Future Pecuniary Interest Was Too Speculative To Disqualify Successful CEQA Petitioner.
In Ocean View School Dist. v. City of Huntington Beach, Case No. G049545 (4th Dist., Div. 3 July 24, 2015) (unpublished), petitioner OVSD sought decertification of a final environmental impact report (FEIR) approved by Huntington Beach (City) for a mixed-use “conceptual” project for property located at Beach Boulevard and Warner Avenue, bringing a CEQA mandate petition against City and the proposed project developer which sought decertification and requested attorney’s fees recovery under CCP § 1021.5.
City itself decertified the FEIR, triggering OVSD to move for 1021.5 fees. The trial court denied the request, finding that OVSD failed to show it did not have a pecuniary interest in the litigation given some hearing statements that OVSD might in the future have to incur $2 million to open a closed school in order to meet student needs if the project went through. OVSD argued that there was no formal project at the time of the FEIR, so any pecuniary interest was speculative, but the trial judge did not buy it.
The Fourth District, Division 3, in a 3-0 panel authored by Acting Presiding Justice Moore, reversed and remanded.
Even under an abuse of discretion review standard, the appellate court agreed that a City representative at a planning commission meeting hearing had admitted that there was no formal project proposed, with an OVSD representative only suggesting the over $2 million financial repercussion if a closed school had to be reopened in the future. This was too much of a speculative pecuniary interest to result in a denial of 1021.5 fees to OVSD, given that CEQA litigation frequently qualifies for private attorney general fees and a pecuniary interest alone will not disqualify a litigant from recovering under 1021.5. (Lyons v. Chinese Hospital Assn., 136 Cal.App.4th 1331, 1352 (2006).)
The trial judge did properly deny the fee motion as to the private entity developer, because a private entity cannot be made to pay a public agency’s fees under 1021.5 (although not discussed, absent an indemnity arrangement). In remanding the fee request as against City, the appellate court did indicate that the trial judge could consider the City’s argument that OVSD did not confer a significant benefit, even though this argument had not been raised previously.
The stakes are somewhat high—OVSD had sought $127,741.22 in base fees and $8,625 for “fees on fees.”