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March 26, 2004
Brothel owner lawsuit heardDAVIS RULES PARTLY IN FAVOR OF RICHARDS' UNIT 14 CASE
By MARK WAITE Richards wants to build a brothel on his land at the south end of Homestead Road across from Pahrump's two existing brothels, the Chicken Ranch and The Resort at Sheri's Ranch. The two existing brothels lie just outside the town limits, on an island of county land. Richards' side of Homestead Road is within town limits, where brothels are prohibited by town ordinance. Part of the argument by attorneys representing Pahrump and Nye County, that the area had been under a "de facto" annexation, was not addressed. Judge Davis left that for a future hearing to decide. Defense attorneys argued that since the late 1980s property owners in Calvada Unit 14 paid taxes to the Town of Pahrump without protest, voted for town board members as well as availed themselves of town services such as police and fire and ambulance protection, making them part of a de facto annexation. Attorney Jeffrey Pitegoff, representing Pahrump, tried to argue a law allowing a survey map to be corrected applied in this case. Davis said that statute, NRS 270.010 only applied if a surveyor made a mistake, like calculating the wrong square footage. In this case, Davis said, "There is simply no map." Richards' counsel, Pete Flangas, argued, "You have to go on the grounds and survey it. They have violated all the statutes. They violated the county ordinance, they violated the Pahrump town ordinance, and they violated the statute. They did not go on the grounds and survey it. That's what this case is all about." Flangas complained about the de facto annexation argument continuing to affect his client. Richards' lawsuit had asked for a refund of property taxes and the nullification of town elections, something co-counsel Leo Flangas said wouldn't happen as a result of Davis's order. "In the meantime they can keep taxing, they can keep doing their thing until such time as this court decides on the merits," Pete Flangas told the court. "There's no survey map of the Pahrump Township. It doesn't exist." Pete Flangas' original complaint, dated Aug. 17, 2001, claimed Nye County Code only required the county planning director to cause a survey map to be prepared showing the Pahrump town boundary and filed with the county recorder's office. That violates Nevada law, he claimed, which requires areas annexed into an unincorporated town of less than 25,000 people, in a county of less than 400,000, to be surveyed, mapped and platted. Pitegoff also argued Tuesday for a continuance, saying defense attorneys didn't have time to respond to a second amended complaint filed by Pete Flangas, a process he called "sandbagging." But Leo Flangas said exhibits were presented to the court a year ago, they were simply re-hashing the same facts. Pitegoff also argued the defect in the survey may be ambiguous, noting Pete Flangas presented to the court on Tuesday an interpretation from the Legislative Counsel Bureau in a Churchill County surveying case. "We are in a position where we don't have all the facts in the case," Pitegoff told Davis. "At least allow the parties to do discovery." But Davis was ready to issue an order Tuesday. He expressed concerns, however, about the four conditions to prove de facto annexation for the last 15 years, in particular "colorable compliance" with the statute. In the Richards cases, Davis wrote there is no statutory interpretation needed to show "colorable compliance," the need for mapping and a survey, he reiterated, is clear and unequivocal. However, Davis wrote in his order, "In any further hearing the court will want to consider whether long acquiescence by the various landowners and their predecessor, in interest, is a factor the court must consider in determining whether the theory of de facto annexation should be applied." Pitegoff also argued a 2001 map, taking in Richards' property along with other parcels annexed under Senate Bill 395, which expanded the Nye County line two miles into Clark County following the 2001 legislative session, created a factual issue in the case. But Davis said the fact of whether a proper map was approved was not a question of fact but a question of law. Leo Flangas said in town resolution 2001-08, passed Sept. 25, 2001, the town board admitted there should be a revision in the maps of Calvada Unit 14. Pitegoff, in a previous motion, said the 2001 resolution didn't try to annex the property, but merely referred to the 1987 ordinance in consolidating the boundaries, in arguing the statute of limitations had expired on the case. Davis said the annexation was improper from the beginning so that argument didn't apply. Pitegoff noted Pete Flangas' motion for summary judgment didn't mention which of his four points for which he wanted relief. They included a declaration of the annexation as unconstitutional and null and void; claims of an unconstitutional taking of property entitling property owners to compensation; claims the land owners wrongfully participated in Pahrump elections, paid taxes and utilized town services; and claims of a civil conspiracy by the Pahrump Town Board. "There is no taking in a situation like this," Pitegoff argued. "There's no evidence at all of a civil conspiracy. "You don't refund taxes unless you find something was null and void at the time," he added. "They were essentially under this de facto incorporation." If nothing else, Pitegoff at least argued for more time for discovery, "before knocking out Calvada from the Town of Pahrump." He said that could seriously hurt the town and the county. Richards filed a class-action suit naming as plaintiffs 260 Calvada Unit 14 property owners. "The court doesn't desire to hurt anyone. The job of the court is very clear: to follow what it perceives the law to be," Davis replied. He added, "The court finds there has been no compliance with the law." The long acquiescence by property owners of Calvada Unit 14 towards being part of the Town of Pahrump is a factor the court must consider in determining whether the de facto annexation applies, Davis said. The town alleged Calvada Unit 14 was annexed into the town limits by ordinance on April 14, 1987. Pitegoff, in a motion, alleged Richards bought his properties in April 2001, January 2002 and February 2002 knowing the property was inside the town boundaries where prostitution is illegal. Judge Davis Sept. 29 denied a petition by the defendants to dismiss Richards' case. Attorneys for the town and county then filed a writ of mandamus with the Nevada Supreme Court, claiming the judge's failure to dismiss the case was a violation of the statute of limitations and the doctrine of laches. The Nevada Supreme Court last December denied the writ of mandamus, allowing the district court case to proceed. |
