Dennis Pierce v. Cecil Nye

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS DENNIS PIERCE, SUZANNE PIERCE, DOUG UNPUBLISHED ALLMAN, and ELAINE ALLMAN, June 24, 2025 2:23 PM Plaintiffs-Appellants, v No. 368883 Grand Traverse Circuit Court CECIL NYE and NYE’S TRAP RANGE, LC No. 2021-035809-CH Defendants-Appellees. Before: GARRETT, P.J., and RICK and FEENEY, JJ. PER CURIAM. In this private zoning enforcement matter, plaintiffs appeal as of right the trial court’s order: (1) denying their claim of nuisance per se and request for injunctive relief, and (2) ruling that the sport shooting activity on the east side of defendants’ property was a lawful nonconforming use. We affirm. I. FACTS This case arises from plaintiffs’ concerns of increased shooting activity at Nye’s Trap Range, which is a sport shooting range located in Paradise Township. The range encompasses 40 acres on a long and narrow parcel of land, and it is zoned in an agricultural district. The property was purchased by Delbert Nye in 1965, and the range opened in 1973 or 1974.1 The range quickly began operating as a prior nonconforming use when zoning in Paradise Township began. An interim zoning ordinance was instituted in 1975, but a new zoning ordinance was adopted in 1979, which repealed the interim zoning ordinance. The 1979 ordinance did not 1 Delbert died in January 2017, but Cecil Nye, Delbert’s grandson, has owned and operated the range since it was conveyed to him in 2016. -1- permit shooting ranges in agricultural districts by right or by special use permit. 2 See 1979 Ordinance, §§ 15.10 and 15.11. The 1979 ordinance governed nonconforming uses as follows: “At the discretion of the owner, the lawful use of any building, structure, land or premises existing prior to the effective date of this Ordinance, may be continued, but no such building or structure or land use shall be enlarged or extended, except as provided herein.” 1979 Ordinance, § 9.12. In 2008, the township adopted the current zoning ordinance, which permitted shooting ranges in agricultural districts by a special land use permit, see 2008 Ordinance, § 6.04; however, there is no dispute that defendants never applied for such permit. When the range first opened, it was primarily used for trap shooting3 on the west side of the property, but by 1975, about 10% of the shooting activity took place on the east side of the property. In Spring 2021, the sporting clays4 course on the east side of the property was “upgraded” for “safety reasons.” After the upgrades to the eastern part of the property were made, several adjacent property owners noticed more frequent and louder shooting activity; some of the property owners decided to contact the township’s zoning administrator about their concerns. The township’s zoning administrator began an investigation, but the township supervisor quickly instructed him to end it because the township board previously determined that the range was considered a lawful nonconforming use, and the township did not want to waste any more resources on the matter.5 In June 2021, plaintiffs filed suit, arguing that that the upgrades made to the east side of the range constituted an expansion of the prior nonconforming use in violation of the zoning ordinance. Plaintiffs requested that the trial court “enter an order enjoining Defendant from continuing to develop, install, and operate shooting stations in the area complained of, and declare 2 We acknowledge that the trial court incorrectly stated that the 1979 ordinance “allowed gun ranges in the agricultural district” when it clearly did not. See 1979 Ordinance, §§ 15.10 and 15.11. Nevertheless, the trial court very clearly stated that there was “sufficient evidence to find a history of sport shooting on the eastern portion of the property from the mid[-]1970’s through the present.” Therefore, the trial court’s factual findings, in conjunction with the plain language of the 1979 ordinance, display that the nonconforming use was established before the 1979 ordinance. 3 Trap shooting involves five shooters who shoot at clay pigeons, or targets, launched from trap houses. Each shooter takes five shots in each position, for a total of 25 shots each. 4 Sporting clays shooting is a “fairly new” form of shooting similar to “a