ILNews

COA rules against longtime shooting range owner

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

  • 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

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  2. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  3. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  4. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  5. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

ADVERTISEMENT