Fourth District, Division 2 Found Focus Was Improperly on Prospective Future Decisions Rather Than on the CEQA Rights Already Vindicated by Plaintiff.
In Save Round Valley Alliance v. County of Inyo, Case No. E048236 (4th Dist., Div. 2 May 6, 2010) (unpublished), the Fourth District, Division 2 reversed a trial court’s denial of private attorney general fees to a non-profit alliance which blocked a development in Inyo County based on an inadequate EIR even though it was far from clear that the project would be blocked in the future or that the alternatives were ever feasible. Just to show you how expensive these battles can be, the Alliance sought to recover $472,961.40 in claimed attorney’s fees under Code of Civil Procedure section 1021.5 (California’s private attorney general statute) from either the county and/or developer.
The trial court denied on the basis that the fee request was premature.
After all, the judge reasoned, it was far from clear that local agencies would block the development project in the future.
The appellate court did not like this “prematurity” rationale adopted by the lower court. The flaw in this analysis was that the lower court failed to focus on the CEQA/EIR rights already vindicated rather than prospective decisions to be made by the developer/public agencies regarding the future of the project. This was error with respect to denying fees on the “public right” and “significant benefit” components of section 1021.5.
This meant that the matter had to be remanded for a reconsideration of the fee request. However, the appellate court made clear that it was not prejudging how the lower court should rule. In an interesting footnote (footnote 7), the Court of Appeal did observe that the lower court could still rationally conclude that no significant benefit was conferred on a large group of persons because the alternative land exchange was, in fact, never feasible. So, in the words of many a newsperson, stay tuned for another possible fee litigation roundelay in this expensive battle.
