Petaluma to redo Safeway gas station hearing

The controversial Safeway gas station project is going to have an unexpected encore performance in front of the Petaluma City Council later this month after the supermarket chain recently accused the city of violating a state public meeting law.

Attorney Matthew Francois, who has represented Safeway since the proposal for the corner of McDowell Boulevard and Maria Drive first came forward in 2013, submitted a letter to the city on Jan. 2 demanding another hearing to “cure and correct” potential violations of the Brown Act, a 1953 statute that seeks transparency from elected officials.

“Safeway’s hope remains that the city council will agree with the planning commission approval and see that there is neither legal right nor necessity to appeal this project,” Francois said.

City Attorney Eric Danly refuted the allegations, but said the council will take the cautious approach and remedy the issue at its next meeting on Jan. 28. By going forward with a redo – something Danly said he can’t remember ever being done during his 14-year tenure – Petaluma will be able to sidestep a potential lawsuit.

“It allows an agency a chance to address whatever the alleged deficiency is to maximize transparency,” Danly said. “Just as important, it allows agencies to avoid wasting public resources.”

Since city staff modified their recommendation to the city council just before the Dec. 3 meeting, endorsing the requirement of an environmental impact report and upholding the appeal filed by opposition group No Gas Here, Safeway believes the city unlawfully took action on an item that was not on its published agenda.

They claimed the agenda was officially changed more than three weeks after the hearing to reflect the recommendation of an EIR, making the decision “null and void,” the letter said.

Danly contended that change was done by Granicus, the program the city uses to post agendas and archive meetings, once it switched to “meetings mode” and replaced the original description with the resolution that the council had adopted.

“That’s not like we’re window-dressing and thinking we should’ve been more detailed,” he said. “That was the title of the resolution that they did enact. It’s not something we thought was wrong or some discrepancy.”

Citing emails between city officials that were obtained through a Public Records Act request, Francois described the process as “biased,” and said the allegations “represent the latest in a remarkable series of bad faith acts committed by the city to improperly delay and obstruct the project.”

Safeway spokesperson Wendy Gutshall echoed those criticisms.

“This is the latest example in a long history of politicians and bureaucrats attempting to delay the process to meet their preferred political outcomes,” she said. “Nevertheless, the facts and law remain on the side of Safeway.”

In the letter, Safeway also alleged multiple documents weren’t made available for public inspection prior to the hearing. The resolution that city staff had prepared in the final hours before the meeting was handed to Francois after the discussion had already began, the letter said.

While acknowledging the resolution did change at the last minute, Danly pointed to stipulations within the Brown Act that permitted the actions by city officials that day, and said the final resolution at a hearing often varies from what is published in the tentative agenda.

“(An agenda brings) focus on the transaction that’s being contemplated,” he said. “It doesn’t include any possible action that takes shape, and the decision can also depart from whatever the staff has recommended. Everybody was on notice what was being appealed … and certainly Safeway knew that those (outcomes) were possibilities.”

Additionally, an email from project supporters and a response from Safeway’s air quality consultants were not included or attached to the staff report for the public to review, the letter said.

Both items were dated on the day of scheduled hearings, and were received after hours, Danly said, but they will be included in the upcoming agenda.

An email from Councilman Mike Healy to local consultant Brian Sobel, a former council member who has been handling media and government relations for the project, was also positioned as a Brown Act violation in the letter.

In the July 24 correspondence, Healy wrote that he would be recommending a closed session discussion so the council could go over the potential legal exposure surrounding the project with the city attorney.

Safeway claimed that email made it appear the closed session was done at the behest of Healy and not a majority of the council, which is the requirement, but Danly said that session was a collective response to Francois’ threat of litigation at a planning commission meeting last June.

Going forward, Danly expects this incident to help enhance its disclosure practices so the city can avoid another repeat hearing.

“I do think in the future it’s probably better to provide more detail even if we don’t need to,” he said. “But in terms of the city’s action being voided, I just don’t think we have that issue here.”

Six years ago, Safeway began pursuing a gas station with eight pumps, 16 dispensers and a convenience store for the southeastern corner of the Washington Square Shopping Center.

Since then, the project has been met with steadfast resistance from Petaluma residents and apprehensions from city officials that feared the environmental and public health repercussions of a gas station that was approximately 50 feet from several primary schools.

However, the planning commission ultimately approved the project with a 4-3 vote last June before No Gas Here co-founder JoAnn McEachin filed an appeal of the decision on July 9, forcing the city council to weigh in.

Over the next six months, city officials were inundated by troves of paperwork from both sides. On multiple occasions, so-called “document dumps” were done in the immediate days and even hours before scheduled hearings on the project, prompting two separate delays before it was finally discussed on Dec. 3.

The city council decided to postpone a decision, and instead voted unanimously in favor of requiring an EIR, a move that would cost Safeway both time and money in order to get the project approved.

Under the California Environmental Quality Act and a precedent set by a recent case, Protect Niles v. City of Fremont, the council had a relatively low threshold for providing evidence that the project could create significant environmental impacts to warrant extra review.

City officials said they had been moving forward crafting a request for proposals to identify which firm would conduct the EIR, but that process will now be delayed by the new hearing.

McEachin described this latest development as Safeway using “bully tactics,” and expects No Gas Here and its allies to come out in huge numbers once again to voice its opposition to the project.

“If Safeway thinks they can drag this on forever and use their money and power, they better think again,” she said. “We’re in this to win this. This is peoples’ lives at risk, not some bottom line for their corporate directors. We’re not backing down.”

(Contact News Editor Yousef Baig at yousef.baig@arguscourier.com or 776-8461, and on Twitter @YousefBaig.)