Posted by: Patricia Salkin | January 26, 2013

Indiana App. Court Reverses Lower Court Holding that Shooting Range May Be a Nuisance

In 1962, Levi Kemp built an earthen berm at the back of his property, located in Marshall County, Kentucky, for use as a shooting range. At the time, no county zoning ordinances, regulations, or state laws were in effect to govern shooting ranges. Kemp expanded the range several times, the most recent in 2006, and two years later obtained the Board of Zoning Appeals’ approval to continue operating the range. The plaintiffs in this case, the Yates family and the Tibbs family, moved across the street from the range in 1995 and 2006 respectively. The Plaintiffs filed a nuisance action against Kemp for the noise the range produced. Both parties moved for summary judgment.The trial court granted Kemp’s motion as to the plaintiffs’ claims for nuisance and damages to their property. This appeal followed.

The key statute here, Indiana Code section 14–22–31.5–6 (“section 6”), provides a safe harbor for owners and operators of shooting ranges against claims of noise pollution. Section 6 provides:

A person who owns, operates, or uses a shooting range is not liable in any civil or criminal matter relating to noise or noise pollution that results from the normal operation or use of the shooting range if the shooting range complies with a law or an ordinance that applied to the shooting range and its operation at the time of the construction or initial operation of the shooting range, if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range.

The plaintiffs argued that this safe harbor statute does not apply to Kemp because no laws or ordinances were in existence at the time he built and began operating his range. The court agreed, noting that the plain language of the statute supports this argument. In order for Kemp to be covered by the safe harbor and be immune from noise pollution liability, a law or ordinance governing shooting ranges must have been in effect when the range in question was built or initially operated.

After analyzing the statute and surrounding provisions, the court determined that the General Assembly, when drafting the laws, knew how to indicate that a provision applies to a shooting range that was built before an ordinance was enacted. Therefore, according to the court, if the legislature wanted section 6 to apply to all ranges regardless of whether they were built before or after governing ordinances took effect, it would have done so. However, because it did not, the court’s construction of section 6 meant that Kemp was not protected under it.

To recover on their nuisance action, plaintiffs had to demonstrate inconvenience, annoyance, or discomfort with the shooting range. The court had to decide if, by looking at the surrounding facts and circumstances, the plaintiffs had established a dispute of material fact as to whether Kemp actually caused them inconvenience, annoyance, or discomfort. The plaintiffs provided evidence that the gunshots from the range force them to avoid riding their horses due to fear that the horses would get startled and buck the rider to the ground. Jason Tibbs actually claimed that one day he was riding his horse when a gunshot spooked his horse which then reared up, causing him to fall to the ground and sustain injury. Additionally, because of the risk to riders, the Yateses had foregone a program to let at-risk youth ride their horses due to this danger. Plaintiffs also claim that to avoid the noise they remain indoors with the doors and windows closed.

For these reasons, the court found that there was a dispute of material fact as to whether the noise pollution from the shooting range caused the plaintiffs to experience inconvenience, annoyance or discomfort. In doing so the lower court’s decision granting summary judgment in favor of Kemp was reversed.

Yates v Kemp, 979 N.E. 2d 678 (Ind. App. Ct. 12/6/2012)

The opinion can be accessed at:

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20INCO%2020121206181.xml&docbase=CSLWAR3-2007-CURR


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