Attorneys for Petitioners-Plaintiffs
CALIFORNIA HEARTHS AND HOMES and JIM BUCKLEY

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA
CALIFORNIA HEARTHS AND HOMES, an ad hoc association, and JIM BUCKLEY, an individual,

Petitioners-Plaintiffs,

v.

CITY OF PALO ALTO, CALIFORNIA,

Respondent-Defendant. Case No.: CV790616

UNLIMITED JURISDICTION

PETITIONERS-PLAINITFFS' CONFIDENTIAL MEDIATION STATEMENT

Date: April 23, 2001
Time: 10:00 a.m.
Mediator: R. Michael Kasperzak, Jr., Esq.

Petitioners-Plaintiffs California Hearths & Homes and Jim Buckley hereby submit this confidential statement in anticipation of the mediation scheduled for April 23, 2001. This statement is intended for use solely as part of this mediation, and is privileged and protected from future use in this or any other case by the provisions of Evidence Code Sections 1119 and 1152.

INTRODUCTION

This case involves the City of Palo AltoÕs (the ÒCityÓ) violation of state law by its passage of an ordinance denying manufacturersÕ of wood burning fireplaces the opportunity to meet air emission performance standards. The City Council of the City of Palo AltoÕs Ordinance No. 4639 (the ÒOrdinanceÓ) incorporates by reference air emission performance standards for other wood burning appliances, however it does not provide standards for wood burning fireplaces. Although the City acknowledges that there are air emission performance standards that wood burning fireplaces could meet, it does not allow any way for wood burning fireplaces to do so. Rather, the City provides an illusory opportunity: The Ordinance states that a wood burning fireplace may be constructed if it is certified by the Environmental Protection Agency (ÒFederal EPAÓ) Òshould the [Federal] EPA develop a fireplace certification program.Ó There is no such Federal EPA certification program and the Federal EPA is under no obligation to develop such a wood burning fireplace program. Thus, the CityÕs mechanism to permit the manufacturersÕ of wood burning fireplaces to meet air emission performance standards is entirely illusory. There is no reasonable basis for the CityÕs disparate treatment of wood burning fireplaces from that accorded the manufacturersÕ of other types of wood burning appliances. Petitioners-Plaintiffs are entitled to demonstrate that they can meet appropriate standards.

BACKGROUND

I. Parties

Petitioner-Plaintiff California Hearths and Homes is an ad hoc association of masonry fireplace designers and manufacturers, firebrick manufacturers and distributors, masonry contractors, masons, architects and designers doing business throughout Northern California including within the jurisdiction of the City of Palo Alto.

Petitioner-Plaintiff Jim Buckley is a member of California Hearths and Homes and is the president of the Buckley-Rumford Company which sells designs and materials for wood burning fireplaces throughout Northern California including within the jurisdiction of the City of Palo Alto.

Respondent-Defendant City of Palo Alto, California (ÒCityÓ) is a general law municipal corporation organized under the laws of the State of California and located in Santa Clara County.

II. Procedural History

The City adopted the Ordinance on June 22, 2000. The stated purpose of the Ordinance is to reduce particulate emissions caused by wood burning appliances. The Ordinance makes it unlawful to install a wood burning appliance in all types of new construction. Certain types of wood burning appliances, such as wood burning heaters that meet air emission performance standards set by the Federal EPA are exempt from ban enacted by the Ordinance. Under the Ordinance, wood burning fireplaces are denied the opportunity to meet air emission standards. On June 21, 2000, Petitioners-Plaintiffs filed a verified petition for peremptory writ of mandate and complaint for declaratory relief, seeking an order compelling the City to set aside, void, or annul the Ordinance. The City filed its answer on October 5, 2000. On October 24, 2000, this matter was sent to mediation by order of the Court.

III. History of the Issue

In December 1998, the Bay Area Air Quality Management District developed a Model Ordinance aimed at regulating pollution caused by wood smoke. The Model Ordinance allows for the installation in new construction of fireplaces Òcertified by the EPA should the EPA develop a fireplace certification program.Ó The Ordinance adopted by the City is based upon the Model Ordinance. The City of San Jose has adopted a similar ordinance. Most other jurisdictions, however, have either rejected the Model Ordinance (e.g. Hercules, Berkeley), or have adopted a modified version that explicitly exempts masonry fireplaces (e.g. Morgan Hill, Novato, San Mateo County, Contra Costa County).

SETTLEMENT DISCUSSIONS WITH PALO ALTO

In early November, 2000, Petitioners-Plaintiffs and counsel met with City Attorney Ariel Calonne to discuss possible amendments to the Ordinance. Based on this conversation, Petitioners-Plaintiffs set forth a proposed amendment to the Ordinance in a letter by Michael Gersick dated December 18, 2000. The City has never responded.

RECOMMENDATION

Petitioners-Plaintiffs filed a related action against the City of San Jose based on San JoseÕs passage of an effectively identical ordinance denying the manufacturers of wood burning fireplaces the opportunity to meet air emission performance standards. Settlement discussions with the City of San Jose have been quite productive. San Jose has proposed to issue a policy statement, pursuant to California Building Code section 104.2.8, that would allow manufacturers, sellers and installers of masonry wood fireplaces to demonstrate that proposed installation would create no greater air pollution that that allowed under the standards set forth by the EPA in 40 CFR - Part 60. Petitioners-Plaintiffs have responded that compliance or non-compliance of proposed masonry fireplaces with the standards set forth by the EPA in 40 CFR - Part 60 be determined by an EPA-certified air quality testing laboratory. While some details still need to be negotiated, Petitioners-Plaintiffs feel that, at the very least, a similar arrangement could be negotiated with the City of Palo Alto.

DATED: April 19, 2001

Respectfully submitted,

HELLER EHRMAN WHITE & McAULIFFE LLP

By ___________________________________
ALEXANDRA ROBERT GORDON
Attorneys for Petitioners-Plaintiffs
CALIFORNIA HEARTHS AND HOMES and JIM BUCKLEY

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