A Letter to the Board of Supervisors
March 5, 2002

This letter was sent to the Board of Supervisors on March 5, 2002 by our attorney:

William B. Phillips, Attorney
P.O. Box 1868, Healdsburg, California 95448 (707) 431-2332
State Bar #79525 Fax(707) 431-1927

Peter Klein, Esq.
Frank Zotter, Esq.
Mendocino County Counsel
501 Low Gap Road, Room 1030
Ukiah, CA 95482 March 5, 2002
By Facsimile Only: (707) 463-4592

Re: Gould vs County of Mendocino
County of Mendocino vs Gould

Dear Mr. Klien :

As we have previously discussed with Mr. Zotter, the Goulds have authorized us to initiate discussions with the county in an attempt to informally resolve this matter without the necessity of a trial. We realize the Board of Supervisors is meeting this morning and if possible would like them to receive a copy of this letter for discussion with you and Mr. Zotter. In all candor, this litigation could go on for years without reaching a final resolution. I realize that you have indicated that you think it will be resolved in six months, but, we believe and you must know that your time estimate is extremely understated. Our reasoning for this conclusion follows.

The Strong Potential for Endless Litigation

After all we have been through to date, there are only two things that can happen at this point: the court will grant the Gould's Motion for Judgment on the Pleadings and the Goulds will then file a writ with the Superior Court, or the court will deny the motion and the Goulds will file a writ with the Court of Appeal.

In either event, the potential rulings of both courts will serve as entre' for either or both parties to either appeal, or perhaps start all over again at the beginning, and from the county's perspective, I can see no advantage to either course of action. The Goulds, of course, have no option but to continue the fight. The county is trying to force them off their land or put an end to a livelihood they have been engaged in for over thirty years. Only the county can elect to put an end to this situation now.

Mendocino County's Own Version of the Viet Nam War

What Mendocino County has here is a modern day version of the "Tar Baby". There is no way they can reasonably get out of this matter simply and easily. The harder they try, the faster they get stuck. To use another analogy, for the county this is a Gordian Knot, and they lack a blade to cut their way out. They are going to continue to waste the taxpayers money in a no win situation until someone steps back and takes a real objective look at what the county is trying to accomplish, and for whom. A tactical withdrawal by way of a settlement will eventually be determined to be the best and most expeditious and least costly course of action.

There Is No Benefit To the County in Continuing This Litigation

As the Board of Supervisors knows, and the BOS records clearly reflect, the hard reality is that the very individuals who initiated this fight between the Goulds and the county aren't even interested in the fight any more. If your clients will recall, the initial impetus was the threat that unless the Goulds birds were removed from their land by December 31, 1999, Nicholas Turkeys would move out, taking about a dozen jobs with them. And it absolutely, positively had to be done by December 31, 1999, or they were gone. Well, here it is March of 2002, and the Gould's birds are still in place, and Nicholas Turkeys is still in place, and seems to be expanding its operation, much to the disgust and consternation of their neighbors.

Everybody knows that the person who started this whole conflict, Walt Stornetta is still collecting his lease fees, and is at this time negotiating the sale of his land to the State. Frankly, his tenants don't want anything to do with this fight because they are well aware if they get involved again they could end up a defendant in a suit similar to the one the county is in because of the way it has been handled. And they also face the possibility of a trade libel suit for falsely alleging the Gould's parrots were diseased, practically the kiss of death in the bird industry. Suffice it to say that Nicholas Turkeys is going to stay completely out of any further attacks on the Goulds in any forum what- so-ever. Stornetta equally was glad to get out of it long ago. As I recall, at one of the BOS meetings the misguided belief was that Stornetta would help the county enforce their decision in the courts. As the past couple of years have shown, nothing could be further from the truth.

The Goulds Motion for Judgment on the Pleadings

The Goulds are confident that the Superior Court should grant their Motion For Judgment On The Pleadings. As we have pointed out in our reply brief, the arguments you have advanced in opposition to the motion are not legally sound. Admittedly, we have cited to the incorrect Mendocino Code. You are correct that the applicable code section is MCZC §20.544.15. Nevertheless, your claim that §20.544.10 applies rather that §20.544.15 simply because this was an appeal of the decision of the Planning and Building Services Department makes no sense. Quite simply, this was an appeal before the Board of Supervisors, and §20.544.15, which addresses the procedures for appeals before the Board of Supervisors, is the applicable section. §20.544.10 discusses procedures for appeals before the Coastal Permit Administrator or the Planning Commission. Simply because the Goulds agreed, at the insistence of the County, to go directly to the Board of Supervisors rather than first going before the Planning Commission, does not change the appeal to anything other than an appeal before the BOS to which §20.544.15 applies.

A reading to §20.544.15 vis a vis California Civil Procedure Code §1094.6, illustrates that in this case, the Board of Supervisors failed to comply with the requirements of those sections. Moreover, the BOS and your office hastily filed this action without even complying with the applicable statutes. It is amazing that the BOS is not even familiar with the procedure they must follow in deciding appeals. It is my understanding that the Mendocino Code is enacted by the BOS.

Although you have argued that the BOS and the county have the authority to file an action to abate the Gould's use of their property, the county is still required to properly follow their own administrative process prior to taking that action.

This is so clear to the Goulds and both Ms Mitlyng and I that in the event that the superior court does not grant the Motion for Judgment on the Pleadings, we will be going directly to the Court of Appeal with a writ of mandate. Since granting the motion would completely dispose of the case, Ms. Mitlyng and I feel confident that the appellate court will take the writ and eventually reverse the lower court.

Possible Action Against the County for Malicious Prosecution

One other specter looming in the background, or to quote Robinson Jeffers, one "lion, just beyond the firelight" is the certainty of a malicious prosecution action by the Goulds against the county if and when they prevail in this matter. The financial and emotional hardship this litigation has forced them to endure is not something they will be able to get over easily. Although the BOS has the benefit of counsel at no expense except to the taxpayers, the Goulds have had to pay their attorneys for all of the endless litigation for the past two years. Along those same lines, your county supervisors are relying upon your analysis in this regard. I assume that you will advise them of what could happen if your own analysis is wrong. If the court grants the Gould's Motion for Judgment on the Pleadings, the Goulds could conceivably file a suit for malicious prosecution against Mendocino County. Frankly, the Goulds believe that they have been wronged and expect to recover the attorneys fees as well as the additional damages they have incurred.

If the court denies the Gould's motion, the Goulds will go to the Court of Appeal, which has historically been unimpressed with many aspects of government action in Mendocino County. As you may recall, your own office advised the BOS that they could be exposing themselves to legal action for violations of due process if they did not give the Goulds an opportunity to present their case in a reasonable fashion. The BOS decided to take the risk. We believe that the Court of Appeal will take a dim view of that action by the BOS especially when it is coupled with the fact that the BOS failed to even follow it own proscribed procedures, post decision.

Right now the superior court has before it the Gould's Motion for Judgment On the Pleadings. If the court grants that motion, the Goulds will be filing a writ of mandate with the superior court, appealing the decision of the BOS. The Goulds will also have the option of filing an action for malicious prosecution at that time. Even if eventually the superior court agrees with the BOS decision, the Goulds will appeal that decision to the Court of Appeal. As I said, the Goulds have nothing to lose by continuing to fight this litigation and everything to lose if they give up the fight. If the superior court denies the motion for Judgment on the Pleadings, the Goulds will file a writ with the Court of Appeal. The Goulds fully expect to eventually prevail in this matter. I know you think the county will prevail, but if you are honest with your clients, you have to admit the possibility that they just might lose. An appellate court (or a federal court, for that matter) is not going to be too impressed with the way Planning reasoned all this stuff out. A common sense analysis militates against the county's interpretation of their own codes. That, plus again the fact a whole lot of Mendocino County legal shenanigans aren't exactly unfamiliar to the appellate courts of this state.

Even if in the unlikely event the County ends up somehow prevailing in the local court, and in an even more unlikely event the appellate court sustains the County prevailing in the lower court, there is no way those birds are ever going to leave that property. The Goulds have been through so much with this county they are seriously considering giving their property to the local indian tribe, who in turn have agreed to take the birds. The only thing the county can achieve is another piece of property removed from the local tax rolls. The parrots will still be in place, Nicholas will still be in operation, and nothing will have changed except that the county will, best case scenario, have expended an enormous amount of resources fighting a battle no one cares about any more, including the individuals whose complaints initiated the whole mess. The worse case scenario for the county is that in time, after the property has been own by the local tribe long enough to become sovereign property, this may be the location of a casino, a popular endeavor for most tribes up and down the west coast. And even if this doesn't happen for 20 to 30 years, when it does, undoubtedly many will recall what action by the BOS prompted the acquisition of this property by the tribe that resulted in it use as a casino.

Settlement Possibilities:

If the County cannot find their way clear to find the raising of parrots in an AG zone is a conforming use, then we would request the Goulds be granted a variance. The Goulds would have applied for a variance, but did not because Falleri told them they could not get one. Considering the fact all of the other surrounding counties who were polled by Falleri prior to December 20,1999, stated the Gould's use of their land would be AG or AG with a variance, (remember this is the fact he withheld from the BOS when asked by them at the December 20 hearing?) It seems unconscionable to me that the Goulds would not be granted a variance. It is the obvious right thing to do.

Finally, the County will have to pay the Gould's attorney fees to date. This is a negotiable amount, but suffice it to say that every week that passes greatly increases the total. If we can reach agreement on the other matters, we can discuss the amount of reasonable attorney fees based upon the amount of work put forth by Ms. Mitlyng and myself over the past two years.

If the Goulds get their variance and their attorney fees paid, this matter goes away, any individual county employees are off the hook, and the county can put this rather embarrassing episode behind them and get on with its business, as can your office.

Respectfully,

William B. Phillips
Attorney for Jeff and Barbara Gould

cc: Linda Mitlyng
      Barbara Gould