Poof!, Private Attorney General: Plaintiff’s Trial Court Win Of $289,908 In Attorney’s Fees And $1,963 In Costs Goes POOF! On Appeal As Plaintiff Failed To Exhaust Administrative Remedies Under The California Environmental Quality Act

Plaintiff’s Failure To Object To The Project Before The City Council Approved It Meant Plaintiff Lacked Standing To Challenge The City’s Project Approval In Court

        In Turn Down the Lights v. City of Monterey, Case Nos. H044656/H045556 (6^th Dist., February 28, 2019) (unpublished), Plaintiff petitioned for a writ of mandate on City’s determination that its project to replace high-pressure sodium lightbulbs with LED fixtures was exempt from environmental review under CEQA Guidelines section 15302 (CEQA Guidelines are found at Code of Regulations, title 14, section 15000, et seq.).

        Before beginning the project, a City Council meeting was held to discuss the project. City did not reference CEQA in the agenda for the meeting, but did reference CEQA in the supporting three-page staff report. No member of the public commented on or objected to the project when it was opened for public comment.

        After beginning the project, City received both positive and negative feedback. Some felt the lights were too bright, while police found the bright lights helpful.

        After briefing and a hearing on the matter, the trial court granted Plaintiff’s petition – finding that (1) the project was not exempt, reasoning that “new LED bulbs and light fixtures are neither a structure nor a facility, by any reasonable definition of these terms;” and (2) Plaintiff was excused from the duty to exhaust administrative remedies “because City did not provide the ‘notice required by law’” in reference to City’s lack of reference to CEQA in the City Council meeting agenda. The trial court also granted Plaintiff’s request for attorney’s fees, under Code Civ. Proc. section 1021.5, of $289,908 and $1,963 in costs. City appealed both of the trial court’s findings and – if those findings were reversed on appeal - its award of attorney’s fees and costs.

        The 6^th District, in a unanimous decision, reversed. It made no determination as to whether City’s project was exempt from environmental review as that issue became moot upon determination that Plaintiff did not have standing to bring this action. Citing Tomlinson v. County of Alameda (2012) 54 Cal.4^th 281, it found that notice of a CEQA determination was not required to be given on the meeting agenda as opposed to the accompanying staff report in this particular case (noting that this should not be interpreted as a broad conclusion that CEQA never needs to be mentioned on a meeting agenda), and that the notice in the accompanying staff report triggered Plaintiff’s requirement to exhaust administrative remedies before petitioning for writ of mandate.