Metropolitan News-Enterprise


Wednesday, February 26, 2003


Page 3


S.C. to Review Appellate Ruling Denying Fees to Environmental Lawyers


By a MetNews Staff Writer


A Fourth District Court of Appeal ruling that overturned an award of $400,000 to an Orange County law firm that won a procedural challenge to the county’s approval of a large mobilehome project will be reviewed by the California Supreme Court.

By a 4-3 vote, the justices decided at their weekly conference yesterday to consider whether the Div. Three panel correctly applied a de novo standard of review in determining that the underlying ruling did not enforce a significant public right. The conference, which is normally held on Wednesdays, was moved up this week to avoid a conflict with a judicial administration conference.

Chief Justice Ronald M. George was joined by Justices Kathryn M. Werdegar, Joyce L. Kennard, and Carlos Moreno in voting for review in Vedanta Society of So. California v. California Quartet, Ltd., 103 Cal.App.4th 1200.

A number of environmental groups, as well as Attorney General Bill Lockyer, asked the high court to review or depublish the Court of Appeal decision. The League of California Cities, as well as building industry organizations, urged that the panel decision remain binding precedent.

The fee award grew out of earlier litigation in which opponents of what was to be a 705-unit mobilehome park in Trabuco Canyon challenged the county’s determination that a 2-2 tie vote of the Board of Supervisors was sufficient to certify an environmental impact report that had previously been approved by the planning commissioners.

The plan was scaled back to fewer than 300 units by the time maps were approved, but the opponents persuaded Orange Superior Court Judge Robert E. Thomas that the 2-2 vote was not an approval at all. Thomas enjoined the project pending a new EIR, and later awarded $337,000 in attorney fees and $67,000 in costs under Code of Civil Procedure Sec. 1021.5 to the plaintiffs, who were represented by the Irvine firm of Connor, Blake & Griffin.

In reversing, the Court of Appeal held that merely “clarifying” the effect of a tie vote did not constitute enforcement of a right and that delaying approval of the project did not vindicate the public interest in a sound environment.

The plaintiffs’ can no more claim to have served the public interest, Presiding Justice David Sills commented, than the defendants could have argued—had they prevailed—that they “had facilitated shelter for hundreds and maybe thousands of people, increased the county’s housing stock which would have a ripple effect benefiting low income people in other areas, shortened commute times by allowing some workers to live nearer their jobs in Orange County rather than three hours away in Riverside, and given honest and gainful employment to hundreds of workers who in turn would have paid taxes thereby helping alleviate demands on the public treasury.”

Any benefit to the public from resolution of the procedural issue, Sills said, would necessarily be “collateral” and unworthy of a private attorney general award.

In other action at the conference, the justices agreed to decide whether prosecutors may appeal a trial judge’s grant of probation following what the prosecution believes to be an erroneous finding that an out-of-state prior conviction was not a “strike.”

The Fourth District’s Div. One ruled in People v. Samples, 104 Cal.App.4th 76, that an appeal in that circumstance is not authorized.

Justices Marvin Baxter, Ming Chin, and Moreno joined the chief justice in voting to grant review.


Copyright 2003, Metropolitan News Company