Appellate Court Does Not Review City’s Nonpecuniary Interests to Determine If City Qualifies for Attorney Fees, But Rather Bases Award of Fees on Number of Issues Won
In City of Maywood v. Los Angeles Unified School District (2012) __ Cal.App.4th __ (Case No. B233739), the City of Maywood (City) filed a petition for writ of mandate to overturn the Los Angeles Unified School District’s (LAUSD) certification of a final environmental impact report (FEIR) prepared for a high school. The Second District Court of Appeal upheld the FEIR, with the exception of the pedestrian safety analysis, and addressed the issue of attorney fees in the published portion of the decision.
City’s petition for writ of mandate challenged the FEIR as deficient under the California Environmental Quality Act (CEQA) on a number of grounds, and alleged also that the FEIR violated the Education Code. While the trial court rejected the majority of City’s claims, it found that the FEIR was deficient by failing to adequately assess pedestrian safety, discuss project alternatives, investigate potential impacts from hazardous materials, and comply with Education Code Sections 17211 and 17213.1. The trial court issued a peremptory writ and awarded City approximately $670,000.00 in attorney fees under Code of Civil Procedure section 1021.5. The Appellate Court affirmed the section of the writ addressing pedestrian safety, and reversed the remainder, including the award of attorney fees.
In the unpublished portion of the opinion, the court began by affirming that LAUSD must revise its FEIR to include an analysis of potential pedestrian safety impacts caused by the proposed project design, specifically the continued use of the roadway bisecting the campus, and how a pedestrian bridge traversing the road would alleviate those impacts.
The remainder of the writ was reversed. The court concluded that LAUSD was not required to analyze the cumulative impacts of the I-710 corridor project. Because the I-710 corridor project was still in the planning stages, City had to prove that the project was a “reasonably foreseeable probable future” project. City failed to do so; therefore the court ruled that the FEIR’s impact analysis was adequate.
The court also upheld LAUSD’s discussion of environmental impacts from hazardous materials. Even though LAUSD certified the FEIR and approved the project site before completing a remediation plan, the court explained that if an agency determined the impacts, examined various mitigation measures, and committed itself to mitigating those impacts, then choosing the specific mitigation measure can be deferred.
Next, the court concluded that the FEIR contained a meaningful analysis of alternatives and provided reasonable explanation for electing not to include alternatives recommended by City. The court concluded that substantial evidence in the record supported LAUSD’s determination that the alternative proposed by City was infeasible and that the FEIR’s assessment of alternatives was adequate. Therefore, the court upheld the alternatives analysis.
The court also upheld the FEIR as compliant with the Education Code. Education Code sections 17211 and 17213.1 require school districts to fulfill certain requirements before acquiring a school site. LAUSD only certified a FEIR and approved a school site; it did not violate the Education Code because it had yet to acquire the project site.
In the only published portion of the opinion, the court reversed the award of attorney fees. On appeal, LAUSD argued that City failed to satisfy the “necessity and financial burden” criteria of section 1021.5 because the lawsuit was self-serving. City responded that its non-financial interests should not play a role in determining whether it qualifies for fees. To resolve this issue, the court turned to the California Supreme Court’s decision in Conservatorship of Whitley (2010) 50 Cal.4th 1214 (Whitley), which clarified that a party’s personal, nonpecuniary interests may not be used to disqualify the party from obtaining fees under Section 1021.5. Whitley involved a private enforcement action; however, the court extrapolated the holding to apply to public entities as well. Based on the court’s application of the Whitley holding to this case, the court concluded that an award was proper but explained that the award should be adjusted to the new judgment. Therefore, the court ordered the trial court to reassess whether fees are appropriate given the new judgment, and if so, to determine the appropriate amount of fees.
Nonpecuniary interests do not prevent a petitioner from obtaining attorney fees under Section 1021.5. However, where an appellate court overturns some of the issues upon which a petitioner prevailed at trial, the court may remand the award for the trial court to reconsider the amount of the award based on the new judgment.
Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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