOUGHT

The Defendant-Appellants, Berrien County, Berrien County Sheriff’s Department,

Landfill Management Co., and Hennessy Land Co., respectfully request that this Honorable

Court reverse the decision of the Court of Appeals in its Opinion and Order of September 6,

2016, to the extent that the Court of Appeals did not affirm the Circuit Court decision and find

that the Court of Appeals decision is inconsistent with this Court’s express rulings in Herman

and Bradley, supra. Defendant-Appellants respectfully request that this Court reinstate the

decision of the Circuit Court in this matter. The Defendant-Appellants further respectfully

request that they be awarded costs, attorneys’ fees, and any additional relief deemed appropriate

by this Court.

Respectfully Submitted:

DATED: November 15, 2017 By: /s/ Thomas G. King

Thomas G. King (P34006)

Kreis, Enderle, Hudgins & Borsos, P.C.

Attorneys for Defendant-Appellants Berrien

Co. and Berrien Co. Sherriff’s Department

One Moorsbridge, P.O. Box 4010

Kalamazoo, MI 49003-4010

/s/ Christopher E. Tracy

Christopher E. Tracy (P46738)

Honigman Miller Schwartz and Cohn LLP

Attorney for Defendant-Appellants

Landfill and Hennessy Land Co.

350 E. Michigan Ave., Ste 300

Kalamazoo, Michigan 49007

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