Politics & Government

City Council Postpones Dutra Decision Following Emotional Public Comment

Says it will study judge's opinion to see whether there are any points to appeal; Expected to announce decision at Jan. 23 meeting

The city is delaying its decision over whether to stay on as plaintiff in the lawsuit against the Dutra Group, the controversial asphalt plant that has been approved by Sonoma County Board of Supervisors, but is expected to make an announcement by the next council meeting on January 23.

On Monday, 30 people spoke in packed council chambers, voicing both support and opposition to the project—in a last minute effort to sway the city’s decision. These included a fourth grader at Corona Creek Elementary who spoke about how the fumes from the plant would make it hard to concentrate, a man who awarded the city a certificate for their commitment to the issue as well as construction workers who said the plant would bring much-needed jobs to the area.

The plant, which would be located at Haystack Landing across the river from Shollenberger Park, has been in the works for six years and was approved by Sonoma County Board of Supervisors in December 2010. Following the decision the city and a group of organizations and residents sued, but a Sonoma County Superior Court judge upheld the project, prompting opponents to consider taking the issue to the Ninth Circuit Court of Appeals in San Francisco.

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But they want the city to continue to assist with the legal effort, even though the bulk of the costs have been paid for through donations to the nonprofit organizations challenging the project in court.

“If you go into closed session and decide ‘We’d like to go the second round, but we just can’t afford it, I want you to consider this carefully because you can’t not afford to do this,” said Joan Cooper, president of Friends of Shollenberger, a group created to fight the asphalt plant and one of the plaintiffs in the lawsuit against Sonoma County and Dutra.

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Cooper said the city made a significant investment in the creation of Shollenberger Park (estimated at more than $4 million) and that the plant would negatively impact businesses in the area, including CamelBack, , and sticker factory.

“They have a choice and they will move away if an asphalt plant is built there,” Cooper said.

But many others spoke in favor of the project, urging the city to not spend its limited money on an appeal. At least a dozen members of Operating Engineers Local 3 arrived at Monday’s meeting wearing “No Appeal” stickers and spoke about the jobs the new plant would bring, for both construction workers and truckers.

“Why waste any more money on this when there was already an asphalt plant in the area for more than 20 years?” said John Mannix, a member of the union. “What Dutra wants to build is the most modern plant ever built in the state, with emission controls, the full works.”

Aimi Dutra Krause, spokeswoman for the San Rafael-based Dutra Group, who was at the Monday meeting, said the company intends to move forward on the project.

“We worked really hard on modifying this project to address the community’s concerns,” she said. “It’s been through a full EIR, the Planning Commission upheld it, the Board of Supervisors upheld it and a judge has upheld it.”

The council deliberated the issue in closed session, so opinions of individual members are not known. But in an email sent to constituents over the weekend, Councilman Mike Healy, an attorney, said that while he opposed the project, he did not believe the city stood a chance of winning in appellate court.

“It is not enough to argue that the asphalt plant would be a bad thing, that it would pollute Shollenberger Park, damage an egret rookery, create traffic, be an eyesore, etc.” Healy wrote.

“The appellate court won't even listen to those arguments. The court will listen to arguments that the EIR didn't adequately address those issues, but only to the extent that appellants can argue that the trial judge committed reversible error in its legal or factual analysis. The same goes for claimed violations of the Brown Act (the open meetings law) — appellants would have to demonstrate that the judge's analysis was wrong, either legally or factually.”

Healy said he would recommend that city lawyers look over the decision to see if there is any potential for a reversal on appeal. He went on to say that Judge Rene Chouteau’s decisions had never been overturned. But David Keller, an opponent of the project and one of the plaintiffs, said that Chouteau’s decisions have been challenged eight times and overturned four times, three times partially. (See attachment on the right for details)

If the appellate court overturns Judge Chouteau's decision even partially, the project would have to be voted on again by the Board of Supervisors. But because the board has changed since the original vote took place, with Supervisors Mike Kerns and Paul Kelley retiring, it's unlikely that the project would get approved again.

“You have an obligation to follow your heart, your mind and the city’s wallet in defending the investment this city and its taxpayers have made in Shollenberger Park, the river, Alman Marsh and Ellis Creek,” Keller said. “We have gotten attention worldwide for the work you’ve done at the park…it is now your job to find whatever money it takes for the city to do its share to defend your investment and not let it be stolen with Dutra’s misplaced location for this project.”

Have you taken our poll on whether the city should press on with the issue? If not, you can do so here


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