First District, Division Two, Concludes Land Use Litigation Vindicated Only a Private Interest.
In its tentative decision in this land use case, the Mendocino County trial court stated the State Water Resources Control Board’s “handling of Rustic’s application has been unconscionable!” [garish red color added to exclamation point for emphasis by blogger]. It added, “I have been involved in planning and land use matters for thirty-plus years as an attorney and as a judge. I have never encountered an application for a permit that has been unreasonably delayed for even a third of the time involved in this application.“ Rustic Retirement v. State Water Res. Control Bd., Case No. A122884 (1st Dist., Div. 2, July 30, 2009) (not to be published). See footnote 2. Though the trial court rejected Rustic Retirement’s request that it be permitted to proceed with its development project without additional studies, it held that Rustic Retirement was “entitled to a writ effectively compelling respondent Department to promptly consider and process petitioner’s application without unreasonable delay.”
Under the private attorney general doctrine, Cal. Code Civ. Proc., section 1021.5, the trial court considered a request by Rustic Retirement for $230,460 in attorney fees, and awarded $75,000 in fees. The State Water Resources Control Board appealed the award of fees, and Rustic Retirement cross-appealed the award of only $75,000 in fees.
The Court of Appeal ruled:
“Although the Board argues that none of the requirements for awarding fees is present in this matter, we need not consider each prong of the test for awarding fees under section 1021.5, because we conclude that this litigation vindicated only a private interest, and did not confer a benefit on the general public or a large group of people. The trial court’s determination to the contrary was outside “the confines of the applicable principles of law.” (Lyons, supra, 136 Cal.App.4th at p. 1344.) Accordingly, the trial court abused its discretion in awarding Rustic Retirement attorney fees under section 1021.5.”
The fee award was reversed, and costs of appeal were awarded to appellants. Because the fee award was reversed, there was no need to consider the cross-appeal to increase fees.
Poof!