Petition for Writ of Certiorari — Oakland Tactical Supply, LLC, et al., Petitioners v. Howell Township, Michigan

Supreme Court briefAug 16, 2024

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NO. ______

In the

Supreme Court of the United States

________________

OAKLAND TACTICAL SUPPLY, LLC, JASON RAINES,

MATTHEW REMENAR, SCOTT FRESH, RONALD PENROD,

EDWARD GEORGE DIMITROFF,

Petitioners,

HOWELL TOWNSHIP, MI,

Respondent.

________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

_________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________

JOSEPH G.S. GREENLEE

GREENLEE LAW, PLLC

PO Box 4061

McCall, ID 83638

(208) 271-2494

MARTHA A. DEAN

LAW OFFICES OF MARTHA

A. DEAN, LLC

144 Reverknolls

Avon, CT 0601

(860) 676-0003

DAVID H. THOMPSON

Counsel of Record

PETER A. PATTERSON

JOHN D. OHLENDORF

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Petitioners

August 16, 2024

QUESTIONS PRESENTED

Whether the Second Amendment presumptively

protects against restrictions burdening the right to

train with firearms commonly possessed for lawful

purposes.

PARTIES TO THE PROCEEDING

Petitioners Oakland Tactical Supply, LLC, Jason

Raines, Matthew Remenar, Scott Fresh, Ronald

Penrod, and Edward George Dimitroff were plaintiffs

before the District Court and the plaintiffs-appellants

in the Court of Appeals. Respondent Howell

Township, MI was the defendant before the District

Court and the defendant-appellee in the Court of

Appeals.

iii

CORPORATE DISCLOSURE STATEMENT

Oakland Tactical Supply, LLC, has no parent

corporation, and there is no publicly held corporation

that owns 10% or more of its stock.

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Oakland Tactical Supply, LLC v. Howell

Township, Michigan, No. 18-cv-13443

(E.D. Mich. Feb. 17, 2023)

•

Oakland Tactical Supply, LLC v. Howell

Township, Michigan, No. 21-1244

(6th Cir. Aug. 5, 2022)

•

Oakland Tactical Supply, LLC v. Howell

Township, Michigan, No. 23-1179

(6th Cir. July 8, 2024)

There are no other proceedings in state or federal

court, or in this Court, directly related to this case under Supreme Court Rule 14.1(b)(iii).

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ........................................i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT .......... iii

STATEMENT OF RELATED PROCEEDINGS........ iv

TABLE OF AUTHORITIES .................................... viii

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 4

JURISDICTION .......................................................... 5

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED ....................................... 5

STATEMENT .............................................................. 5

Howell Township’s Zoning Ordinance

Effectively Bans Outdoor Shooting Ranges. ...... 5

II.

The Challenged Provisions of the Zoning

Ordinance Prevent Petitioners from

Operating or Training at a Shooting

Range in the Township. ...................................... 6

III. The Proceedings Below. ...................................... 8

REASONS FOR GRANTING THE WRIT ................ 11

The Circuit Courts of Appeals Are in Conflict

over Whether the Second Amendment

Presumptively Protects Against Restrictions

Burdening the Right to Train with

Common Firearms............................................. 11

II.

The Third and Seventh Circuits Have

Squarely Held that the Second

Amendment Protects the Right To

Train with Common Firearms. ................. 12

The Decision Below, By Contrast,

Effectively Exempts Restrictions on

Training from Second Amendment

Challenge. .................................................. 14

This Case Is an Ideal Vehicle for

Resolving the Circuit Conflict over the

Question Presented. .................................. 18

The Panel Majority’s Decision Conflicts with

This Court’s Decisions in Heller and Bruen. .... 18

III. The Question Presented Is Exceptionally

Important........................................................... 29

CONCLUSION .......................................................... 30

APPENDIX

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED AUGUST 5, 2022 ............ 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT, E.D., FOR THE

DISTRICT OF MICHIGAN, SOUTHERN

DIVISION, DATED FEBRUARY 9, 2021 ................ 8a

APPENDIX C — ORDER THE UNITED STATES

DISTRICT COURT, E.D., FOR THE DISTRICT

OF MICHIGAN, SOUTHERN DIVISION,

DATED SEPTEMBER 10, 2020 ............................. 18a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT,

FILED JULY 8, 2024 .............................................. 28a

vii

APPENDIX E — SECOND AMENDED

COMPLAINT IN THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DISTRICT OF MICHIGAN, FILED

JULY 11, 2019 ......................................................... 30a

APPENDIX F — ZONING ORDINANCE

OF HOWELL TOWNSHIP, DATED

MARCH 2019........................................................... 54a

APPENDIX G — ORDER OF THE 2021 ZONING

ORDINANCE AMENDMENTS, FILED

SEPTEMBER 30, 2022 ......................................... 564a

APPENDIX H — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED MAY 31, 2024 ............. 601a

APPENDIX I — OPINION AND ORDER

OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF MICHIGAN, SOUTHERN DIVISION,

FILED FEBRUARY 17, 2023 ............................... 637a

viii

TABLE OF AUTHORITIES

CASES

PAGE

District of Columbia v. Heller

554 U.S. 570 (2098)

......................... 19, 20, 21, 23, 25, 26, 27, 28, 29

Drummond v. Robinson Twp.,

9 F.4th 217 (3d Cir. 2021) .... 1, 2, 12, 13, 15, 16

Ezell v. City of Chicago (“Ezell I”),

651 F.3d 684 (7th Cir. 2011) .............. 13, 17, 29

Ezell v. City of Chicago (“Ezell II”),

846 F.3d 888 (7th Cir. 2017) ............ 1, 2, 14, 17

Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist.,

508 U.S. 384 (1993)........................................... 4

Luis v. United States,

578 U.S. 5 (2016) ...................... 1, 19, 20, 29, 30

McDonald v. City of Chicago,

561 U.S. 742 (2010)............................. 16, 22, 29

New York State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022)

................. 4, 9, 13, 16, 17, 18, 23, 24, 28, 29, 30

New York State Rifle & Pistol Ass’n v. City of New

York,

590 U.S. 336 (2020)............. 1, 19, 20, 23, 25, 29

Nunn v. Georgia,

1 Ga. 233 (1846) .............................................. 20

CONSTITUTIONS

U.S. CONST.

amend. I .......................................................... 20

amend. II ................................... 3, 18, 19, 20, 29

OTHER AUTHORITIES

Infringe, SAMUEL JOHNSON, A DICTIONARY OF THE

ENGLISH LANGUAGE (1755) ............................. 20

S. Rep. No. 89-1866 (1966) ........................................ 21

CMP Highpower Rifle Competition Rules, CIVILIAN

MARKSMANSHIP PROGRAM (2024),

https://bit.ly/46JgHqr ..................................... 26

PETITION FOR WRIT OF CERTIORARI

Just as the Freedom of the Press encompasses

the concomitant right to purchase paper and ink, the

Second Amendment right to keep and bear arms encompasses “closely related acts necessary to [its] exercise,” Luis v. United States, 578 U.S. 5, 26 (2016)

(Thomas, J., concurring), including the right “to take

a gun to a range in order to gain and maintain the

skill necessary to use it responsibly,” New York State

Rifle & Pistol Ass’n v. City of New York, 590 U.S. 336,

365 (2020) (Alito, J., dissenting). Of the three federal

courts of appeals to assess restrictions on that concomitant right, two—the Third and Seventh Circuits—have correctly provided it with robust protection, striking down zoning ordinances that “severely

limit[ ]” the right to train, Ezell v. City of Chicago

(Ezell II), 846 F.3d 888, 890 (7th Cir. 2017), including

by barring the operation of commercial firearm ranges

“in areas where firearms practice was otherwise permitted,” Drummond v. Robinson Twp., 9 F.4th 217,

227 (3d Cir. 2021). But the Sixth Circuit, through the

divided panel below, upheld Respondent Howell

Township’s materially indistinguishable zoning ordinance, concluding that it did not even implicate the

Second Amendment. As Judge Kethledge explained in

dissent, that decision cannot be squared with “the Second Amendment’s text as interpreted by [this] Court,”

App.628a (Kethledge, J., dissenting), and the Court

should grant review to resolve the conflict it creates

between the circuits on this important constitutional

issue.

Petitioner Oakland Tactical seeks to construct an

outdoor firing range on its property located in the “agricultural residential” district of the Township—a

suitable location for that use, as evidenced by the fact

that Respondent permits other similar commercial

uses in the district (such as the rock quarry formerly

operated on the property in question) and in fact freely

allows target shooting on the property, so long as it is

done privately rather than in a commercial setting.

But Respondent’s zoning rules forbid operation of a

commercial shooting range on Oakland’s property—

and in much of the rest of its jurisdiction—with the

result that no commercial range exists in the Township, severely burdening Petitioners’ rights to train

with firearms.

Because of the theoretical possibility that a commercial range could be constructed in another zoning

district, however, the panel majority rejected Petitioners’ challenge at Bruen’s threshold, plain-text stage.

The panel refused to define Petitioners’ “proposed

course of conduct” as simply “training with firearms

that are in common use.” App.614a, 634a. Instead, the

panel insisted that Petitioners could prevail only by

demonstrating that the Second Amendment’s text

protects the right “to train at a commercial facility anywhere in the Township.” App.621a (emphasis added).

That line of reasoning is flatly contrary to the analysis

of the Third and Seventh Circuits, which have correctly explained that zoning rules restricting the location of firearm ranges implicate the Second Amendment even if they fall short of “an outright prohibition

of gun ranges,” Ezell II, 846 F.3d at 894, because “the

presence of ordinary restrictions” that allow the operation of ranges “in some places cannot excuse extraordinary restrictions” that effectively ban them “in others,” Drummond, 9 F.4th at 228. It is also inconsistent

with the Second Amendment’s text itself, which

protects against laws that “infringe[ ]” the right to

keep and bear arms, U.S. CONST. amend. II, not only

laws that ban its exercise entirely.

The panel’s other reason for rejecting Petitioners’

Second Amendment claims—that the Amendment’s

textual scope does not encompass the right “to train to

achieve proficiency in long-range shooting at distances up to 1,000 yards,” App.623a—fares no better.

As the Third and Seventh Circuits have held, four

Justices of this Court have stated, and the panel majority itself conceded, App.627a–630a, the Second

Amendment’s text necessarily protects some right to

train with firearms. It necessarily follows that any

limitations on that right—such as where ranges may

be located and how large they may be—must come

from history, not from the Second Amendment’s plain

text, which quite obviously imposes no such limits

whatsoever. The majority’s rejection of Petitioners’

challenge at the plain-text stage conflicts with the decisions of the Third and Seventh Circuits and represents a grievous misunderstanding of the Second

Amendment’s text and this Court’s decisions in Heller

and Bruen. Moreover, the conflict is a clean and

straightforward one—over whether the plain text protects the right to train with firearms—that this Court

can resolve without wading into any thorny factual or

historical disputes.

The panel majority’s reasoning, if allowed to

stand, would have a deleterious effect not only on the

right to train but also on other necessary incidents to

the right to keep and bear arms, such as the right to

acquire firearms and the right to store firearms in an

accessible manner. What is more, the panel majority’s

reasoning necessarily imports interest-balancing back

into the Second Amendment analysis by forcing courts

to make distinctions at the plain text level that are not

present in the plain text. Indeed, the majority openly

acknowledged that it adopted the approach to the Second Amendment’s textual scope that it did because

“no weighing is permitted at Bruen’s second step.”

App.615a. “Like some ghoul in a late-night horror

movie that repeatedly sits up in its grave and shuffles

abroad, after being repeatedly killed and buried,” the

panel majority’s opinion thus causes interest-balancing to “stalk[ ] [Second Amendment] jurisprudence

once again.” Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J.,

concurring in the judgment). This Court should grant

review to resolve the split between the circuits on this

important constitutional issue and ensure continued

compliance with a proper understanding of its Second

Amendment precedent.

OPINIONS BELOW

The panel opinion of the Court of Appeals is reported at 103 F.4th 1186 and reproduced at App.601a.

The order of the District Court granting Respondents’

motion to dismiss is not reported in the Federal Supplement, but it is available at 2023 WL 2074298 and

reproduced at App.637a. A previous opinion of the

Court of Appeals vacating an earlier order of the District Court dismissing the case and remanding for reconsideration in light of this Court’s decision in New

York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1

(2022), is not reported in the Federal Reporter, but it

is available at 2022 WL 3137711 and reproduced at

App.1a. The prior order of the District Court granting

dismissal is not reported in the Federal Supplement,

but it is available at 2020 WL 5440048 and reproduced at App.18a.

JURISDICTION

The Court of Appeals issued its judgment on May

31, 2024. App.601a. The Court of Appeals denied

Petitioners’ petition for en banc rehearing on July 8,

2024. App.28a. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED

The relevant portions of Amendments II and XIV

to the United States Constitution and the Howell

Township Zoning Ordinances are reproduced in the

Appendix at App.54a–600a.

STATEMENT

Howell Township’s Zoning Ordinance Effectively Bans Outdoor Shooting Ranges.

Respondent Howell Township regulates approximately 20,000 acres of unincorporated land in Livingston County, Michigan, under the Howell Township

Zoning Ordinance (“Ordinance”). The Ordinance divides the land under Respondent’s jurisdiction into

certain zoning districts and then specifies permitted

uses in each district. In general, a use is permitted

“only if specifically listed” in the Ordinances.

App.117a.

At the time the operative complaint was filed, the

Township did not permit outdoor ranges in any district. The Ordinance classifies “rifle ranges” as an

“open air business use[ ],” but it does “not allow Open

Air Business Uses, either by right or as a special use,

in any zone in Howell Township.” App.42a. The Ordinance does permit certain recreational facilities in Regional Service Commercial Districts and Heavy Commercial Districts—but not outdoor recreational facilities of any kind, and thus not an outdoor firing range.

App173a, 186–87a. The Ordinance also permits “recreation and sports areas . . . completely enclosed with

fences, walls or berms,” App.178a, but only in the

Highway Service Commercial District, and only if, in

the Township’s judgment, such a use does not “interfere with or interrupt the pattern of development of”

enumerated, highway-service-focused uses, App.178a,

282a. The Highway Service Commercial District is a

highly developed district that consists of 7 parcels

with a total area of less than 30 acres, only a few of

which are undeveloped—significantly less space than

required for a safe, long-distance rifle range. App.42a,

43a.

In short, the Ordinance in force at the time of the

operative complaint effectively foreclosed the operation of an outdoor rifle range anywhere within the

Township.

II.

The Challenged Provisions of the Zoning

Ordinance Prevent Petitioners from Operating or Training at a Shooting Range in

the Township.

Petitioners Raines, Remenar, Fresh, Penrod, and

Dimitroff are law-abiding citizens who wish to engage

in firearms training in the Township for lawful purposes, including self-defense, long-range target shooting, shooting competitions, and hunting. App.32a–

37a, 48a–49a. They cannot do so, however, because

there is no public shooting range in the Township.

App.32a–37a. Petitioner Oakland Tactical has leased,

with an option to purchase, 352 acres of former rock

quarry land in the Township, where it planned to

build an outdoor shooting range facility for both private and public use, including both a long distance

(e.g., 1,000 yard) range for qualified shooters and

shorter rifle, shotgun and handgun ranges. App.31a,

32a. These plans were stymied, however, when Respondent’s zoning staff advised Oakland that it “could

not apply for a permit for a rifle range located on the

property because the Agricultural Residential District

[in which the quarry property is located] does not allow open air business uses, shooting ranges, or rifle

ranges.” App.45a.

Respondent’s staff recommended that Oakland

apply for a text amendment to the Zoning Ordinance

to allow shooting ranges in the district at issue.

App.45a. But after receiving Oakland’s application,

the Township rejected the proposed amendment,

maintaining the effective ban on outdoor shooting

ranges. App.45a–47a.

While this case was ongoing, Respondent

amended the Ordinance to “remove[ ] rifle ranges from

the definition of ‘open air business uses,’ and explicitly

define[ ] ‘[i]ndoor recreation facilities’ and ‘[o]utdoor

recreation facilities’ to include ‘sport shooting

ranges,’ ” which are purportedly permitted in districts

such as “a new ‘Industrial Flex Zone.’ ” App.607a; see

App.577a–78a. But the amended Ordinance continues

to prohibit the operation of an outdoor range on Oakland’s land and, on information and belief, as a practical matter likely anywhere else in the Township.

That is so despite the fact that the operation of a

shooting range is otherwise compatible with types of

uses allowed on land in Oakland’s district, which include “agribusinesses,” App.604a, such as the rock

quarry that was formerly operated on Oakland’s parcel, App.32a. Indeed, Respondent has at all times

throughout the township freely allowed property owners to shoot on their own land as an “accessory use,”

even though it does not allow such firearms training

in a commercial setting. App.618a.

III. The Proceedings Below.

1. Petitioners brought suit in the U.S. District

Court for the Eastern District of Michigan on November 2, 2018, challenging Howell Township’s de facto

ban on outdoor rifle ranges as a violation of the Second

Amendment right to train with commonly possessed

firearms, which is applicable to the Township under

the Fourteenth Amendment. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. Respondent moved to dismiss the case, and Petitioners crossmoved for summary judgment.

On September 10, 2020, the district court

granted the motion to dismiss. It found—without any

evidence, and on a motion to dismiss—that Petitioners’ allegation that Respondent “effectively ban[s] all

firearm ranges within the township” had “no plausibility,” because Oakland sought approval for its firearm range by way of a text amendment—the precise

method Respondent’s own staff advised—rather than

through “seeking conditional rezoning” or “applying

for a special use permit.” App.25a (cleaned up). And

the court concluded that there were “no cases that

support the proposition” that “a municipality must

permit a property owner (or a property lessee) to construct, and for interested gun owners to use, an

outdoor, open-air,

App.23a–25a.

1,000-foot

shooting

range.”

2. Petitioners appealed. While the appeal was

pending before the Sixth Circuit, this Court published

its decision in Bruen, holding that the Second Amendment protects the right to carry firearms in public and

clarifying that Second Amendment claims must be assessed solely based on the provision’s text and history.

597 U.S. at 24, 32–33. On August 5, 2022, the Sixth

Circuit vacated the district court’s judgment and remanded “to allow the district court to consider the

plausibility of Oakland Tactical’s Second Amendment

claim in light of the Supreme Court’s recent decision”

in Bruen. App.2a.

3. The district court, after ordering additional

briefing, reaffirmed its decision to grant Respondent’s

motion to dismiss. The court rejected Petitioners’ argument that the “proposed course of conduct” for purposes of Bruen’s plain-text inquiry was simply “training with firearms,” determining instead that “the proposed conduct is best summarized as construction and

use of an outdoor, open-air, 1,000-[yard] shooting

range.” App.641a, 642a. And, the court held, “that conduct is clearly not covered by the plain text of the Second Amendment” because “the plain text of the

Amendment says nothing about long-range firing or

even, for that matter, training more broadly.”

App.646a. Because the court concluded that the plain

text did not cover Petitioners’ proposed conduct, it declined to consider the nation’s historical tradition of

firearm regulation.

4. Petitioners again appealed, and on May 31,

2024, a divided panel of the Sixth Circuit affirmed.

Like the district court, Judge White’s lead opinion for

the panel majority refused to define the “proposed

course of conduct” as “training with firearms that are

in common use.” App.613a–614a. Instead, it concluded that “two proposed courses of conduct” were at

issue: “(1) engaging in commercial firearms training

in a particular part of the Township; and (2) engaging

in long-distance firearms training within the Township.” App.619a. This gerrymandered definition of the

proposed conduct was appropriate, the majority reasoned in part, since “[p]ost-Bruen, . . . the proposed

conduct must be . . . defined with greater attention

and precision because . . . if the conduct is protected,

no weighing is permitted at Bruen’s second step.”

App.615a.

The panel then concluded that neither proposed

course of conduct was protected by the Second Amendment’s text. Judge White’s lead opinion granted that

“at least some training is protected” by the Second

Amendment “because it is a necessary corollary to the

right defined in Heller.” App.609a. And it further

acknowledged that “constitutional protection for firearms training cannot be limited to non-commercial

training. Otherwise, only those who own or have access to private land suitable for training would be entitled to exercise their Second Amendment rights effectively.” App.620a n.7. But it held that the text of

the Second Amendment does not “extend[ ] to training

in a particular location or at the extremely long distances Oakland Tactical seeks to provide.” App.620a.

Judge Cole concurred. He agreed with the lead

opinion’s definition of the conduct at issue and its conclusion that the Second Amendment’s text does not

protect it, but he declined to take a position on

“whether the Second Amendment protects the right to

train” at all. App.626a.

5. Judge Kethledge dissented. He concluded that

“as a matter of precedent and common sense, the Second Amendment’s text covers a right to train with firearms,” and that because Petitioners “seek to train

with weapons in common usage—namely pistols,

shotguns, rifles, or some combination thereof,” “their

conduct is presumptively protected under the Second

Amendment.” App.630a, 631a. The panel majority

erred, Judge Kethledge explained, in deeming Petitioners’ proposed conduct outside the Second Amendment’s textual scope “on the ground that the plaintiffs

seek to train ‘at a particular location,’ ” since “[t]he

Second Amendment’s text makes no distinctions as to

place” whatsoever—and thus “the circumstance of

place is relevant to the second step of [Bruen’s] analysis, not the first.” App.633a–34a.

Petitioners sought further review by the en banc

Sixth Circuit, but on July 8, 2024, their petition for en

banc rehearing was denied. App.29a.

REASONS FOR GRANTING THE WRIT

The Circuit Courts of Appeals Are in Conflict over Whether the Second Amendment

Presumptively

Protects

Against

Restrictions Burdening the Right to Train

with Common Firearms.

The circuit courts have split 2-1 over the question

presented: the Third and Seventh Circuits have correctly interpreted the Second Amendment to protect

the right to train with firearms in common use, while

the Sixth Circuit, in the decision below, adopted a contorted approach to Bruen’s plain-text inquiry

effectively establishing that restrictions on training

with common firearms do not necessarily even implicate the Second Amendment. This Court should grant

review to resolve the conflict among the circuits over

this important aspect of the Second Amendment right.

The Third and Seventh Circuits Have

Squarely Held that the Second Amendment Protects the Right to Train with

Common Firearms.

Both of the other courts of appeals to have addressed the question presented have reached conclusions that are irreconcilable with the panel decision

below—correctly interpreting the Second Amendment

as necessarily protecting the right to train with common firearms and correctly invalidating restrictions

on that right as unconstitutional.

In Drummond, just as in this case, a township

zoning restriction precluded the plaintiff—a would-be

shooting range operator—from operating a commercial shooting range on a particular parcel of land. 9

F.4th at 223–24. The township in Drummond imposed

two zoning rules on the class of commercial districts

where the plaintiff’s parcel was located: a rule restricting the operation of shooting ranges to “nonprofit

entit[ies]” and a rule restricting ranges to “rim-fire rifle practice,” to the exclusion of “center-fire rifle practice.” Id. at 224 (brackets omitted). But outside that

particular class of commercial districts, the town “left

intact . . . permissive rules governing gun ranges in

[other] districts.” Id.

The Third Circuit concluded that the zoning ordinance impinged upon conduct protected by the Second Amendment’s text and history. The right to keep

and bear arms in common use, the court concluded,

“implies a corresponding right to acquire and maintain proficiency with common weapons.” Id. at 227

(cleaned up). And in a historical analysis that Bruen

cited as exemplary of the type of analogical reasoning

required under the Second Amendment, 597 U.S. at

30, the Third Circuit concluded that neither Founding- nor Reconstruction-Era history supported restrictions barring the “commercial operation of gun

ranges” facilitating “training with common weapons

in areas where firearms practice was otherwise permitted,” Drummond, 9 F.4th at 227. While history

supported some ability of governments to restrict firearm “purchase and practice to zoning districts compatible with those uses,” “the presence of ordinary restrictions in some places cannot excuse extraordinary

restrictions in others.” Id. at 228.

Drummond closely followed the analysis of the

other court of appeals to address restrictions on gun

ranges, the Seventh Circuit’s decisions in the Ezell

case. In Ezell v. City of Chicago (Ezell I), the court analyzed the text and history of the Second Amendment

and concluded that both the plain text of the Amendment and the decision in Heller compelled the conclusion that “[t]he right to possess firearms for protection

implies a corresponding right to acquire and maintain

proficiency in their use.” 651 F.3d 684, 704 (7th Cir.

2011). After all, the right to keep and bear arms

“wouldn’t mean much without the training and practice that make it effective.” Id. The Seventh Circuit

thus directed that Chicago’s ban on any firearm

ranges in city limits be preliminarily enjoined and remanded to the district court for further proceedings.

Id. at 715.

“Chicago responded” to the Seventh Circuit’s decision “by promulgating a host of new regulations governing firing ranges, including zoning restrictions, licensing and operating rules, construction standards,

and environmental requirements.” Ezell II, 846 F.3d

at 891. Two of the newly enacted zoning regulations

“allow[ed] gun ranges only as special uses in manufacturing districts” and “prohibit[ed] gun ranges within

100 feet of another range or within 500 feet of a residential district, school, place of worship, and multiple

other uses”—with the combined effect that “only

about 2.2% of the city’s total acreage [was] even theoretically available to site a shooting range.” Id. at 890,

894. The Seventh Circuit held those restrictions unconstitutional, too. Given evidence that “in other jurisdictions shooting ranges are treated as commercial

uses,” the court held that “banishing them to a tiny

subset of the land zoned for manufacturing reduces

their commercial viability” and thus “severely restrict[s] the right of Chicagoans to train in firearm use

at a range.” Id. at 894. Because the city failed to justify that severe restriction (under the second, meansends scrutiny inquiry that courts mistakenly applied

in Second Amendment cases before Bruen), the Seventh Circuit concluded that “[t]he manufacturing-district and distancing restrictions are unconstitutional.”

Id. at 896.

The Decision Below, By Contrast, Effectively Exempts Restrictions on

Training from Second Amendment

Challenge.

The reasoning and result of the panel majority in

this case are irreconcilable with the decisions from the

Third and Seventh Circuits. The decision below

conflicts with Drummond from the ground up, beginning with the two courts’ framing of the Second

Amendment conduct at issue. The panel majority here

adopted a bizarro description of Petitioners’ proposed

conduct, narrowly defined in terms of the particular

range Oakland sought to construct: “the commercial

operation of a 1,000-yard range.” App.622a. And it

concluded that there was no textual or “historical evidence” that “the plain text of the Second Amendment

covers [this] formulation of Plaintiffs’ proposed course

of conduct.” App.623a. That analysis is flatly inconsistent with the Third Circuit’s in Drummond. While

one of the zoning rules in Drummond training with

center-fire rifles in particular, the Third Circuit did

not ask for textual evidence that the Second Amendment specifically protects the right to train with that

particular sub-type of firearm. Rather, it framed the

question as whether the Constitution protects “training with common weapons”—correctly explaining that

because the Second Amendment’s scope “include[s]

arms in common use,” it necessarily “implies a corresponding right to acquire and maintain proficiency

with common weapons.” 9 F.4th at 227 (cleaned up).

The Sixth and Third Circuits also conflict in their

treatment of the theoretical availability of land elsewhere in the jurisdiction for the construction of a

range. The majority below treated the rules purportedly allowing the construction of a range “in other districts” as effectively fatal to Petitioners’ challenge, requiring Petitioners to show on this basis that the Second Amendment’s text guarantees the right “to train

commercially anywhere within the Township.”

App.622a (emphasis added). The Drummond court, by

contrast, explained that “the presence of ordinary

restrictions in some places cannot excuse extraordinary restrictions in others,” and accordingly held that

the proper question is whether the Second Amendment protects against “regulations barring training

with common weapons in areas where firearms practice [is] otherwise permitted.” 9 F.4th at 227, 228.

That description perfectly captures Petitioner’s land

in this case, given that the Township freely allows

firearms practice on that land “as an accessory use,”

rather than as part of a commercially operated range.

App.618a. The ultimate result is that the Third Circuit correctly held that the zoning restrictions there

plainly regulated conduct protected by the Second

Amendment—while if it had adopted the majority’s

approach here, it necessarily would have “immuniz[ed] the Township’s atypical rules” from Second

Amendment challenge altogether and thereby “relegate[d] the Second Amendment to a ‘second-class

right’—the precise outcome the Supreme Court has

instructed us to avoid.” Drummond, 9 F.4th at 229

(quoting McDonald v. City of Chicago, 561 U.S. 742,

780 (2010) (plurality)).

The panel majority scarcely acknowledged

Drummond at all, suggesting only that its reasoning

was emblematic of a looser analysis that might have

been acceptable pre-Bruen when interest balancing

would ultimately dispose of most cases anyway.

App.615a. But while it is true that Drummond went

on to apply a tiers of scrutiny analysis, Bruen in no

way undermined Drummond’s analysis of text and

history. To the contrary, Bruen explained that “[s]tep

one of the [formerly] predominant framework”—the

text-and-history step—was “broadly consistent with

Heller,” 597 U.S. at 19, and it cited Drummond

approvingly when explaining how to engage in “analogical reasoning under the Second Amendment,” id.

at 30. Nothing in Bruen mitigates the square split the

panel majority has created with the Third Circuit.

Neither can the decision below be reconciled with

the Seventh Circuit’s decisions in Ezell. That court

squarely held in Ezell I, based on “a textual and historical inquiry into original meaning,” that the Second

Amendment extends to the “right to acquire and

maintain proficiency in the[ ] use” of firearms. 651

F.3d at 701, 704. And Ezell II, like Drummond, is contrary to the reasoning below in both of the aspects just

noted. The Seventh Circuit framed the conduct at issue as the “right to acquire and maintain proficiency

in firearm use through target practice at a range,” not

the right to engage in range shooting specifically

within 100 feet of another range or 500 feet of a residential area, “school, day-care facility, place of worship, liquor retailer, children's activities facility, library, museum, or hospital.” Ezell II, 846 F.3d at 891,

892. And the court declined to accord dispositive significance to the fact that shooting ranges were still

permitted “in manufacturing districts,” id. at 890—

asking not whether the plaintiffs have a right “to train

commercially anywhere within the [city].” App.622a.

(emphasis added).

Had the Seventh Circuit applied the panel’s “anywhere in the [city]” reading of Petitioners’ claims, it

presumably would have upheld Chicago’s zoning ordinance. Yet the majority below did not defend, address,

or even acknowledge the square conflict it was creating with the Seventh Circuit. This Court should grant

the writ to resolve the 2-1 division in the Courts of Appeals created by the panel below.

This Case Is an Ideal Vehicle for Resolving the Circuit Conflict over the

Question Presented.

This case provides the Court with the perfect opportunity to resolve this conflict between the circuits.

Because the panel majority rejected Petitioners’ challenge at the plain-text stage of the Bruen inquiry, this

Court may resolve the split by deciding a clean and

straightforward question of law—whether the plain

text protects the right to train with firearms—without

wading into the more granular inquiry whether the

Township’s particular use restrictions are “consistent

with the Nation’s historical tradition of firearm regulation,” Bruen, 597 U.S. at 24, which may be left for

the lower courts on remand. Moreover, because Petitioners’ complaint includes a claim for damages,

App.51a, there is no danger that the Court will grant

review only to have the city alter its zoning rules in a

way that moots the case and evades the Court’s review.

II.

The Panel Majority’s Decision Conflicts

with This Court’s Decisions in Heller and

Bruen.

In addition to creating a split with the Third and

Seventh Circuits, the majority decision below is also

in fundamental conflict with this Court’s Second

Amendment precedents in three independent ways.

A. First, the panel’s decision conflicts with this

Court’s decisions plainly teaching that the Second

Amendment protects the right to train with commonly

possessed firearms.

The Second Amendment states: “A well regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms,

shall not be infringed.” U.S. CONST. amend. II. In District of Columbia v. Heller, this Court explained that

to “keep arms” means simply to “have weapon” and to

“bear arms” means “carrying . . . weapon[s] . . . for the

purpose of ‘offensive or defensive action.’ ” 554 U.S.

570, 582–84 (2008). But Heller also signaled that the

“plain text” of the Amendment protects more than just

those activities it mentions explicitly; it also extends

to protect activities that are implicit in its text. For

example, the right “ ‘to bear arms implies something

more than the mere keeping [of arms]; it implies

learning to handle and use them in a way that makes

them ready for their efficient use’ ”—in other words,

to train with them. Id. at 617–18 (quoting THOMAS M.

COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS 271 (1868)).

Four Justices have since reaffirmed this point. In

Luis v. United States, Justice Thomas’s concurrence

explained that because “[c]onstitutional rights . . . implicitly protect those closely related acts necessary to

their exercise,” the “right to keep and bear arms . . .

implies a corresponding right . . . to acquire and maintain proficiency in their use”—a right without which

“the Second Amendment would be toothless.” 578 U.S.

at 26–27 (Thomas, J., concurring) (cleaned up). And in

his dissenting opinion in New York State Rifle & Pistol

Ass’n v. City of New York, Justice Alito—joined by Justices Gorsuch and Thomas and joined in pertinent

part by Justice Kavanaugh—similarly concluded that

a “necessary concomitant” of “the right to keep a handgun in the home for self-defense” is the right “to take

a gun to a range in order to gain and maintain the

skill necessary to use it responsibly.” 590 U.S. at 364–

65 (Alito, J., dissenting); id. at 340 (Kavanaugh, J.,

concurring).

To be sure, the Second Amendment does not contain the word “train”—just as it does not in terms protect the right to acquire a firearm, to keep and carry

firearm ammunition, or to keep a firearm in a state

that is “operable for the purpose of immediate self-defense.” Heller, 554 U.S. at 635. Yet the plain text of

the Amendment protects against restraints on all of

these “necessary concomitant[s]” of the enumerated

right, New York Rifle & Pistol Association, 590 U.S. at

364 (Alito, J., dissenting), because it guarantees that

the right to keep and bear arms may not be “infringed,” U.S. CONST. amend. II—that is, it may not

be “hinder[ed],” Infringe, SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755), “curtailed,

or broken in upon, in the smallest degree,” Nunn v.

Georgia, 1 Ga. 243, 251 (1846) (quoted approvingly by

Heller, 554 U.S. at 612). And just as a restriction on

acquiring paper and ink would “abridge” the right to

“freedom of . . . the press,” U.S. CONST. amend. I, a

restriction on range training “infringe[s]” the “right of

the people to keep and bear Arms,” id. amend. II, by

rendering it “toothless,” Luis, 578 U.S. at 27 (Thomas,

J., concurring). As Judge Kethledge explained in dissent below, “the word ‘infringe’—as used in the Second

Amendment and as generally understood by the

founding generation—referred not only to the elimination of a right but also to restrictions that ‘hinder’

its exercise,” and since “[t]raining with firearms is obviously necessary to using them effectively[,] restrictions on training can therefore hinder the right to

bear arms.” App.630a (Kethledge, J., dissenting).

Heller’s interpretation of the Second Amendment’s prefatory clause—which may be used to “resolve an ambiguity in the operative clause,” Heller,

554 U.S. at 577—provides further confirmation that

training is protected by the Amendment’s plain text.

Heller explained that “the militia was thought to be

‘necessary to the security of a free State’ ” because

“when the able-bodied men of a nation are trained in

arms and organized, they are better able to resist tyranny.” Id. at 597–98 (emphasis added). Additionally,

“the adjective ‘well-regulated’ implies nothing more

than the imposition of proper discipline and training.”

Id. at 597 (quoting Va. Declaration of Rights § 13

(1776), in 7 FEDERAL AND STATE CONSTITUTIONS COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE

STATES, TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA 3812,

3814 (Francis Newton Thorpe ed., 1909) (referring to

“a well-regulated militia, composed of the body of the

people, trained to arms”)). And these are not just historical concerns. In the run up to the enactment of the

Gun Control Act of 1968, for example, a Congressional

committee recognized that widespread firearm training was “a valuable national asset,” because “preinduction firearms training produces more capable and

effective soldiers.” S. Rep. No. 89-1866, at 8–9 (1966).

This Court’s precedents accordingly leave no

room for doubt that the Second Amendment’s plain

text protects the right to train with arms in common

use. Yet the decision below effectively guts this right,

establishing that the government may infringe it in

any way it pleases, short of a formal, absolute ban. For

by construing Petitioner’s proposed course of conduct

as the “right . . . to train . . . anywhere in the

Township”—and, so construed, by rejecting that conduct as “not protected by the plain text of the Second

Amendment,” App.621a, 622a—the majority decision

exempts restrictions on range training from constitutional challenge altogether, so long as the government

theoretically allows ranges to be constructed on some

minuscule parcel of land somewhere, no matter how

inconvenient or commercially unviable. The Court

would not countenance that approach in the context of

any other enumerated constitutional right, and it

should not allow the Sixth Circuit to once again demote the Second Amendment to “a second-class right,

subject to an entirely different body of rules than the

other Bill of Rights guarantees.” McDonald, 561 U.S.

at 780 (plurality).

B. The panel majority also conflicts with this

Court’s precedent in the way that it conducts the inquiry into the meaning and scope of the Second

Amendment’s text. As noted above, the panel adopted

a description of Petitioners’ proposed course of conduct that narrowed it into oblivion: “the right to commercially available sites to train to achieve proficiency

in long-range shooting at distances up to 1,000 yards.”

App.623a. And it then concluded that this conduct was

“not protected by the plain text of the Second Amendment” because there was no textual evidence that “the

right extends to training in a particular location or at

the extremely long distances Oakland Tactical seeks

to provide.” App.620a, 622a. It should be noted that

the panel majority’s analysis was contrary to the allegations in Petitioners’ complaint, which made clear

that Oakland wishes to construct, and the individual

Petitioners wish to train at, a facility that includes

both a long distance (e.g., 1,000 yard) range and

shorter rifle, shotgun, and handgun ranges. App.32a.

But even leaving that point to the side, the panel majority’s method of analysis cannot be squared with

Bruen.

Bruen instructs that at the first stage of the Second Amendment inquiry, courts must ask whether

“the Second Amendment’s plain text covers an individual’s conduct.” 597 U.S. at 24. It does, for the reasons discussed above. And because the Amendment itself draws no textual limitations on that right, Petitioners’ proposed conduct is presumptively protected,

and the textual stage of the inquiry is at an end.

Put differently, the Second Amendment’s text

protects as “a necessary concomitant” the right “to

take a gun to a range in order to gain and maintain

the skill necessary to use it responsibly.” New York

State Rifle & Pistol Association, 590 U.S. at 364–65

(Alito, J., dissenting). And that general, presumptive

right to take a gun to a range necessarily includes the

more specific conduct of taking it to “commercially

available sites to train to achieve proficiency in longrange shooting at distances up to 1,000 yards,”

App.623a—just as “the individual right to possess and

carry weapons” necessarily included Heller’s right to

own his particular handgun at his own particular

home address, 554 U.S. at 592, and just as the “right

to ‘bear’ arms in public” necessarily included the

rights of Koch and Nash to carry whatever particular

firearms they owned on the particular streets, sidewalks, and other public places in New York City they

wished to traverse, Bruen, 597 U.S. at 33. So long as

an individual is part of “the people” and seeks to keep

or carry “bearable arms,” any limits that may exist on

that specific individual’s exercise of the general right

protected by the Second Amendment must come from

history, not text. And thus any dispute over those limits “are unanswerable at step one precisely because

our lodestar for that step—the Second Amendment’s

text—has nothing to say about them.” App.635a

(Kethledge, J., dissenting).

The panel majority asserted that it was in fact

following Bruen, which, in its telling, offered a narrower reading of the petitioners’ proposed conduct

that “incorporated the purpose and location of the

plaintiffs’ desired action”: “ ‘carrying handguns publicly for self-defense.’ ” App.616a (quoting Bruen, 597

U.S. at 32). But in fact, “Bruen refutes the majority’s

analysis rather than supports it.” App.634a (Kethledge, J., dissenting). While Bruen defined the petitioners’ proposed conduct as carrying firearms in public, the Court did not find that activity protected by

the Second Amendment because the text of the Second

Amendment specifically covers carrying firearms in

public. To the contrary, Bruen found the plain text implicated because that text covers carrying firearms

generally, and “[n]othing in the Second Amendment’s

text draws a home/public distinction.” 597 U.S. at 32.

Similarly in this case, once it is granted that the plain

text covers training at all (as the panel majority in fact

conceded), nothing in the plain text draws any distinctions as to where that training may take place or how

extensive a range may be constructed. Again, any

such distinctions must come from history, not text.

The panel majority’s reasoning essentially imports interest-balancing back into the Second Amendment—a point the majority all but acknowledges.

Without any text from which to draw distinctions, the

panel’s approach invites future courts to engage in the

very inquiry Bruen prohibited: asking how much individuals really need to train in a certain location or in

a certain manner. The majority recognized and embraced that result. While hewing to a literal reading

of the Second Amendment’s text may have made sense

when “the Second Amendment right could be balanced

against an analysis of the rationale and effect of the

regulation,” the majority reasoned, after Bruen courts

must define the Second Amendment’s text “with

greater attention and precision,” because “no weighing is permitted at Bruen’s second step.” App.615a.

But as this Court has repeatedly insisted, “[c]onstitutional rights are enshrined with the scope they were

understood to have when the people adopted them,

whether or not future legislatures or (yes) even future

judges think that scope too broad.” Heller, 554 U.S. at

635. A court’s role is not to define the Second Amendment’s text “more narrowly,” with “greater attention

and precision,” App.614a, 615a, but rather to give the

Amendment’s terms their fair import as originally understood. The majority’s contrary approach departed

from this Court’s clear instructions.

C. Finally, the panel’s decision conflicts with this

Court’s precedent discussing the Second Amendment’s historical scope. As discussed, the right to train

with firearms is a “necessary concomitant” of the right

of the people to keep and bear arms. New York Rifle &

Pistol Association, 590 U.S. at 364 (Alito, J., dissenting). And it follows from this that the scope of the right

to train with firearms must track the scope of the right

to keep and bear them. Importantly here, that means

that because the right to have arms in the home and

carry arms in public extends to all “arms in common

use at the time for lawful purposes,” Heller, 554 U.S.

at 624 (cleaned up), the right to firearm training must

likewise extend to training with those arms in the way

they are designed to be used.

That provides the answer to a question that unnecessarily vexed the panel below: whether the right

to engage in firearm training extends to “shooting at

distances up to 1,000 yards.” App.623a. Under the text

and history of the Second Amendment, the appropriate length of available shooting ranges must be dictated not by the Amendment’s text (which quite obviously does not speak to the issue at all) or by the distance achieved by marksmen at the Founding, see id.,

but rather by the effective range of the firearms that

are commonly possessed by law-abiding Americans.

And since firearms in common use for lawful purposes

have an effective range that extends to 1,000 yards,

there is no basis for concluding that training at that

distance is “extrem[e],” “[un]necessary,” or “not protected by the plain text of the Second Amendment.”

App.622a–623a. Indeed, the long-existing Civilian

Marksmanship Program, run by a congressionally

chartered entity dedicated to promoting firearm

marksmanship in civilians, includes long-distance

Precision Rifle Shooting type events with distances of

up to 1,000 yards. See, e.g., CMP Highpower Rifle

Competition Rules at 4, CIVILIAN MARKSMANSHIP PROGRAM (2024), https://bit.ly/46JgHqr.

The panel majority concluded otherwise only by

seriously misunderstanding what this Court said in

Heller about the scope of the Second Amendment. Heller, the majority thought, held not only that the right

to keep and bear arms extends to armed self-defense,

but also that the right is limited to the purpose of selfdefense: that the Second Amendment solely protects,

in language the panel quoted over and over again like

some mantra, the right to “ ‘possess and carry weapons in case of confrontation.’ ” App.626a (emphasis

added) (quoting Heller, 554 U.S. at 592). Because the

majority found it “difficult to imagine a situation

where accurately firing from 1,000 yards would be

necessary to defend oneself,” it concluded that “the

ability to train at such distances is [not] necessary to

effectuate Plaintiffs’ Second Amendment right to keep

and bear arms ‘in case of confrontation.’ ” App.622a–

23a (quoting Heller, 554 U.S. at 592).

That analysis is fundamentally inconsistent with

Heller. Yes, Heller rejected the District of Columbia’s

argument that the Second Amendment “protects only

the right to possess and carry a firearm in connection

with militia service,” instead establishing that it also

protects “the individual right to possess and carry

weapons in case of confrontation.” 554 U.S. at 577, 592

(emphasis added). But while Heller thus made clear

that “self-defense” was “the central component of the

right,” nothing in that opinion, or in any of this Court’s

other Second Amendment precedents, supports the

notion that the Second Amendment protects the right

to keep and bear arms only if done for the purpose of

self-defense. Id. at 599. To the contrary, Heller discusses two other (by no means exclusive) purposes:

“hunting” and “prevent[ing] elimination of the militia”—the very “purpose for which the right was codified.” Id. And critically, Heller repeatedly describes

the Second Amendment as generally protecting the

right to keep and bear arms for all “traditionally lawful purposes, such as self-defense.” Id. at 577 (emphasis added); see also id. at 624 (“The traditional militia

was formed from a pool of men bringing arms ‘in

common use at the time’ for lawful purposes like selfdefense”); id. at 625 (“the Second Amendment does not

protect those weapons not typically possessed by lawabiding citizens for lawful purposes, such as shortbarreled shotguns. That accords with the historical

understanding of the scope of the right.” (citation omitted) (emphasis added)).

The panel majority’s mistake is a grievous one,

and it threatens not only to effectively obliterate the

right to train with firearms but also to erode the right

to keep and bear arms itself. For if these rights exist

only “in case of confrontation,” with confrontation construed as limited to personal self-defense, then courts

must assess even a ban on keeping certain firearms in

the home not by asking, as Heller instructed, whether

the banned arms are “typically possessed by law-abiding citizens for lawful purposes,” id., but rather

whether possession of those particular arms “is necessary for the effective exercise of the right to keep and

bear arms for self-defense,” App.623a. And similarly,

courts would presumably need to assess restrictions

on carrying arms in certain public places not by determining whether “this Nation’s historical tradition of

firearm regulation” supports the restriction, as Bruen

directs, 597 U.S. at 17, but rather by determining

whether going armed in that particular place “is necessary,” in the court’s own estimation, “to effectuate

[the] Second Amendment right to keep and bear arms

in case of confrontation,” App.622a–23a (cleaned up).

In this way, too, the decision below resurrects precisely the approach that Bruen repudiated: a “ ‘judgeempowering interest-balancing inquiry’ ” that subordinates the Second Amendment “ ‘to future judges’

assessments of its usefulness.’ ” 597 U.S. at 22, 23

(quoting Heller, 554 U.S. at 634).

III. The Question Presented Is Exceptionally

Important.

The question presented in this case is one of fundamental import that should be decided by this Court.

The Second Amendment right to keep and bear arms

itself is a “true palladium of liberty,” Heller, 554 U.S.

at 606, “among those fundamental rights necessary to

our system of ordered liberty,” McDonald, 561 U.S. at

778. And this “right wouldn’t mean much without the

training and practice that make it effective.” Ezell I,

651 F.3d at 704. Indeed, even the panel majority was

forced to concede that “firearms training is necessary

to the effective exercise of Second Amendment rights,”

App.610a—though the framework it adopted and applied to protect that right effectively empties it of any

meaning. The enduring significance of the question

presented would thus, standing alone, justify this

Court’s intervention.

But there is more: the decision below, and the

conflict it creates over the judicial assessment of restrictions on the right to train, necessarily carries important implications for other “necessary concomitant[s]” of the right to keep and bear arms. New York

State Rifle & Pistol Association, 590 U.S. at 364 (Alito,

J., dissenting). That right is quite plainly “infringed,”

U.S. CONST. amend. II, not only by restrictions on firearm training but also by laws burdening other “action[s] intimately and unavoidably connected with

[it],” such as the right to acquire firearms and the

“right to obtain the bullets necessary to use them,”

Luis, 578 U.S. at 26 (Thomas, J., concurring) (cleaned

up). Without adequate “protection for these closely related rights, the Second Amendment would be toothless.” Id. at 27. Yet the panel majority makes clear

that its restrictive approach to assessing restrictions

on the right to train with firearms also applies to other

“implied corollary rights,” App.618a, such that challengers seeking to vindicate other concomitant rights

such as the right to purchase firearms are likely to see

their Second Amendment claims rejected at the

threshold wherever the majority’s approach prevails.

Following Heller, for nearly fourteen years the

courts of appeals resisted this Court’s precedent and

failed to adequately protect the “balance . . . struck by

the traditions of the American people” when they codified the right to keep and bear arms in our highest

law. Bruen, 597 U.S. at 26. If this Court does not grant

review and correct the errors in the panel majority,

history may well repeat itself.

CONCLUSION

For the reasons set forth above, the Court should

grant the petition for writ of certiorari.

August 16, 2024

Respectfully submitted,

JOSEPH G.S. GREENLEE

GREENLEE LAW, PLLC

PO Box 4061

McCall, ID 83638

(208) 271-2494

DAVID H. THOMPSON

Counsel of Record

PETER A. PATTERSON

JOHN D. OHLENDORF

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

MARTHA A. DEAN

LAW OFFICES OF MARTHA Washington, D.C. 20036

A. DEAN, LLC

(202) 220-9600

144 Reverknolls

dthompson@cooperkirk.com

Avon, CT 0601

(860) 676-0003

Counsel for Petitioners

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED AUGUST 5, 2022 . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT, E.D., FOR THE

DISTRICT OF MICHIGAN, SOUTHERN

DIVISION, DATED FEBRUARY 9, 2021 . . . . . . . . 8a

APPENDIX C — ORDER THE UNITED STATES

DISTRICT COURT, E.D., FOR THE DISTRICT

OF MICHIGAN, SOUTHERN DIVISION,

DATED SEPTEMBER 10, 2020 . . . . . . . . . . . . . . . 18a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

A PPEALS FOR THE SIXTH CIRCUIT,

FILED JULY 8, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 28a

A PPEN DI X E — SECON D A M EN DED

COMPLAINT IN THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DI S T R IC T OF M IC H IG A N, F I L E D

JULY 11, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30a

A PPENDIX F — ZONING ORDINA NCE

O F H O W E L L T O W N S H I P, DA T E D

MARCH 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54a

APPENDIX G — ORDER OF THE 2021 ZONING

ORDINA NCE A MENDMENTS, FILED

SEPTEMBER 30, 2022 . . . . . . . . . . . . . . . . . . . . . .564a

TABLE OF APPENDICES

Page

APPENDIX H — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED MAY 31, 2024 . . . . . . 601a

A PPENDIX I — OPINION A ND ORDER

OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF MICHIGAN, SOUTHERN DIVISION,

FILED FEBRUARY 17, 2023 . . . . . . . . . . . . . . . . 637a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH

CIRCUIT, FILED AUGUST 5, 2022

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 21-1244

OAKLAND TACTICAL SUPPLY, LLC;

JASON RAINES; MATTHEW REMENAR;

SCOTT FRESH; RONALD PERNOD;

EDWARD GEORGE DIMITROFF,

Plaintiffs-Appellants,

HOWELL TOWNSHIP, MICHIGAN,

Defendant-Appellee.

Filed August 5, 2022

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF MICHIGAN

OPINION

Before: COLE, KETHLEDGE, and WHITE, Circuit

Judges.

Appendix A

Plaintiffs-Appellants (collectively, Oakland Tactical)

appeal the district court’s grant of judgment on the

pleadings to Defendant-Appellee, Howell Township

(Township), and its denial of Oakland Tactical’s motion

for reconsideration, arguing that the Township’s Zoning

Ordinance (Ordinance) violates the Second Amendment

by effectively banning Oakland Tactical from operating

an outdoor, long-distance shooting range on its property.

We VACATE and REMAND to allow the district court

to consider the plausibility of Oakland Tactical’s Second

Amendment claim in light of the Supreme Court’s recent

decision in 1HZ<RUN6WDWH5LÁH 3LVWRO$VV·Q,QFY

Bruen, 142 S. Ct. 2111 (2022).

Oakland Tactical seeks to operate an outdoor, 1,000yard shooting range on its property in the AgriculturalResidential District (ARD) of the Township. Oakland

Tactical filed this action in 2018 and the operative

complaint in 2019, alleging that the Ordinance, facially

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ranges and other shooting ranges, thereby prohibiting

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Second Amendment protects.” R. 44 PID 1103. In 2018

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Ordinance, the Township stated at a planning commission

meeting that commercial shooting ranges were allowed

in some districts, but not the ARD.1

1. The Ordinance also permitted “ser vice outlets for

. . . indoor commercial recreation” in the Regional Service

Appendix A

In June 2020, the Township filed a motion for

judgment on the pleadings. In September, the district

court granted the Township’s motion and dismissed the

action, concluding that Oakland Tactical failed to plausibly

plead that the Second Amendment requires the Township

to “permit a property owner (or a property lessee) to

construct, and for interested gun owners to use, an

outdoor, open-air, 1,000-foot shooting range” within the

ARD; or, that the Ordinance effectively bans all shooting

ranges, given that it “appears on its face to allow shooting

ranges in [other] districts” and Oakland Tactical could

have sought conditional rezoning or a special-use permit

to construct a shooting range on its property. R. 84 PID

2089-90. Oakland Tactical moved for reconsideration.

In January 2021, while Oakland Tactical’s motion for

reconsideration was still pending, the Township amended

WKH2UGLQDQFH7KH2UGLQDQFHQRORQJHUPHQWLRQV´ULÁH

ranges.” Instead, it references “sport shooting ranges”

DQGFODVVLÀHVWKHPDVHLWKHU´LQGRRUUHFUHDWLRQIDFLOLWLHVµ

or “outdoor recreation facilities,” not open-air businesses.

Howell Twp., Mich. Zoning Ordinance art. II (2021).

The Ordinance permits indoor and outdoor recreational

facilities in four districts—the Reg ional Ser vice

Commercial District; “[r]ecreation and sports buildings” and

“[r]ecreation and sports areas, if areas are completely enclosed

with fences, wall or berms with controlled entrances and exits” in

the Highway Service Commercial District; and, “[r]ecreation and

SK\VLFDOÀWQHVVIDFLOLWLHVµLQWKH+HDY\&RPPHUFLDO'LVWULFWDQG

the Industrial District, with “facility” appearing to encompass

both indoor and outdoor spaces under the Ordinance. R. 60-2 PID

1244, 1247, 1252; R. 61-2 PID 1409.

Appendix A

Commercial District, the Highway Service Commercial

District, the Industrial Flex Zone, and the Industrial

'LVWULFW³DQGVHWVVSHFLÀFVWDQGDUGVIRUVSRUWVKRRWLQJ

ranges. ,G art. XVI, § 16.18(A), (B)(10).

In February, the district court denied Oakland

7DFWLFDO·V PRWLRQ IRU UHFRQVLGHUDWLRQ DIWHU ÀQGLQJ QR

“palpable defect” in its order of dismissal. 2 R. 91 PID 2184.

Oakland Tactical timely appealed.

II.

In 'LVWULFW RI &ROXPELD Y +HOOHU, 554 U.S. 570

(2008), the Supreme Court recognized that the Second

Amendment protects the individual right to keep and bear

DUPVVSHFLÀFDOO\´WKHULJKWRIDQRUGLQDU\ODZDELGLQJ

citizen to possess a handgun in the home for self-defense.”

Bruen, 142 S. Ct. at 2122; VHHDOVR0F'RQDOGY&KLFDJR,

561 U.S. 742, 750 (2010) (holding that the right to keep and

bear arms for the purpose of self-defense is applicable to

the states). +HOOHU also implied, rather obliquely, that the

6HFRQG$PHQGPHQWPD\SURWHFWRWKHUÀUHDUPVUHODWHG

conduct but not all such conduct. 554 U.S. at 626-28 & n.26,

635. This left lower courts “struggl[ing] to delineate the

boundaries” of the Second Amendment. 7\OHUY+LOOVGDOH

2. The district court did not address the amendments to

the Ordinance, which is understandable given that the parties

seemingly failed to mention them. Even on appeal, the parties

neglected to brief what effect, if any, the amendments have

regarding Oakland Tactical’s Second Amendment claim and, thus,

ZHRUGHUHGVXSSOHPHQWDOEULHÀQJ

Appendix A

&QW\6KHULII ·V'HS·W, 837 F.3d 678, 681 (6th Cir. 2016) (en

banc).

To help us resolve Second Amendment challenges,

we previously employed a two-step test. United States

Y*UHHQR, 679 F.3d 510, 518 (6th Cir. 2012), DEURJDWHGE\

Bruen, 142 S. Ct. at 2126-27 (rejecting the test). At step

one, we required the government to put forward historical

evidence to establish that the challenged law regulated

activity outside the scope of the Second Amendment. ,G

If the historical evidence was inconclusive or suggested

that the regulated activity was not categorically

unprotected, we moved to step two, where we ascertained

the appropriate level of scrutiny and then examined the

JRYHUQPHQW·VMXVWLÀFDWLRQIRUUHVWULFWLQJRUUHJXODWLQJWKH

exercise of the activity. ,G The Supreme Court recently

clarified, however, that this is the wrong approach.

Instead:

When the Second Amendment’s plain text

covers an individual’s conduct, the Constitution

presumptively protects that conduct. The

government must then justify its regulation

by demonstrating that it is consistent with

the Nation’s historical tradition of firearm

regulation. Only then may a court conclude that

the individual’s conduct falls outside the Second

$PHQGPHQW·V´XQTXDOLÀHGFRPPDQGµ

Bruen, 142 S. Ct. at 2129-30.

Appendix A

We are unable to apply this standard based on the

record and arguments currently before us. The district

FRXUWVKRXOGGHFLGHLQWKHÀUVWLQVWDQFHZKHWKHU2DNODQG

Tactical’s proposed course of conduct is covered by the

plain text of the Second Amendment. 3 See, HJ, id. at

2134-35 (concluding that the Second Amendment plainly

covers a right to bear arms in public for self-defense).

If the district court concludes that Oakland Tactical’s

proposed course of conduct is covered by the plain text of

the Second Amendment, it should then determine whether

historical evidence—to be produced by the Township in

WKH ÀUVW LQVWDQFH³GHPRQVWUDWHV WKDW WKH 2UGLQDQFH·V

shooting-range regulations are consistent with the nation’s

KLVWRULFDOWUDGLWLRQRIÀUHDUPUHJXODWLRQSee, HJ, id. at

2138 (concluding that “the historical record compiled by

respondents does not demonstrate a tradition of broadly

SURKLELWLQJWKHSXEOLFFDUU\RIFRPPRQO\XVHGÀUHDUPV

for self-defense” or “limiting public carry only to those

law-abiding citizens who demonstrate a special need for

self-defense”).

3. We note that, although Oakland Tactical has alleged that

the Second Amendment protects the right to train on “outdoor

ranges appropriate for . . . FRPPRQ ÀUHDUPVµ ´VKRWJXQ DQG

handgun ranges,” and, more generally, “a shooting range,” R. 86

PID 2113; R. 44 PID 1085-86, it most recently framed its proposed

course of conduct as the right to train on “outdoor, long-distance

shooting ranges,” see, HJ, Appellants Br. at 10.

Appendix A

For the foregoing reasons, we VACATE the district

court’s grant of judgment on the pleadings and its order

denying reconsideration and REMAND for further

proceedings consistent with this opinion.

/s/ Helene N. White

Helene N. White

United States Circuit Judge

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT, E.D., FOR THE

DISTRICT OF MICHIGAN, SOUTHERN

DIVISION, DATED FEBRUARY 9, 2021

2021 WL 940756

Civil Action No. 18-CV-13443

United States District Court, E.D.

Michigan, Southern Division

OAKLAND TACTICAL SUPPLY LLC, et al.,

Plaintiffs,

HOWELL TOWNSHIP,

Defendant.

Signed 02/09/2021

OPINION AND ORDER DENYING

PLAINTIFFS’ MOTION FOR RECONSIDERATION

AND FOR LEAVE TO FILE A THIRD

AMENDED COMPLAINT

BERNA RD A . FRIEDM A N, SENIOR UNITED

STATES DISTRICT JUDGE

This matter is presently before the Court on plaintiffs’

PRWLRQ IRU UHFRQVLGHUDWLRQ DQG IRU OHDYH WR ÀOH D WKLUG

DPHQGHGFRPSODLQW>GRFNHWHQWU\@'HIHQGDQWKDVÀOHG

Appendix B

DUHVSRQVHLQRSSRVLWLRQDQGSODLQWLIIVKDYHÀOHGDUHSO\

Pursuant to E.D. Mich. LR 7.1(h)(2), the Court shall decide

this motion without a hearing.

Plaintiffs seek reconsideration of the Court’s order

dismissing their second amended complaint. This

Court’s Local Rule 7.1(h)(3) requires plaintiffs seeking

reconsideration to show a “palpable defect” in the Court’s

ruling and that “correcting the defect will result in a

different disposition of the case.” “A ‘palpable defect’ is

a defect which is obvious, clear, unmistakable, manifest,

or plain.” Mich. Dep’t of Treasury v. Michalec, 181 F.

Supp. 2d 731, 734 (E.D. Mich. 2002). Plaintiffs’ motion

is also brought under Fed. R. Civ. P. 59(e). “A court may

grant a Rule 59(e) motion to alter or amend if there is:

(1) a clear error of law; (2) newly discovered evidence; (3)

an intervening change in controlling law; or (4) a need to

prevent manifest injustice.” Intera Corp. v. Henderson,

428 F.3d 605, 620 (6th Cir. 2005).

3ODLQWLIIVKDYHQRWLGHQWLÀHGDSDOSDEOHGHIHFWLQWKH

Court’s order of dismissal. Nor have they shown that the

Court committed a clear error of law or that the dismissal

should be vacated due to newly discovered evidence or

an intervening change in the law or to prevent manifest

injustice. Rather, plaintiffs mistakenly assert that the

Court misunderstood their complaint, failed to draw all

reasonable inferences in the light most favorable to them,

and improperly required them to allege that they had

exhausted their administrative remedies (or that doing

so would have been futile).

10a

Appendix B

Plaintiffs are incorrect. Regarding the first two

points, the Court fully understood the complaint to

allege that plaintiffs seek to build an outdoor 1,000-yard

shooting range and that defendant would not allow the

construction of such a facility. See Op. & Order Granting

Def.’s Mot. to Dismiss at 1-2. But plaintiffs also alleged

WKDWGHIHQGDQW´HIIHFWLYHO\EDQQ>HG@DOOÀUHDUPVUDQJHV

within the township,” Second Am. Compl. ¶ 4, an allegation

that could have raised Second Amendment concerns under

the Seventh Circuit’s Ezell cases, and the Court found this

allegation to be implausible in light of defendant’s zoning

ordinances that allow for shooting ranges. See Op. & Order

at 7. Regarding plaintiffs’ third point, the Court did not

dismiss the complaint because plaintiffs failed to allege

that they had exhausted their administrative remedies.

The Court merely noted the implausibility of plaintiffs’

allegation that defendant would not allow the construction

of the shooting range at issue given plaintiffs’ failure to

allege that they had taken any steps to present defendant

with a request (e.g., by seeking conditional rezoning or

a special use permit) that was limited to the particular

parcel leased by plaintiff Oakland Tactical LLC.

The Court dismissed the complaint in this matter

because plaintiffs based their claim on the outlandish

proposition that Howell Township violated their Second

Amendment rights by denying the application submitted

by Oakland Tactical LLC’s member, Mike Paige, to

amend the township zoning ordinance so as to allow for

shooting ranges throughout the AR district. Had the

township approved Paige’s application, the township

would have been obligated to approve any application for

11a

Appendix B

a shooting range on any parcel within this district so long

as “dimensional regulations” (e.g., setback requirements)

were met. As the Court further noted, two-thirds of

all Howell Township land (13,500 acres) is zoned AR.

No provision of the Constitution, including the Second

Amendment, requires government entities to grant an

amendment to their zoning ordinances to permit any

particular activity, whether it be to build cement factories,

graze cattle, or construct long-distance shooting ranges.

If a person wishes to construct a building or engage in

an activity that is not permitted under existing zoning

rules, there are procedures available under Michigan

law whereby the owner (or lessee) may seek an exception

for his piece of property. Until now, plaintiffs have

never alleged that these procedures are unavailable to

them. Manifestly, the procedure is not to ask the zoning

authority to amend the zoning ordinance to permit the

activity in question everywhere that has the same zoning

designation as the applicant’s parcel.

In short, plaintiffs have shown no error in the

Court’s dismissal of their complaint. Their motion for

reconsideration of, or to alter or amend, that ruling is

therefore denied.

$V QRWHG SODLQWLIIV DOVR VHHN OHDYH WR ÀOH D WKLUG

amended complaint (i.e., the fourth version of their

complaint in this case). Regarding such post-judgment

motions, the Sixth Circuit has stated:

Although Rule 15(a) “plainly embodies a liberal

amendment policy,” Morse, 290 F.3d at 800,

12a

Appendix B

there is a “heavier burden” when requests to

amend are made after an adverse judgment,

Leisure Caviar, 616 F.3d at 616.

***

In addition to the Foman factors of undue delay,

bad faith, dilatory motive, undue prejudice, and

the futility of the proposed amendment, postjudgment requests to amend require that the

district court “also take into consideration the

FRPSHWLQJ LQWHUHVW RI SURWHFWLQJ WKH ÀQDOLW\

of judgments and the expeditious termination

of litigation.” Morse, 290 F.3d at 800 (internal

quotation marks omitted). This latter inquiry

includes asking whether the claimant has made

a “compelling explanation” for failing to seek

leave to amend prior to the entry of judgment.

Leisure Caviar, 616 F.3d at 617; Morse, 290 F.3d

at 800. It is intended to keep plaintiffs from

using the district court “as a sounding board

to discover holes in their arguments,” and from

avoiding the narrow grounds for post-judgment

relief under Rules 59 and 60. Leisure Caviar,

616 F.3d at 616.

Pond v. Haas, 674 F. App’x 466, 472-73 (6th Cir. 2016).

Plaintiffs indicate that their third amended complaint

would clarify that they seek to construct and use a longUDQJHRXWGRRUIDFLOLW\1RVXFKFODULÀFDWLRQLVQHFHVVDU\

DV WKH RULJLQDO FRPSODLQW WKH ÀUVW DPHQGHG FRPSODLQW

13a

Appendix B

and the second amended complaint clearly made this

allegation.

Plaintiffs also indicate that their third amended

complaint would

clarify ... that the parties had reached an

impasse and that no further avenues of relief

were available or likely to be fruitful, as the

Township had foreclosed them. The parties’

SRVLWLRQV ZHUH ÀQDO ZLWK UHVSHFW WR 3ODLQWLII

Oakland’s ability to obtain approval of any

kind to build an outdoor shooting range on the

Property, and Plaintiffs seek leave to amend the

Complaint to clarify this further and that they

are not seeking a broad zone change, but were

instructed by the Township that seeking such

a broad zone change was their only potential

avenue for being allowed to construct an

outdoor range on the Property.

Pls.’ Br. at 7-8. It appears that the relevant allegations

in the proposed third amended complaint include the

following:

38. Of the approximately 20,000 acres regulated

by the Howell Township Zoning Ordinances,

the only district providing for stand-alone

recreational facilities (ones not connected to

other permitted uses in the zone) is the Highway

Service Commercial District (“HSC District”)

consisting of 7 parcels with a total area of less

14a

Appendix B

than 30 acres. Recreational facilities in the HSC

District are only allowed under a special use

permit that requires the use not to interfere

with the permitted principle uses, and thus,

it would have been futile to apply for a special

XVHSHUPLWZLWKLQVXFK]RQH HYHQLIVXIÀFLHQW

land were available for the proposed CMPSURPRWHGORQJGLVWDQFHW\SHVRIULÁHSUDFWLFH

and competitions, which it is not), as such a

permit application would have been rejected.”

[sic]

***

+RZHOO 7RZQVKLS ]RQLQJ RIÀFLDOV DGYLVHG

Oakland to apply for a text amendment to the

Howell Township Zoning Ordinances as the only

avenue available to allow shooting ranges in the

AR Zoning District, stating that a conditional

XVH SHUPLW VSHFLDO SHUPLW RU D VLWHVSHFLÀF

zone change was not available for a shooting

range on Oakland’s Property; for this reason,

DSSO\LQJIRUVXFKSHUPLWVRUDVLWHVSHFLÀF]RQH

change would have been futile.

***

5 6 . O a k l a nd ’s m a n a g i ng memb e r, M r.

Paige, was advised in meetings with Howell

7RZQVKLSRIÀFLDOVWKDWWKH=RQLQJ2UGLQDQFH

as interpreted by the forecloses the use of

WKH3URSHUW\DVDQRXWGRRUÀUHDUPVWUDLQLQJ

15a

Appendix B

range. The Township explicitly advised Plaintiff

Oakland that the only way to permit an outdoor

shooting range on the Property would be to

amend the Zoning Ordinance through a text

amendment, which was not Oakland’s desired

approach as it would affect many other areas

in the Township and open up land in the area

to competitors.

57. When considering whether to adopt the

proposed text amendment, the Township

Planning Commission was advised by Township

personnel that it could take more time to

consider making changes to the proposed

text amendment, such as allowing outdoor

ÀUHDUPV WUDLQLQJ UDQJHV WR EH SHUPLWWHG E\

a conditional use permit, and the Commission

rejected this opportunity by voting against

taking additional time to consider zoning

and permitting alternatives. The Township

Planning Commission then voted to recommend

to the Township to deny the text amendment.

The Township accepted the recommendation

of the Township Planning Commission and

denied the text amendment. Based on the text

of the Ordinance and its interpretation by the

Township, any other action by Plaintiff Oakland

to change the allowable uses of the Property

WRLQFOXGHDQRXWGRRUÀUHDUPVWUDLQLQJUDQJH

including by seeking conditional rezoning of

that parcel or by applying for a special use or

conditional use permit, would have been futile.

16a

Appendix B

The additional allegations plaintiffs would make in

their proposed third amended complaint are not simple

FODULÀFDWLRQVEXWH[WHQVLYHQHZDVVHUWLRQVWKDWDUHSODLQO\

a reaction to the Court’s explanation for dismissing the

second amended complaint. Plaintiffs offer no explanation

as to why these facts were not pled earlier, to say nothing

of the “compelling explanation” they are required to

present “for failing to seek leave to amend prior to the

entry of judgment.” Pond, 674 F. App’x at 473. As noted

above, such a showing is required in order “to keep

plaintiffs from using the district court as a sounding board

to discover holes in their arguments, and from avoiding

the narrow grounds for post-judgment relief under Rules

59 and 60.” Id. (citations and internal quotation marks

omitted). Plaintiffs have plainly used the Court in this

fashion to determine how to draft their proposed third

amended complaint. Sixth Circuit precedent counsels

against permitting the requested amendment under these

circumstances.

The Foman factors do as well. As the Supreme Court

noted in that case, leave to amend may be denied where

there is “undue delay, bad faith or dilatory motive on the

SDUWRIWKHPRYDQWUHSHDWHGIDLOXUHWRFXUHGHÀFLHQFLHV

by amendments previously allowed, [or] undue prejudice

to the opposing party by virtue of allowance of the

amendment....” Foman v. Davis, 371 U.S. 178, 182 (1962).

Undue delay, dilatoriness, and repeated failure to cure

WKHSOHDGLQJGHÀFLHQF\DUHSODLQO\DSSDUHQWLQWKHSUHVHQW

case. The township board denied Paige’s text amendment

application in November 2017. Plaintiffs waited a year

EHIRUH EULQLQJ VXLW LQ 1RYHPEHU 7KH\ WKHQ ÀOHG

17a

Appendix B

amended complaints in June and July 2019, never alleging

that alternatives to applying for a “text amendment”

would be futile. The prejudice to defendant can also be

presumed, given its interest, and the public’s interest, in

´WKHÀQDOLW\RIMXGJPHQWVDQGWKHH[SHGLWLRXVWHUPLQDWLRQ

of litigation.” Pond, 674 F. App’x at 472 (quoting Moore v.

City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986)). Having

considered the Foman factors, along with plaintiffs’

failure to offer a “compelling explanation” for seeking

leave to amend before judgment was entered against them,

the Court concludes that the requested amendment should

not be permitted.

For the reasons stated above,

IT IS ORDERED that plaintiffs’ motion [docket entry

@IRUUHFRQVLGHUDWLRQDQGIRUOHDYHWRÀOHDWKLUGDPHQGHG

complaint is denied.

IT IS FURTHER ORDERED that defendant’s motion

[docket entry 87] for leave to respond to plaintiffs’ motion

for leave to amend is denied as moot.

18a

Appendix

C UNITED STATES

APPENDIX C — ORDER

THE

DISTRICT COURT, E.D., FOR THE DISTRICT

OF MICHIGAN, SOUTHERN DIVISION,

DATED SEPTEMBER 10, 2020

2020 WL 5440048

Civil Action No. 18-CV-13443

United States District Court, E.D.

Michigan, Southern Division

OAKLAND TACTICAL SUPPLY LLC, et al.,

Plaintiffs,

HOWELL TOWNSHIP,

Defendant.

Signed 09/10/2020

OPINION AND ORDER GRANTING

DEFENDANT’S MOTION TO DISMISS

BERNA RD A . FRIEDM A N, SENIOR UNITED

STATES DISTRICT JUDGE

This matter is presently before the Court on (1)

defendant’s motion to dismiss [docket entry 60] and (2)

plaintiffs’ motion for summary judgment [docket entry 61].

Both motions have been fully briefed. Pursuant to E.D.

19a

Appendix C

Mich. LR 7.1(f)(2), the Court shall decide these motions

without a hearing. For the reasons stated below, the Court

shall grant defendant’s motion and deny plaintiffs’ motion

as moot.

This case involves a zoning dispute that, plaintiffs

claim, implicates their Second Amendment rights.

Plaintiff Oakland Tactical Supply LLC (“Oakland

7DFWLFDOµ DÀUHDUPVUHWDLOHUORFDWHGLQ+RZHOO0LFKLJDQ

alleges that it desires to construct “one or more outdoor

shooting ranges to provide a safe location for residents

in the area to practice target shooting for self-defense

and other lawful purposes, including but not limited to a

ORQJGLVWDQFH HJ\DUG UDQJHIRUTXDOLÀHGVKRRWHUV

DQGSXEOLFDFFHVVULÁHVKRWJXQDQGKDQGJXQUDQJHVµRQ

property it leases in Howell Township, Michigan. Second

$P&RPSO ´6$&µ 7KHÀYHLQGLYLGXDOSODLQWLIIVDUH

gun owners who would use Oakland Tactical’s proposed

facility if it were to be constructed. Id. ¶¶ 7-15, 60-64.

The Howell Township zoning ordinance allegedly “does

not allow open air business uses, shooting ranges, or

ULÁHUDQJHVµRQSURSHUW\]RQHG$JULFXOWXUDO5HVLGHQWLDO

(“AR”), and the property in question is zoned AR. Id. ¶ 46.

An application submitted by one of Oakland Tactical’s

members for a “text amendment” that would permit

shooting ranges to be constructed in the AR district was

denied by the Howell Township Board in November 2017.

Id. ¶¶ 47-48, 54. Plaintiffs also allege that no public outdoor

shooting ranges exist in Howell Township and that the

closest such range, located at a state recreation area in

Green Oak Township, is about a thirty-minute drive by

car from Oakland Tactical’s property. Id. ¶¶ 31-32. For

YDULRXVUHDVRQVWKHLQGLYLGXDOSODLQWLIIVÀQGWKH*UHHQ

20a

Appendix C

Oak Township location, and the other shooting ranges

located elsewhere, to be inconvenient or inadequate for

their purposes, and they would prefer the facility Oakland

Tactical would like to construct in Howell Township.

Plaintiffs claim that defendant Howell Township

has, by prohibiting Oakland Tactical from constructing

a shooting range, denied them their rights under the

Second Amendment. The individual plaintiffs claim that

defendant has infringed on their Second Amendment

rights because this amendment affords them “the right

WR RSHUDWH DQG SUDFWLFH ZLWK ÀUHDUPV DW D UDQJH IRU

purposes including learning about firearms, safely

JDLQLQJSURÀFLHQF\ZLWKÀUHDUPVREWDLQLQJDQ\WUDLQLQJ

UHTXLUHGDVDFRQGLWLRQRIÀUHDUPVRZQHUVKLSUHFUHDWLRQ

hunting, and competition.” Id. ¶ 68. Oakland Tactical

claims that defendant has violated its Second Amendment

right “to own, construct, and operate a range for these

purposes.” Id. ¶ 69. See also id. ¶ 4 (“Howell Township

has infringed the rights of Oakland Tactical Supply, LLC

... to site, construct, and operate a shooting range within

the borders of Howell Township, effectively banning all

ÀUHDUPV UDQJHV ZLWKLQ WKH WRZQVKLS DQG WKH ULJKWV RI

the individual Plaintiffs to practice for lawful purposes

ZLWKÀUHDUPVµ )RUUHOLHISODLQWLIIVVHHNDGHFODUDWLRQ

that “Defendant’s aforesaid actions have deprived and

will continue to deprive Plaintiffs of rights under the

Second Amendment”; damages; an injunction enjoining

enforcement of ordinances “barring operation of shooting

ranges open to the public” or of “any law against the

ordinary operation and use of shooting ranges open to

the public”; plus costs and attorney fees.

21a

Appendix C

Defendant seeks dismissal of the complaint on a

number of grounds, but the Court is persuaded that the

complaint should be dismissed for failure to state a claim

because defendant violated none of plaintiffs’ Second

Amendment rights by denying the requested zoning

amendment at issue.

The starting point is the requested amendment itself, a

copy of which is attached to plaintiffs’ summary judgment

motion as an exhibit. See PageID.1648-49.1 The text

amendment application was submitted by non-party Mike

Paige, a member of Oakland Tactical. Paige’s “application

for amendment to zoning ordinance / map,” dated August

29, 2017, requested the following change to the Howell

Township zoning ordinance: “Allow for shooting range[ ]s in

AG [sic: AR] District.” The minutes of the Howell Township

Board’s November 13, 2017, meeting indicate that the

board voted against the proposed amendment (6-0) “based

on the information provided by the township planner, the

recommendation of the planning commission and the input of

the public.” Def.’s Mot. to Dismiss, Ex. 3 at 4 (PageID. 1266).

1. Ordinarily the Court may not consider matters outside

the pleadings in deciding a motion to dismiss for failure to state a

claim or for judgment on the pleadings. See Fed. R. Civ. P. 12(d).

However, the Court may consider the text amendment application

in deciding defendant’s motion because this document is referenced

in the complaint and is central to plaintiffs’ claims. See Yeldo v.

MusclePharm Corp., 290 F. Supp. 3d 702, 708 (E.D. Mich. 2017);

Simmons v. Wayne Cty. Cmty. Coll. Dist., No. 11-CV-14936, 2014

WL 764632, at n.1 (E.D. Mich. Feb. 25, 2014). The Court may also

consider matters of public record. See McLaughlin v. CNX Gas Co.,

LLC, 639 F. App’x 296, 298-99 (6th Cir. 2016); Northville Downs v.

Granholm, 622 F.3d 579, 586 (6th Cir. 2010).

22a

Appendix C

The minutes of the Howell Township Planning Commission’s

October 24, 2017, meeting, in turn, indicate that the

commission voted 5-0 to recommend that the township board

“deny the text amendment changes as presented.” Id. Ex.

2 at 7 (PageID. 1261). Also according to these minutes, the

township planner, Paul Montagno, provided the planning

commission with the following information at that meeting:

This is a proposed Text Amendment to the

Township Zoning Ordinance by petitioner Mike

Paige. He is requesting the Zoning Ordinance

be amended to allow for shooting ranges in the

Agricultural Residential “AR” District. The

petitioner has indicated that he is interested in

establishing a 1000’ shooting range on a roughly

300 acre parcel of land on Fleming Road north

or Warner Road in Section 17. Although the

petitioner has interest in a particular parcel,

the application for this Public Hearing is for the

Text Amendment. Any permitted use change

that is made to the “AR” District will be applied

across all parcels with the “AR” Districts....

Within the Howell Township “AR” District

there are approximately 13,500 acres.

Id. Ex. 2 at 2 (PageID. 1256). One of the commissioners

noted that approximately 65% of the land within the

township is zoned AR. Id. Ex. 2 at 7 (PageID. 1261).

In his written report to the planning commission,

Montagno explained:

23a

Appendix C

[W]hile the applicant is interested in the ability

WRGHYHORSDVSHFLÀFSLHFHRIODQGDQGKDVVSHFLÀF

plans for this land, the current petition is for

an amendment to the permitted uses in the AR

district. If a text amendment were approved,

this would affect all land zoned AR. If the text

amendment were approved as present [sic],

shooting ranges would be a permitted use in the

AR district. A site plan would be required for

the development of any land, but if the proposed

plans met the dimensional regulations of the

Zoning Ordinance the plans must be approved.

This would be true for any land within the [AR]

district. There are approximately 13,500 acres

of land within the Township within an AR

zoning district.

Pls.’ Summ. J. Br., Ex. 9B (PageID.1651-52).

Plaintiffs have cited no cases that support the

proposition that a local government, such as Howell

Township, is required by the Second Amendment to

grant a request to change its zoning ordinance such that

the construction and use of shooting ranges must be

permitted anywhere within that governmental entity’s

boundaries with a particular zoning designation. In the

present case, the requested amendment was so expansive

that it would have applied not only to Oakland Tactical’s

352-acre parcel but to the entire AR district, which

comprises 13,500 acres (21 square miles) or 65% or more

of the township’s land. 2 Additionally, as the township’s

2. If the AR district comprises 13,500 acres, and “approximately

20,000 acres [are] regulated by the Howell Township Zoning

24a

Appendix C

zoning planner explained, if the zoning ordinance had

been amended as requested, the township would have

been obligated to permit any shooting range anywhere in

the AR district, provided it met “dimensional regulations”

(e.g., setback requirements), because the amendment

would make shooting ranges a permitted use, as opposed

to a conditional use, for all land zoned AR.

The cases on which plaintiffs rely do not come close

to suggesting that the Second Amendment requires such

a result. Plaintiffs cite cases for the proposition that the

Second Amendment encompasses the right to posses

firearms in the home for self-defense purposes. See,

e.g., McDonald v. City of Chicago, 561 U.S. 742 (2010)

(invalidating city ordinances banning the possession of

DOO ÀUHDUPV Dist. of Columbia v. Heller, 554 U.S. 570

(2008) (invalidating ban on handguns in the home unless

unloaded or trigger-locked). Plaintiffs also cite Tyler v.

Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678 (6th Cir. 2016),

in which the court of appeals permitted a case to proceed

that challenged a statute banning gun ownership for those

with a history of mental illness. The only cases plaintiffs

cite that concerned shooting ranges are the two Ezell cases

from the Seventh Circuit, Ezell v. City of Chicago, 846 F.3d

888 (7th Cir. 2017), and Ezell v. City of Chicago, 651 F.3d

684 (7th Cir. 2011), which invalidated Chicago’s ordinances

banning, or severely restricting, all shooting ranges in

the city while also requiring gun owners to train at a

shooting range as a condition of obtaining a gun permit.

Ordinances,” SAC ¶ 38, then Paige’s requested zoning amendment

actually would affect 67.5% of the township’s land area.

25a

Appendix C

7KH6HYHQWK&LUFXLWVWDWHGWKDW&KLFDJR·V´ÀULQJUDQJH

ban ... is a serious encroachment on the right to maintain

SURÀFLHQF\LQÀUHDUPXVHDQLPSRUWDQWFRUROODU\WRWKH

PHDQLQJIXOH[HUFLVHRIWKHFRUHULJKWWRSRVVHVVÀUHDUPV

for self-defense.” Ezell, 651 F.3d at 708. In the later

decision, the Seventh Circuit similarly indicated that

“[r]ange training ... lies close to the core of the individual

right of armed defense.” Ezell, 846 F.3d at 893.

None of the cases plaintiffs cite, and none of which the

Court is aware, suggest that a municipality must permit

a property owner (or a property lessee) to construct, and

for interested gun owners to use, an outdoor, open-air,

1,000-foot shooting range, such as plaintiffs propose. Nor

have plaintiffs cited a single case that suggests Howell

Township must change its zoning ordinance to permit

the construction and use of such a facility as a matter of

right anywhere within the AR district, which in this case

comprises fully two-thirds of the township’s land. The

claimed right simply is not encompassed by the Second

Amendment.

In the wake of the Ezell cases, a ban on all shooting

ranges might raise Second Amendment concerns. But

plaintiffs have failed to allege plausibly that Howell Township

has instituted such a ban. Although shooting ranges are not

a permitted use within the AR district, Oakland Tactical

does not allege that it ever sought permission to construct a

VKRRWLQJUDQJHRQWKHVSHFLÀFSLHFHRISURSHUW\LWOHDVHV,W

might have done so by seeking conditional rezoning of that

parcel, see Mich. Comp. Laws § 125.3405; or by applying for a

special use permit, see Howell Township Zoning Ordinance,

26a

Appendix C

Art. XVI.3 Oakland Tactical does not allege that it pursued

these avenues or that they were denied. In the absence of any

allegation that such efforts were pursued, or that doing so

would be futile, there is no plausibility to plaintiffs’ assertion

WKDW+RZHOO7RZQVKLS´HIIHFWLYHO\EDQ>V@DOOÀUHDUPVUDQJHV

within the township.” SAC ¶ 4.

Moreover, the ordinance appears on its face to

allow shooting ranges in districts other than those

designated AR. Section 13.03(A) of the ordinance allows

“[r]ecreation and sports buildings” within the highway

service commercial district, and § 13.03(B) also allows

in that district “[r]ecreation and sports areas, if areas

are completely enclosed with fence, walls or berms with

controlled entrances and exits.”4 Pls.’ Mot. for Summ.

J., Ex. 1 (PageID. 1399). Section 10.02(B) allows “indoor

commercial recreation” establishments in the regional

service commercial district. Id., Ex. 1 (PageID. 1395).

$QG ( DOORZV´>U@HFUHDWLRQDQGSK\VLFDOÀWQHVV

facilities” in the heavy commercial district. Id., Ex. 1

(PageID. 1405). In light of these ordinance provisions,

plaintiffs’ claim that Howell Township bans all shooting

ranges is not plausible.

3. A copy of the Howell Township Zoning Ordinance is attached

to plaintiffs’ motion for summary judgment as Exhibit 1 (PageID.

1323-1574). As noted above, the Court may consider matters of public

record (and documents to which the complaint refers) in deciding a

motion to dismiss or for judgment on the pleadings.

4. Plaintiffs acknowledge that an open-air shooting range

might be permitted in this district, although they allege the

DYDLODEOHODQGLVLQVXIÀFLHQWIRUWKHLUSXUSRVHVSee SAC ¶ 41.

27a

Appendix C

The Court concludes that plaintiffs have failed to state

a Second Amendment claim because their allegation that

GHIHQGDQWEDQV´DOOÀUHDUPVUDQJHVZLWKLQWKHWRZQVKLSµ

SAC ¶ 4, is implausible. Plaintiffs do not allege that they

ever sought permission to construct a shooting range

on the parcel Oakland Tactical leases. Instead, Oakland

Tactical’s member, non-party Mike Paige, asked the

township to make a sweeping amendment to its zoning

ordinance to allow for shooting ranges as a matter of right

throughout the AR district. The township’s denial of this

request, which would have permitted shooting ranges in

two-thirds of the township’s land, can hardly be viewed as

a ban on shooting ranges. The alleged “ban” on shooting

ranges is all the more implausible in light of the ordinance

provisions that permit recreational facilities. Accordingly,

IT IS ORDERED that defendant’s motion to dismiss

is granted.

IT IS FURTHER ORDERED that plaintiffs’ motion

for summary judgment is denied as moot.

28a

AppendixOF

D REHEARING OF

APPENDIX D — DENIAL

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT, FILED JULY 8, 2024

UNITED STATES COURT OF APPEALS,

SIXTH CIRCUIT

No. 23-1179

OAKLAND TACTICAL SUPPLY, LLC;

JASON RAINES; MATTHEW REMENAR;

SCOTT FRESH; RONALD PENROD;

EDWARD GEORGE DIMITROFF,

Plaintiffs-Appellants,

HOWELL TOWNSHIP, MICHIGAN,

Defendant-Appellee.

FILED July 8, 2024

BEFORE: COLE, KETHLEDGE, and WHITE, Circuit

Judges.

ORDER

The court received a petition for rehearing en banc.

The original panel has reviewed the petition for rehearing

and concludes that the issues raised in the petition were

fully considered upon the original submission and decision

of the case. The petition then was circulated to the full

29a

Appendix D

court.* No judge has requested a vote on the suggestion

for rehearing en banc.

Therefore, the petition is denied. Judge Kethledge

would grant rehearing for the reasons stated in his dissent.

Judge Davis recused herself from participation in this ruling.

30a

E AMENDED

APPENDIX EAppendix

— SECOND

COMPLAINT IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

MICHIGAN, FILED JULY 11, 2019

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF MICHIGAN

Case No. 18-cv-13443-BAF-DRG

(Hon. Bernard A. Friedman)

OAKLAND TACTICAL SUPPLY, LLC,

JASON RAINES, MATTHEW REMENAR,

SCOTT FRESH, RONALD PENROD AND

EDWARD GEORGE DIMITROFF,

Plaintiffs,

HOWELL TOWNSHIP,

A MICHIGAN GENERAL LAW TOWNSHIP,

Defendant.

Filed July 11, 2019

SECOND AMENDED COMPLAINT

COMES NOW the Plaintiffs, Oakland Tactical

Supply, LLC, Jason Raines, Matthew Remenar, Scott

Fresh, Ronald Penrod, and Edward George Dimitroff by

and through undersigned counsel, and complains of the

Defendant, Howell Township, as follows:

31a

Appendix E

1. This is an action to vindicate the rights of the

people of the State of Michigan to keep and bear arms

under the Second Amendment to the United States

Constitution, which prohibits infringement of the right

RIODZDELGLQJFLWL]HQVWRSRVVHVVÀUHDUPVIRUGHIHQVHRI

self and family and for other lawful purposes.

2. Such lawful purposes include the right to

RSHUDWH ÀUHDUPV DW D UDQJH IRU SXUSRVHV RI OHDUQLQJ

DERXWÀUHDUPVVDIHO\JDLQLQJSURÀFLHQF\ZLWKÀUHDUPV

REWDLQLQJDQ\WUDLQLQJUHTXLUHGDVDFRQGLWLRQRIÀUHDUPV

ownership, hunting, recreation, and competition; and the

right to own and operate a range for these purposes.

3. Howell Township has prohibited the siting,

construction, and operation of shooting ranges in the

town through its zoning regulations by failing to provide

or allow any designated areas within the town wherein

the siting, construction, or operation of a shooting range

would be permissible.

4. Through its actions and inactions, Howell

Township has infringed the rights of Oakland Tactical

Supply, LLC (“Oakland”) to site, construct, and operate

a shooting range within the borders of Howell Township,

effectively banning all firearms ranges within the

township, and the rights of the individual Plaintiffs to

SUDFWLFHIRUODZIXOSXUSRVHVZLWKÀUHDUPV

THE PARTIES

5. Plaintiff Oakland is a Michigan limited liability

company and a firearms retailer, with a retail store

32a

Appendix E

in Hartland Township, Livingston County, Michigan.

Oakland plans to build an extensive outdoor shooting

range facility for both private and public use in Howell

Township, Michigan.

6. Oakland has entered into a lease, with an option to

purchase for six million dollars, 352 acres of former rock

quarry land for the express purpose of operating one or

more outdoor shooting ranges to provide a safe location

for residents in the area to practice target shooting for

self-defense and other lawful purposes, including but

not limited to a long distance (e.g. 1,000 yard) range

IRU TXDOLÀHG VKRRWHUV DQG SXEOLF DFFHVV ULÁH VKRWJXQ

and handgun ranges on North Fleming Road in Howell

Township (the “Property”).

7. Plaintiff Scott Fresh is a natural person and a

citizen of the United States residing in Livonia, Michigan.

Mr. Fresh would like to participate in long-range

competitive target shooting; however, he currently would

have to travel 4.5 hours to reach a long-distance shooting

range. This distance is too far for Mr. Fresh, so he is

XQDEOHWRHQJDJHLQWUDLQLQJLQWKHSURÀFLHQWXVHRIORQJ

UDQJHÀUHDUPV7KHUDQJHWKDW2DNODQGZLVKHVWRRSHQ

would be convenient for him for this purpose as well as for

practicing target shooting at shorter distances.

8. Plaintiff Jason Raines is a natural person and a

citizen of the United States residing in Oceola Township,

Michigan. Mr. Raines has had multiple surgeries due

to back injuries and engaging in the shooting sports is

one of the few competitive activities in which he can still

33a

Appendix E

engage. Mr. Raines would like to participate in long-range

competitive shooting, but there are currently no feasible

locations. Travelling takes a toll on his back injuries.

Mr. Raines is also a hunter and would like to improve

his long-range shooting skills to enhance his ability to

make a humane kill. If a facility were available, Mr.

Raines would undertake training to become a long-range

shooting instructor and train future generations in longrange shooting. The range that Oakland wishes to open

would be convenient for him for these purposes as well as

for practicing target shooting for self-defense and other

lawful purposes.

9. Plaintiff Matthew Remenar is a natural person

and a citizen of the United States residing in Rochester

Hills, Michigan. Mr. Remenar has engaged in long-range

target shooting over the past seven years and would like to

engage in long-range shooting competitions. To participate

in long-range target shooting, Mr. Remenar must travel

1.5 hours to state land that allows shooting. This location

is vacant land. Mr. Remenar and his friends must setup

WKHWDUJHWVRQWKHLURZQPXVWKLNHDVLJQLÀFDQWGLVWDQFH

IURPWKHÀULQJOLQHWRWKHWDUJHWORFDWLRQWRFKDQJHWDUJHWV

DQG WDOO\ VFRUHV 'XH WR WKH GLVWDQFH DQG GLIÀFXOW\ LQ

setting up the range and practicing, Mr. Remenar only

participates in long-range shooting about once per year.

Other developed ranges are more than a three hour

GULYH IRU 0U 5HPHQDU 7KH GLVWDQFH DQG GLIÀFXOW\ LQ

practicing prevent Mr. Remenar from competitive longrange shooting. The range that Oakland wishes to open

would be convenient for him for this purpose as well as

for practicing target shooting for self-defense and other

lawful purposes.

34a

Appendix E

10. Plaintiff Ronald Penrod is a natural person and a

citizen of the United States residing in Howell Township,

Michigan. Mr. Penrod is 71 years old and lives in close

proximity to the Property and Oakland’s proposed range

IDFLOLW\+HLVDÀUHDUPVRZQHUZKRZDVDEOHWRSUDFWLFH

ZLWKKLVÀUHDUPVVHYHUDOWLPHVDZHHNZKHQKHOLYHGLQ

another state near a shooting range. He uses his shotguns

and pistol for recreation as well as for self-defense. Mr.

Penrod would like to be able to practice at least a couple of

WLPHVDZHHNZLWKDVKRWJXQULÁHDQGSLVWROEXWFXUUHQWO\

there are no ranges where he can practice with these

ÀUHDUPVZLWKLQDSUDFWLFDEOHGULYHRIKLVKRPHLQ+RZHOO

Township. Mr. Penrod’s work schedule does not leave

VXIÀFLHQWWLPHWRWUDYHOPRUHWKDQPLOHVWRUHDFK

a shooting range and there are currently no ranges that

DOORZ KLP WR SUDFWLFH ZLWK HDFK RI KLV ÀUHDUPV ZLWKLQ

WKDWGLVWDQFH,QDGGLWLRQWRSUDFWLFLQJZLWKKLVÀUHDUPV

he would like to participate in shooting matches with a

shotgun on a regular basis at an outdoor shooting range;

however, he is unable to participate in matches due to the

lack of a publicly-accessible outdoor shooting range within

a practicable drive of his home in Howell Township.

11. Mr. Penrod and his wife live in a rural part of

Howell Township with horses, and he fears for his family’s

safety and the safety of their animals due to the sound

of uncontrolled shooting occurring on other residents’

properties around his property. Mr. Penrod is aware of

two horses being hit accidentally by stray bullets in the

area and of a man who was hit and killed, by a stray bullet

from a .22 that travelled across a lake in a state where

he lived previously. Given the amount of uncontrolled

35a

Appendix E

shooting on private property near his residence, Mr.

Penrod believes Oakland’s proposed range facility would

provide a valuable asset to him and to his neighbors and

the greater community by providing a safe and controlled

environment for practicing shooting in Howell Township.

Mr. Penrod would practice with shotguns, rifles and

pistols recreationally as well as for self-defense and other

lawful purposes and participate in matches at least a

couple of times per week if a suitable shooting range,

such as Oakland’s, were made available to him in Howell

Township.

12. Plaintiff Edward George Dimitroff is 60 years

old and a long-time resident (22 years) of Howell Township.

He resides in close proximity to the Property. Oakland’s

proposed shooting range facility is approximately a 6 mile

GULYHIURPKLVUHVLGHQFH0U'LPLWURIILVDÀUHDUPVRZQHU

DQG XQDEOH WR SUDFWLFH ZLWK KLV VKRWJXQV RU ZLWK ULÁHV

because there are no outdoor ranges that allow shooting

with long guns within a feasible driving distance from

his home.

13. Mr. Dimitroff works for a large employer in

Livonia, Michigan, which is a 1 to 1.5 hour drive one way

GHSHQGLQJ RQ WUDIÀF 7UDYHOOLQJ WR DQG IURP ZRUN KH

passes the Island Lake public range (located about a 3045 minute drive one way from his home, depending on

WUDIÀF ,QDGGLWLRQWKHUHDUHRWKHUUDQJHVORFDWHGQHDU

his place of work in Livonia. However, it is not feasible

for him to shoot at any of the ranges located on his way

to work or near his work because his large employer has

SROLFLHVWKDWSURKLELWÀUHDUPVLQFDUVSDUNHGDWKLVSODFH

of employment.

36a

Appendix E

14. In addition, Mr. Dimitroff works in Livonia 7

days a week, 10-12 hours a day, which leaves him no time

to drive to distant ranges such as the nearest range, the

Island Lake public range, which is about a 1 to 1.5 hour

URXQGWULSGULYH GHSHQGLQJRQUXVKKRXUWUDIÀFWKHWLPH

of day) from his home in Howell Township. He would like

WRSUDFWLFHUHJXODUO\ZLWKVKRWJXQVKDQGJXQVDQGULÁHV

but he is prevented from practicing with anything but a

handgun (which he does at an indoor range in the City

of Howell) due to the fact that travelling to the nearest

outdoor public range is over an hour round trip drive,

PDNLQJSUDFWLFHZLWKKLVÀUHDUPVLPSUDFWLFDEOH

15. Mr. Dimitroff owns a handgun and a shot gun,

both of which he keeps for recreational and self-defense

purposes. He considers it critical to practice with his

ÀUHDUPVUHJXODUO\LQRUGHUWRPDLQWDLQSURÀFLHQF\ZLWK

ÀUHDUPV0U'LPLWURIILVIUXVWUDWHGDQGVDGGHQHGE\WKH

IDFWWKDWZKLOHKHRZQVÀUHDUPVDQGEHOLHYHVSURÀFLHQF\

ZLWKÀUHDUPVLVDQLPSRUWDQWVNLOOKHKDVQRWEHHQDEOHWR

teach his three children (one is a teenager and two are in

their twenties), how to use them due to the lack of access

WRDQDSSURSULDWHUDQJHIRUWKHW\SHVRIÀUHDUPVWKDWKH

owns and would like to shoot. In addition to practicing

ZLWKWKHÀUHDUPVWKDWKHRZQVFXUUHQWO\0U'LPLWURII

would like to take up long range precision shooting with

DULÁHEXWLVXQDEOHWRGRVRRUWHDFKKLVFKLOGUHQKRZWR

do so, due to the lack of access to a range with facilities

for this type of shooting. If an appropriate shooting range

facility, such as the range facility proposed by Oakland,

were allowed to open in Howell Township, Mr. Dimitroff

would practice there regularly each week with handguns,

37a

Appendix E

VKRWJXQVDQGULÁHVIRUERWKUHFUHDWLRQDODQGVHOIGHIHQVH

SXUSRVHVDQGWHDFKKLVFKLOGUHQKRZWRXVHVXFKÀUHDUPV

16. Defendant Howell Township is a political

subdivision of and municipal entity organized under the

Constitution and laws of the State of Michigan.

JURISDICTION AND VENUE

17. Jurisdiction is founded on 28 U.S.C. § 1331 in that

this action arises under the Constitution and laws of the

United States, and under 28 U.S.C. § 1343(a)(3) in that

this action seeks to redress the deprivation, under color

of the laws, statutes, ordinances, regulations, customs

and usages of Howell Township, of rights, privileges or

immunities secured by the United States Constitution.

This action seeks relief pursuant to 28 U. S.C. §§ 2201,

2202, and 42 U.S.C. § 1983.

18.

§ 1391.

Venue lies in this Court pursuant to 28 U.S.C.

STATEMENT OF FACTS

Shooting Ranges’ Role in American

Tradition and Michigan’s Safety Policy

)DPLOLDULW\ ZLWK ÀUHDUPV DQG SURÀFLHQF\ LQ

their use, promotes public safety.

20. Firearms owners trained in and familiar with

WKHRSHUDWLRQRIWKHLUÀUHDUPVDUHOHVVOLNHO\WREHLQYROYHG

38a

Appendix E

in accidental shootings, and more likely to successfully use

WKHLUÀUHDUPVLQVHOIGHIHQVHLQFDVHRIQHHG

21. Recreational shooting is a traditional lawful use

RIÀUHDUPVLQWKH8QLWHG6WDWHV

22. The promotion of civilian marksmanship has

been a priority of the federal government throughout

American history, beginning with the Second Militia Act

of 1792 and continuing through today with the modern

implementation of the Civilian Marksmanship Program

through the federally-chartered Corporation for the

3URPRWLRQ RI 5LÁH 3UDFWLFH DQG )LUHDUPV 6DIHW\

U.S.C. §§ 40701, et seq.

23. “The functions of the Civilian Marksmanship

Program are—(1) to instruct citizens of the United States

in marksmanship; (2) to promote practice and safety in

WKHXVHRIÀUHDUPV WRFRQGXFWFRPSHWLWLRQVLQWKHXVH

RI ÀUHDUPV DQG WR DZDUG WURSKLHV SUL]HV EDGJHV DQG

other insignia to competitors; (4) to secure and account

IRUÀUHDUPVDPPXQLWLRQDQGRWKHUHTXLSPHQWIRUZKLFK

the corporation is responsible; (5) to issue, loan, or sell

ÀUHDUPV DPPXQLWLRQ UHSDLU SDUWV DQG RWKHU VXSSOLHV

under sections 40731 and 40732 of this title; and (6) to

procure necessary supplies and services to carry out the

Program.” 36 U.S.C. § 40722.

24. The State of Michigan recognizes the value of,

and promotes through public policy, the development of

ÀUHDUPVWUDLQLQJDQGSURÀFLHQF\LQWKHXVHRIÀUHDUPV

The State of Michigan mandates, as a condition of

39a

Appendix E

possessing a pistol, that all individuals successfully

complete an appropriate pistol safety training course or

class with a minimum of eight hours of instruction. The

SURJUDPPXVWEHFHUWLÀHGE\WKHVWDWHRUDQDWLRQDORU

VWDWHÀUHDUPVWUDLQLQJRUJDQL]DWLRQDQGPXVWSURYLGHDW

OHDVWWKUHHKRXUVRILQVWUXFWLRQRQDÀULQJUDQJH

25. Michigan residents wishing to lawfully possess

KDQGJXQV PXVW ÀUVW REWDLQ D &RQFHDOHG 3LVWRO /LFHQVH

(“CPL”). Mich. Comp. Laws § 28.422.

26. An application for a CPL “must include . . . (h)

$FHUWLÀFDWHVWDWLQJWKDWWKHDSSOLFDQWKDVFRPSOHWHGWKH

training course prescribed by this act.” Mich. Comp. Laws

§ 28.425b. The course must consist of “ . . . not less than 8

hours of instructions and . . . (a) . . . FHUWLÀHGE\WKLVVWDWH

RUDQDWLRQDORUVWDWHÀUHDUPVWUDLQLQJRUJDQL]DWLRQ . . .

(b) The program provides at least 3 hours of instruction

RQDÀULQJUDQJHDQGUHTXLUHVÀULQJDWOHDVWURXQGVRI

ammunition.” Mich. Comp. Laws § 28.425j.

27. T he St at e of M ich iga n encou rages t he

recreational use of firearms and shooting ranges

through the development of public shooting ranges. The

Michigan Department of Natural Resources (“DNR”)

receives federal grant monies, which it uses to support

improvements to shooting ranges throughout Michigan.

See “Federal funding boosts DNR’s efforts to improve

public shooting ranges throughout Michigan” (June 13,

KWWSVZZZPLFKLJDQJRYVRP

470854--,00.html, (last visited July 2, 2018). “The U.S.

Fish and Wildlife Service recently approved a total of

40a

Appendix E

PLOOLRQRYHUDÀYH\HDUSHULRGIRUWKH'HSDUWPHQWRI

Natural Resources to provide up to 75 percent of funding

for improvements to partner shooting ranges throughout

Michigan.” Id. The DNR’s website refers to its staffed

ranges as a “fun, safe shooting environment for you and

your friend and family,” the use of which it encourages.

7KHUH DUH DSSUR[LPDWHO\ ULÁH WDUJHW

shooters and 638,000 hunters within a 100 mile radius of

the Property.

29. There is a shortage of ranges available to the

public in the Howell Township area.

30. Indoor ranges in the nearby City of Howell are

often unable to meet the public demand for range time

DQGWKH\GRQRWSURYLGHRSSRUWXQLWLHVIRUULÁHSUDFWLFH

31. There are no shooting ranges in Howell Township

open to the public.

32. The nearest public range is the Island Lake

Shooting Range operated by Michigan Department of

Natural Resources in Green Oak Township, Michigan,

which is approximately a 30 minute drive by car. The

Island Lake range charges fees that are considered by

XVHUVYHU\KLJK SHUVKRRWLQJVHVVLRQDWWKLVWLPH

and it is unable to meet current demand, as there are often

long waiting lines to shoot. The Island Lake range offers

ULÁHVKRRWLQJRQO\RXWWRDGLVWDQFHRI\DUGV

41a

Appendix E

Howell Township Regulation of Firearms Ranges,

Recreational Shooting, and Firearms Training

33. Howell Township adopted zoning regulations

known as the Howell Township Zoning Ordinances on

January 8, 1983, “pursuant to Public Act 110 of 2006

(MCLA 125.3101–125.3701), and insofar as it is applicable,

Public Act 33 of 2008 (MCLA 125.3801–125.3885), as

amended, of the State of Michigan.” (Howell Township,

Ord. No. 1 eff. Jan. 8, 1983, further amended by Ord. No.

202 eff. Dec. 21, 2006.)

34. The Howell Township Zoning Ordinances are

permissive zoning regulations, which prohibit any use not

VSHFLÀFDOO\OLVWHG

´8VHVDUHSHUPLWWHGE\ULJKWRQO\LIVSHFLÀFDOO\

listed as principal permitted uses in the various

zoning districts or is similar to such listed

uses. Accessory uses are permitted as listed

in the various zoning districts or if similar to

such listed uses, and if such uses are clearly

incidental to the permitted principal uses.

Special uses are permitted as listed or if similar

to the listed special uses and if the required

conditions are met.” (Howell Township, Ord.

No. 1 eff. Jan. 8, 1983; amend. by Ord. No. 97

eff. Feb. 23, 2000.)

35. The Howell Township Zoning Ordinances

H[SOLFLWO\UHIHUHQFH´ULÁHUDQJHVµXQGHUWKHGHÀQLWLRQRI

“open air business uses”. (Howell Township, Ord. No. 271

eff. Oct. 3, 2017.)

42a

Appendix E

36. The Howell Township Zoning Ordinances,

however, do not allow Open Air Business Uses, either by

right or as a special use, in any zone in Howell Township.

37. The Howell Township Zoning Ordinances

regulate approximately 20,000 acres of land area in the

unincorporated portions of Howell Township, Livingston

County, Michigan.

38. Of the approximately 20,000 acres regulated by

the Howell Township Zoning Ordinances, the only district

providing for stand-alone recreational facilities (ones

not connected to other permitted uses in the zone) is the

Highway Service Commercial District (“HSC District”)

consisting of 7 parcels with a total area of less than 30

acres.

39.

The purpose of the HSC District is:

“The highway service commercial district is

designed to provide for servicing the needs

RI KLJKZD\ WUDIÀF DW WKH LQWHUFKDQJH DUHDV

of public roads and highway facilities. The

avoidance of undue congestion on public roads,

the promotion of smooth traffic flow at the

interchange area and on the highway, and

the protection of adjacent properties in other

GLVWULFWVIURPWKHDGYHUVHLQÁXHQFHVRIWUDIÀF

are prime considerations in the location of this

district.” (Howell Township, Ord. No. 1 eff. Jan.

8, 1983.)

43a

Appendix E

40. Permitted principal uses in the HSC District are:

A. Vehicle service and repair stations for

automobiles, trucks, busses and trailers. See

Section 14.34.

B. Emergency facilities related to highway

travelers.

Parking garages and parking areas.

D. Parking areas, if enclosed by a six (6) foot

high fence, wall or berm. All berms shall be

completely planted with grass, ground covers,

shrubs, vines and trees.

Bus passenger stations.

F. Retail and service establishments providing

foods and services which are directly needed by

highway travelers.

G. Transient lodging facilities, including

motels and hotels.

(Howell Township, Ord. No. 1 eff. Jan. 8, 1983)

41. The HSC District is highly developed serving the

principal uses, with only a few acres of undeveloped land

DYDLODEOH DQG VLJQLÀFDQWO\ OHVV DUHD WKDQ WKDW UHTXLUHG

IRUDVDIHORQJGLVWDQFHULÁHUDQJH

44a

Appendix E

42. “[O]pen land uses such as for (1) recreation,

LQFOXGLQJKXQWLQJDQGÀVKLQJKLNLQJRXWGRRUFDPSLQJDQG

related activities. . . .” are permitted without requiring

a zoning permit in “Wetland Areas.” (Howell Township,

Ord. No. 1 eff. Jan. 8, 1983; Amend. by Ord. No. 97 eff.

Feb. 23, 2000; further amend by Ord. No. 265 eff. April

28, 2015.)

43. The Howell Township Zoning Ordinances require

a permit from the Michigan DEQ and approval from the

Planning Commission in Wetland Areas “when any

building or structure is proposed to be built as accessory

to a permitted use or when the physical characteristics

RIWKHQDWXUDOHQYLURQPHQWDUHVLJQLÀFDQWO\FKDQJHGRU

the natural resources are to be extracted and removed

from the area, including the removal of topsoil, organic

material, w ildlife, minerals, sand and gravel and

vegetation.” (Howell Township, Ord. No. 1 eff. Jan. 8, 1983;

Amend. by Ord. No. 97 eff. Feb. 23, 2000; further amend

by Ord. No. 265 eff. April 28, 2015.)

44. The U. S. Environmental Protection Agency

has published guidance known as “Best Management

Practices for Lead at Outdoor Shooting Ranges,” EPA902-B-01-001, Revised June 2005 (“EPA’s BMPs”)

DYDLODEOH DW KWWSVZZZHSDJRYVLWHVSURGXFWLRQLÀOHV

GRFXPHQWVHSDEPSSGI

45. EPA’s BMPs discourage siting outdoor shooting

ranges into or over wetland areas: “It is essential that

these ranges change the direction of shooting, to avoid

shooting over or into wetlands or other navigable

45a

Appendix E

waters of the United States, and initiate lead removal

and recycling activities, where feasible.” (EPA’s BMP,

p.1-11, emphasis in original.)

46. In 2017, the Howell Township zoning staff

advised Oakland’s managing member, Michael Paige,

WKDW 2DNODQG FRXOG QRW DSSO\ IRU D SHUPLW IRU D ULÁH

range located on the Property because the Agricultural

Residential District (“AR District”) does not allow open

DLUEXVLQHVVXVHVVKRRWLQJUDQJHVRUULÁHUDQJHV

47. Howell Township zoning staff advised Oakland

to apply for a text amendment to the Howell Township

Zoning Ordinances to allow shooting ranges in the AR

Zoning District.

48. On August 29, 2017, as the managing member

of Oakland, Mr. Paige submitted an Application for

$PHQGPHQWWR=RQLQJ2UGLQDQFH0DSIRUWKH3URSHUW\

(the “Application”) on the form prepared by Howell

Township and paid the $1,000 application fee.

49. On September 26, 2017, the Howell Township

Planning Commission approved a motion “to set public

hearing on October 24, 2017 for a text amendment to

allow the use of open air business on “AR” land and the

proximity to the commercial district at Burkhart Road

and Grand River.”

50. During the October 24, 2017 public hearing,

the following exchanges between Planning Commission

Chairman Sloan and other board members were recorded

in the meeting minutes:

46a

Appendix E

“4) As far as right out denial of any text

amendment of this nature, are we concerned

as far as exposure, where it relates to any

constitutional rights? (This use is considered

in the Zoning Ordinance in other districts. So

it would not be exclusionary. There are options

that can still be considered for this.) 5) Is there

any zoning that will permit a commercial gun

range in Howell Township? (It is listed in Open

Air Businesses that are permitted in other

districts.)”

51. On October 24, 2017, Howell Township Planning

Commission voted “to recommend to the Township Board

to deny the text amendment changes as presented.”

52. On November 13, 2017, the Howell Township

Board of Trustees held a public hearing to consider the

Planning Commission’s October 24, 2017, recommendation.

53. The minutes of the November 13, 2017 public

KHDULQJUHÁHFW/LYLQJVWRQ&RXQW\6KHULII0LNH0XUSK\·V

VXSSRUWIRUWKHWH[WDPHQGPHQW´+LVRIÀFHUV·SUDFWLFH

shooting at least once a month. They do not have the long

range availability right now. He thinks this would be a

great opportunity for a great facility.”

54. On November 13, 2017, the Howell Township

Board of Trustees voted in favor of the following motion:

“based on the information provided by the Township

Planner, the recommendation of the Planning Commission

and the input of the public, to keep the “AR” zoning text

47a

Appendix E

as is.” By that decision, the Board prohibited Oakland

from opening the subject shooting range.

55. Oakland reasonably believes that the Township

will enforce the zoning laws against it if it operates

a shooting range on the property, which belief was

reinforced by communications received from the Township

on February 14, 2019 concerning shooting noises alleged

to be coming from the Property.

The Impact of Howell Township’s Shooting

Range Prohibition on Plaintiffs and the Public

56. If allowed to do so under Howell Township

Zoning Ordinance, Oakland would forthwith construct,

open, and operate a shooting range within Howell

Township, to further its purposes of promoting the

shooting sports, hunting and self-defense, educating the

SXEOLF DERXW ÀUHDUPV WUDLQLQJ LQGLYLGXDOV WR EHFRPH

better and safer shooters, enabling individuals to comply

with training requirements such as those enacted by the

State of Michigan, and generally serving its members.

57. If allowed to do so under Howell Township

Zoning Ordinance, Oakland would provide training

DQG FHUWLÀFDWLRQV UHTXLUHG E\ LQGLYLGXDOV WR REWDLQ D

Michigan CPL. It would also offer and make available

shooting activities of the type promoted by the Civilian

Marksmanship Program.

5 8 . Oa k la nd ha s i ncu r red cost s t o dat e of

approximately $130,000 attempting to site a shooting

range on the Property.

48a

Appendix E

59. Oakland has lost revenue of approximately

$1,820,000 as a result of Howell Township’s Zoning

Ordinances.

60. Mr. Remenar would engage in long-range target

shooting and other shooting activities within Howell

Township on a regular basis for training, competition,

self-defense and other lawful purposes if a suitable range,

such as Oakland’s proposed range, were made available

to him in Howell Township.

61. Mr. Raines would engage in long range target

shooting and other shooting activities within Howell

Township on a regular basis for training, competition,

hunting practice, self-defense and other lawful purposes if

a suitable range, such as Oakland’s proposed range, were

made available to him in Howell Township.

62. Mr. Fresh would engage in long range target

shooting and other shooting activities within Howell

Township on a regular basis for training, competition,

self-defense and other lawful purposes if a suitable range,

such as Oakland’s proposed range, were made available

to him in Howell Township.

63. Mr. Penrod would engage in long gun target

shooting, firearms training, competition and other

shooting activities within Howell Township on a regular

basis for training, competition, self-defense and other

lawful purposes if a suitable range, such as Oakland’s

proposed range, were made available to him in Howell

Township.

49a

Appendix E

64. Mr. Dimitroff would engage in long range target

shooting, training with long guns and handguns, and other

shooting activities within Howell Township on a regular

basis for training, self-defense and other lawful purposes

if a suitable range, such as Oakland’s proposed range, were

made available to him in Howell Township.

COUNT I

RIGHT TO KEEP AND BEAR ARMS

U.S. CONST., AMENDS. II AND XIV

65. Paragraphs 1 through 64 are incorporated as

though fully stated herein.

66. The Second Amendment to the United States

Constitution provides that “the right of the people

to keep and bear arms, shall not be infringed.” The

Second Amendment is applicable to the States, including

defendant herein, through the Fourteenth Amendment.

67. The U.S. Supreme Court held in District of

Columbia v. Heller, 554 U.S. 570, 628-29 (2008), that

“the inherent right of self-defense has been central to the

Second Amendment right.” The right to keep and bear

arms for self-defense, hunting, and other lawful purposes

includes the right to safely practice, train, and maintain

SURÀFLHQF\ZLWKÀUHDUPV

68. The Second Amendment secures the right

WR RSHUDWH DQG SUDFWLFH ZLWK ÀUHDUPV DW D UDQJH IRU

SXUSRVHVLQFOXGLQJOHDUQLQJDERXWÀUHDUPVVDIHO\JDLQLQJ

SURÀFLHQF\ZLWKÀUHDUPVREWDLQLQJDQ\WUDLQLQJUHTXLUHG

50a

Appendix E

DVDFRQGLWLRQRIÀUHDUPVRZQHUVKLSUHFUHDWLRQKXQWLQJ

and competition.

69. In order to make possible the exercise of rights

thereunder, the Second Amendment protects the right

of the people, including Plaintiff, to own, construct, and

operate a range for these purposes.

70. Facially and as applied, Howell Township’s laws

HIIHFWLYHO\ EDQ WKH RSHUDWLRQ RI ULÁH UDQJHV DQG RWKHU

shooting ranges, thereby prohibiting numerous traditional

lawful uses of firearms that the Second Amendment

protects. The shooting range ban and associated laws

also impede firearm ownership itself by frustrating

compliance with Michigan’s CPL program, disallowing

the opportunity to participate in activities promoted by

the Civilian Marksmanship Program, and barring access

to information and experience inherently necessary to the

exercise of Second Amendment rights.

71. But for the shooting range ban and the aforesaid

actions of Defendant, Plaintiff Oakland would forthwith

build, construct, open, offer the use of, and operate the

proposed range, thereby allowing members of the public

the use thereof for the purposes described herein.

72. By banning shooting ranges in Howell Township,

Defendant currently under color of law deprives

individuals, including the Plaintiffs, of their right to keep

and bear arms, in violation of the Second and Fourteenth

Amendments to the United States Constitution. Defendant

will continue to do so in the future unless the relief sought

herein is granted.

51a

Appendix E

73. Defendant’s actions described herein, by denying

approval to build, open, and operate a range, have

SUR[LPDWHO\FDXVHG3ODLQWLII2DNODQGWRVXIIHUORVWSURÀW

and other monetary damages and the individual Plaintiffs

to suffer damages.

74. Plaintiffs are therefore entitled to declaratory

relief, compensatory damages, and preliminary and

permanent injunctions against continued enforcement

and maintenance of Defendant’s unconstitutional customs,

policies, and practices described herein.

PRAYER FOR RELIEF

Plaintiffs request that judgment be entered in their

favor and against Defendant as follows:

1. A declarator y judg ment that Defendant’s

aforesaid actions have deprived and will continue to

deprive Plaintiffs of rights under the Second Amendment;

2. Compensatory damages in an amount to be

determined by the jury;

3. An order permanently enjoining Defendant, its

RIÀFHUVDJHQWVVHUYDQWVHPSOR\HHVDQGDOOSHUVRQVLQ

active concert or participation with them who receive

actual notice of the injunction, from enforcing Howell

Township Zoning Ordinances barring operation of

shooting ranges open to the public;

52a

Appendix E

4. An order permanently enjoining Defendant, its

RIÀFHUVDJHQWVVHUYDQWVHPSOR\HHVDQGDOOSHUVRQVLQ

active concert or participation with them who receive

actual notice of the injunction, from enforcing any law

against the ordinary operation and use of shooting ranges

open to the public;

5. Attorney Fees and Costs pursuant to 42 U. S.C.

§ 1988 or other pertinent provisions of law; and

6. An order granting such further relief as the Court

deems just and appropriate.

JURY TRIAL DEMANDED

Dated: July 11, 2019

Respectfully submitted,

Attorneys for Plaintiffs

By: V0DWWKHZ0+DJHUW\

Matthew Hagerty, Esq. (P66015)

Myers & Myers, PLLC

915 North Michigan Ave., Suite 200

Howell MI 48843

Phone: 517-540-1700

Fax: 517-540-1701

mhagerty@myers2law.com

53a

Appendix E

V0DUWKD$'HDQ

Martha A. Dean, Esq.

$GPLWWHG

/DZ2IÀFHVRI0DUWKD$'HDQ//&

144 Reverknolls

Avon, CT 06001

Phone: 860-676-0033

Fax: 860-676-1112

mdean@mdeanlaw.com

54a

APPENDIX F —Appendix

ZONINGFORDINANCE OF

HOWELL TOWNSHIP, DATED MARCH 2019

ZONING ORDINANCE

HOWELL TOWNSHIP

March 2019

Township Of Howell

&HUWLÀFDWLRQ

This compilation of ordinances is printed by authority

of the Township Board and contains those ordinances

printed herein, compiled with all amendments up to

November 22, 2018.

Jean Graham

Howell Township Clerk

3URRIRI2UGLQDQFHV

(YLGHQFHLQ&RXUW

Michigan compiled laws of 1970, Section 600.2116; as

amended by Public Act No. 140 of the Public Acts of 1973,

being M.S.A.27A.2116

Provides:

All laws, bylaws, regulations, resolutions, and ordinances

of the common council or of the board of trustees of an

incorporated city or village or the Township Board

of a Township in this state may be read in evidence

LQ DOO FRXUWV DQG LQ DOO SURFHHGLQJV EHIRUH DQ\ RIÀFHU

body, or board in which it is necessary to refer thereto,

from a record thereof, kept by the Clerk or recorder of

the city, village, or Township; or from a printed copy

55a

Appendix F

thereof, purporting to have been published by authority

of the common council, board of trustees, or Township

Board, in a newspaper published in such city, village,

or Township; or from any volume of ordinances,

FRGLÀFDWLRQRUFRPSLODWLRQRIRUGLQDQFHVSXUSRUWLQJWR

have been printed by authority of the common council

or board of trustees of such city, village, or Township;

DQG WKH UHFRUG FHUWLÀHG FRS\ YROXPH FRGLÀFDWLRQ RU

compilation shall be prima facie evidence of the existence

and validity of such laws, regulations, resolutions, and

ordinances, without proof of the enactment, publishing,

or any other thing concerning the same.(C.L. ’70 600.2116,

as amended by P.A. No. 140–1973–M.S.A.27A2116)

[TABLE OF CONTENTS OMITTED]

56a

Appendix F

ARTICLE I

TITLE, PURPOSES, ENABLING AUTHORITY

AND CONDITIONS OF ENACTMENT

Section 1.01 Title.

This Ordinance shall be known and cited as the Howell

Township Zoning Ordinance.

(Ord. No. 1 eff. Jan. 8, 1983)

Section 1.02 Purposes of this Zoning Ordinance.

An Ordinance for the protection of the public health,

safety and other aspects of the general welfare of

Howell Township through the establishment in the

unincorporated portions of Howell Township, Livingston

County, Michigan of zoning districts for the planned

orderly growth and development of the Township within

which the proper uses of land and natural resources may

be encouraged or regulated, and within which zoning

districts’ provisions may also be adopted designating

the location of, the size of, the land and structural uses

that may be permitted without or with special use

conditions, the minimum open spaces, sanitary, safety

and protective measures that shall be required for, and

the maximum number of families that may be housed in

dwellings, buildings and structures that may be erected

or altered; to provide, based upon the planned orderly

growth and development of the Township, in an orderly

PDQQHUDQGWKURXJKWKHZLVHDQGHIÀFLHQWXVHRISXEOLF

services required to be provided to the residents of Howell

57a

Appendix F

Township; to provide for the conservation of the use of

energy; the conservation of agricultural, forest and open

space lands, wetlands and land areas containing natural or

cultural resources or features necessary to the social and

economic well-being of present and future generations;

to provide for a method for adoption of amendments

to this Ordinance, to provide for the administration of

WKLV2UGLQDQFHWRSURYLGHIRUFRQÁLFWVZLWKRWKHUVWDWH

laws and state administrative rules and regulations and

local ordinances and regulations with this Ordinance; to

provide for the penalties for violations of this Ordinance;

to provide for the assessment, levy and collection of taxes

on property zoned, developed and used in accordance with

the provisions of Public Act 110 of 2006, as amended, being

MCLA 125.3101–125.3701 and this Ordinance; to provide

for the collection of fees for zoning permits required under

this Ordinance; to provide for petitions, public hearings

and referenda in accordance with the provisions of Public

Act 110 of 2006, as amended, and this Ordinance, and to

provide for appeals of the provisions of this Ordinance.

(Ord. No. 1 eff. Jan. 8, 1983, (Amended by Ord. No. 202

eff. Dec. 21, 2006)

Section 1.03 State Legislation Enabling Authority.

This Ordinance is adopted pursuant to Public Act 110

of 2006 (MCLA 125.3101–125.3701), and insofar as it

is applicable, Public Act 33 of 2008 (MCLA 125.3801–

125.3885), as amended, of the State of Michigan. Said

Public Acts covering Michigan Planning (Act 33) and

Zoning (Act 110) are hereby made a part of this Ordinance

58a

Appendix F

as if contained verbatim in their complete textual forms,

as amended.

(Ord. No 1 eff. Jan. 8, 1983, further amended by Ord. No.

202 eff. Dec. 21, 2006)

Section 1.04 Enactment Declaration.

This Zoning Ordinance and its contained provisions

are hereby declared to be necessary to the providing

of a planned orderly growth and development of Howell

Township, in the interest of providing for the public

health, safety, peace, enjoyment, convenience, comfort

and other aspects of the general welfare of the residents

of this Township in order to provide adequately for the

necessities in the pursuit of their daily living patterns.

This Zoning Ordinance is hereby ordered to be given

immediate effect upon its passage by the Howell Township

Board of Trustees and subsequent publication of notice

as required by law.

(Ord. No. 1 eff. Jan. 8, 1983)

Section 1.05 Adoption of this Zoning Ordinance and

Repeal of present Zoning Ordinance.

The Howell Township Zoning Ordinance previously

adopted on June 2, 1979, and all amendments thereto, are

hereby repealed on the effective date of this Ordinance;

provided, however, if this Zoning Ordinance as a whole

shall subsequently be judicially determined to have been

unlawfully adopted, such judicial determination shall then

59a

Appendix F

automatically reinstate the present Zoning Ordinance and

all of its amendments to their full effect.

(Ord. No. 1 eff. Jan. 8, 1983)

Secs. 38-8–38-40. Reserved.

60a

Appendix F

ARTICLE II

DEFINITIONS

Section 2.01 RULES APPLYING TO TEXT.

All words used in the present tense shall include the

future, all words in the singular number include the plural

number, and all words in the plural number include the

singular number; the word “building” includes the word

“structure,” and “dwelling” includes “residence”; the word

“person” includes “corporation”, “copartnership,” and

“association” as well as an “individual”; the word “shall” is

PDQGDWRU\DQGGLUHFWRU\7HUPVQRWKHUHLQGHÀQHGVKDOO

have the meaning customarily assigned to them.

(Ord. No. 1 eff. Jan. 8, 1983)

Section 2.02 DEFINITIONS.

For the purposes of this Ordinance, the following terms

DQGZRUGVDUHGHÀQHGDVIROORZV

$FFHVVRU\%XLOGLQJ. See “Building, Accessory.”

$FFHVVRU\8VH. See “Use, Accessory.”

$GXOW'D\&DUH)DFLOLW\. A facility that, for compensation,

provides supervision, personal care, protection, and meals

to adults for a period of less than twenty-four (24) hours

SHUGD\ÀYH RUPRUHGD\VDZHHNDQGIRUWZR RU

more consecutive weeks.

61a

Appendix F

$GXOW )RVWHU &DUH )DPLO\ +RPH. A private residence

with the approved capacity to receive not more than six (6)

DGXOWVZKRVKDOOEHSURYLGHGIRVWHUFDUHIRUÀYH RUPRUH

days a week and for two (2) or more consecutive weeks.

$GXOW)RVWHU&DUH/DUJH*URXS+RPH. A facility with the

approved capacity to received at least thirteen (13), but

not more than twenty (20), adults, who shall be provided

with foster care.

$GXOW)RVWHU&DUH6PDOO*URXS+RPH. A facility with the

approved capacity to received not more than twelve (12)

adults, who shall be provided with foster care.

$JULFXOWXUH. The use of land for tilling of the soil, raising

RIWUHHDQGÀHOGFURSVRUDQLPDOKXVEDQGU\DVDVRXUFH

RILQFRPHDQGDVGHÀQHGLQWKH0LFKLJDQ5LJKWWR)DUP

Act, Public Act No. 93 of 1981 (MCL 286.471 et seq.).

$OOH\. Any dedicated public way affording a secondary

means of vehicular access to abutting property, and not

LQWHQGHGIRUJHQHUDOWUDIÀFFLUFXODWLRQ

$OWHUDWLRQV. The term Alterations shall mean any

FKDQJHDGGLWLRQRUPRGLÀFDWLRQLQFRQVWUXFWLRQRUW\SH

of occupancy, any change in the structural members of a

building, such as walls or partitions, columns, beams or

girders, the consummated act of which may be referred

to herein as “altered” or “reconstructed.”

$SSHDOSee “Zoning Appeal.”

62a

Appendix F

$SDUWPHQWV The term “Apartments” shall mean the

GZHOOLQJXQLWVLQDPXOWLSOHGZHOOLQJDVGHÀQHGKHUHLQ

D (IÀFLHQF\8QLWLVDGZHOOLQJXQLWDQGFRQVLVWLQJ

of not more than one (1) room in addition to kitchen,

dining and necessary sanitary facilities, and for the

purpose of computing density, shall be considered as

a one (1) room unit.

E 2QH%HGURRP8QLWLVDGZHOOLQJXQLWFRQVLVWLQJ

of not more than two (2) rooms in addition to kitchen,

dining and necessary sanitary facilities, and for the

purpose of computing density, shall be considered as

a two (2) room unit.

F 7ZR%HGURRP8QLWLVDGZHOOLQJXQLWFRQVLVWLQJ

of not more than three (3) rooms in addition to kitchen,

dining and necessary sanitary facilities, and for the

purpose of computing density, shall be considered as

a three (3) room unit.

G 7KUHHRU0RUH%HGURRP8QLWLVDGZHOOLQJXQLW

wherein for each room in addition to the three (3)

rooms permitted in a two (2) bedroom unit, for the

purpose of computing density, said three (3) bedroom

unit shall be considered a four (4) room unit, and

each increase in a bedroom over three (3) shall be an

increase in the room count by one (1) over the four (4).

$UHD 1HW The total area within the property lines of

a project excluding external Road Right of Ways or

easements.

63a

Appendix F

$XWRPRELOH &DU :DVK A building, or portion thereof,

where self-propelled motor vehicles are washed as a

commercial enterprise.

$XWRPRELOH5HSDLU A place where, along with the sale

of engine fuels, the following services may be carried

RXW JHQHUDO UHSDLU HQJLQH UHEXLOGLQJ UHEXLOGLQJ RU

reconditioning of motor vehicles; collision service, such as

body, frame or fender straightening and repair; painting

and undercoating of motor vehicles.

$XWRPRELOH 6DOHV Any space used for display, sale or

rental of motor vehicles, in new or used and operable

condition.

$XWRPRELOH6HUYLFH A place where gasoline or any other

automobile engine fuel (stored only in underground

tanks), kerosene or motor oil and lubricants or grease

(for operation of motor vehicles) are retailed directly to

public on premises; including sale of minor accessories

and service for automobiles.

%DVHPHQW That portion of a building partly below grade,

but so located that the vertical distance from the grade

OHYHO WR WKH EDVHPHQW ÁRRU LV JUHDWHU WKDQ WKH YHUWLFDO

distance from the grade level to the basement ceiling.

A basement shall not be included as a story for height

PHDVXUHPHQWQRUFRXQWHGDVÁRRUDUHDXQOHVVWKHURRP

has walk-out capability. A walk-out basement shall be

GHÀQHG DV D URRP ZLWK DW OHDVW RQH ZDOO EHORZ JUDGH

which provides barrier free access to the exterior of the

VWUXFWXUHDQGZLWKDWOHDVWÀIW\SHUFHQWRIRQHZDOOZLWK

QRJUDGHDQGWZRH[LWVZKLFKDUHÀUHHVFDSHURXWHV

64a

Appendix F

%HGURRP A bedroom is a dwelling room used for or

intended to be used safely for sleeping purposes by human

beings.

%ORFN The property abutting one side of a street and lying

between the two nearest intersecting streets (crossing

or terminating), or between the nearest such street and

railroad right-of-way, unsubdivided acreage, lake, river

or live stream; or between any of the foregoing and any

other barrier to the continuity of development.

%RDUGRI$SSHDOV See “Zoning Board of Appeals”.

%XIIHU$UHD$VWULSRUDUHDRIODQGDVVSHFLÀHGLQWKLV

2UGLQDQFHRULIQRWVSHFLÀHGRIQRWOHVVWKDQÀIWHHQ

feet in width which is planted and maintained with trees

or shrubs, including earth berms, fencing, walls or other

means of screening or separating the land uses located

on opposite sides of the buffer, approved by the Planning

Commission in accordance with the Site Plan Review

Procedures of this Ordinance.

%XLOGLQJ An independent structure, either temporary

or permanent, having a roof supported by columns or

walls and includes sheds, garages, stables, greenhouses,

or other accessory structures. A detached building is one

separated on all sides from adjacent buildings by open

spaces from the ground up. When any portion thereof is

completely separated from every other part thereof by

division walls from the ground up, and without openings,

65a

Appendix F

each portion of such structure shall be deemed a separate

building.

%XLOGLQJ $FFHVVRU\ A supplementary building or

structure on the same lot or parcel of land as the main

building or buildings or part of the main building occupied

by or devoted exclusively to any accessory use; but such

use shall not include any building used for dwelling,

residential or lodging purposes, or sleeping quarters for

human beings except for these dwellings or residential

EXLOGLQJVVSHFLÀFDOO\SHUPLWWHGLQWKLVRUGLQDQFH

%XLOGLQJ$UHD The space remaining after the minimum

yards, setbacks and open space requirements of this

Ordinance have been complied with.

%XLOGLQJ&RYHUDJH See “Lot Coverage”.

%XLOGLQJ )DUP Any building or structure other than

a dwelling, maintained, used or built on a farm which is

essential and customarily used on farms of that type for

the pursuit of their agricultural activities, including the

storage or housing of farm implements, produce or farm

animals.

%XLOGLQJ +HLJKW The vertical distance from the

established grade to the highest point of the roof surface

IRU ÁDW URRIV WR WKH GHFN OLQH RI PDQVDUG URRIV DQG WR

the average height between eaves and ridge for gable, hip

and gambrel roofs. Where a building is located on sloping

terrain, the height may be measured from the average

ground level of the grade at the building wall.

66a

Appendix F

%XLOGLQJ/LQH A line formed by the face of the building,

and for the purposes of this Ordinance, a minimum

building line is the same as the front setback line.

%XLOGLQJ 3HUPLW A building permit is the written

authority issued by the Building Inspector permitting

the construction, removal, moving, alteration, or use of a

building, fence or sign in conformity with the provisions

of the Livingston County Construction Ordinance (Code).

%XLOGLQJ 3ULQFLSDO A building in which is conducted

the principal use of the premises on which it is situated.

%XLOGLQJ 6HWEDFN /LQH The line formed by the outer

surface of a structure or enclosure wall at or with the

ÀQLVKJUDGHRUVXUIDFHRIWKHJURXQGSHUWDLQLQJWRDQG

GHÀQLQJWKRVHPLQLPXP EXLOGLQJ VHWEDFNOLQHVZKLFKDUH

established, in general, parallel to the front road right-ofway and within which setback area no part of a building

shall project or be located, except as otherwise provided

for by this Ordinance.

%XLOGLQJ6LWH That portion of a parcel of land independently

LGHQWLÀHG DQG GHOLQHDWHG XSRQ ZKLFK D VWUXFWXUH ZLOO

be constructed and be appurtenant thereto. (See also

“Condominium Unit”).

%XLOGLQJ7HPSRUDU\ See “Use, Temporary”.

&HUWLÀFDWHRI&RPSOLDQFHDQG2FFXSDQF\$&HUWLÀFDWH

LVVXHGE\WKH=RQLQJ$GPLQLVWUDWRURUODZIXOXVHRÁDQG

67a

Appendix F

buildingsand/or structures that have met the provisions

and requirements of this Zoning Ordinance.

&KLOG'D\&DUH&HQWHUDQG'D\&DUH&HQWHU A facility,

other than a private residence, receiving one (1) or more

preschool or school age children for care for periods of less

than twenty-four (24) hours a day, and where the parents

or guardians are not immediately available to the child.

A child care center or day care center includes a facility

which provides care for not less than two (2) consecutive

weeks, regardless of the number of hours of care per day.

The facility is generally described as a child care center,

day care center, day nursery, nursery school, parent

cooperative preschool, play group, or drop-in center. Such

WHUPVGRQRWLQFOXGHDQ\RIWKHIROORZLQJ

(a) Sunday school, vacation Bible school or a religious

instructional class that is conducted by a religious

organization where (1) children are attending for not

more than a period of three (3) hours per day for a

LQGHÀQLWHSHULRGRIWLPHRUIRUQRWPRUHWKDQHLJKW

hours per day for a period not to exceed four (4) weeks

during a twelve (12) month period.

(b) A facility operated by a religious organization,

where children are cared for not more than a period

of three (3) hours while (2) persons responsible for the

children are attending religious services.

is operated at a school by a public school or by a person

or entity with whom (3) a public school contracts for

services, in accordance with section 1285a(2) of the

68a

Appendix F

revised school code, Public Act No. 451 of 1976 (MCL

380.1285a(2)), if that facility or program has been

granted an exemption under Public Act No. 116 of 1973

(MCL 722.111(2)).

&KXUFK A building wherein people regularly assemble for

religious worship and which is maintained and controlled

by a religious body organized to sustain public worship,

together with all accessory buildings and uses customarily

associated with such principal purpose.

&OLQLF A building or group of buildings where human

patients are admitted for examination and treatment by

more than one (1) professional; such as a physician, dentist,

or the like, except that such human patients are not lodged

herein overnight.

&OXERU/RGJH3ULYDWH$QRQSURÀWDVVRFLDWLRQRISHUVRQV

ZKR DUH ERQDÀGH PHPEHUV SD\LQJ DQQXDO GXHV ZKLFK

owns, hires or leases a building or portion therein, the use

of such premises being restricted to members and their

guests. The affairs and management of such Aprivate club

or lodge are conducted by a board of directors, executive

committee or similar body chosen by the members at a

meeting. It shall be permissible to serve food and drink

on such premises provided adequate dining room space

and kitchen facilities are available. The sale of alcoholic

beverages is in compliance with the applicable Federal,

State, and Township laws.

&RPPHUFLDO $ EXVLQHVV RSHUDWHG SULPDULO\ IRU SURÀW

including those of wholesale and retail trade and

professional, personal, technical and mechanical services.

69a

Appendix F

&RPPRQ $UHDV 8VHV DQG 6HUYLFHV Land areas,

improvements, facilities and utilities, the use, enjoyment

and maintenance of which are intended to be shared by

the owners and occupants of individual building units in

a subdivision or a planned development.

&RQGRPLQLXP 8QLW That portion of a condominium

project designed and intended for separate ownership

and use, as described in the master deed. A condominium

unit is not a lot or parcel as those terms are used in this

ordinance.

&RQILQHG $QLPDO )HHG /RW Any parcel of land or a

premises on which the principal use is the concentrated

feeding of livestock, including beef and dairy cattle,

JRDWVKRJVSRXOWU\RUVKHHSZLWKLQDFRQÀQHGDUHD$

commercial feedlot consists of more than then (10) farm

animals that are on feed and may be owned by a person

other than the owner of the feedlot.

&RQVWUXFWLRQ The act or process of constructing a building

or other structure or changing the natural existing

FRQÀJXUDWLRQRIWKHODQGVFDSHLQFOXGLQJDQ\DOWHUDWLRQ

of the ground surface or subsurface and vegetation.

&RQYDOHVFHQWRU1XUVLQJ+RPH A structure with sleeping

rooms where persons are housed or lodged and are

furnished with meals, nursing and medical care.

'HQVLW\ The number of dwelling units located upon, or

to be developed upon a gross acre of land.

70a

Appendix F

'LVWULFWSee ‘Zoning District’.

'ULYHLQ 5HVWDXUDQW A Drive-in Restaurant shall be

deemed to be any restaurant designed to permit or

facilitate the serving of meals, sandwiches, ice cream,

beverages, or other food served directly to or permitted

to be consumed by patrons in automobiles or other vehicles

parked on the premises, or permitted to be consumed by

patrons elsewhere on the site, outside the main building.

'ULYHZD\V

(a) Driveway-Residential. A way of at least 12 feet

in width which shall serve the residents of one singlefamily dwelling, or one two-family dwelling.

(b) Driveway-Commercial. A way of at least 30 feet

in width providing access to a public road right-of-way

to land which is used for industrial, institutional or

commercial purposes. (Ord. eff. Aug. 6, 1992)

'ZHOOLQJ A building designed or used exclusively as

a living quarters for one (1) or more families but not

including automobile chassis, tents or portable buildings.

'ZHOOLQJ&RQYHQWLRQDO A dwelling which is constructed

in accordance with the requirements of the Livingston

County Construction Ordinance and has the following

FKDUDFWHULVWLFV

(1) The building has a minimum width across all

sections of 20 feet and complies in all respects with

71a

Appendix F

the Livingston County Construction Code, including

being attached to a permanent foundation.

(2) The building meets all of the requirements of this

2UGLQDQFHLQFOXGLQJWKRVHIRU PLQLPXPÁRRUDUHD

and (2) connections to public sewer and water supply

facilities or to such private facilities approved by the

Livingston County District Health Department.

(3) The building contains enclosed storage space,

exclusive of that for automobiles, equal to at least 15%

RIWKHQHWÁRRUDUHDRIWKHGZHOOLQJORFDWHGLQHLWKHU

the basement, attic, closets or attached structure

of similar construction to the principal dwelling

structure.

(4) The dwelling is aesthetically compatible in design

and appearance with other residences in the vicinity

and (1) has a roof overhang of at least 6 inches on all

sides, (2) a roof drainage gutter system which collects

rainwater at the edges of the structure, (3) has not

less than 2 exterior entrance and exit doors with one

located as a front door and the other located as side or

rear door and (4) the building has no additions which

are not similar in design and construction character

with the principal building and built in accordance with

the Livingston County Construction Code.

'ZHOOLQJ)DUP A dwelling used to house the principal

family operating a farm, and which is accessory to the

operation of the farm, which is the principal use of the

land upon which it is located.

72a

Appendix F

'ZHOOLQJ *URXS. (Group Housing) Two (2) or more

multiple family dwellings on a parcel of land under single

ownership

'ZHOOLQJ 0RELOH +RPH A mobile home is a dwelling

manufactured for the purpose of being transported on a

wheeled undercarriage from the place of manufacture to

an initial and any subsequent temporary or permanent

location on a lot, parcel or mobile home park site, and

VKDOOQRWEHFODVVLÀHGDVDFRQYHQWLRQDOGZHOOLQJXQOHVV

it meets the same requirements that a conventional

dwelling is required to meet under the Livingston

County Construction Ordinance and those additional

characteristics listed in the definition of Dwelling,

Conventional in this Zoning Ordinance.

'ZHOOLQJ0RELOH+RPH3DUN A mobile home that meets

all of the requirements of the United States Department

of Housing and Urban Development under that agency’s

current regulations entitled “Mobile Home Construction

and Safety Standards” or those standards established by

the American National Standards Institute under that

Institute’s current mobile home construction and safety

standards as evidenced by that Institute’s label if found

DIÀ[HGWRWKHPRELOHKRPH

'ZHOOLQJ 0XOWLSOH )DPLO\ A conventional dwelling/

building, or portion thereof, designed for occupancy by

three (3) or more families living independently of each

other.

'ZHOOLQJ2QH)DPLO\ A conventional dwelling/building

designed exclusively for occupancy by one (1) family.

73a

Appendix F

'ZHOOLQJ 7ZR )DPLO\ RU 'XSOH[ A conventional

dwelling/building designed exclusively for occupancy by

two (2) families independent of each other, such as a duplex

dwelling unit.

'ZHOOLQJ8QLW A dwelling unit is any building or portion

thereof having cooking facilities, which is occupied wholly

as the home, residence or sleeping place of one (1) family,

either permanently or transiently, but in no case, shall

a travel trailer, motor home, trailer coach, automobile

chassis, tent or other portable building be considered

a dwelling in single, multiple, or two family residential

areas. In cases of mixed occupancy, where a building is

occupied in part as a dwelling unit, the part so occupied

shall be deemed a dwelling unit for the purpose of this

Ordinance and shall comply with the provisions thereof

relative to dwelling.

(PHUJHQF\ 6HUYLFHV )DFLOLW\ A public, semi-public or

private facility from or within which a public service

is provided by a legally established and operational

organization or institution which provides immediate

action for those persons in need of immediate help or

assistance in order to overcome a mental or physical

problem which, if not provided, would otherwise be

harmful to such persons seeking immediate short term

attention.

(VVHQWLDO6HUYLFHV Shall mean the erection, construction,

alteration or maintenance by public utilities or municipal

governments, departments, commissions, boards, or by

other governmental agencies of underground, surface or

74a

Appendix F

overhead gas, electrical, steam, or water transmission

or distribution systems, collection, communications,

supply, or disposal systems, including public safety

communication towers, structures and facilities, dams,

weirs, culverts, bridges, canals, locks, including poles,

wires, mains, drains, sewers, towers, pipes, conduits,

FDEOHVÀUHDODUPER[HVSROLFHFDOOER[HVWUDIÀFVLJQDOV

or signs and hydrants, and other similar equipment and

accessories in connection therewith, reasonably necessary

for the furnishing of adequate service by such Public

Utilities or Municipal Departments, Commissions, or

Boards, or other governmental agencies, or for the public

health, safety, or general welfare, and buildings which

are primarily enclosures or shelters of such essential

service equipment. An essential service shall not include

other buildings associated with an essential service, or

cellular telephone facilities, including cellular telephone

transmitting towers, the use of essential service public

safety communication towers, structures and facilities

for cellular telephone or other wireless communication

facilities, or commercial broadcast television and radio

facilities.

([FDYDWLRQ Any breaking of ground, except farm use,

common household gardening and ground care.

([FHSWLRQ See “Zoning Interpretation”.

)DPLO\

(a) One (1) or more persons related by blood, marriage

or adoption with their direct lineal descendants, and

75a

Appendix F

including the (1) domestic employees thereof, living as

DVLQJOHQRQSURÀWKRXVHNHHSLQJXQLWRU

(b) A collective number of individuals living together

in one (1) house under one (1) head, whose relationship is

of a permanent (2) and distinct domestic character, and

ZRUNLQJDVDVLQJOHKRXVHNHHSLQJXQLW7KLVGHÀQLWLRQ

shall not include any society, club, fraternity, sorority,

association, lodge, combine, federation, group, coterie

or organization, which is not a recognized religious

order, nor a group of individuals whose association is

temporary and resort-seasonal in character or nature.

)DPLO\'D\&DUH+RPH A private home in which more

than one (1) but fewer than seven (7) minor children are

received for care and supervision for periods of less than

twenty-four (24) hours a day, for more than four (4) weeks

during a calendar year, unattended by a parent or legal

guardian, except children related to an adult member of

the family by blood, marriage, or adoption.

)DUP All of the contiguous neighboring or associated

land, operated as a single unit, on which “farming,” as

GHÀQHG E\ WKH 0LFKLJDQ 5LJKW WR )DUP $FW 1R RI

1981 (MCL 286.471 et seq.), is carried on directly by the

owner-operator, manager, or tenant-farmer, by his or

her own labor or with the assistance of members of his or

her household or hired employees. Land to be considered

D IDUP XQGHU WKLV GHÀQLWLRQ VKDOO LQFOXGH D FRQWLQXRXV

parcel of not less than ten (10) acres in area. Farms may

be considered as including establishments operated as

greenhouses, sod farms, nurseries, orchards, chicken

76a

Appendix F

hatcheries, livestock and poultry farms, and apiaries,

but establishments keeping fur-bearing animals, game or

RSHUDWLQJÀVKKDWFKHULHVFRQÀQHGDQLPDOIHHGORWVVWRQH

quarries, or gravel or sand pits shall not be considered

IDUPVXQGHUWKLVGHÀQLWLRQXQOHVVFRPELQHGZLWKDIDUP

operation on the same continuous tract of land.

)DUP%XLOGLQJ See “Building, Farm”.

)DUPLQJSee “Agriculture”.

)DUP 2SHUDWLRQ The operation and management of a

farm, or a condition or activity that occurs at any time as

necessary on a farm in connection with the commercial

production, harvesting, and storage of farm products, and

LQFOXGHV RSHUDWLRQV GHÀQHG E\ WKH 5LJKW WR )DUP $FW

0&/HWVHTDVDPHQGHGEXWLVQRWOLPLWHGWR

(a) Marketing produce at roadside stand or farm

markets.

(b) The generation of noise, odors, dust, fumes, and

other associated conditions.

necessary for a farm, including but not limited to

irrigation and drainage systems and pumps and onfarm grain dryers, and the movement of vehicles,

machinery, equipment, and farm products and

associated inputs necessary for the farm operations

on the roadway as authorized by the Michigan Vehicle

Code, Public Act No. 300 of 1949, as amended, MCL

sections 257.1 to 257.923.

77a

Appendix F

(d) Field preparation and ground and aerial seeding

and spraying.

(e) The application of chemical fertilizers or organic

materials, conditioners, liming materials, or pesticides.

(f)

Use of alternative pest management techniques.

(g) The fencing, feeding, watering, sheltering,

transportation, treatment, use, handling, and care of

farm animals.

(h) The management, storage, transport, utilization,

and application of farm by-products, including manure

or agricultural wastes.

(i) The conversion from a farm operation activity to

other farm operation activities.

(j)

The employment and use of labor.

)DUP3URGXFW Those plants and animals useful to human

beings, produced by agriculture, and includes but is not

limited to forages and sod crops, grains and feed crops,

ÀHOGFURSVGDLU\DQGGDLU\SURGXFWVSRXOWU\DQGSRXOWU\

products, cervidae, livestock, including breeding and

JUD]LQJ HTXLQH ÀVK DQG RWKHU DTXDFXOWXUDO SURGXFWV

bee and bee products, berries, herbs, fruits, vegetables,

ÁRZHUV VHHGV JUDVVHV QXUVHU\ VWRFN WUHHV DQG WUHH

products, mushrooms, and other similar products, or any

other product which incorporates the use of food, feed,

ÀEHURUIXUDVGHWHUPLQHGE\WKH0LFKLJDQ&RPPLVVLRQ

78a

Appendix F

of Agriculture. Those plants and animals useful to man

DQGLQFOXGHVEXWLVQRWOLPLWHGWRIRUDJHVDQGVRGFU

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