Herman v. Berrien County

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JUNE 18, 2008

JOE HERMAN, SUE HERMAN, JAY
JOLLAY, SARAH JOLLAY, JERRY
JOLLAY, NEAL KREITNER, TONY
PETERSON, LIZ PETERSON, RANDY
BJORGE, ANNETTE BJORGE, and TINA
BUCK,
Plaintiffs-Appellants,

v No. 134097

COUNTY OF BERRIEN,
Defendant-Appellee.

BEFORE THE ENTIRE BENCH

CAVANAGH, J.

This case involves further analysis of the issue presented in Pittsfield Charter

Twp v Washtenaw Co, 468 Mich 702; 664 NW2d 193 (2003), in which we held that

the county commissioners act (CCA)1 has priority over the Township Zoning Act

(TZA).2 Today we are asked to gauge the scope of that priority, which relates to a

1
MCL 46.1 et seq.
2
MCL 125.271 et seq. The TZA has since been replaced with the Michigan
Zoning Enabling Act (MZEA) MCL 125.3101 et seq., but that new act expressly
(. . . continued)
county’s power to “site” and “erect” “building(s),” by defining the CCA’s term

“site.” In defining that term, we hold that land uses that are ancillary to the county

building and not indispensable to its normal use are not covered by the CCA’s grant

of priority over local regulations. Therefore, in this particular case, Berrien County’s

outdoor shooting ranges do not have priority over the township ordinances that

plaintiffs rely on because they are land uses that are not indispensable to the normal

use of the county building. Accordingly, we reverse the decision of the Court of

Appeals and remand this case to the circuit court for further proceedings consistent

with this decision.

I. FACTS AND PROCEDURE

This case involves a piece of property that is located in Berrien County and

Coloma Township. The property consists of a 14-acre parcel of land. The property

is controlled by defendant, Berrien County, under a 20-year lease from a party that is

unrelated to this case. The county entered into the lease in March 2005. The county

leased the property with the intention of using it for a firearms training facility, which

various law enforcement agencies would use for training exercises. Accordingly, in

May 2005, the county contracted with DLZ Michigan, Inc., to design a master plan

and conduct a feasibility study for the proposed facility. This master plan included

constructing a building of more than 3,000 square feet at the center of the parcel to

serve as a training and support building. This building would have a parking lot with

(continued . . )

provides that all claims, such as the one at bar, that were pending when the

Legislature replaced the TZA with the MZEA are subject to the TZA.

2
24 standard parking spaces (and three handicapped spaces), multiple outdoor light

poles, and a driveway. The facility would also have numerous outdoor shooting

ranges. The ranges were to be set up like the spokes of a wheel that require the

shooter to fire out from the center of the parcel. The center of the parcel is where the

building would be located. See aerial photograph infra at note 4. The county

initially planned on building the ranges first and erecting the building later.3 During

3
The feasibility study’s executive summary contains the following description
of the project:

The Master Plan . . . will be implemented in two phases. Phase
One involves the development of the practice facility itself . . . . A new
building for training and support will be established later as funding
becomes available. . . . DLZ also analyzed the cost of and benefits of
constructing an indoor range. A single indoor range would cost an
estimated $1.3 million to construct [compared to the $591,556 for the
outdoor range] and would not eliminate the need for an outdoor firing
range(s).

At oral argument, the county argued that the building was actually erected
before the shooting ranges were constructed. We have found no support for this
contention or the opposite contention. Nonetheless, the sequence of construction is
not dispositive to our analysis. However, it is worth noting that the initial plans for
the facility clearly indicate that the shooting ranges were the first and most prominent
aspect of the facility to be constructed.

3

the course of this litigation, construction of both the shooting ranges and the building

was started and is now completed.4

Operation of the county’s shooting ranges would contravene several local

ordinances. First, under the township’s zoning ordinance, the shooting ranges are not

a permitted land use given the property’s current zoning status (primary agricultural).

Additionally, gun clubs are not permitted in this zoning status unless the Coloma

Charter Township Board has issued a special land use permit, which the county has

4

4

not received. Finally, the gun ranges produce noise levels that purportedly exceed

the township’s anti-noise ordinance.5

The shooting range facility has been the topic of a hotly contested public

debate. Its supporters note that it provides an invaluable public service by simulating

real-life conditions that law enforcement officers encounter in the field, preparing

them to better serve the citizenry. Further, the supporters argue that indoor shooting

ranges are simply inadequate to properly mimic field conditions. Opponents of the

shooting ranges raised myriad concerns relating to the proximity of the ranges to

other civilian land uses:

(1) Annually, 221,000 rounds will be fired.

(2) Automatic guns, semi-automatic guns, handguns, shotguns, and rifles are

used. One type of gun used, the .308 caliber rifle, can fire a bullet 2.4 miles.

(3) The ranges all point outward from the property’s center, toward the

surrounding privately owned parcels.

(4) There are children’s sports fields within one mile of the ranges.

(5) The ranges are within 2.4 miles of the Coloma schools and within one mile

of over 50 homes.

5
The parties have not litigated the merits of whether the shooting ranges
violate the anti-noise ordinance because, up to this point, the main dispute hinged on
whether the shooting ranges were immune from this ordinance. Nonetheless, the
county’s own feasibility study predicted that the gun range would produce noise
levels above 87 decibels extending to approximately 370 of the surrounding acres.
This apparently violates the anti-noise ordinance, which prohibits noise levels above
65 decibels between 7:00 a.m. and 10:00 p.m. and 55 decibels at all other times.

5

 (6) Seasonally, up to 200 farm workers and their children are within range of

the .308 rifle, and four migrant-worker residences are within 1,500 feet.

(7) The sheriff estimates that 25 percent of the training events will be

conducted after dark.

(8) Property values within one mile of the range are estimated to have

declined by an aggregate of $2.5 million; real estate agents report difficulty selling

homes in close proximity to the facility.

Apparently having been persuaded by the local residents’ concerns, in October

2005, the Coloma Charter Township Board voted unanimously not to support the

facility. However, in November 2005, the county approved the facility, and

construction on it proceeded.

Plaintiffs are a group of individuals who own property located in close

proximity to the shooting ranges. In late November 2005, plaintiffs filed a

declaratory judgment action that aimed to stop operation of the facility. The

complaint alleged that the county’s facility was prohibited by the township’s zoning

ordinance; and the plaintiffs’ amended complaint additionally alleged that the facility

violated the township’s anti-noise ordinance. After various circuit court proceedings,

the parties filed cross-motions for summary disposition. The trial court, relying on

Pittsfield, supra, simultaneously granted the county’s motion for summary

disposition and denied plaintiffs’ dispositive motion. Plaintiffs appealed, and the

Court of Appeals affirmed in a published, split decision. Herman v Berrien Co, 275

Mich App 382; 739 NW2d 635 (2007). The Court of Appeals majority also relied on

6

Pittsfield, holding that the county is exempt from the township’s regulations because

they conflict with its express legislative authorization to site county buildings, which

includes the county’s shooting ranges. Id. at 384, 388-389. We granted plaintiffs’

application for leave. Herman v Berrien Co, 480 Mich 961 (2007).

II. STANDARD OF REVIEW

The case involves interpretation of the CCA. “Questions of statutory

interpretation are questions of law, which will be reviewed de novo.” In re MCI

Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999); see also Cardinal

Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467

NW2d 21 (1991).

III. ANALYSIS

We are again called on to analyze a purported conflict between the powers

given to intermediate government entities and the powers given to local government

entities. Specifically, this case involves the relationship between a county’s power,

under the CCA, to site county buildings and the powers given to local governments

under the TZA and the Township Ordinance Act, MCL 41.181 et seq.6

While this particular case includes novel nuances, the broad question is one

that we have previously encountered. In Dearden v Detroit, 403 Mich 257; 269

NW2d 139 (1978), we analyzed a conflict between the Michigan Department of

6
The relevant anti-noise ordinance was promulgated by Coloma Township
pursuant to the Township Ordinance Act, § 1, which gives local governments the
power to “adopt ordinances regulating the public health, safety, and general welfare
of persons and property . . . .” MCL 41.181(1).

7

Corrections, in its attempts to use a building as a criminal rehabilitation center, and

the city of Detroit’s zoning ordinance, which precluded such land use. At that time,

we acknowledged that “[n]o Michigan case has resolved, with finality, the question

of whether our state or its agencies are inherently immune from local zoning

ordinances.” Id. at 262. Yet, we held that “the legislative intent, where it can be

discerned, is the test for determining whether a governmental unit is immune from

the provisions of local zoning ordinances.” Id. at 264.7 The holding in Dearden

continues to be the appropriate test for these particular conflict cases.

In Northville Charter Twp v Northville Pub Schools, 469 Mich 285; 666

NW2d 213 (2003), we examined whether the authority of the state superintendent of

public instruction to control site plans of schools under the Revised School Code

(RSC)8 had priority over the restrictions of a local zoning ordinance. Relying on the

rule in Dearden, we held that the state superintendent’s decision to build and operate

a school was immune from the local zoning regulations because the Legislature

evinced its intent to give the superintendent such priority by stating that the

superintendent had “‘sole and exclusive jurisdiction over . . . site plans for those

7
In Dearden, we held that the Department of Corrections’ rehabilitation house
was immune from Detroit’s zoning ordinance because the Legislature had evidenced
its intent to that effect in MCL 791.204 by giving the Department of Corrections
“‘exclusive jurisdiction over . . . penal institutions’” and by making that act “‘repeal
all acts and parts of acts inconsistent with the provisions of this act.’” Id. at 265-
266, quoting MCL 791.204 (emphasis in original).
8
MCL 380.1 et seq.

8

school buildings.’” Northville, supra at 290, 295, quoting MCL 380.1263(3)9

(emphasis omitted). The opinion also pointed out that the Legislature need not use

the exact phrase “sole and exclusive jurisdiction” to bestow priority; but, when that

phrase is used, it signifies a grant of priority. Id. at 291-292. In Northville, we also

wrestled with the scope of priority in defining the RSC’s phrase “site plan.” The

plurality opinion held that the phrase extended the priority of the superintendent’s

power in locating and operating schools to “everything on the property, i.e., the entire

project.” Id. at 292.10

Dearden and Northville make it clear that whenever the legal question of

priority is presented, it must be resolved by thorough analysis of the statute that

9
This subsection, in pertinent part, states:

The superintendent of public instruction has sole and exclusive
jurisdiction over the review and approval of plans and specifications for
the construction, reconstruction, or remodeling of school buildings used
for instructional or noninstructional school purposes and, subject to
subsection (4), of site plans for those school buildings. [MCL
380.1263(3).]

10
I concurred and wrote separately to note that the phrase “site plan” should
be defined as a legal term of art that involves a broader meaning than simply “‘what
goes on within the site itself,’” as the plurality phrased it. Northville, supra at 299.
However, my disagreement with the plurality opinion on that issue is not dispositive
in the instant case because, under either definition of “site plan,” priority applied to
more than simply erecting a school building. Indeed, even under the plurality
opinion’s narrower definition, “site plan” applied to any land use on the property,
which is dispositive in this case as it relates to the distinction between “site plan,” as
used in the RSC, and “site,” as used in the CCA. See infra.

9

purportedly gives the government entity priority over local regulations.11 In this

case, that statute that potentially gives the county priority over the township’s

ordinances is the CCA. Thus, following Dearden and Northville, we must analyze

the CCA to discern the Legislature’s intent regarding any priority that that act may

give to counties.12 The CCA states in pertinent part:

A county board of commissioners, at a lawfully held meeting,
may do 1 or more of the following:

(a) Purchase or lease for a term not to exceed 20 years, real estate
necessary for the site of a courthouse, jail, clerk’s office, or other county
building in that county.

(b) Determine the site of, remove, or designate a new site for a
county building. The exercise of the authority granted by this
subdivision is subject to any requirement of law that the building be
located at the county seat.

***

11
In this context, the term “priority” is legally synonymous with the term
“immunity,” because if a government entity has priority over local regulations, it may
also be described as being immune from local regulations. This comports with the
semantics of traditional preemption analyses, which these conflict-of-laws cases
involve.
12
The Court of Appeals and both parties include Burt Twp v Dep’t of Natural
Resources, 459 Mich 659; 593 NW2d 534 (1999), in their analyses of the priority
issue because that case dealt with whether a statute gave the Department of Natural
Resources priority over a local zoning ordinance. However, we find Burt
distinguishable from the instant “priority” analysis for several reasons. First, Burt is
only helpful regarding the general precepts of the priority analysis because it was
applying a different power-granting statute, and it did not expand on the general
guidance Dearden had already given. Second, any general aid to the priority analysis
that Burt may have given is inapplicable because, since Burt, Pittsfield has decided
the instant priority question of the CCA versus local regulations. Finally, Burt
simply did not evaluate the scope of any statutory priority, which is the pivotal issue
here.

10

 (d) Erect the necessary buildings for jails, clerks’ offices, and
other county buildings, and prescribe the time and manner of erecting
them. [MCL 46.11.]

This is not the first time we have conducted a priority analysis of the CCA.

Indeed, we first applied Dearden’s rule to the CCA in Pittsfield, a case in which a

township wanted to stop Washtenaw County from constructing a homeless shelter

because the shelter violated the township’s zoning ordinance. We held that under the

CCA, the county’s authority to site and erect county buildings superseded the

township’s authority under its zoning ordinance. Pittsfield, supra at 710-712. We

reasoned that if a county were required to follow local use regulations, the CCA’s

grant of power to site and erect county buildings would be effectively “surplusage.”

Id. at 713-714. Thus, since Pittsfield, it has become accepted that the CCA gives

counties priority over local regulations that inhibit a county’s power to site and erect

county buildings under the CCA.13

In this case, we are not asked to disturb Pittsfield’s holding; both parties and

both lower courts accept Pittsfield as controlling. Yet, Pittsfield does not answer the

question presented here because that case did not examine the scope of priority that

the CCA gives counties. That scope question is the pivotal issue in this case. In other

13
While Pittsfield’s holding may have been interpreted as only applying to the
CCA’s priority over local zoning restrictions, today we extend that holding to include
the uncontroversial notion that the CCA grants counties similar priority over any
local ordinance that would apply to restrict the county’s power to site and erect
county buildings in the same fashion that the zoning ordinance inhibited the homeless
shelter in Pittsfield.

11

words, while there is no dispute in this case regarding whether the CCA gives the

county priority to site and erect county buildings, there is a dispute regarding whether

that priority extends to the county’s land uses—the shooting ranges—that are

ancillary to its buildings. In that regard, the Court of Appeals majority correctly noted

that the true issue is the definition of the CCA’s term “site.” Indeed, it is this

definitional analysis that will answer the true question in this case: When a county

erects a building pursuant to its authority under the CCA, what land uses, if any, are

encompassed in the definition of “site” such that they also have priority over local

regulations? Thus, as that question applies to this case, if building the outdoor

shooting ranges is included in the county’s power to “site” buildings, those land uses

will have priority over the township’s ordinance; whereas, if they are not included in

the definition of “site,” they will not have priority.

On that issue, the Court of Appeals stated:

“Site” is not defined in the statute, so resorting to a dictionary is
necessary to determine the ordinary meaning of the word. Northville
[supra at 292]. In Northville . . . the Supreme Court looked to the
dictionary to define “site” when determining the meaning of “site plan”
under the [RSC]:

“This leaves to be determined the definition of ‘site plan.’ The
dictionary defines ‘site’ as ‘The place where something was, is, or is to
be located,’ The American Heritage Dictionary of the English Language
(1982), or similarly, “[T]he area or exact plot of ground on which
anything is, has been, or is to be located . . . .” Random House
Webster’s College Dictionary (1997). [Id.]”

Using these same definitions, it is clear that when designating a new
“site” for county buildings, the “site” includes the entire area of ground
on which the building is to be located. In other words, it is the “site” or,
in real terms, the entire parcel where the buildings will be located, that
is not subject to local regulation. Hence, the uses on the site of the

12

 building are not subject to the township’s ordinances. Pittsfield Twp,
supra at 711. [Herman, supra, 275 Mich App at 386-387.]

The Court of Appeals used this analysis to hold that the county’s shooting ranges had

priority over the township’s ordinances. We disagree with this conclusion and

therefore reverse.

Initially, we note that the definition of “site” from Northville is not controlling

because it derives from a different priority-giving statute. Northville involved the

RSC, while the present case involves the CCA. In comparing these two statutes, it is

clear that they serve different purposes and, accordingly, bestow different powers on

their respective government entities.

The RSC gives the superintendent “sole and exclusive jurisdiction over the

review and approval of plans and specifications for the construction, reconstruction,

or remodeling of school buildings used for instructional or noninstructional school

purposes and . . . of site plans for those school buildings.” MCL 380.1263(3)

(emphasis added). Hence, the RSC gives the superintendent unlimited authority over

the entire site plan of school buildings. Also notably, the RSC defines one such

building very broadly: “[a]s used in this section: ‘High school building’ means any

structure or facility that is used for instructional purposes, that offers at least 1 of

grades 9 to 12, and that includes an athletic field or facility.” MCL 380.1263(8)(a).

In contrast, the CCA gives counties the power to “[d]etermine the site of,

remove, or designate a new site for a county building,” and to “[e]rect the necessary

buildings for jails, clerks’ offices, and other county buildings . . . .” MCL 46.11(b)

and (d) (emphasis added). Thus, a county’s power under the CCA is limited to the

13

siting of county buildings, which does not equate to the power to review and approve

site plans. Further, that power is limited because it does not apply when that

particular county building is required by law to “be located at the county seat.” MCL

46.11(b).

In sum, the RSC gives nearly unlimited power (“sole and exclusive”)

regarding entire site plans of schools, whereas the CCA gives a power that is limited

in certain circumstances and only applies to siting county buildings. Accordingly,

the CCA’s limited term “site” does not carry the same meaning as the RSC’s

expansive phrase “site plan.” Thus, the Court of Appeals incorrectly relied on

Northville, which dealt with the RSC, to equate “site plan” with “site” as used in the

CCA.

However, simply noting that Northville does not adequately define “site” under

the CCA does not complete our analysis. We must still give meaning to that term by

adopting a test that determines whether and which land uses are encompassed in its

definition. On that score, the County proffers that “site” applies to any use of land

that is reasonably connected to the county building thereon. Plaintiffs do not suggest

an alternative test. Instead they rely on the CCA’s limited grant of authority to site

buildings, which, it argues, omits the power to site ancillary land uses. Neither party

is wholly correct.

In this analysis, we are mindful of Dearden’s overarching maxim: “legislative

intent, where it can be discerned, is the test for determining whether a governmental

unit is immune from the provisions of local zoning ordinances.” Dearden, supra at

14

264. We also note that, in statutory interpretation, if the language of the statute is

unambiguous, the Legislature must have intended the meaning clearly expressed, and

the statute must be enforced as written. Turner v Auto Club Ins Ass’n, 448 Mich 22,

27; 528 NW2d 681 (1995). Also, “[a]s far as possible, effect should be given to every

phrase, clause, and word in the statute. The statutory language must be read and

understood in its grammatical context, unless it is clear that something different was

intended.” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999)

(internal citations omitted). Finally, in defining particular words in statutes, we must

“consider both the plain meaning of the critical word or phrase as well as ‘its

placement and purpose in the statutory scheme.’” Id., quoting Bailey v United States,

516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).

The CCA is an unambiguous statute. In pertinent part, it gives counties the

power to “[d]etermine the site of, remove, or designate a new site for a county

building” and to “[e]rect the necessary buildings for jails, clerks’ offices, and other

county buildings . . . .” MCL 46.11(b) and (d). A plain reading of this language leads

to the conclusion that the Legislature intended to give counties the power to “site” and

“erect” “county buildings.” Each time the CCA grants the power to site, it invariably

relates that power to “buildings.” Notably, the Legislature never semantically links

the power to site with any nonbuilding activity or land use. In other words, the CCA

does not give counties the power to site a county “activity” or county “land use”;

rather, it always relates its grant of siting power to “buildings.” This leads to the

15

conclusion that the siting power is limited to buildings.14 This conclusion is

supported by the contextually derived purpose of the CCA. The CCA was expressly

promulgated “to define the powers and duties of the county boards of commissioners .

. . .” Title of 1851 PA 156, as amended by 1978 PA 51. Accordingly, in § 11, the act

clearly and descriptively articulates the numerous powers it gives to counties.15 The

power to site county activities or land uses is conspicuously absent from that list.16

Also, the CCA’s continued use of the term “building(s)” must have significance. That

term would be rendered nugatory if the CCA’s power to “site” was meant to extend to

other county acts, such as siting land uses, because those other acts are never listed in

the CCA. In essence, if those unlisted acts were actually included in the power to site

buildings, then the CCA’s express inclusion of the power to site buildings would be

superfluous. This cannot be.17 Therefore, the CCA’s continued use of the term

14
In fact, the CCA expressly includes examples that uniquely fit into the
category of buildings: courthouses, jails, clerks’ offices, and other county buildings.
15
In addition to the siting power, the CCA also gives counties the power,
among other things, to: “[p]urchase or lease . . . real estate,” “[b]orrow or raise by tax
upon the county those funds authorized by law,” “[e]stablish rules consistent with the
open meetings act,” and “[g]rant or loan funds to a nonprofit corporation organized
for the purpose of providing loans for private sector economic development
initiatives.” MCL 46.11 (a), (e), (p), and (r).
16
In light of the array of disparate powers enumerated in the CCA, the
Legislature surely could have, for instance, granted counties the power to site land
uses, such as landfills, reservoirs, beaches, parks, or other county land uses. But it
chose not to.
17
See Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992)
(when interpreting a statute, no word should be treated as surplusage or rendered
nugatory if at all possible).

16

“building(s)” must place significant limitations on the meaning of the act’s term “site”

by omitting the power to do other acts.

However, we are mindful that the power to site a building is worthless if the

entity that sites the building cannot make normal use of the building. Just as Pittsfield

recognized that the power to site a building would be “mere surplusage” if the siting

entity had to comply with zoning ordinances, Pittsfield, supra at 713, we too

acknowledge that the power to site a building would be meaningless if the siting

entity could not conduct ancillary land uses in order to make normal use of the

building. For instance, the normal use of most county buildings would require

sidewalks, parking lots, and light poles. Thus, while defining the power to “site” as

being limited to buildings, we simultaneously accept that some ancillary land uses

must be included in the county’s siting power.

Next, we must articulate a standard to test whether a particular ancillary land

use is encompassed in the use of the building such that it is given priority under the

CCA. To answer that question, a court must ask whether the ancillary land use is

indispensable to the building’s normal use. “The TZA vests townships with broad

authority to enact zoning ordinances to regulate land development and to ‘insure that

the use of land shall be situated in appropriate locations and relationships . . . . ’”

Pittsfield, supra at 707-708, quoting MCL 125.271(1). As stated, the priority given to

the county in MCL 46.11(b) and (d) is significantly limited to siting a building.

Because the county’s authority is limited, the encroachment on a township’s broad

authority must be limited to that needed to effect the purpose of §§ 11(b) and (d).

17

Thus, we hold that the scope of the CCA’s priority over the TZA is limited to

ancillary land uses that are indispensable to the building’s normal use. Accordingly,

the ancillary land use will only have priority over local regulations if it is

indispensable to the building’s normal use.18 This standard will invariably require a

case-by-case analysis in future applications.

Turning to the present case, the ancillary land use in question is the outdoor

shooting ranges on the county’s leased property. Using the “indispensable” test, we

must decide if that ancillary land use has priority over the township’s zoning and anti-

noise ordinances. In order to decide if this ancillary land use is indispensable to the

normal use of the county’s building, we must define the normal use of the county’s

building. The county’s building is located in a complex that is called the “Berrien

18
In adopting this standard, we are reminded of, and guided by, the venerable
holding in McCulloch v Maryland, 17 US (4 Wheat) 316; 4 L Ed 579 (1819), in
which the United States Supreme Court dealt with a similar issue regarding the scope
of a government’s power when its granting authority leaves that question
unanswered. The Court stated:

Congress is not empowered by it to make all laws, which may
have relation to the powers confered on the government, but such only
as may be “necessary and proper” for carrying them into execution.
The word “necessary” is considered as controlling the whole sentence,
and as limiting the right to pass laws for the execution of the granted
powers, to such as are indispensable, and without which the power
would be nugatory. [Id. at 413.]

While the CCA does not contain the exact phrase “necessary and proper,” we
find the present issue strikingly similar. The CCA has given power to this state’s
counties, and that power must be useable, yet limited. Thus, with no statutory
direction in that regard, we find the McCulloch Court’s resolution of its similar
dilemma compelling.

18

County Sheriff’s Department Firearms Training Facility.” The county’s feasibility

study for the facility describes the purpose of the building as being “for training and

support.”19 Thus, the building’s normal use is for firearms training and support.

More specifically, the building’s normal use is for conducting classroom firearms

training. While it may be true that this normal use works in concert with, or aids, the

broader purpose of total firearms training, which includes using outdoor shooting

ranges, the normal use of the building is to conduct classroom (or indoor) training,

which is different from the outdoor firearms training that occurs in the shooting

ranges. This distinction is of great import when recalling that the CCA’s grant of

power hinges on siting and erecting “buildings.” In other words, a county may not

expand a building’s normal use simply because that building’s use aids or

complements another distinct use. For purposes of CCA priority, a building’s normal

use only extends to the actual uses of that particular building because, again, that is

the extent of the power granted to the county by the CCA. Therefore, despite the

county’s use of the building to support the broad arena of firearms training, which

conceivably includes the outdoor shooting ranges, the building’s normal use is limited

to conducting indoor “training and support.” In other words, the normal use of the

outdoor shooting ranges is for outdoor shooting practice and training, while the

19
Both parties have accepted the factual assertions of this study. In fact, the
county proffered an affidavit of the chairman of the Berrien County Board of
Commissioners, in which the chairman expressly adopts the study’s findings. The
county also presented the affidavit of a county undersheriff, who stated that “[t]he
training facility building will function as a classroom. This is because virtually all
firearms training begins in a classroom setting.”

19

normal use of the building is for indoor classroom training and practice, despite both

uses falling under the broad category of firearms training.

Accordingly, the final question is whether the outdoor shooting ranges are

indispensable for the building’s indoor training and support. We hold that they are

not indispensable because the indoor training and support can be conducted without

the outdoor shooting ranges being located next to the building. Therefore, under the

CCA, the shooting ranges are not given priority over the township’s ordinances.

IV. CONCLUSION

The county’s shooting ranges do not have priority over the township’s

ordinances because those local regulations do not conflict with the county’s powers

under the CCA; as they apply to the shooting ranges, the regulations do not stop the

county from exercising its limited power to site buildings. However, the county

building, its parking lot, its driveway, and its lighting poles do have priority over the

local regulations because they are indispensable to the normal use of the building.

Accordingly, we reverse the judgment of the Court of Appeals and remand the

case to the circuit court for further proceedings consistent with this opinion. We do

not retain jurisdiction.

Michael F. Cavanagh
Clifford W. Taylor
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

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