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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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