“The complaint alleges several abuses of power by city officials, and violations of Safeway’s constitutional right to due process in its pursuit of a fuel center with eight pumps and 16 dispensers at the intersection of South McDowell Boulevard and Maria Drive.
Safeway threatens lawsuit over Petaluma gas station project
The combatants on each side of the controversial Safeway gas station project are escalating their tactics as the Petaluma City Council continues to mull a decision that has baffled officials for months, and could have long-term effects on the scope of their authority.
Attorneys for Safeway and the ownership group of the Washington Square Shopping Center are preparing to sue the city if the council requires the project to complete an environmental impact report, or EIR. Safeway attorney Matthew Francois first threatened litigation at a planning commission meeting last June when the project was narrowly approved by a 4-3 margin.
The complaint alleges several abuses of power by city officials, and violations of Safeway’s constitutional right to due process in its pursuit of a fuel center with eight pumps and 16 dispensers at the intersection of South McDowell Boulevard and Maria Drive.
City Attorney Eric Danly did not respond to messages seeking comment on the complaint Tuesday.
Opponents of the project, most of which have joined the neighborhood opposition group No Gas Here, once again spent hours providing impassioned testimony at Monday’s council meeting that the project would put the children that attend nearby schools in danger. Challengers have raised concerns about health and environmental risks, sustainability and increased congestion at one of the most traffic-choked areas in Petaluma.
Some residents even called for a boycott of Safeway. As of Monday, nearly 900 people have signed a Change.org petition against the project.
Following the lengthy public comment period and a rare closed session discussion in the middle of this week’s hearing, the council voted 5-0 to delay its decision to April 1. Council members Gabe Kearney and Kathy Miller recused themselves under the direction of Danly due to allegations from Safeway of perceived bias.
“That’s a real, regularly-scheduled council meeting. It’s not an April Fool’s joke,” Danly said after the closed session. “That will allow us to provide further analysis to the council that we feel these issues and the legal arguments here tonight warrant.”
Safeway spokeswoman Teena Massingill declined to comment on the draft complaint.
“We remain committed to the Petaluma Safeway gas station and are disappointed that there was no resolution at last night’s city council hearing,” she said in a statement Tuesday. “However, we look forward to the April 1 meeting.”
Dozens of protesters aligned with No Gas Here occupied the sidewalk near the project site last weekend, holding signs and chanting slogans against the supermarket chain. For an hour on Sunday afternoon, activists also clogged parts of the shopping center with their cars to symbolize the influx of idling vehicles that would further congest the area.
“I was very happy with (the protest),” said No Gas Here co-founder JoAnn McEachin. “I’m looking forward to doing it again.”
Some of the marchers, who lined the walkways from Maria Drive to Washington Street, were school-aged children adorned in respirator masks to symbolize the potential dangers of constructing a gas station approximately 60 feet from schools like McDowell Elementary and the North Bay Children’s Center. A Little League field is also across the street.
The demonstration, which was organized by Indivisible Petaluma, was held to raise awareness about “environmental racism” that disproportionately affects schools where the vast majority of students are racial minorities, McEachin said.
According to Ed-Data figures for 2017-18, approximately 89 percent of students at McDowell Elementary are Hispanic or Latino. In all, 92 percent of the student population identifies as a racial minority.
Several commenters at this week’s council hearing called on officials to act on behalf of the Latino youth that might be disproportionately exposed to carcinogenic emissions like benzene.
Petaluma resident Brent Newell, a public interest and environmental attorney, said the council had the power to authorize a “disparate impact analysis” as an agency that receives federal funding. The regulation is designed to avoid discrimination under civil rights law.
“You have a duty under the law to make sure your decision does not disparately impact the students there at McDowell Elementary School,” Newell said to the council.
The project was first proposed in 2013, pitched as an alternative to Petaluma’s high costs for gas, and has been embraced by residents that want a cheaper option. The gas station would include a 697-square-foot convenience store, one electric vehicle charging station and upgrades to the nearby bus station.
After the site plans and environmental mitigations were initially approved by the planning commission last summer, the decision was appealed by McEachin and No Gas Here, forcing the city council to weigh in.
Over the last six months, the council has delayed discussions on the gas station twice due to last-minute document dumps that overwhelmed city staff with conflicting analyses just before a scheduled hearing.
On Dec. 3, Petaluma’s elected officials used their authority under the California Environmental Quality Act and a precedent set by a recent case, Protect Niles v. City of Fremont, to vote unanimously to require an EIR. The comprehensive third-party review of the environmental dangers and possible mitigations for the gas station would have cost Safeway time and money in order to get the project cleared — unless significant impacts were discovered.
Nearly a month later, Safeway accused Petaluma officials of violating a public meeting law, claiming that the city failed to provide enough notice of its last-minute staff recommendation for an EIR, and that several documents were not disclosed.
City officials denied any wrongdoing, but took the cautious approach and held a redo hearing to correct the Brown Act violations on Jan. 28.
For months, much of the focus has been the council’s authority at this stage of the process. Francois has recently leaned on a new legal precedent, McCorkle Eastside Neighborhood Group v. City of St. Helena, which determined St. Helena officials didn’t have the authority to require an EIR under CEQA. Instead, their scope was limited solely to design and aesthetics.
Since Petaluma’s zoning code allows a gas station at the site, and all the necessary agencies OK’d Safeway’s studies and mitigations before the planning commission’s approval, Francois has claimed the council has no legal authority to order an EIR under the McCorkle case.
“Safeway is not looking to get out of environmental review – it’s done it (already),” he said on Monday. “It did it for the last six years. It did 16 studies, all of which prove the impacts are less than significant. … Safeway is not turning its back on the mitigation measures or any of the 65 conditions of approval imposed by the planning commission.”