Nemees Will Appeal Trinitas Decision, Attorney Says

Calaveras Enterprise
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Trinitas owners Michael and Michelle Nemee plan to appeal a federal judge’s ruling that their golf course does not constitute agritourism, their attorney, Ken Foley of San Andreas, said Wednesday.

In a 65-page opinion released last week, U.S. bankruptcy court Judge Ronald Sargis declared golf as an ineligible form of agritourism in Calaveras County.

“The Board of Supervisors has used a consistent set of examples demonstrating a rural, natural state use of property for Agritourism,” Sargis wrote. “The multi-million dollar development of agricultural land into a commercial 18-hole golf course is not consistent with the enumerated examples provided by the Board of Supervisors.”

Hiking, cross-country skiing and horseback riding qualify as agritourism, according to Sargis, because they barely alter the land’s natural state.

However, according to Foley, the Nemees will appeal Sargis’ ruling on the grounds that golf should be a legitimate form of agritourism based upon the ordinance’s wording. County Counsel Janis Elliot said the county classifies agritourism as a permitted use, meaning property owners can generally develop on their land without county approval. However, the county makes a distinction between golf as a personal use and a golf course as a commercial enterprise. While the agritourism ordinance neither includes nor prohibits golf, Foley is convinced the county set out to make an example of Trinitas.

“Because of a failure to enforce the code for years, Trinitas became a scapegoat for the county,” Foley said. “The county’s policy through inaction allowed commercial activities of any size to be legal under agritourism, but the judge refused to look at that.”

As Sargis indicated in his opinion, the 2005 agritourism ordinance lists approved examples of agritourism. However, Foley said the code is ambiguous and should be open to interpretation.

The ordinance reads: “Agritourism shall mean an enterprise located at a working farm, ranch or other agricultural operation or agricultural plant/facility conducted for the enjoyment and education of visitors, guests or clients that generates income for the owner/operator.”

In his appeal, Foley intends to prove that the county has permitted numerous enterprises, most notably the amphitheater at Ironstone Vineyards, to engage in agritourism unimpeded.

“How is this any different than a rock concert on a vineyard,” Foley said. “Ironstone is a first class operation that puts on million-dollar concerts. The Nemees were trying to bring back their olive oil farm with the help of a golf course.”

Sargis addressed Foley’s argument head-on in his ruling:

“The Plaintiffs have also attempted to weave into the argument that because the County may allow uses of other property by the owner of Ironstone Vineyards which the Plaintiffs contend are inconsistent with the Court’s interpretation of Agritourism, the County cannot enforce the Ordinances against the Plaintiffs,” he wrote. “This contention misses the mark for several reasons. Though referenced by the Plaintiffs, the use of property by Ironstone is not now before the court. Further, as argued by the County, there are other permitted uses under the Zoning Ordinances which may apply to the Ironstone uses. The court has not, and cannot, determine the uses of property by Ironstone in the case now before the court.”

President of Ironstone Vineyards Stephen Kautz said entertainment acts as a secondary attraction at his vineyard, used as a means to draw people to his tasting room and wine tours.

“We are an agricultural entity that produces grapes, bottles wine, and run a tasting room,” Kautz said. “When we throw a concert it is also associated with our wine tasting as well. The concerts bring more people into our wine tasting operations.”

Regardless of Kautz’s explanation, Foley said the county’s exemption of Ironstone demonstrates preferential treatment that did not apply to his clients.
“The Board of Supervisors told their staff to get them (Michael and Michelle Nemee),” Foley said. “Whatever failures my clients had in the past, from 2001 to 2005, should not color the facts of this case.”

The Nemee’s deadline to appeal is Dec. 6; 14 days after Judge Sargis released his opinion. The appeal will be heard by the Court of Appeals for the U.S. 9th Circuit.

Contact Alex George at ageorge@calaverasenterprise.com