A developer whose project was the subject of a California Environmental Quality Act lawsuit is not entitled to attorneys fees for helping a city defend the suit, the Fourth District Court of Appeal has ruled.
The unanimous three-judge panel held that Lutheran High School Association of Orange County (LHS) did not meet the requirements of the private attorney general doctrine under Code of Civil Procedure § 1021.5. That law allows judges to award attorneys fees to a successful party a lawsuit that "has resulted in the enforcement of an important right affecting the public interest." However, no real party in interest — usually, as here, the project developer — has ever received fees under this doctrine in a CEQA case, the court said.
In 1999, the City of Orange Planning Commission approved a conditional use permit and mitigated negative declaration for the high school, which has been on a 12.82-acre site on Santiago Boulevard for 30 years. The permit allowed the school to build a second story, allowing an enrollment increase from 682 to 950 students. The permit also allowed construction of a new gymnasium, erection of ball field lights, and expansion of the parking lot from 250 to 392 spaces.
Jere Jobe, a neighbor, fought the project throughout the city's approval process, saying the larger high school would impact traffic, lower property values and create "special problems" for the neighborhood. Jobe demanded an EIR.
After the City Council rejected Jobe's appeal of the Planning Commission decision, he filed a lawsuit against the city that attacked nearly all of the city's environmental findings and the environmental review process. Orange County Superior Court Judge Randell Wilkinson ruled for the city, saying Jobe had not presented "substantial evidence" support a "fair argument" that the project may have a significant environmental impact.
The appellate court upheld that ruling in a lengthy — though unpublished — portion of its decision. The court ruled that Jobe's arguments regarding traffic, aesthetics, air quality, water quality and hazardous materials were based on his opinion, not on any evidence in the record. The court also ruled that it need not consider other arguments Jobe raised in his lawsuit because he did not raise them at the City Council level. The court upheld the city's process and the imposition of mitigation measures that were not identified in the mitigated negative declaration.
In the published part of its opinion, the court dealt with the high school's appeal of a postjudgment order denying attorneys' fees. The high school argued that it advanced an important public right, namely education. The school argued that by privately educating students, the school was saving taxpayers money. The school also argued that because it is a nonprofit organization, it had no economic interest in the project.
The court disagreed. The high school "certainly has a significant pecuniary interest in the physical expansion of the high school it owns and operates. The facilities are a significant asset of LHS."
The court cited Woodland Hills Homeowners Organization v. Los Angeles Community College Dist., (1990) 218 Cal.App.3d 79, a suit over the leasing of surplus district property to a religious organization. The religious organization defended the suit alongside the district and prevailed. But the group did not receive attorneys' fees. "Where the result of the litigation is judicial approval of a challenged governmental action, the defense of which was in the pecuniary interest of the defendant litigating alongside the governmental entity, it is difficult to satisfy the requirements of Code of Civil Procedure §1021.5, i.e., that the defense by the private litigant was necessary and that the financial burden resulting from its defense is appropriately shifted to the plaintiff," the court concluded in Woodland Hills.
The Fourth District added, "An award of attorney fees under Code of Civil Procedure § 1021.5 requires that the claimant show the cost of its legal victory transcended its personal interest. LHS made no such showing here."
Jere A. Jobe v. City of Orange, Nos. G026974, G027732, 01 C.D.O.S. 2907, 2001 Daily Journal D.A.R. 3543. Filed April 10, 2001.
For Jobe: Michael K. Maher, Maher & Maher, (949) 721-7555.
For the city: David DeBerry, city attorney, (714) 744-5580.
For the high school: Ronald Van Blarcom, Van Blarcom, Leibold, McClendon & Mann, (714) 639-6700.
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