Judge favors Santa Rosa’s defense to developer’s lawsuit over city’s natural gas ban

A Sonoma County judge has signaled he favors arguments made by Santa Rosa in a prominent local developer’s lawsuit that argues the city did not follow the proper process more than a year ago when it banned natural gas in most new residential developments.

Sonoma County Superior Court Judge Patrick Broderick on Wednesday held a virtual hearing about his recent tentative ruling in response to the allegations brought forward by Bill Gallaher, who owns the Gallaher Homes and Oakmont Senior Living companies, after the Santa Rosa City Council passed an all-electric rule in late 2019. The city passed the rule — known as a “reach code” because it’s an optional expansion on baseline energy efficiency standards — as a way to reduce energy use by buildings, shrinking the city’s carbon footprint.

That ruling would deny Gallaher’s request for Broderick or another judge to order Santa Rosa to “set aside” its approval of the all-electric rule, which generally requires new homes under four stories to be built without natural gas lines and requires electric appliances to heat food, air and water.

A key part of Gallaher’s argument is that Santa Rosa’s adoption of a natural gas ban didn’t adequately account for the “unusual circumstances” posed by recent North Bay wildfires and widespread PG&E-imposed blackouts that can limit or render useless a home’s electric appliances.

But Broderick, before Wednesday’s hearing, determined that the developer ”has presented no basis for finding the unusual circumstances exception to apply“ and described assertions that Santa Rosa’s all-electric code may cause significant impacts related to wildfires and blackouts as ”vague, tenuous and conclusory.“

Broderick’s tentative ruling included lengthy analysis, but the judge did not immediately announce a final ruling after Wednesday’s hearing. The judge said he planned to issue a written decision, but he did not say when that would happen.

An attorney for Gallaher, Matthew Henderson, acknowledged at the hearing that the developer’s lawsuit was unlikely to undo Santa Rosa’s all-electric rule, at least immediately. But, he said, it could lead to a mandate for the city to perform a more thorough study of the impacts of the all-electric rule, including a more locally focused study of the costs of building homes without natural gas.

“What my client wants is an honest hard look at what are the genuine hard costs of this reach code,” Henderson said. He acknowledged that an all-electric home may lead to cost savings in the long run, but said it could also mean higher upfront costs for builders, such as his client.

Santa Rosa obviously is in support of Broderick’s tentative ruling.

“We think, not surprisingly, that you got it exactly right,“ an attorney for the city, Kevin Siegel, told the judge Wednesday.

If Broderick decides to stick with his tentative ruling, that opinion would offer vindication to Santa Rosa for the city’s decision to fight Gallaher’s lawsuit — a move that stands in stark contrast from Windsor’s decision to settle separate lawsuits brought by Gallaher and another development company.

The town, which was the first jurisdiction in Sonoma County and among the earliest of the dozens of municipalities in California to adopt a type of natural gas ban, voted earlier this month to rescind its all-electric rule to avoid the potential high costs of litigation.

Gallaher’s case against Santa Rosa hinged largely on two arguments. On one hand, the developer charged that Santa Rosa failed to conduct review required by the California Environmental Quality Act by improperly relying on exemptions to that law in the adoption of its natural gas ban. On the other, he alleged that the city didn’t properly study the costs associated with the all-electric rule.

Santa Rosa has cited at least three exemptions from the California Environmental Quality Act, the watershed state law that requires studying and disclosing information about the environmental impacts of various projects, as well as lessening their impact.

Henderson on Wednesday cited articles in the New York Times and The Press Democrat about the impacts of PG&E’s widespread power shut-offs to prevent wildfires in October 2019, shortly before the Santa Rosa City Council unanimously adopted the natural gas ban. He also appeared to reference the death of a Santa Rosa man who relied on an oxygen machine that he wasn’t able to use during an October 2019 power outage.

Broderick said he appreciated Henderson’s use of press clippings to underscore his arguments but politely admonished the attorney to “please stay focused on the administrative record and the legal analysis that applies.”

Siegel, speaking for the city, replied that “clearly” Santa Rosa met the criteria for exemptions. He also indicated the city may be able to invoke other legal exemptions if Broderick were to change his mind and side with Gallaher.

“There are alternative grounds for upholding the city’s decision ... so whichever way this ultimately goes, there’s just nothing that the petitioner has established to support its case legally and factually,” Siegel said.

Broderick’s tentative ruling noted that once a city finds that an action is exempt from the California Environmental Quality Act, “the burden shifts to a party opposing the project" to show otherwise.

Gallaher “argues that the threat of wildfires or blackouts are unusual circumstances, but this argument is unpersuasive,” Broderick wrote.

You can reach Staff Writer Will Schmitt at 707-521-5207 or will.schmitt@pressdemocrat.com. On Twitter @wsreports.