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Private Attorney General Doctrine Attorney’s Fee Award Proper Where Financial Burden Disproportionate to Financial Stake


Homes along the wetlands of Heron Bay, San Leandro, California that may have suffered environmental impacts by the project. (SWA Group)

In Heron Bay Home Owner’s Association v. City of San Leandro (2018) 19 Cal.App.5th 376, the First District Court of Appeal affirmed a trial court judgement awarding partial attorneys’ fees where the financial burden of enforcement made an award appropriate pursuant to Code of Civil Procedure section 1021.5. The Heron Bay Homeowners’ Association (Heron Bay) was successful in their CEQA suit and while a “pecuniary interest in the outcome of the litigation [was] not disqualifying…the issue [was] whether the financial burden placed on the party is out of proportion to its personal stake in the lawsuit.”

Real Party in Interest Halus Power Systems manufactures wind turbines on a five-acre parcel in the City of San Leandro’s (City) industrial zone. Halus Power proposed to build a single 100-foot tall wind turbine on its property for renewable power generation and on-site research and development (Project). During the public comment period, Heron Bay expressed concern regarding the Project’s impacts on views, wildlife, aircraft navigational radar, noise and vibration levels, and property values. The City approved the Project, granted a height restriction variance, and issued a mitigated negative declaration. Heron Bay filed suit.

The trial court found there was substantial evidence supporting a fair argument that the Project as mitigated would have significant environmental impacts and directed the City to set aside its approval until the City had prepared an EIR. Halus Power ultimately decided not to proceed with the Project.

Heron Bay moved for an award of attorneys’ fees under Code of Civil Procedure section 1021.5 (Section 1021.5), the private attorney general doctrine. The trial court determined that the value of the suit to Heron Bay was approximately $5.8 million, and reasonably anticipated legal costs should have totaled approximately $240,000. The trial court also noted that Section 1021.5 was intended to address the problem of affordability in public interest litigation, and pointed out that a lawsuit aimed at avoiding financial loss, such as an anticipated harm to property values, may be especially hard to finance. Balancing these findings, the trial court awarded Heron Bay $181,471.70 in attorneys’ fees. The City timely appealed.

The Court found that to qualify for Section 1021.5 attorneys’ fees, a plaintiff must establish: (1) that the suit resulted in enforcement of an important right affecting the public interest; (2) that a significant benefit was conferred on the public or a large class of persons; and (3) that the necessity and financial burden of enforcement are such as to make the award appropriate. The City disputed Heron Bay’s claim that they met the third requirement.

The Court found that, contrary to the City’s assertions, Heron Bay faced a substantial financial burden compared to the potential benefit at stake in the litigation. Membership in the homeowners’ association was mandatory, each member had a vote, and only a few properties in the 629-unit development were likely to be within view of the Project. Accordingly, the Court reasoned that many members likely did not have sufficient individual financial motivation to retain counsel for CEQA litigation absent the possibility of Section 1021.5 fees.

The Court pointed out Heron Bay retained counsel on a “partially contingent fee basis,” allowing it to initially pay less than a third of the amount that retained-counsel actually billed. This “indicated Heron Bay and its members did not actually value the ‘benefit’ here sufficiently to undertake the litigation absent the incentive of a potential fee award under [S]ection 1021.5.” Further, the benefit Heron Bay sought was not “immediately bankable” and could not be used to pay counsel. The Court agreed with the trial court that the CEQA litigation costs would be a “much larger financial commitment” than the previous administrative proceeding they had been through. A court must evaluate these factors when determining whether the personal interests of Heron Bay “transcended the litigation costs.”

The Court then held some amount of pecuniary interest does not disqualify a party from being awarded attorneys’ fees. Heron Bay demonstrably was not solely motivated by a desire to avoid a loss in property values where its members submitted comments during the public comment period regarding not only property values, but also impacts on wildlife, aesthetics, health, and noise levels. The City’s argument that Heron Bay was ineligible for attorneys’ fee awards because it acted purely out of self-interest was unfounded. The City’s alternative argument—that Heron Bay was not authorized by its governing documents to pursue a purely altruistic action—was similarly dismissed.

The City’s final argument was that the trial court contradicted itself by concluding that Heron Bay’s “financial incentive” was “mitigated by the uncertain value of the benefit sought,” because the trial court assigned a subjective value, informed by Heron Bay’s claims, of $5.8 million to Heron Bay’s avoided property value loss. The Court stated that the trial court erred in applying an arbitrary evaluation, but found this did not affect the question of whether Heron Bay’s financial incentive was so large and the benefit so certain that it precluded any award. Since the City gave no credible evidence for a specific valuation of the projected loss, the Court could not agree that Heron Bay’s financial stake made Heron Bay ineligible for attorneys’ fees—the trial court conclusion was supported by substantial evidence.

Finally, the Court rejected speculative evidence regarding the Project’s projected harm to property values. The trial court’s ruling could not guarantee the City would refuse the requested variance or require Halus Power to make changes to the project following adoption of an EIR, or that Halus Power would abandon the project.

Accordingly, the Court affirmed the trial court’s ruling and awarded Heron Bay its costs on appeal, including attorneys’ fees, in an amount to be determined by the trial court.

Key Point:

A financial interest in the litigation does not automatically preclude an award of attorney’s fees under the private attorney general doctrine. Where the financial burden of bringing the lawsuit is disproportionate to a party’s financial stake in the lawsuit, fees may be awarded.

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dateJanuary 12th, 2018byby


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