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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.

The city's tab for appealing the Dutra asphalt plant at Haystack Landing will be about $8,500, according to Richard Drury, an attorney for opponents of the project that has become a lightening rod for the community.

The biggest cost of the appeal will be from lawyer fees, which have been estimated at $18,500 for the city, according to Drury. But because two community groups have pledged to pay $10,000 for the city's legal fees, the city's portion will now be considerably smaller. There is also about $2,500 to file the appeal at the First District Court of Appeal, which will also be picked up by community groups, Drury said.

The figure is vastly different from the estimate given by a Santa Rosa attorney in a Press Democrat article last week, who said that the legal costs of an appeal could potentially run as high as $200,000. That prompted criticism that the city, which has had to lay off numerous employees, scale back services and enforce furlough days over the past two years could ill afford the expense.

Last Monday, Petaluma City Council voted 6-1 to stay on as as plaintiff in the lawsuit over the asphalt and aggregate facility across the river from Shollenberger Park that was approved in December 2010. Just prior to the vote, two groups opposing the plant, Moms for Clean Air and Friends of Shollenberger Park, pledged $5,000 each to the legal effort, which people close to the issue have said likely influenced the council's vote.

Since February 2009, the city has spent around $68,000 fighting the plant, which would be located outside city limits, but just across the river from Shollenberger Park. Still, opponents say that community groups are the ones who are the main financiers of the legal challenge.

“The community groups have and will continue to pay for the bulk of this,” said David Keller, founder of the Petaluma River Council, which focuses on restoring and protecting the Petaluma River and is one of the plaintiffs in the case. “We paid for the scanning and indexing of information to compile the record and will continue to pay for the bulk of this suit.”

Keller would not disclose the amount community groups have spent on fighting the plant, but said it was “substantial.”

“The donations continue to come in and we always need more,” Keller said. "Is it cheap? No. Would we rather Dutra respect the community and find another place to do their business? Yes. But meanwhile, we have to keep fighting.”

The Dutra Group, based in San Rafael, has said that it intends to move ahead with the project, which the company characterizes as a boon for jobs and economic development for Southern Sonoma County. The company has to meet more than 100 conditions before it receives permission to start construction.

Opponents have 60 days from the time a judgement is entered to file an appeal, but it could take another two years before the case is heard by an appellate judge. 

Following the Press Democrat article which quoted Rachel Stevenson, a Santa Rosa attorney who specializes in banking law and business and commercial litigation, many questioned the wisdom of the city pursuing the legal appeal. But Drury said the costs to the city would be minimal and the trial would be very brief.

“The lawyer quoted in the Press Democrat was probably talking about typical criminal or civil cases, where the costs on appeal can be very high,” Drury said. “In such cases, the trial often extends for months, and the entire trial has to be transcribed, bound and organized for the court of appeal, at great expense. In a California Environmental Quality Act (CEQA) case, the trial lasts for half a day and the transcription costs about $250.”

Susan Brandt-Hawley, an environmental attorney in Glen Ellen, who specializes in CEQA cases, agreed that the costs are unlikely to go over budget.

Lawsuits based on CEQA law include an opening brief, a reply brief and an oral argument, Brandt-Hawley explained. "But the record has already been prepared and the cost is predictable,” she said.

Check out our new Dutra asphalt plant topic page, which has articles, photos and other relevant info on the issue.

Joan Bunn January 31, 2012 at 01:10 AM
How nice to have an article where research was done. Thanks Karina!
Go Occupy! January 31, 2012 at 01:53 AM
Yea! Now that's more like it. However, the damage has been done as the higher figure is what will be bandied about by the ptowns, roybeans, couriers, pds, dead-enders, etc. Can that other article just disappear? There was so much false info in it.
Go Occupy! January 31, 2012 at 02:03 AM
And don't forget the huge event at Shollenberger on Sun Feb 12 at 1:30-3pm called "Hands Around Shollenberger, A Valentine For Our Park". The goal is to have 2000 people show up wearing RED and join hands while an aerial photo is taken. Come out and support the park!
D January 31, 2012 at 03:51 AM
Good to know, than you Karina. I have asked several people and have yet to hear a sure answer. Is it known exactly what the City has spent to date on this? I am just curious and have been told a wide range of numbers. Thank you
Ptown January 31, 2012 at 04:53 AM
Thanks Karina, under 10k! Sounds great. No problem with that. I was worried taxpayers would be paying much more.
Ptown January 31, 2012 at 04:55 AM
I still think there should be a cap though, what the city spends will not change the appeals outcome.
Karina Ioffee January 31, 2012 at 05:03 AM
Thanks for reminding readers about this. Also, check out Petaluma Patch's new Dutra topic page that traces the issue from December 2010 when the project was first approved. http://petaluma.patch.com/topics/dutra-asphalt-plant-85da0cb4
Go Occupy! January 31, 2012 at 02:19 PM
Also, when the city prevails, they will be reimbursed by the losing party.
localcyclist January 31, 2012 at 03:37 PM
Thank you Karina!!
D January 31, 2012 at 03:41 PM
So what do I owe the pleasure of being the target of Go Occupy's wrath? Was my question so bad? Was I rude? Did I attack someone? Was it so insulting or outlandish that it was deservant of such disrespect? Forgive me for overlooking that. You are correct, it is right there. Not sure how I missed it. Thank you for pointing it out although I could have done without the rage filled note. In another article you asked why someone is directing ire. I find that odd when that is all you do, direct your ire onto people who you believe have a different view than you do. I think this plant is wrong for this location, I do not support it at all. I simply wanted information regarding the cost responsibility of the City and you attack. If I was disrespectful to you in some manner I would deserve it but I do not believe I was.
Christopher Fisher January 31, 2012 at 04:09 PM
Yet another display of our need for alternatives to the PD. Thanks, Karina, for digging a little deeper.
Go Occupy! January 31, 2012 at 04:39 PM
Ah yes, the Eddie Haskell defense. Rage filled? My apologies but if you hadn't asked it so many times I would have only put in the dollar amount.
Ptown January 31, 2012 at 04:48 PM
So if it takes two years to be heard what happens in between? Is Dutra allowed to begin building, or are they stalled?
Karina Ioffee January 31, 2012 at 05:04 PM
Good question. According to Richard Drury, the opponents' attorney, Dutra Group can start construction as soon as they meet all of the conditions on the project (There are about 140). However, opponents could also get an order from the appellate court to block the construction until the project is heard by an appellate judge, which can take 1-2 years. (Things move slowly in the state courts). Another factor, is that if Dutra seeks financing for the plant, it may be harder to secure funding for the project while there's pending litigation, according to Drury. (Dutra's finances are not known since they are not a publicly traded company) But as it stands now, Dutra's project has been approved by the county and all claims presented by opponents tossed out by a county judge, so if DG can meet all the conditions, they will likely get a grading permit to begin work.
David Keller January 31, 2012 at 05:17 PM
According to the County's adopted Conditions of Approval for Dutra, there are over 90 actions, agency approvals, clearances, reports and other things, all of which Dutra must complete, prior to receiving grading and building permits from the county. One thing that has not been agreed to, is Shamrock's involuntary sale of a portion of their property to Dutra. The county required Dutra to build a conveyor belt from Shamrock's barge landing site across what is now Shamrock's property. Talk about Dutra's negative impacts on existing businesses. Shamrock has consistently said that moving Dutra's aggregate through their property and sale of property to Dutra would interfere with their own business and cut into Shamrock's total capacity of rock permitted for their site. Shamrock told the Supervisors they had no interest in transferring property to Dutra or servicing Dutra's demands. The county ignored them completely. If Shamrock stands their ground and doesn't give in to Dutra's demands, then Dutra's operation will be completely based on truck deliveries of aggregate and hauling of asphalt alone: no river transport at all, no barges, no 'river dependency'.
Go Occupy! January 31, 2012 at 05:30 PM
Didn't I read that they had a similar situation in another community and they just started building then took the fine?
D January 31, 2012 at 06:36 PM
So many times? I asked twice, once in the previous article (no one answered) and once here. Does twice constitue so many times? Simple question it was, no need for all the added insults (that continue). Again, I am totally against this project, always have been. You seem to be so filled with distain on this issue that your vennom does not discriminate. Are you capable of having a civile discussion on the matter (with those that may agree or even those that may not) without firing off insults?
Mitch January 31, 2012 at 07:04 PM
Oh gawd Ptlmafrnd, please go back to your Petaluma360 Forums.
D February 01, 2012 at 01:41 PM
Oh gawd Mitch, you are kidding me right? Another person on here saying I'm someone else. Mitch's one post on this matter and that was it. Good job Mitch, well done.
Karina Ioffee February 01, 2012 at 04:11 PM
D, I'm the one that deleted Go Occupy!'s comment. Please refrain from using derogatory language and veering off topic in your comments. This website will have civilized discussion and people who cannot do so, will be suspended. Thanks in advance for your cooperation.
D February 01, 2012 at 04:51 PM
Thank you for the clarification Karina. I did not realize I had used derogatory language, my apologies. I have deleted my post.

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