Safeway pushes Petaluma gas station over objections

A gas station project that first sparked a battle between concerned residents and a corporation and later gave way to dueling environmental consultants has now transformed into a slugfest between lawyers. But it was one of the attorneys on the city council dais at Petaluma City Hall on Monday that made the most unexpected legal maneuver of the night.

Councilman Mike Healy uncovered a loophole in the city’s parliamentary procedure that helped the council avoid overturning its Dec. 3 decision to require an environmental impact report for the controversial Safeway gas station on South McDowell Boulevard. A reversal seemed imminent after city staff made another late change to their recommendation this week.

Instead, with a 4-1 vote to temporarily uphold the appeal of the planning commission’s approval of the project last June, filed by local opposition group No Gas Here, the council was able to cure and correct alleged violations of California open meetings laws while creating some breathing room to take a look at a new legal precedent that could potentially constrict their authority. Councilwoman D’Lynda Fischer cast the lone dissenting vote.

On Feb. 4, Healy will make a “motion for reconsideration” that - if it passes - will allow the council to revisit the issue at the following meeting on Feb. 25, marking the third council action on the project since December.

“I’m struck that we have a brand new staff recommendation as of today that’s a 180-degree turn from what we’ve been hearing,” Healy said, referring to a last-minute change to deny the appeal. “My comfort level is not where I’d like it to be.”

The city council was forced to revisit the issue despite voting unanimously in favor of requiring an EIR at the previous hearing in December.

A Jan. 2 letter from Safeway attorney Matthew Francois leveled a series of Brown Act violations, alleging that city officials failed to comply with several aspects of a 1953 statute designed to ensure that city business is done openly.

At the December hearing, Safeway representatives were notified about a late change in the city staff’s recommendation that endorsed the requirement of an EIR and upholding the appeal. The supermarket chain also said multiple documents had not been made available to the public.

City Attorney Eric Danly said Safeway’s Brown Act allegations were unmerited, but opted to take the cautious route and allow the city a chance to correct any violations by essentially rehearing the project.

However, due to a scathing 259-page letter submitted by Safeway three days before Monday’s meeting, the latest so-called “document dump” since the council was forced to hear the appeal, council members Gabe Kearney and Kathy Miller were suddenly forced to recuse themselves under the direction of Danly.

In the letter, among several other claims, Francois accused six of the seven council members as well as city staff of being biased against the project, citing dozens of emails and published materials obtained through a Public Records Act request. Several council members had expressed opinions or concerns against the project during exchanges with citizens over the last six years.

Dave King was the only council member to avoid the appearance of a conflict.

So out of “an abundance of caution,” Kearney, one of two council members that lives on the east side, reluctantly exited the chambers.

“Never in the past have I ever had to do this in my eight years of serving the folks of Petaluma,” he said. “It is not something I’m happy about having to do.”

Before exiting, Miller scolded Safeway representatives that made the allegations in another document dump that left little time for a proper review, describing the corporation as “a bad neighbor.”

“My opinions regarding this project are formed by the wishes of my constituents, and my personal knowledge of the area, which comes from living in the neighborhood,” Miller said. “I’m not opposed to the project, I’m opposed to the location of the project. … There are two preschools across the street, an elementary school, a Little League field, residences and a park. Those are what I consider sensitive receptors.”

Council members appeared dejected throughout the four-hour discussion on Monday, shell-shocked by the latest dramatic swing of a project that has been delayed twice since No Gas Here appealed the planning commission’s split, 4-3 decision last July.

During this week’s discussion, Safeway representatives held up a recent case, McCorkle Eastside Neighborhood Group v. City of St. Helena, which determined St. Helena officials didn’t have the authority to require an EIR under the California Environmental Quality Act. Instead, their scope was limited to the design aspects of a small housing development in the Napa Valley town, an interpretation that prompted city staff to change their recommendation.

If the new precedent holds firm, Petaluma officials would not be able to lean on a case decided earlier last year, Protect Niles v. City of Fremont, which established a relatively low threshold for requiring an EIR under CEQA, and allowed them to mandate the extensive review at last month’s council meeting.

“This is a complex area of the law, and I, too, have some problems with how this has just swung back and forth in an area that I would assume had been a little more settled than it apparently is,” said King.

No Gas Here advocates turned out in large numbers once again, resisting a project that is welcomed by supporters that want a cheaper alternative to the city’s high costs for fuel.

The project, which would include eight pumps with 16 dispensers, and includes a 697-square foot convenience store, one electric vehicle charging station, landscape improvements and renovations to the nearby bus transit center, was first proposed in 2013.

To earn the planning commission’s approval on June 26, Safeway provided adequate documentation and studies to receive the necessary authorizations from regional agencies with oversight.

JoAnn McEachin, co-founder of No Gas Here, then appealed the decision on July 9, forcing the council to weigh in.

“Safeway knows that if they are forced to do an EIR that this project will be dead in the water,” said Oliver Steinfels, a member of No Gas Here. “Why else would they work so hard to prevent it from happening?”

Natalie Mattei, a senior real estate manager with Albertsons, the parent company for Safeway, pushed back against multiple requests from council members throughout the night. She pointed to several concessions that had already been agreed upon, as well as the elongated process that the project has been subjected to.

“I don’t know what a continuance would possibly bring to this discussion,” Mattei said. “There has never been substantial evidence, there has never been a fair argument. That’s not going to change between now and some future council date.”

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