Wednesday, September 28, 2011
C.A. Upholds Attorney Fee Award in Dispute Over Hotel Lighting
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district has a affirmed an award of $125,000 in attorney fees to a neighborhood group that intervened in zoning litigation over a lighting structure installed by a landmark hotel.
Div. One held Monday, in an unpublished opinion by Justice Victoria Chaney, that the Brentwood Community Council secured an important benefit for a large number of persons by successfully defending an order compelling the owners of the Angeleno Hotel to demolish the 16-story hotel’s exterior lighting system.
The hotel is located in a cylindrical structure near the San Diego Freeway. Its owner, GH Capital, LLC, has owned the former Hollywood Inn since 2002.
In 2004, the company sought a zoning variance allowing it to open its restaurant and cocktail lounge—which had been limited to hotel guests—to the general public. The community council, which is made up of homeowner associations and other neighborhood group, supported the request with conditions, including that the community be consulted with regard to lighting, signage, and the like.
After the zoning administrator approved the variance, the company applied to the Department of Building and Safety for permits to install “ a horizontal light band delineating the top edge (roof line) and bottom edge (floor line) of the 16th floor and spot lights at the bottom of the 2nd floor which illuminate the building upward and periodically change in color.”
Building and Safety issued the permits, and the lighting was installed. The community council subsequently complained that the lights were illuminating residences, “created glare and visual blight,” and were installed in violation of the zoning condition that the community be consulted.
The matter was assigned to an associate zoning administrator for hearing. The associate zoning administrator agreed that the lighting was unlawful and out of character with the neighborhood, and ordered the company to demolish all exterior lighting not authorized by the original construction permits.
The decision said the company was trying to “use the shield of the electrical permits to mask what is the unauthorized introduction of a more intensive night exterior lighting program at this location than is permitted” by applicable zoning.
The administrative decision was upheld by the area planning commission, and the company sought a writ of mandate. While the petition was pending, the community council moved to intervene, saying it had learned the company and city were seeking to settle on terms that would not require demolition of the lighting.
Such a settlement, the council argued, would undermine the local zoning process. The motion for leave to intervene was granted.
Los Angeles Superior Court Judge David Yaffe, since retired, ultimately ruled in favor of the community council and the city. The lighting, he said, violated the city’s code because it was not shown in plans approved by the zoning administrator.
The city was correct, he said, in ruling that approval of electrical permits cannot substitute for zoning approval.
After denial of reconsideration, the community council moved for attorney fees under the private attorney general statute, Code of Civil Procedure Sec. 1021.5. It sought more than $284,000 for the litigation and underlying administrative proceedings, including a multiplier of 1.4 based on the contingent nature of its arrangement with the law firm of Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg and the complexity of the case, particularly in light of the “aggressive manner” in which the company’s case was presented.
The company argued that the litigation did not benefit a large number of persons, and that the fee request was excessive. Yaffe awarded $125,000, saying the litigation benefited the homeowners and tenants in the area, that the burden of the litigation outweighed the economic benefit to the council, and that it was reasonable for the council to believe that the city would not adequately protect neighborhood interests in the absence of intervention.
The fee request, however, was excessive, the judge ruled, given that there was no trial or discovery.
Both sides appealed, but Chaney, in her opinion for the Court of Appeal, said Yaffe was correct on the legal issues and did not abuse his discretion in applying Sec. 1021.5 or in setting the size of the award.
The significance of the litigation, the justice said, went well beyond the issue of “lighting at a single hotel,” as the company argued.
“BCC defeated GHC’s arguments that a hotel operator in an R4 zone can bypass the City Zoning Administrator’s jurisdiction and intensify a use by seeking permits from LADBS, permits that are issued on a ministerial basis so long as safety conditions are met,” the justice wrote. “Through BCC’s defense of this action, the Los Angeles Municipal Code and restrictions on deemed-approved conditional uses were enforced. BCC intervened to prevent the City from permitting an intensification of use without complying with zoning laws and allowing public participation in the process.”
The judge was not, however, required to grant a multiplier, Chaney said. While a contingency fee arrangement may result in such an enhancement, she explained, there is no general requirement that it do so.
While Bird Marella argued that the amount awarded was insufficient “to encourage busy lawyers to represent clients on a contingency basis in similarly protracted and complicated land use disputes,” the justice wrote, the record reflects that Yaffe considered the issue and the council did not show that the award represented such “gross under-compensation” as to constitute an abuse of discretion.
Attorneys on appeal were Thomas R. Freemen of Bird Marella for the Brentwood Community Council and Michael A. Taitelman and Gerald L. Greengard of Freedman & Taitelman for the hotel owner.
The case is GH Capital, LLC v. City of Los Angeles, B221987.
Copyright 2011, Metropolitan News Company