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03/02/89 Charles Kolstad Et Al., v. Bruce Rankin

March 2, 1989





534 N.E.2d 1373, 179 Ill. App. 3d 1022, 128 Ill. Dec. 768 1989.IL.266

Appeal from the Circuit Court of Piatt County; the Hon. Joseph C. Munch, Judge, presiding.


JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.


This is an interlocutory appeal by defendant Bruce Rankin from the order of the circuit court of Piatt County granting a preliminary injunction against defendant and in favor of plaintiffs Charles Kolstad, Mary Lucille Hays, and Mary Heath Hays. Plaintiffs own property adjacent to that owned by defendant. Defendant has a firing range located on his property. Plaintiffs filed a verified complaint for injunctive relief on October 5, 1988. On the same day, the trial court issued a temporary restraining order, which would expire on October 15, 1988.

On October 12, 1988, a hearing was conducted. Following that hearing, the trial court issued the preliminary injunction ordering defendant "to refrain from discharging or permitting others to discharge any firearm at or within premises owned, controlled, or occupied by him in Section 34, Township 19 North, Range 6 East of the Third Principal Meridian, situated in Sangamon Township, Piatt County, Illinois, until further order of the court." This order was entered on October 21, 1988, and defendant filed the notice of interlocutory appeal on October 31, 1988.

Defendant occupies real estate in rural Piatt County, zoned for agricultural use. Defendant has lived there consistently since 1959. Defendant, with a partner who also lives on this property, operates a business from his house known as Williams Trigger Specialties. In this business, defendant, a federally registered gunsmith, works on firearm firing mechanisms.

Also located on the property is a firing range, which has been there since 1959. The range originally consisted of a hill or berm used as a backstop for firing at targets. The berm was originally 12 feet high and 20 feet wide, but was extended up to 100 yards wide in 1974. The height of the berm was increased to 30 feet in 1987. Also in 1987, defendant built a rectangular berm to allow 360-degree firing.

Defendant allows his friends to use the firing range, in addition to using it himself. He does not permit strangers to use it. In the last several years, he has also allowed various law enforcement agencies to use the range for training, practice, and qualification, including the Champaign police department, the Urbana police department, and the Ludlow police department. In 1987, the Champaign Police Department Strategic Weapons and Tactics team was permitted to use the range. This SWAT team, consisting of 12 people, has used the range 10 or 15 times in the past year. The most recent use by the SWAT team was on October 4, 1988., Defendant has never charged a fee for the use of his range. He has, however, considered putting his range to commercial use at some time in the future.

Defendant is almost always present when the range is in use by private individuals other than law enforcement personnel. In all the years that the range has been used, there has never been an injury or near-injury or complaint to defendant about the range or its use.

Kolstad purchased the property immediately west of defendant's parcel on August 1, 1988, having signed the contract to purchase in May before he knew about the firing range. Plaintiffs Mary Heath Hays and Mary Lucille Hays reside on other property west of defendant's property. Mary H. Hays is 76 years old, was born in the immediate area, and has lived in her current residence since 1973. Mary Lucille Hays has lived in another house on the same parcel for two years, though she has utilized the family property throughout her life.

That portion of Kolstad's property nearest defendant's firing range is mowed pasture with scattered trees. His house is on the other side of his property. He has two children, ages six and eight, who play with the Hays children in the Hays' timber. Before he took possession, he learned of the firing range and met defendant. Defendant showed him the range, gave him a demonstration of noise levels, and discussed his future plans for the range.

On October 4, 1988, Kolstad was in his house and heard short bursts of gunfire. He looked toward the Rankin property and observed thereon a half dozen or so individuals and three to five cars. He described the noise as "not faint . . . a clear sound . . . a clear annoyance." He had not previously heard automatic weapons, but heard single fire. He acknowledged that the shooting range was 75 to 100 yards from the boundary of his property, and that his house was 30 degrees off the firing line such that a bullet would probably not strike his house in the absence of the berm. Kolstad has never observed a bullet striking his house or found a spent bullet. When asked to identify the danger from the range, he referred to the use of live ammunition being his major concern as well as a decline in property values resulting from noise and anticipated commercial activity. He has warned his children about going onto defendant's property.

The Hays property includes timberland consisting of oak, walnut, and some hickory trees. Although metal objects imbedded in the trees would depress their value, Mary Heath Hays has never had a complaint of a bullet embedded in a trunk of a tree and admits that a bullet through the crown of a tree would do little or no damage. She also admitted that it was almost impossible for a bullet to hit her house from the range. Although she is hard of hearing, she has heard gunfire on or around her property when she was outside or had a window open. If the windows are closed and the air-conditioning on, she does not hear anything outside. She has heard gunfire as early as 1973 when she moved back to the farm, but she first learned of defendant's firing range in 1986.

Mike Hogge is Mary L. Hays' husband. He and his family have lived on the Hays property for two years. They have two sons, ages seven and three. He testified that his children "play all over the farm." He has been nervous about gunfire for the past year and has heard it "fairly regularly." On October 4, he heard machine gun fire which was "fairly loud." It disturbed and startled him, although it did not startle his three-year-old son. When asked on cross-examination how loud it was, he said it was "as loud as a car honking its horn maybe a block away."

Mary L. Hays testified that as a child she played and camped in the timber on the Hays farm. However, since returning to the farm two years ago, she only goes out once in a while and has not noticed a difference in the animal population. She feels it's important for her children to learn about wooded areas as she did as a child, and has instructed her oldest son as to the boundary line between defendant's property and the Hays farm. During the summer prior to the hearing, this witness could no longer find a trace of the fence between the properties and further observed that a road had been bulldozed allowing for direct access to the woods from the firing range.

Velva Wickstrom is the zoning administrator for Piatt County. She identified the Piatt County Revised Zoning Ordinance as revised in May 1983, as plaintiff's exhibit No. 1, and she indicated that defendant's property is zoned A-1, agricultural as zoned, the permissive uses for this property are "any agricultural activity, single family farm dwelling, park or forest preserve, public school, elementary and/or high, roadside stand for the display or sale of agricultural products raised on the premises and home occupation not employed, [ sic ] not employing any person outside the immediate family." Within the ordinance, "home occupation" is defined as "any occupation or profession carried on by a member of the immediate family, residing on the premises in connection with which there is used no sign other than a name plate, no more than four square feet in area, or no display that will indicate from the exterior that the building is being utilized in whole or part for any purpose other than that of a dwelling; no more than one person outside the immediate family is employed on the premises; no mechanical equipment is used except such as is customary for purely domestic household purposes, and which is not offensive to adjacent property ...

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