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Petaluma legal fees mounting in fight against Dutra plant

By JEREMY HAY
THE PRESS DEMOCRAT

The Petaluma City Council decision to spend about $10,000 trying to prevent an asphalt plant from opening on its outskirts commits it to a legal battle that may cost many times that, although it won’t bear the cost alone.

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

“If it’s a very short proceeding that doesn’t involve a trial, then an appeal would cost somewhere between $15,000 and $20,000,” said Santa Rosa attorney Rachel Stevenson, referring to the state appeals court process Petaluma is set to embark upon.

“If it’s more complex and involves a voluminous record and complex issues, depending on those and the duration of the proceedings, it can approach $200,000,” said Stevenson, who started Empire College School of Law’s appellate advocacy program.

The City Council voted Monday, 6-1, to pursue an appeal of Superior Court Judge Rene Chouteau’s ruling that tossed out a lawsuit the city and other plant opponents had filed against Dutra and the county, which approved the application.

Chouteau, in making his decision, said he had considered written arguments and about 50,000 pages of public records, including environmental studies and public comment on the project.

Stevenson, of the firm Abbey, Weitzenberg, Warren & Emery, said she has no direct knowledge of the case or its details, but that based upon what’s publicly known about it, “I think that’s edging up towards the higher end of the cost involved.”

Since 2008, Petaluma has spent about $70,000 on legal fees fighting Dutra’s proposal for a plant across the Petaluma River from Shollenberger Park at the city’s south entrance, city manager John Brown said Thursday.

The project also has been opposed by a coalition of environmental and community groups — five of which joined the city in suing Dutra and the county — chiefly on grounds that it would be a public health hazard with severe environmental impacts.

Those groups, as well as some individuals, have spent a “substantial” amount more than the city has so far on legal costs, said David Keller of the Petaluma River Council, one of the nonprofit groups opposing the project.

He would not specify the amount spent.

“Erroneous reasoning” on Chouteau’s part supports the decision to move ahead legally, Keller said.

That would include, he said, failure to address the contention that the plant would violate Measure D, a 1998 ballot measure that restricted growth along the scenic gateway into Sonoma County along the Highway 101 corridor.

Also, he said, Chouteau did not address the issue of Shamrock Materials, a neighbor of the plant site, which, Keller said, has refused to transfer title of some its land to Dutra to enable barge-loading of asphalt materials. That, he said, violates the conditions under which the project was approved.

Two of the opposing groups increased their contributions Monday, pledging $10,000 to the city for the effort, convincing the council majority to add the city’s money to the fight.

The contribution by Friends of Shollenberger and Moms For Clean Air would cover about half the costs to the city of the appeal, said Eric Danly, the city’s attorney.

The nonprofit coalition has been working with an Oakland attorney, Richard Drury, and Keller said that he would be involved in the appeal. Another environmental attorney has offered to work with Drury on the appeal and “and cap (his costs) at $10,000,” Keller said.

Danly on Thursday declined to elaborate on how the legal work on the appeal might be divided between his Santa Rosa firm, Meyers Nave, and the other attorneys on the case.

Based on the litigation rate of $195 an hour that the city pays Meyers Nave, it appears the city can expect to get about 2½ weeks of attorney help on the appeal for its $20,000.

Beyond that, it’s unclear what might happen. Brown, the city manager, said that no limit on the city’s contribution has been discussed.

“We’re not really at that point yet,” he said. “We expect that the amount of money that’s been collected on our behalf will be sufficient to take us through the next several months, maybe the rest of the year.”

He suggested, though, that attorneys other than the city’s will shoulder the larger load.

“That’s why you see a relatively low number here,” he said, “because it’s not the main work.”

The sole council vote against pursuing an appeal, Councilman Chris Albertson, said he had opposed the plant from the start, but the potential — and unknown — cost of an appeal dissuaded him.

“How do we know that 10 doesn’t become 20 doesn’t become 40,” Albertson said. “We don’t.”

Chouteau’s ruling has not been officially filed with the court yet. When that happens, the city and its legal allies would have 60 days to file an appeal.





29 Responses to “Petaluma legal fees mounting in fight against Dutra plant”

  1. Change Headline says:

    Now that Petaluma Patch actually did research and determined that in fact the costs are not “mounting” but rather limited as originally stipulated by the City Attorney for this type of CEQA appeal (that the PD source had zero knowledge of), why don’t you fix your error, report the truth, and change the headline PD? We’re talking about a few thousand dollars since most, if not all, will be covered by private donations. Without the City joining the appeal, they would not recover any of their legal expenses paid thus far when the appeal succeeds. The City made a wise decision in standing by their promise to protect Petaluma for tourism, existing and future businesses, residents, and home values that would otherwise depreciate due to their proximity to an asphalt plant (translation, more losses in tax revenue to fund City services). Do your job PD and retract this piece.

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  2. Facts says:

    At least Patch finally did some real reporting – this article is a complete sham. The actual costs, as noted by the City attorney are indeed under 10K…no need for wild speculation and feeble attempts to undermine the City’s decision:

    http://petaluma.patch.com/articles/attorney-estimates-cost-of-dutra-appeal-at-20-000

    ————————-

    Note to readers: The Patch story was posted in full in this comment. That material has now been deleted from the comment. It is OK to post portions of stories from other sites, but please do not post the entire story in your comment. To read the Patch story, click on the link.

    WSC Moderator

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  3. One question David says:

    Hello, Mr. Keller? Day five of no response. It is only one question: If the cost is so minimal, why don’t you commit to covering ALL the costs?

    Thumb up 6 Thumb down 6

  4. David Keller says:

    If you’d like a well-researched article on costs to the city of an appeal, please see:

    http://petaluma.patch.com/articles/attorney-estimates-cost-of-dutra-appeal-at-20-000

    “City’s Bill for Dutra Appeal Under $10,000, Attorney Says.

    The record is prepared and ready to be presented, although it could take another two years before case is heard in state court.”

    At PetalumaPatch.com the reporter actually asked lawyers involved in the case, and consulted lawyers who have actually done CEQA appeals. Oops. Sorry, the PD story sent a lot of people on a series of wild goose chases.

    But I guess that gets the PD.com site more clicks, better advertising rates, but a bad rep for accuracy.

    Thumb up 5 Thumb down 5

  5. How many bottles of beer on the wall? says:

    To: “One Question”
    Four days and counting. Who are you behind your mask? Aimi? Brian? Rob? Chris?
    Time to come out of hiding.

    Thumb up 5 Thumb down 7

  6. One question David says:

    Hello, Mr. Keller? Day four of no response. It is only one question: If the cost is so minimal, why don’t you commit to covering ALL the costs?

    Thumb up 5 Thumb down 8

  7. Who dat? says:

    To “One Question” -
    So who are you really?
    You want dollar commitments from Keller about paying the city to defend itself and its investments.
    But you haven’t been willing to tell anyone if you are Aimi Dutra, Brian Sobel, Rob Muelrath or some other Dutra loyalist or apologist. Maybe if you entered a real discussion by letting us know who you are, you might learn something.

    Thumb up 8 Thumb down 8

  8. john bly says:

    If someone wants to have something else there besides what Dutra wants to build there, make an offer to purchase the land from Dutra rather than spend taxpayer monies to enrich the attorneys.

    Thumb up 10 Thumb down 9

  9. @ Kim says:

    meant “to” of course.

    Thumb up 0 Thumb down 0

  10. One question David says:

    Hello, Mr. Keller? Day three of no response. It is only one question: If the cost is so minimal, why don’t you commit to covering ALL the costs?

    Come on now, you usually have plenty to say and this is a very simple question. Help me out, I would love to hear the answer.

    Thumb up 9 Thumb down 9

  11. @ Chris Snyder says:

    “Sad waste of resources in a time of scarcity.” – yes, Chris Snyder, you certainly are. Stop wasting your worker’s union dues promoting bad projects we don’t want with lies and funding misleading political hit pieces against people who have actually supported the public interest and helped bring jobs to our city.

    Thumb up 9 Thumb down 8

  12. @ Kim says:

    The number of truck trips is two and from the site. This is the number in the EIR and is what is permissible and anticipated during peak use. It’s not an exaggeration. No one is saying that WILL happen every day, simply that it is permissible. Dutra would also able to operate 24 hours a day to serve municipal projects – which the company claims is the actually the majority of their client base. So sorry, no exaggerations. Read the material, that’s all you need to do. All the emissions are documents, the increases in NOx, the increased noise, the increased traffic, the aesthetic issues, and zero dollars to Petaluma in tax revenue because it resides just outside the city limit. It’s bad for Petaluma and fortunately an overwhelming majority rightly share the concern. This is why there wasn’t a single candidate in the previous election willing to state their support, and why no current civic leader has stated anything but their opposition to the project. Even Albertson, who must have written his statement before realizing private donations would come to the rescue, restated his opposition even while being the lone dissenting vote on joining the appeal. When we win the appeal, he will have on his record the fact that he voted against the City recouping their legal expenses.

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  13. One question David says:

    I am still waiting to hear from David.

    I wouldn’t object to the city lending its name to the suit, though I would question how many causes it might eventually join. I do have a problem with the city spending an open ended amount of tax dollars on this suit. So far 100k of unbudgeted city tax dollars have been spent/committed. If life as we know it will cease to exist because of this plant, fine, join the suit but don’t spend tax money you don’t have on it.

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  14. Kim says:

    450 truck trips a day? That’s (roughly) 9,000+ tons of asphalt a day! Talk about pulling figures out of thin air (or where the sun don’t shine)that do NOT accurately depict “facts”! There is no asphalt plant in Sonoma County that puts that out on a daily basis, nor will the Dutra plant. Typical of the tactics used by Keller & Company, pick the worst case scenereo that COULD happen on one day and tell folks that its going to happen 365 days a year! This has been their theme since they got on this bandwagon, exaggerate EVERYTHING to make the people panic….Sorry Mr. Chicken Little (Keller), but I didn’t drink your coolaid.

    I hadn’t seen $73,000.00 spent so far in any of the past budgets….I’ll bet some city employee is going to get their job axed in the near future to pay for this.

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  15. @ One question David says:

    I’m not David and won’t attempt to answer for him. In my opinion only, the reason it’s important that the CIty join the appeal is less financial and more to demonstrate unity. As well, the City can only recoup the money so far spent if they continue as a plaintiff. In fact, the appeal could, and would, have gone forward without the City as a plaintiff – money was never the issue. However, it is indeed the job of the City to protect public investment. The City also has an obligation to protect jobs related to tourism as well as the interests of local businesses and residents who would be most impacted. The depreciation that will occur to housing in the area (it is a known fact that houses located near such asphalt plants experience a serious loss in equity) – lower housing values means lower taxes for CIty services. It is the job of the elected officials to protect our infrastructure – again a public investment – from an additional 450 daily large diesel truck trips to and from Petaluma…talk about generating new potholes. And the City has spent millions on improving the area. But yes, we aren’t counting on much money from the City and will be doing all we can to cover the majority of the costs. In reality, this is a very small amount of money in comparison to the costs to Petaluma (and all of us) should an asphalt plant be located as proposed. Dutra should stop fighting us and get to work on finding a more appropriate location. We will not relent and if the few construction jobs are important to Dutra, they will respect the workers and stop the delay by forcing a project on a community that is strongly opposed. Put it near Aimi’s house in Novato – or perhaps by the dump…in some ways, given her tactics and the company’s history, it’s one and the same.

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  16. Sir Charles says:

    Wondering when the money David Keller’s “neighborhood group” squelched out of Regency is going to appear to cover the costs of the City’s lawsuit against Dutra? If there is even any money left.

    Thumb up 18 Thumb down 10

  17. One question David says:

    Hello, David? Come on now, all I hear is crickets. It is only one question. Why must the city use tax money it doesn’t have if it is such a ‘trivial amount’?

    Thumb up 18 Thumb down 10

  18. John Parnell says:

    @ Chris Snyder – Can you please explain how you know dozens of people who have lost their jobs, because of this lawsuit? Please be specific.

    If the Dutra plant had already been an ongoing operation that was shut down, what you say could actually make sense.

    Your jobs talk here mimics your talk of “thousands of SMART jobs” you keep mentioning, along with the “hundreds of SMART jobs already created.”

    Facts work much better than fiction for either side of an argument.

    Perhaps you could help some of your dozens of imaginary friends who have recently lost their job at the Dutra plant due to this lawsuit, and find them a job among your thousands of phantom SMART jobs.

    Thumb up 15 Thumb down 13

  19. because says:

    Better to kill off a few jobs than destroy hundreds after there’s an exodus of businesses and residents should Dutra’s asphalt plant be built at their proposed location. Asphalt Plants should be built away from Parks, Schools, homes, and businesses, not blocks from elementary schools. Locate it out at the land fill south of Petaluma, and I assure you, there will be few, if any, complaints.
    Oh! And don’t forget the “few” jobs that will be lost/displaced when other local asphalt plants won’t be able to compete with Goliath aka Dutra, and they’ll close and/or lay off their workers. And for what? All for Dutra’s greed, not need.

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  20. @ Chris Snyder says:

    How dare you bad mouth our town with such fiction. We have many thriving businesses here and a great number of employees. Businesses have come here largely because of the quality of life and environment. This project undermines that and will hurt jobs, not help them. What reputation are you talking about? What jobs were killed? Regency was improved, approved, and is now being stalled by the developers – NOT the city. So you move to Petaluma with the idea to push your own projects through at our expense. We don’t want you and your selfish stooges here Chris. Stop telling us what to do and face that our community has higher standards than you and your simian thugs will ever comprehend. Oh yeah, how much of your “worker’s” money did you spend again on those racist hit pieces against Pam Torliatt (Democratic endorsed candidate for Supervisor)? You should be ashamed of yourself.

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  21. One question David says:

    Dear Mr. Keller,

    I have only one question for you; If you plan on covering the ‘bulk of the cost’ why don’t you commit to covering ALL the costs?

    With more than 70k already spent by the city and another 20k guestimated, it is completely reasonable to think costs will be much higher. This is only the amount the city has been forced to reveal with public records act requests. I would bet there are more costs not divulged.

    The city does not have the money whether it is another 20k or 100k. I realize YOUR causes are all that matter to you, but some of us would like to see other things INSIDE the city fixed with our tax money.

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  22. David Keller says:

    Dear Mayor Glass and Members of the Petaluma City Council

    Unfortunately, today’s Press Democrat ran a very misleading and inaccurate
    story about potential future costs of the appeal for the Dutra Asphalt
    Plant case decision. It used a provocative headline and sub-headline that
    reads: “Petaluma court fight could get pricey. Asphalt-plant appeal
    estimate ranges from $10,000 to $200,000″

    The attorney quoted in the story as the source for this wildly outlandish
    guess apparently has no experience with a CEQA (California Environmental
    Quality Act) appeal. She stated as well that she is not familiar with this
    particular case nor with its details. She may have been thinking instead
    of the costs of appealing a typical criminal or long civil case, which are
    substantially different from appealing a CEQA case.

    For the appeal of our case by the plaintiffs including community groups,
    individuals and the City, the bulk of the work and costs have already been
    done and paid for. This includes the entire administrative record (over
    40,000 pages), and the transcription of the half-day Superior Court trial.

    Our very experienced CEQA attorneys are not aware of any CEQA appeal costs
    coming anywhere even close to the reported high guess. The costs will in
    fact be very substantially lower

    The quoted $200,000 figure is complete fiction, not supported by fact.

    It is too bad that the PD – and now Patch – did not double check the information used for their rather provocative lede and sub-head for this story. Apparently
    neither our attorneys nor the City’s attorney were contacted. Instead, by
    using a source who is admittedly entirely unfamiliar with the subject
    matter, the credibility of the entire article is left in question.

    Two of our community groups have pledged $10,000 towards the city’s costs.
    The city attorney has said that is more than half of the city’s expected
    appeals costs. Our broad and deep support throughout the community will
    provide the large bulk of the costs for the appeal, which will be paid
    through the work of our able attorneys, Lozeau/Drury LLP. We’ve done this
    for the past 3-1/2 years, and will continue to carry the burden of this
    case through appeal.

    We are left to defend our city’s large investments in our parks, trails,
    river, health, identity, and entrance to the County, after being
    disregarded and trashed by the majority of the prior County Board of
    Supervisors and by Dutra’s deaf ear to our residents, businesses and
    visitors.

    Is that defense cheap? No, but it’s nowhere near the universe guessed in
    the PD’s story. Is it worth it? Absolutely. Will our community and
    neighbors step up to the plate? You bet!

    David Keller
    Petaluma River Council

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  23. Rebuttal to Chris Snyder says:

    Chris, you are completely ignoring the jobs that will be lost due to decreased tourism.You are completely ignoring the fact that an additional 450 truck trips per day will greatly impact our already fragile infrastructure. You are completely ignoring the fact that the few jobs you are referring to would have already happened had Dutra selected a more suitable location. And you are completely misleading in suggesting the area was zoned industrial. It was re-zoned for Dutra – it was not zoned for an asphalt plant prior to that. I don’t know if you are actually ignorant of the facts, or simply omit them for your own selfish interests. Do you care that property values will suffer? Do you care that large companies such as Camelbak that are already providing jobs and expanding oppose this project? Do you care about the devaluation of commercial property nearby (RNM) and their concerns about reduced tenancy? This all translates into big losses for the City. No taxes to Petaluma from Dutra because it’s just outside the city limits, but we absorb the impacts at OUR tax payer’s expense. You should be angry at Dutra for not realizing sooner that our city would oppose this. It is they who are to blame for your workers not working. Please. Just because YOU and YOUR workers have something to gain from this doesn’t mean we should accept it. Enough of the BS Chris. Tell Dutra to pick another site and be honest with your workers rather than blaming residents, businesses, and our ELECTED representatives for serving the COMMUNITY rather than YOUR interests that are at odds with the goals for our future growth. And guess what, we’ll get our legal fees back when we win the appeal. Nice try Chris, we’ve had it with your self serving BS.

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  24. More baloney says:

    @The truth hurts/Dutra,

    Let us wait and see who is right and who is not.

    What dangerous conditions are you referring to at our city parks? Do you really believe that if our city council did not agree to get on board with the appeal your streets would be repaired? And you will have no burglars because the city can not pay for street lights? And marijuana at school?

    Honestly, wake up to reality. Watch the meetings. Pay attention to the budget.

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  25. The truth hurts says:

    I very much appreciate this article and the fact that someone actually questioned the actual cost of this suit. Petaluma will spend several hundred thousand dollars they don’t have by the time this is done. All the while trying to hide the actual cost.

    If you really want to look out for the “health and safety” for Petaluma children how about our Council fixes the dangerous conditions at our city parks? Clean the duck excriment and foul smelling pond at the Community Center?

    Your child is a lot more likely to get hurt when they crash their bike on a street in disrepair because the city can’t maintain it. Your family more likely to face a burglar because the city can’t pay for street lights. Your children more likely to be sold marijuana at school because the city can’t pay for police. Please, stop the child welfare argument for this spending. It is nonsense.

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  26. No substance says:

    I am baffled at the point of this article other than to stir the pot.

    Stevenson, of the firm Abbey, Weitzenberg, Warren & Emery, said she has NO DIRECT KNOWLEDGE OF THE CASE OR ITS DETAILS, but that based upon what’s publicly known about it, “I think that’s edging up towards the higher end of the cost involved.”

    Come on PD/Jeremy Hay, you can do better than this.

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  27. Chris Snyder says:

    Someone should start a group Dads Without Jobs because I know a dozen Petaluma and Sonoma County residents that have been thrown out of work because of this selfish lawsuit. It is sad to frame this issue as Moms and kids vs. asphalt. There has been a plant in Petaluma for decades and the area they are putting the new plant is already an industrial zone. The plant will actually reduce greenhouse gases. Sad waste of resources in a time of scarcity.

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  28. Dad for Clean Air says:

    I’m glad there are Moms and parents in Petaluma looking out for the health and safety of our children. THANK YOU Petaluma City Council for stepping up to the big monied interests who think they own Sonoma County.

    Thumb up 23 Thumb down 18

  29. Chris Snyder says:

    It is sad that the city of Petaluma will end up spending over $100,000 to kill good middle class jobs. Most city’s are trying to attract jobs but Petaluma has a reputation for killing them.

    Thumb up 21 Thumb down 27

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