Appeals court again rules against couple operating shooting range
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Returning to the Court of Appeals of Indiana for the third time, a Jefferson County couple operating a shooting range on their property without the proper permitting failed to find relief from an order in favor of the local planning commission.
In 2012, Joseph and Sherry Chapo applied for a conditional use permit to operate “in the future an Indoor/Outdoor tactical and test firing range to be marketed to professional marksmen, law enforcement and light military forces in the region.” They also sought permission to manufacture and sell firearms on their property.
While those applications were pending, the Chapos incorporated their solely-owned business as Deputy Big Shot LLC.
The Jefferson County Board of Zoning Appeals approved the Chapos’ request to manufacture and sell firearms but denied the conditional use permit needed to operate the shooting range.
Despite the denial, the Chapos later operated a shooting range on the property. That included advertising for future tactical test firing range events and announcing the Deputy Big Shot “Grand Opening” in April 2016, among other advertisements and activities.
The advertisements and a citizen complaint prompted the Jefferson County zoning enforcement officer to twice order the couple to cease operating a tactical test firing range on their property.
When the Chapos failed to comply, the Jefferson County Plan Commission in May 2016 filed a complaint for injunction and damages alleging the Chapos were violating the zoning ordinance.
The Jefferson Circuit Court in January 2017 granted a preliminary injunction barring the Chapos from operating a shooting range on their property. The Chapos filed an interlocutory appeal and continued to operate the shooting range.
While the appeal was pending, the trial court found the Chapos in contempt for continuing to operate the shooting range in violation of the preliminary injunction.
In 2018, the appellate court affirmed the preliminary injunction.
The Chapos later moved under Indiana Trial Rule 60(B) for relief from the preliminary injunction and contempt findings. The motion claimed that those rulings were void because the commission lacked standing to bring the suit, and that the commission members had not filed oaths as statutorily required, making their offices vacant.
The trial court denied the motion, prompting a second appeal. The COA again affirmed in 2021.
Meanwhile, the Chapos had moved for summary judgment, but the trial court instead granted summary judgment to the commission and enjoined the Chapos from operating the shooting range.
Additionally, the trial court ordered the Chapos to remedy and abate all violations within 90 days, and if that was not done, the commission was authorized to enter the property to remedy and abate the violations. Also, the Chapos were fined $209,625 plus $27,490.78 in attorney fees, as well as court costs.
That ruling prompted the Chapos’ third and instant appeal, in which the COA again affirmed.
The first issue on appeal was whether the Chapos are barred from challenging the initial denial of a conditional use permit back in 2012.
On that issue, the appellate court ruled that the BZA’s decision is not void and that the Indiana Shooting Range Protection Act is inapplicable.
“We conclude that the Chapos have not established that the ISRPA barred the BZA’s denial of their conditional use permit or rendered that decision void,” Judge Leanna Weissmann wrote. That’s because the safe harbor provisions of the ISRPA do not protect the Chapos’ shooting range, and its noise provisions do not apply.
“Without any showing that the ISRPA applies, we need not address the Chapos’ remaining arguments under that statute,” Weissmann wrote. “The trial court properly rejected the Chapos’ claim that the BZA’s 2012 decision was void based on the ISRPA.
“… We also find no merit in the Chapos’ remaining claims that the BZA lacked legal authority based on the Second Amendment and on the failure of the BZA members to take statutorily required oaths,” Weissmann added.
“As we have rejected all of the Chapos’ attacks on the BZA’s legal authority to deny the condition use permit in 2012,” she wrote, “we conclude that the Chapos have failed to establish that the BZA’s decision was void and subject to collateral attack.This ruling resolves the Chapos’ remaining summary judgment claims, all of which rest on an unavailable collateral attack on the BZA’s decision.”
The second issue raised on appeal was whether the trial court erred in ordering that county officials could enter the Chapos’ property to remedy the ordinance violations, or in fining the Chapos and ordering them to pay attorney fees.
The appellate court found no abuse of discretion.
“In support of this argument, the Chapos simply assert that there was no violation of the ordinance and therefore any sanctions were inappropriate,” Weissmann wrote. “But we have already determined that the trial court properly entered the permanent injunction based on the Chapos’ non-compliance with the Zoning Ordinance. Accordingly, they have presented no error.”
Finally, the COA determined that the Chapos’ had waived their argument that the fine was excessive in violation of the Eighth Amendment. The apppellate court also upheld the order for attorney fees.
Judges Patricia Riley and Cale Bradford concurred in Joseph Chapo, Sherry Chapo, and Deputy Big Shot, LLC v. Jefferson County Plan Commission, 23A-CT-467.