No Abuse Of Discretion Shown, With No Binding Requirement To Allocate Or Reduce For Some Lack Of Success.
City of Walnut v. Mt. San Antonio Community College Dist., Case No. B287619 (2d Dist., Div. 5 March 15, 2019) (unpublished) is a situation where City petitioned to stop work on a solar energy general facility being constructed by District, receiving partial relief in the form of a “construction halt” based on the need for CEQA compliance and the need for a local grading/haul route approvals. (However, City did not win other arguments, namely, that the project violated its general plan and that other local permits were required.) City requested $543,731 in attorney’s fees as the prevailing party, with the lower court awarding it the full request. District appealed.
The full fee award was affirmed by the 2/5 DCA. The lower court had determined that City achieved its full litigation objective, although not winning every challenge—with the CEQA victory being the overriding success. On appeal, District mainly argued that some reduction or allocation was in order based on lack of success on some challenges. The appellate court determined that CCP § 1021.5 does allow for fee compensation relating to unsuccessful efforts, citing the Sundance and Sokolow decisions. The lower court’s unwillingness to adopt District’s suggested 50% reduction was no abuse of discretion, either.
BLOG OBSERVATION—Co-contributor Mike has been involved on some fee appeals involving this issue. He believes that some legislative tweaking of these rules is in order. Many times, CEQA petitioners bring twenty or more challenges, but prevail on only one or two. There are some federal cases holding that the fees for unsuccessful challenges should not all be borne by the governmental entity or developer who actually did win on such challenges. Although a strict mathematical test is likely not the solution, there should be a way to fashion some proportionality rules which will make CEQA petitioners more “choosey” in the way they approach their challenges at an upfront prosecution stage of the proceeding. Ex-Governor Jerry Brown said CEQA reform was part of the “Lord’s work”; if so, this is an area in need of reform.
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