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.
“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.