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COA rules against longtime shooting range owner

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A Marshall Circuit judge erred in granting partial summary judgment in favor of a shooting range owner on his neighbors’ claims of nuisance, the Indiana Court of Appeals held Thursday. The appellate judges found a statute cited by the trial court did not apply to the owner.

Levi Wayne Kemp built a shooting range on his property in Marshall County before any ordinances, zoning restrictions or laws governing shooting ranges were in effect. He has since expanded several times and received the county board of zoning appeals’ approval in 2008 to continue the operation of the range. His neighbors across the road, Connie and Richard Yates and Jason and Pauline Tibbs, sued Kemp, claiming nuisance, negligence and other claims. They maintained that the shooting range prevents them from riding their horses, scares the horses and they often have to close their windows because of noise from the range.

Marshall Circuit Judge Curtis D. Palmer granted partial summary judgment to Kemp on the nuisance claim, the only issue before the COA. Palmer cited Indiana Code 14-22-31.5-1 et seq. in determining Kemp wasn’t liable for his neighbors’ nuisance claims.

But Senior Judge Betty Barteau pointed out in Connie Yates, Rick Yates, Jason Tibbs, and Pauline Tibbs v. Levi Wayne Kemp, 50A04-1204-CT-192, that Section 6, which provides a safe harbor in limited circumstances for owners, operators and users of shooting ranges against claims of noise pollution doesn’t apply to Kemp. That section is only applicable to ranges “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.”

Kemp isn’t entitled to the protection of Section 6 because there were no applicable laws or ordinances in effect at the time he built and began operating the range, the judges held.

They also found evidence to establish a dispute of material fact as to whether Kemp has caused his neighbors to experience inconvenience, annoyance or discomfort. The matter is remanded for further proceedings.

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  • compliance
    If there were no laws governing the range at the time it was build, then he should be deemed to be in compliance with the law. He could not be held in violation if a law that did not exist, and should be "grandfathered" in compliance of the new law, as of the effective date construction

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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