Source: The Press Democrat (Santa Rosa, CA), March 1, 2014
Posted on: http://envfpn.advisen.com
A state appellate court on Friday rejected on all counts an appeal by the city of Petaluma and environmental groups that challenged county approval of the Dutra Materials asphalt plant just south of Petaluma.
The unanimous ruling, signed by a three-judge panel from the 1st District Court of Appeal in San Francisco, affirms the 2011 judgment of Sonoma County Superior Court Judge Rene Chouteau, who ruled that the county’s environmental analysis was adequate and that open meeting laws had been followed.
The court fight extended what has been one of the county’s most high profile land-use battles over the past decade.
In 2004, Dutra Materials, based in San Rafael, proposed a plant on 38 acres just east of Highway 101 and south of the Petaluma River. The Sonoma County Board of Supervisors ultimately approved an environmental analysis, rezoning and construction of the facility in late 2010. The approval came on closely watched 3-2 vote by supervisors.
Aimi Dutra said Friday that her family’s company will forge ahead quickly in making the plant a reality.
“We’re pleased to have successfully won at the court of appeal on all fronts,” she said. “It was nice to get a ruling across the board in our favor, and not a split vote.”
Opponents, who had rallied community support and at least $10,000 in donations toward legal costs, were disappointed in the ruling.
Petaluma attorney Lawrence King, who wrote a friend of the court brief on behalf of the city and environmental groups, said it hadn’t been determined whether to pursue an appeal to the state Supreme Court.
“They rarely grant those, but whether the parties will decide that, I’m not sure,” he said.
The state Supreme Court generally only accepts cases that have had split decisions at the appellate court or that create legal uncertainties, said Deputy County Counsel Jeff Brax, who represented Sonoma County in the case. Those decisions are typically published, meaning they can be used as legal precedent.
Because the Dutra decision was unanimous and unpublished, seeking a high court review would be difficult, he said.
“The decision validated that the county properly processed the project and properly evaluated the environmental impacts and its consistency with the general plan,” Brax said.
The appellate decision becomes final in 30 days, after which a petition seeking Supreme Court review must be filed within 10 days.
David Keller, a director of the Petaluma River Council, which opposed the project, said groups on his side were reviewing the decision with their attorneys and considering possible next steps.
He said they were “extremely disappointed” that the ruling appeared to give “virtually unlimited deference” to the county.
“That does not mean in any way whatsoever that the Dutra Asphalt Plant is a good project in this location,” he wrote in an email. “The asphalt factory would be a serious and long-term affront to the residents, businesses, visitors and environment of our region, and it is tragically misplaced.”
Shortly after the plant was proposed, it became a lightning rod for environmentalists, who argued an asphalt plant was inappropriate on Petaluma’s southern gateway and on land across the Petaluma River from the 165-acre Shollenberger Park wetlands preserve. They raised concerns about air and groundwater pollution and impacts on wildlife, scenery and noise.
After rejecting one version of the plant, the Board of Supervisors approved a modified plan in December 2010 that anticipated an annual production of up 570,500 tons of asphalt and rock material and 145,000 annual truck trips.
Supervisors Mike Kerns, Paul Kelley and Efren Carrillo voted for project. Kerns and Kelley were in their final weeks of service on the board at the time.
Supervisor Shirlee Zane and then-Supervisor Valerie Brown, the board chairwoman, voted against the plant.
Opponents filed their lawsuit a month later, saying that Dutra and the county failed to address public health and environmental impacts of the facility. They also argued that the approval was rushed through the review process in violation of open meeting laws.
Although the plant is outside city limits, Petaluma joined the lawsuit as a co-plaintiff after community members pledged to donate $10,000 to the city’s general fund to help offset legal fees for continued appeals.
Aimi Dutra said there are still some regulatory approvals necessary before construction could begin.
“We look forward to continuing to work with the county and the local community to bring this project to reality,” she said. “We’re going to be moving ahead this year…now that we have the green light. We hope to bring this to fruition by the end of this year.”