Nemees Appeal Federal Judge’s Trinitas Decision

Written by Sean Janssen,
The Union Democrat
January 03, 2012 12:37 pm

The owners of the controversial Trinitas golf course near Wallace are appealing a federal judge’s ruling that the course is not permitted under county code.

Ken Foley, the San Andreas attorney representing Michael and Michelle Nemee, filed Thursday to have the appeal heard by the U.S. District Court for the Eastern District of California.

In October, Judge Ronald Sargis presided in a three-day trial in the Modesto federal bankruptcy court and finalized his decision on Dec. 15. His ruling also upheld a counterclaim by Calaveras County to have golf play ceased at the 260-acre site as of Jan. 27, due to the activity’s incompatibility with local land-use zoning laws.

The judge agreed with the county in saying golf doesn’t qualify as “agritourism.”

The district court is yet to set a date to hear the appeal. The appeal may be rendered moot if Sargis were to rule at a Feb. 22 hearing in favor of an earlier motion for a new judgment or trial in the case.

Foley’s written appeal centers largely on the assertion that the court should not have ignored his contention that the county is discriminating against his clients. He cites 13 years of concerts at Ironstone Vineyards in Murphys, on land zoned for agricultural use, as inconsistent application of the code.

“This court, in reaching its decision, completely ignored circumstances that clearly indicated that the County of Calaveras was not enforcing agricultural zoning violations of substantial magnitude,” Foley argued. “The fact that Ironstone Vineyards had been holding rock concerts and other large, media-type of events at its vineyard for the purpose of raising money which was an acknowledged violation of the (agricultural) ordinance since 1998 and no code compliance action had been taken, must mean something.”

At trial, Calaveras County Counsel Janis Elliott presented the argument that Ironstone’s concerts are governed by a special events permit and not permitted as agritourism. The Nemees’ suit claimed the county’s 2005 adoption of agritourism zoning code implied golf as an agritourism activity and the county Board of Supervisors erred in a 3-2 vote in 2009 that interpreted the code otherwise.

Sargis’ ruling stated the Ironstone issues were simply not a matter before his court.

Foley’s appeal challenges the state law that put the agritourism decision in the board’s hands.

“The whole California concept of intentionally having vague and ambiguous orders so as to give discretion to Boards of Supervisors and other legislative bodies is a direct conflict of the due process clause of the United State Constitution,” he wrote. “(We) intend to request appeal in this case, if necessary, to the Supreme Court of the United States so that this issue of ‘California Law’ can be addressed as a denial of due process.”

In other developments on the Trinitas court battle, a separate civil rights suit by the Nemees seeking $12 million in damages from the county and various former employees no longer names former Planning Director Bob Sellman.

The suit, which alleges violation of the Nemees’ due process rights, names the county, former interim Community Development Director Brent Harrington and former planner Shaelyn Strattan as defendants.

At the Dec. 7 initial hearing in the case, Sargis issued an order to show cause why that case should not be dismissed due to lack of prosecution. A hearing on the matter is scheduled for Jan. 11. The date moved up from Jan. 25 because Foley is scheduled to appear on behalf of client James Alison Livezey in the opening of a second-degree murder that day in Calaveras County Superior Court.

The court has not yet responded to Foley’s subsequent request to move the hearing to Jan. 12 or a February date because he is returning from Mexico on a previously scheduled flight on the evening of Jan. 11.

The bankruptcy court is also slated to hear Feb. 9 a motion by the Community Bank of San Joaquin seeking relief from a stay order on proceeding with foreclosure on the golf course property.

The Nemees owe more than $2 million to the bank for a loan on the property.