Neighbors file suit against gun club

Claim Farm To Market Road shooting range hurts property values

By RICHARD HANNERS / Whitefish Pilot

Neighbors who adopted zoning last year to stop a shooting range on Farm To Market Road have filed suit in Flathead County District Court to shut it down.

Bob Hayes purchased the 60-acre former ranch on Farm To Market Road near Tally Lake Road in 2006. Construction of the shooting range began in spring 2007. The club is organized under the name Eyrie Shotgun Ranch LLC.

A Harvard graduate with more than 40 years in the automobile sales business, Hayes at one time was the second-largest Avis licensee in the U.S. and the honorary consul of the Fiji Islands in Dallas, Texas.

He is also a well-known philanthropist. North Valley Hospital received a $250,000 donation through his Robert Tucker Hayes Foundation, which has donated money to numerous medical organizations.

Forty people are named as plaintiffs in the lawsuit, including former Montana legislator and Secretary of State Bob Brown, who once owned the shooting range site, former Whitefish High School band instructor John Klassen and Steve Knight, the former general manager of Columbia Falls Aluminum Co.

Columbia Falls attorney Eric Kaplan, representing the plaintiffs, said the neighborhood had once been "a peaceful, pastoral and relaxing area" inhabited by a diverse population of teachers, retired couples and small home-business owners.

"Unfortunately, everything changed in the spring of 2007," Kaplan said in his brief. "Defendant Hayes, a wealthy Texan with a home on Big Mountain, decided to build a large shooting range in the middle of the neighborhood so that he and a bunch of friends could have fun shooting their shotguns."

In addition to "loud, unpredictable shotgun blasts" disturbing their peace, Kaplan said, land prices plummeted and the neighbors' ability to sell their land was jeopardized.

The neighbors met with Hayes and offered to help him locate an alternative site, but Hayes turned down the new location. According to Kaplan, Hayes "also refused to sit down with plaintiffs and attempt to negotiate terms and conditions upon which the shooting range would operate."

The neighborhood group then applied for county zoning. The county planning board approved their neighborhood plan in July last year, and the commissioners agreed to zoning the area suburban-agricultural with a 10-acre minimum (SAG-10).

The vote was 2-1, with commissioner Gary Hall casting the opposing vote. Coincidentally, Hall grew up in the old farmhouse at the gun club site and attended Bissell School. He recalls his father harvested hay where Hayes and his friends shoot at targets.

Hall said he voted against the zoning district because it was an example of "exclusionary zoning" intended to prevent a land-use. He also said the district had jagged boundaries which appeared to include only those who favored the zoning.

The resulting 980-acre Tally-Bissell Zoning District includes about 42 private lots and 25 owners. Shooting ranges are not allowed as permitted or conditional uses under SAG-10 zoning.

Hayes claims the shooting range is grandfathered, Kaplan said, but he's "obviously antagonistic to his neighbors."

The neighbors' complaint includes eight counts. As a public nuisance, the shooting range is "injurious to the health and offensive to the senses," it says. The private nuisance in counts 2 and 3 refers to John and Susan Klassen, who lease their property to a game farm for photography, and to Rob and Wendi Rice, who operate a recording studio at their home.

Count 4 claims the gun club is an attractive nuisance. With 80 children attending Bissell School, about 1,900 feet down the road, the complaint says it's likely children will wander onto the shooting range, which poses an unreasonable risk of death and bodily harm.

The complaint also cites the Montana Constitution's provisions for the "right to a clean and healthful environment" and a quality education. The shooting range disrupts the local school, it claims.

The court has the authority to relocate the shooting range, the complaint states, because it presents a "clear and provable safety hazard to the adjacent population."

In response, Hayes' Whitefish attorney, Sean Frampton, cited several Montana statutes that protect shooting ranges. One states that noises from a shooting range during regular hours "are not considered a public nuisance."

Another statute states Montana's public policy to protect shooting ranges. Planning and zoning policies "may not be construed" to prevent operation of an existing shooting range or prohibit establishment of a new shooting range, the statute says.

Frampton also said the plaintiffs did not provide evidence for many of their claims. He also said state law on attractive nuisance does not provide for an injunction based on "anticipated danger."

Kaplan responded to Frampton's point by asking, "Do defendants really argue that this court must wait until a child is seriously injured or killed before it can act?"