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Judge dismisses lawsuit seeking to stop Petaluma asphalt plant

By BRETT WILKISON
THE PRESS DEMOCRAT

A Sonoma County judge has dismissed the lawsuit challenging approval of the Dutra Materials asphalt plant, the controversial land use project slated for 38 acres south of Petaluma.

Aerial photo shows the area (lower right) across the Petaluma River from Shollenberger Park where the proposed Dutra asphalt plant would be located.

Judge Rene Chouteau dismissed all claims brought against the county, Dutra and its business partners by the City of Petaluma, a group of five nonprofit groups and several individuals.

“This was huge. It was a huge decision,” Aimi Dutra, spokeswoman for her family’s company said of the ruling, which allows one of the most contentious land use projects in Sonoma County to go forward.

Dutra Materials, based in San Rafael, first proposed the plant more than six years ago and could begin construction in late 2012.

The plant was approved last December on a 3-2 vote of the Board of Supervisors, which had previously turned down an earlier version of the project. A majority of supervisors including Mike Kerns and Paul Kelley — both of whom have since retired — and Efren Carrillo, said changes to the plant and safeguards required in its approval resolved their concerns.

The go-ahead came over the strenuous objections of opponents, who said the county and Dutra had failed to address public health and environmental impacts of the facility, including annual production of up 570,425 tons of asphalt and rock material and 145,000 annual truck trips.

Plaintiffs said the activity would mar a nearby county scenic corridor and Shollenberger Park, which sits across the Petaluma River from the planned site.

In their lawsuit they also alleged the plant was rushed through the planning process in violation of open-meeting laws.
The legal challenge asked for the approval to be set aside and for a new environmental study to be done.

In a 30-page opinion filed last week, Chouteau dismissed all of the opponents’ claims, ruling that the county’s environmental analysis was adequate and that open meeting laws had been followed.

Chouteau also found that the dozens of safeguards the county required of Dutra to lessen impacts on traffic, air quality, noise and nearby wetlands were also adequate.

Chouteau said the plaintiffs had presented “no substantial evidence” that the new impacts would be “significant” and or that the mitigations required of Dutra fell short.

David Keller, one of the individuals who brought the suit and a leader of the Petaluma River Council, which was also is part of the challenge, said plaintiffs are considering an appeal.
“Judge Chouteau has rejected our plea to preserve the gateway to Sonoma County from blight and protect the people of Petaluma from Dutra’s industrial pollution,” Keller said in a statement.
Aimi Dutra countered with a statement from her family’s company, citing revisions to the plant that she said would limit its impact on the community.
“This is the right plant in the right place,” she said. “The court’s ruling clearly supports the fact that all environmental impacts have been addressed.”





16 Responses to “Judge dismisses lawsuit seeking to stop Petaluma asphalt plant”

  1. olivia says:

    What many of us who bought homes in Petaluma fairly recently want to know is WHY real estate agents and their sellers did NOT disclose Dutra’s proposed asphalt plant?
    As relative newcomers to Sonoma County and Petaluma in particular, we were not privy to this information. And while we originally looked for homes in Healdsburg, we passed on homes in the proximity of Syar Industries.
    Yes, we were diligent during out search, and no, no one disclosed Dutra’s proposal. Had we retired folks known about Dutra, we would not have bought a home within a mile of this toxic eyesore.
    So much for our quality of life and property values. Not that Dutra cares: They’re Marinites who live in Novato, not San Rafael where they’ve made life for neighbors near their operation there a nightmare.
    We’ll fight on, but should Dutra prevail, Petaluma and the state will lose more property taxes than they already have, While Dutra and their ilk laugh all the way to the bank.

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  2. Kim says:

    2020vision

    Old plant being 10% of size of proposed plant – source is new plant EIR, not thin air. Then again, maybe Dutra submitted false information for the EIR. The company submitting an EIR does NOT write their own EIR and is supposed to be done by an impartial entity…so, how could Dutra do that?
    CalTrans did not use asphalt from the old Dutra plant – source was CalTrans spokesperson. Their asphalt did not meet specifications. Go look at all the (rubberized) asphalt that was put down from just east of Valley Forde all the way to Bodega Bay! Perhaps you can tell that to many of my truck driver friends that worked many a CALTRANS job throughout the years that got their asphalt from Dutra Petaluma that they picked up the material at the wrong place!
    City of Petaluma employees were specifically directed NOT to use Dutra asphalt – source numerous city employees. Perhaps you should mention that to North Bay Construction, Argonaut and other contractors that they too got their material from the wrong place!
    They used Dutra asphalt ONE time for a paving the street in front of the then new transit center. During the opening ceremonies one city official dug up a chunk of asphalt with the toe of his shoe. It all had to be removed and re-paved. Where was the City inspector when the project was being done? Besides, with that asphalt plant being there as long as it had been, I KNOW it wasn’t the first time asphalt from Dutra was used. Now you’re really pushing the envelope of believability.
    By the way Kim. You seem to know a whole lot of details regarding Dutra operations. Details that only an insider or employee would probably know. This is the only thing that I have written that is pure speculation on my part. And your speculation FAILED. I don’t know what you mean by “insider” but I have never received any payment from Dutra for anything.
    I am nothing more than a concerned citizen who lives about a mile from the proposed site. I neither stand to gain nor lose anything financially from this plant. There, we have something in common. I too am a concerned citizen living almost as close as you do and I too stand nothing to gain or loose financially from this plant…unless….you want to consider the use of my tax dollars (and perhaps yours too).
    And my father work for a paving company too. If that makes you an expert then you should have told your obstructionist friends where they were wrong in manufacturing blatantly fictitious statements and presenting it to the public as facts!

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  3. 2020vision says:

    @kim
    Old plant being 10% of size of proposed plant – source is new plant EIR, not thin air. Then again, maybe Dutra submitted false information for the EIR.

    CalTrans did not use asphalt from the old Dutra plant – source was CalTrans spokesperson. Their asphalt did not meet specifications.

    City of Petaluma employees were specifically directed NOT to use Dutra asphalt – source numerous city employees. They used Dutra asphalt ONE time for a paving the street in front of the then new transit center. During the opening ceremonies one city official dug up a chunk of asphalt with the toe of his shoe. It all had to be removed and re-paved.

    By the way Kim. You seem to know a whole lot of details regarding Dutra operations. Details that only an insider or employee would probably know. This is the only thing that I have written that is pure speculation on my part.

    I am nothing more than a concerned citizen who lives about a mile from the proposed site. I neither stand to gain nor lose anything financially from this plant. And my father work for a paving company too.

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  4. Kim says:

    The asphalt plant that Dutra ran at the old quarry site was 10% the size of this proposd one. 10%? There ya go pulling figures out of thin air (typical). The old plant had less capacity because it was decades old but far from only 10%. If you refer to land area, once again you’re WRONG. If one would look at the size of the old site, one would see that the new site (minus the new wetlands area) is actually smaller than the old site.

    After numerous fines from the Bay Area Air Quality Management District for exceess pollution, somebody looked into that operation. Once again, misinformation! There was only ONE violation for pollution (I requested and received ALL the violations issued to the plant from BAAQMD (I have them right here in front of me). The plant was shut down on ONE project because they were experimenting with adding chopped up tires (rubberized asphalt) to the mix. Who demanded the rubberized asphalt? CALTRANS! A couple violations were from excessive dust due to the fact that the dirt roads were not watered down. One violation was for bringing an extra barge up the river with aggregate (taking 55 trucks off the road).
    Dutra was running it without any permits. It was promptly shut down. Yeah, fine upstanding folks those Dutras. If Dutra was running without any permits how could CALTRANS allow them to make asphalt for its projects in the area? How could the city of Petaluma gotten asphalt for many of their projects from the plant for so many years?
    No YOU review the facts and the history for the truth Kim. Thank you for allowing me to demonstrate just how you and your obstructionist friends bend, twist and manipulate things to fit how you want things to be perceived to deceive the public.
    And while you’re at it, ask your pal Mike Kerns why he kept this out of the public eye for so long and why there never was a local meeting on the project during the initial EIR process. First off, I do NOT know Mike Kerns so he is NOT my “pal” (another attempt to throw something at the wall to see if it will stick). How could one person, in this case Kerns have kept this out of the public eye for over FIVE years? This project has been on the table for a long time and in the public eye if anyone cared to look at it. This project’s location is only about three miles from David Keller’s home and even closer to other obstructionists…so, it was actually the fault of you and your obstructionist friends for not being aware. Once again, blaming someone else for your shortcomings..tisk, tisk.

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  5. Just a Thought says:

    I would suspect that the opponents of Dutra don’t fully understand the laws and what they can do to overturn the permit. I being involved in this industry would tend to think that if they really wanted to stop Dutra, they’d hire people who understand how these operations actually work and learn the inner workings. The issue is their legal team doesn’t have knowledge or inner-working knowledge what actually occurs and how the permits are simply a procedure. It’s better to ask for forgiveness than permission once the permit is granted.

    Look at the DWR permit for storm water runoff and SWPPP, can this facility comply, I doubt it but only ones who understand the permit and the inner workings can answer that.

    Fugitive dust and dust particles, this is another issue that can be looked at.

    QSD/QSP along with compliance thereafter, again, forgiveness verses permission.

    Damage to streets and rutting of pavements for trucks to access pit, is the cost to taxpayers or pit operator? Asphalt materials used in California don’t last like other states, the oils used in manufacturing of asphalt along with lack of quality control/quality assurance Petaluma public works doesn’t do, street life isn’t all that good and taxpayers keep allowing public works substandard construction. We call it, close and go, not exact by nature.

    I bet that in the long run, taxpayers will end up losing on this deal.

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  6. 2020vision says:

    @kim – The asphalt plant that Dutra ran at the old quarry site was 10% the size of this proposd one. After numerous fines from the Bay Area Air Quality Management District for exceess pollution, somebody looked into that operation. Dutra was running it without any permits. It was promptly shut down. Yeah, fine upstanding folks those Dutras.

    No YOU review the facts and the history for the truth Kim. And while you’re at it, ask your pal Mike Kerns why he kept this out of the public eye for so long and why there never was a local meeting on the project during the initial EIR process.

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  7. BigDogatPlay says:

    Sounds like the Keller Krowd needs to call a Waah-mblance. Attacking the judge, the board of supes and Dutra in this space while proclaiming that David (I have no real power but I think I do) Keller is the Lord’s gift to interpreting an EIR. Don’t debate the facts, just attack, attack, attack.

    it’s the Progressive way, you know.

    I repeat the direct question below…. where were all of you for all the years that Dutra was successfully running such an operation a few hundred meters away? That is now being redeveloped into high priced real estate? What was right with those operations, that would be wrong with the one that was proposed and approved within the guidelines of the law on point?

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  8. PRESS RELEASE
    December 28, 2011

    Judge Chouteau Buys County’s Arguments
    Dutra Asphalt Factory Approval Upheld by Court

    We are very disappointed by Judge Chouteau’s failure to find in favor of our
    community coalition’s legal challenge to protect Shollenberger Park, the
    Petaluma River and our community’s health and economy. Judge Chouteau has
    rejected our plea to preserve the gateway to Sonoma County from blight and
    protect the people of Petaluma from Dutra’s industrial pollution.

    Judge Chouteau has dismissed all of our claims, and seems to have adopted
    county counsel’s and Dutra’s attorney’s arguments without question.
    1) Judge Chouteau has mistakenly written off Shollenberger Park and the
    upper Petaluma River as an industrial blighted area that merits no further
    protections or care. This is – contrary to its status as the most popular
    park in Petaluma and a recognized National Geographic destination.

    2) He chose to overlook the increased health risks caused by toxic air
    pollution from many thousands of Dutra’s diesel trucks, tugs and asphalt
    manufacturing. He has rejected the legally required standards for
    measuring toxic emissions from the project at its proposed location. He
    asserted that CEQA cannot be used to address impacts to workers’ health at
    the plant.

    3) Despite Shamrock Materials sworn unwillingness to allow their dock to
    receive Dutra’s aggregate deliveries, Judge Chouteau accepted the County’s
    argument that the project could be approved as “river dependent”.

    4. He failed to address what would happen after the first three years with
    Dutra’s truck-only deliveries of aggregate, as permitted by the County, if
    no barge delivery through Shamrock’s permitted tonnage capacity was agreed
    to or feasible. Would Dutra be shut down without river deliveries? Would
    they just continue with thousands of truck trips? He refused to tell us how
    that should or would work.

    5. Judge Chouteau refused to respect the integrity of the county-wide
    voters’ 1998 approval of Measure D, establishing the Petaluma/Novato
    Community Separator. This voter-approved mandate, like Urban Growth
    Boundaries for all our cities, protects the entrance to Sonoma County, from
    the county line to Petaluma’s Urban Service Boundary, from intensified
    development along the 101 corridor. The County, and now this judge, have
    mistakenly left Dutra’s parcels unprotected against industrial development
    with an asphalt factory.
    The plaintiffs’ coalition of non-profits, individuals, and the City of
    Petaluma will now consider the next steps, including possibly appealing
    Judge Chouteau’s ruling. Our attorneys at Lozeau/Drury feel we have many
    legal issues that could find merit at a higher court. So far, we believe
    that this judge’s decision should be overturned.

    The community’s efforts to save Shollenberger Park, our River, Petaluma’s
    health and economic vitality are not over yet. Our city, community and
    extended family have supported these battles for several years, and will
    not give up now.

    Your donations to fund the appeal are requested from all of you who love
    Shollenberger Park, value clean air, and what makes Petaluma attractive and
    strong. We are offended by Dutra’s two 62 ft. asphalt storage towers and
    thousands of trucks wafting trails of toxic and stinking asphalt smoke as
    a landmark marking the Gateway to our fair city and county.

    We will never give up fighting to preserve and protect Shollenberger Park.
    Thank you!

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  9. Kim says:

    Funny Appeal (wrong place, wrong plant)but where were you, Keller and your obstructionist ilk years ago when there was an asphalt plant and a concrete/asphalt recycling operation atop the hill of what is now called Quarry Heights? It wasn’t but a few hundred yards from where the new one will be built.

    2020vision, David is a self-proclaimed expert on EIRs. All his prior arguments against the plant had nothing to do with an EIR. His EIR arguments were just grabbing at straws as the argument against the plant has been for the past year…one straw after another, just review the history ;-)

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  10. Appeal says:

    This remains the wrong plant, at the wrong place. One judges opinion doesn’t change that, it simply means we must appeal – as Dutra would have done as well. We must pursue every legal avenue to prevent this project. Our City doesn’t want it and our County doesn’t need it. And someone needs to step up and take Carillo’s seat.

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  11. Progressive Bullying says:

    How disappointing it must be to try to stop this project by bullying them with lawsuits only to have a judge rule on law not emotion.

    Thumb up 30 Thumb down 16

  12. 2020vision says:

    @kim

    No but David Keller is an expert on EIR’s and he knows that this one is a mockery of the law. Shoot, you don’t have to be an expert to see how bad this one is. Just a read of the basic outline of EIR law points out many things just plain missing here (like required input from all of the numerous agencies that govern the Petaluma River).

    @Courtwatch – Judge Chouteau ruled in favor of the County of Sonoma and against the City of Petaluma. Still anybody with an ounce of knowledge of EIR law could see the holes in this one. For that, I wholeheartedly agree that he had to have failed to weigh all of the facts here.

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  13. olivia says:

    Perhaps Chouteau, like Supervisors Kern, Kelley, and Carrillo, had already made up his mind years ago and was just going through the motions.

    Justice In Sonoma County? Smelling more and more like Louisiana-style politics and justice.

    P. U. !

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  14. Kim says:

    Of course Court Watch it HAD to be the judge…..it couldn’t have been the merits of the case. Too bad Torliatt, Glass, Keller and the rest of the obstructionists couldn’t shop around for the right judge. I couldn’t have been the lawers they hired (Oh No!) Of course when something doesn’t go your way, it had to be someone else’s fault (just like Torliatt’s loss in the Supervisor race…blame someone else)

    This project had been simmering for at least five years and at the last possible minute Keller and company become “instant experts” on making asphalt, sherry picking the most malitious information they could find…giving no weight as to it being factual or not…just throw it out there and see what will stick. If there’s something that sounds particularly nasty (doesn’t have to be true)give that to the rest of the ditto-heads so they too can pass it on as fact.

    There was no “compromise” in this case….EVER! It was NO from start to finish. I hope the obstructionists are happy with what mitigations they could get because now the asphalt plant will serve as a remidner that it might be better to work with industry rather than fight them tooth and nail.

    Thumb up 35 Thumb down 22

  15. Court Watch says:

    ATTENTION SONOMA COUNTY ATTORNEYS AND CITIZENS: This is YET ANOTHER example of why you should exclude Judge Chouteau from your civil matters. He is a former City employee who systematically sides with the government (counties and cities) in civil matters. He doesn’t let the jury decide, he nips the case at the bud. Obviously he has strong feelings toward the work he used to perform and can’t see things with an open eye. I would quickly exclude him from any case you are involved in – and definitely look at alternatives during the next election.

    I was at one hearing and he fell asleep during testimony and the attorney had to wake him up. It was highly embarrassing and inappropriate- but entirely true. I will say that the testimony was rather boring, but a judge of all people should be alert and pay attention.

    Time for fresh eyes on the bench.

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