Limited Reversal Did Not Require A Remand, With The Appellate Court Showing Financial Incentives Were Not Outweighed By Financial Burdens To Challenging Developer.
Plaintiff developer, whose project was up in the air, challenged a City of Alameda ordinance under which park impact fees of $1.6 million might be imposed on the future project, if any such project even materialized. The lower court found that the City’s impact fees were infirm in some respects, with the appellate court sustaining most of them but disagreeing on one item. After that, developer moved for attorney’s fees under the private attorney general statute, being awarded $558,052.50 by the lower court.
City’s appeal of the fee award was unsuccessful in Boatworks, LLC v. City of Alameda, Case No. A151063 (May 16, 2019) (published).
Section 1021.5’s elements were satisfied. City argued that the partial reversal required a remand, but the limited nature of the reversal convinced the appellate court that no change would have occurred as to the fee award. The most interesting part of the opinion is the discussion of financial incentives/burdens—the cost/benefit analysis required under Whitley, our Leading Case No. 14. City argued that developer was on the hook for $1.6 million in impact fees such that its financial interest exceeded the burdens (the eventual fees awarded). Not so, said the Court of Appeal. More remote probabilities had to be factored in, such as litigation counsel’s belief that there was at best a 50% chance of success, which narrowed the number down to $800,000; and, further, there was at best a 50% chance the project would go through anyway, such that the real number was $400,000—less than the litigation burden against the City. Fee award affirmed.
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