Final Appellants' Reply Brief filed in Court of Appeals
Press Release
Thursday, September 27, 2012
Final Appellants' Reply Brief filed in Court of Appeals
City of Petaluma, et al., v. County of Sonoma, The Dutra Group, et al.
The final Appellants' Reply Brief has been filed in 1st District Court of Appeals on Tuesday afternoon, Sept. 25, 2012
This is the last filing of briefs in the appeal of Sonoma County Superior Court Judge Chouteau's decision in the suit against the County's approvals of the Dutra Asphalt Plant adjacent to Shollenberger Park just south of Petaluma. The plaintiffs have filed the Appeals Brief and the County and Dutra filed Opposition Briefs.
The date for the trial at the Court of Appeals is still somewhat in the future: the Court of Appeals may take several months before actually setting the trial date, and the trial date could be as much as a year from now.
The Plaintiffs believe that we have a very strong case on appeal, focusing on several of the trial issues and rulings.
1. The Dutra properties are in the flood plain, and were improperly rezoned from commercial to industrial use. This is a direct violation of requirements of the Sonoma County General Plan.
2. The Dutra asphalt plant Project is not river dependent, yet were approved despite this basic inconsistency with clear requirements of the County's General Plan.
The Project depends on receiving shipments of aggregate and sand from the adjacent Shamrock operations, initially by truck for up to 3 years, then delivered by a conveyor belt.
Yet Shamrock has continually insisted that they have no interest and no agreement to provide aggregate or sand to Dutra. The County cannot compel Shamrock to do so. The Dutra Project has no feasible river barge access themselves (due to navigational hazards and existing high pressure gas pipelines), so deliveries would only be by truck.
3. The air pollution emitted from the Dutra Project were inaccurately calculated by the County and Dutra, by using the wrong baseline for emissions.
The pollutants discharged from the closed temporary Dutra asphalt plant almost a mile away were wrongly credited against the new plant's pollutants. This artificial 'baseline' makes it seem as if the new levels of pollution and their impacts would be lower.
4. The Final EIR did not accurately describe the final revised and County-approved Project, nor properly analyze and address its impacts, particularly the use of the Shamrock property and its aggregate supply methods, traffic, air quality, worker health, and wetlands impacts. The County refused to circulate a Revised EIR. The public was deprived of its right to examine and provide comments to the Board of Supervisors before they made any decisions on approvals.
5. The County violated the Brown Act by refusing to allow the public to speak about the revised Project at the final hearing of the Board of Supervisors. Despite the last minute release of a series of new Project changes, reports and a new Final EIR, the public was silenced.
We are optimistic about the judicial review that will come from the Court of Appeals. We look forward to the trial. We are determined to safeguard the health of our residents, businesses, visitors and wildlife. Many people and businesses have come to enjoy and benefit from Shollenberger Park and the increased use of the Petaluma River.
The Dutra Asphalt plant should never have been proposed for the Gateway to Petaluma and Sonoma County. We are grateful to the overwhelming support from our community in this challenge. We appreciate the City's participation in the original lawsuit and this appeal.
One final note: While most all Petaluma City Council members have strongly supported going forth with the appeal, we are aware that some people have wavered, citing the city's costs. Most recently, City Council candidate Kathy Miller told SCCA in interview that she would not support continued city participation in the lawsuit and appeal. This position is unmerited, as it fails to recognize the generous donation of $5000 from Moms for Clean Air to the City towards the costs of the appeal, and the pledge of another $5000 from Friends of Shollenberger. If the City were to adopt that position and leave the appeal, there would be no chance for the City to recover its legal costs when we win.
We are proud of our community, both in and beyond Petaluma, for its strong and continued support. We have borne the lion's share of the costs of the case, and are looking forward to our victory.
Click here to download the full text
Thursday, September 27, 2012
Final Appellants' Reply Brief filed in Court of Appeals
City of Petaluma, et al., v. County of Sonoma, The Dutra Group, et al.
The final Appellants' Reply Brief has been filed in 1st District Court of Appeals on Tuesday afternoon, Sept. 25, 2012
This is the last filing of briefs in the appeal of Sonoma County Superior Court Judge Chouteau's decision in the suit against the County's approvals of the Dutra Asphalt Plant adjacent to Shollenberger Park just south of Petaluma. The plaintiffs have filed the Appeals Brief and the County and Dutra filed Opposition Briefs.
The date for the trial at the Court of Appeals is still somewhat in the future: the Court of Appeals may take several months before actually setting the trial date, and the trial date could be as much as a year from now.
The Plaintiffs believe that we have a very strong case on appeal, focusing on several of the trial issues and rulings.
1. The Dutra properties are in the flood plain, and were improperly rezoned from commercial to industrial use. This is a direct violation of requirements of the Sonoma County General Plan.
2. The Dutra asphalt plant Project is not river dependent, yet were approved despite this basic inconsistency with clear requirements of the County's General Plan.
The Project depends on receiving shipments of aggregate and sand from the adjacent Shamrock operations, initially by truck for up to 3 years, then delivered by a conveyor belt.
Yet Shamrock has continually insisted that they have no interest and no agreement to provide aggregate or sand to Dutra. The County cannot compel Shamrock to do so. The Dutra Project has no feasible river barge access themselves (due to navigational hazards and existing high pressure gas pipelines), so deliveries would only be by truck.
3. The air pollution emitted from the Dutra Project were inaccurately calculated by the County and Dutra, by using the wrong baseline for emissions.
The pollutants discharged from the closed temporary Dutra asphalt plant almost a mile away were wrongly credited against the new plant's pollutants. This artificial 'baseline' makes it seem as if the new levels of pollution and their impacts would be lower.
4. The Final EIR did not accurately describe the final revised and County-approved Project, nor properly analyze and address its impacts, particularly the use of the Shamrock property and its aggregate supply methods, traffic, air quality, worker health, and wetlands impacts. The County refused to circulate a Revised EIR. The public was deprived of its right to examine and provide comments to the Board of Supervisors before they made any decisions on approvals.
5. The County violated the Brown Act by refusing to allow the public to speak about the revised Project at the final hearing of the Board of Supervisors. Despite the last minute release of a series of new Project changes, reports and a new Final EIR, the public was silenced.
We are optimistic about the judicial review that will come from the Court of Appeals. We look forward to the trial. We are determined to safeguard the health of our residents, businesses, visitors and wildlife. Many people and businesses have come to enjoy and benefit from Shollenberger Park and the increased use of the Petaluma River.
The Dutra Asphalt plant should never have been proposed for the Gateway to Petaluma and Sonoma County. We are grateful to the overwhelming support from our community in this challenge. We appreciate the City's participation in the original lawsuit and this appeal.
One final note: While most all Petaluma City Council members have strongly supported going forth with the appeal, we are aware that some people have wavered, citing the city's costs. Most recently, City Council candidate Kathy Miller told SCCA in interview that she would not support continued city participation in the lawsuit and appeal. This position is unmerited, as it fails to recognize the generous donation of $5000 from Moms for Clean Air to the City towards the costs of the appeal, and the pledge of another $5000 from Friends of Shollenberger. If the City were to adopt that position and leave the appeal, there would be no chance for the City to recover its legal costs when we win.
We are proud of our community, both in and beyond Petaluma, for its strong and continued support. We have borne the lion's share of the costs of the case, and are looking forward to our victory.
Click here to download the full text
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