A Santa Rosa asphalt plant accused of flouting city building codes must pay nearly $80,000 in fines and submit building plans to the city within 30 days for work done last year and a decade ago, a judge has ruled.
The closely watched case pitted BoDean Co., which argued it didn’t need permits for the work, against city building inspectors, who maintained the business did need the city’s approval to move equipment and install new machinery.
Distrust between the two sides has been so deep that the city went to the unusual step of having an administrative law judge arbitrate the dispute.
Judge Karen Reichmann ruled in the city’s favor in virtually every code violation alleged by the city, including on the key issue of whether the company’s status as a grandfathered – or non-conforming – land use relieved it of the need to get permits.
A key finding was that BoDean’s “right to operate as a non-conforming facility does not divest the city of its right to require design review approval.”
Despite the apparent victory for the city, Dean Soiland, co-owner of the company, said he was pleased with the ruling and felt it had validated the company’s vested property rights.
Soiland said his company and the city had been at a “stalemate” over the issue of permits, and he said the ruling would help them move beyond the impasse.
“There is a lot more clarity on everyone’s part,” Soiland said.
BoDean’s attorney noted the judge dismissed one violation that was very important to the company — the claim that the company needed a use permit for some of the work completed years ago. Attorney David Temblador said the ruling clarified that no such permits are required.
“BoDean was very happy to get that issue resolved,” Temblador said.
But the judge’s ruling doesn’t say that nor does it resolve that issue, said Santa Rosa City Attorney Sue Gallagher.
The ruling makes no mention of what type of planning permits will be needed for the decade old work or more recent upgrades, she said. It merely says the company needs to submit applications for the work and follow the planning process outlined by city staff.
“The ruling did not address that issue,” Gallagher said. “That issue was not before the administrative law judge.”
Whether in fact the company needs a conditional use permit is “still to be determined,” Gallagher said.
How much authority the city has to regulate the Maxwell Drive property has been an open question for years. It has been in near-continuous industrial use since the 1950s, before the land became part of the city.
Neighbors who complain about noise, dust and odors from the plant have repeatedly asked the city to crack down on the plant, but BoDean has resisted additional regulation. It has claimed it has the right to repair or upgrade equipment without permits and enjoys broad vested land-use rights to operate.
But Reichmann found the company needed permits and planning approvals in order to move a structure called a baghouse, a large piece of machinery that captures dust from the aggregate used in the asphalt making process. The city presented evidence that the company moved the structure without permits sometime before 2007.
Reichmann also ruled that the company needed building permits and planning approval to install new equipment on the baghouse and related structures designed to make the plant quieter, work it began conducting last year, also without permits. The work continued despite being red-tagged by code enforcement officers.