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Petaluma Safeway gas station project headed to court

After a contentious city council battle, the controversial Petaluma Safeway gas station proposal is officially headed to a new arena - the courts.

A group called Save Petaluma, composed of members of No Gas Here, the neighborhood coalition fighting the supermarket chain’s discount fuel center at the corner of Maria Drive and South McDowell Boulevard, filed a lawsuit last week to try and stall the project, and potentially vacate the most recent city approvals.

Using what’s known as a writ of mandate petition, Save Petaluma is attempting to compel the Sonoma County Superior Court to overturn the city council’s fraught 4-1 vote April 1, which upheld the planning commission’s narrow approval of the project and negated the appeal by No Gas Here.

If the court rules in their favor, the lawsuit could trigger an additional council hearing, one shaped by a legal precedent specific to this project, with the city’s authority and scope unmistakably defined.

Patrick Soluri, the Sacramento-based attorney representing Save Petaluma, described Safeway’s tactics over the past year as a “campaign of intimidation” that could set a precedent for land use battles statewide.

The broader concern, he said, is that deep-pocketed developers could strong-arm smaller cities like Petaluma to accept projects under the threat of litigation, worried that they don’t have the fiscal endurance to survive a fight in the courts.

“It’s understandable what the council did, but it’s also unlawful because it deprives the public of a fair hearing,” Soluri said. “I’m not painting the council as bad guys … but ultimately, by doing what they did, they threw it over hoping someone else would sue and the court would have to decide.”

The project, which features eight pumps with 16 fuel dispensers, a convenience store, an electric vehicle charging station and bus station enhancements, has been the subject of a tense public process since it was first proposed in 2013.

Sited for the southeastern corner of the Washington Square Shopping Center, the gas station would be approximately 60 feet from several primary schools and 80 feet from the nearest homes, causing widespread debate over the public health and environmental impacts.

No Gas Here co-founder JoAnn McEachin, a member of Save Petaluma, said the ultimate goal is to move the fuel center away from its current location. Or, at least require the third-party environmental review that was initially mandated by the council in December before Safeway forced a new hearing a month later by accusing officials of violating the Brown Act public meeting law.

“It is the hope of this group that the court will not be bullied by Safeway’s threats of litigation and that the court will, at the very least, step in and require a full environmental impact report to be done before any further action can be taken,” McEachin said in a statement.

The lawsuit alleges the city violated the California Environmental Quality Act as well as its own municipal code by ignoring its mandate and instead taking action by weighing the financial risk of two potential lawsuits – one by Safeway or one by the project’s opponents.

By naming Safeway as the “real party in interest” in the suit, the city will be indemnified from substantial legal costs, Soluri said.

City officials were unable to comment this week. They cited the array of unknowns from a lawsuit of this nature, leaving the merits of the allegations and how project permitting would be affected unclear.

So far Safeway has submitted a demolition permit for the current structure at the corner of the shopping center, said Planning Manager Heather Hines.

The petition cited comments from Councilwoman D’Lynda Fischer, who publicly voiced concerns related specifically to fiscal solvency both during the April hearing and online. On her website, she wrote that the council denied the appeal based on the “threat of lawsuit from Safeway and no city funds to fight the lawsuit.”

Safeway attorney Matthew Francois had repeatedly warned of an impending lawsuit since the planning commission voted on the project last June. At multiple public hearings and in numerous letters, he threatened to tie up the city in a costly legal fight, and even submitted a draft of a complaint to officials ahead of the April meeting.

With scathing allegations of bias, pieced together with newspaper articles, election campaign websites and emails obtained through Public Records Act requests, Safeway forced council members Gabe Kearney and Kathy Miller to recuse themselves from the final decision.

In a March 27 letter, Francois threatened the remaining council individually, encouraging them to retain their own lawyers if they upheld the appeal and required an EIR.

Francois did not return messages seeking comment about the lawsuit.

In the petition, Soluri pointed to a nearly identical saga with Safeway working its way through the Third Appellate District, Petrovich Development Company v. City of Sacramento.

In that case, residents in the Curtis Park neighborhood appealed a planning commission approval of a Safeway grocery store due to concerns over its accompanying 16-pump gas station.

There, the city council upheld the citizen appeal and was then sued by Rutan & Tucker, the same firm representing Safeway for the Petaluma project. The trial court found one Sacramento council member had demonstrated actual bias, and issued a writ of mandate to overturn the decision, which the city is now fighting in a higher court.

Soluri claimed Safeway’s bias strategy in Petaluma was encouraged by the ruling in Sacramento.

“There’s no argument that (Petaluma’s) council members were somehow acting outside their scope,” he said. “By threatening them as individuals is nothing but shameful strong-arm tactics.”

Safeway spokeswoman Wendy Gutshall said she was confident that the project meets all requirements, and that the efforts to build a discount gas station in response to customer feedback will continue.

“We look forward to the opportunity to reiterate the facts and legal precedent that support the city’s decision to approve our project,” she said in an email. “Progress continues on the project as we move closer to bringing more affordable gas to the Petaluma community.”

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

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