Author Archives: Sara Dudley

California Supreme Court holds that CEQA requires EIRs to show a reasonable effort to substantively connect a project’s air quality impacts to likely health impacts

In a much-anticipated opinion, the California Supreme Court in Sierra Club v. County of Fresno (Dec. 24, 2018) __Cal.5th___ (Case No. S219783) held that portions of the air quality analysis in Fresno County’s EIR for the 942-acre Friant Ranch Specific Plan violated CEQA. In reaching this decision, the Court made four important holdings:  (1) when reviewing whether an EIR’s discussion of environmental effects “is sufficient to satisfy CEQA,” the court must be satisfied that the EIR “includes sufficient detail to enable those who did not participate in its preparation to understand and consider meaningfully the issues the proposed project raises”; (2) an EIR must show a “reasonable effort to substantively connect a project’s air quality impacts to likely health consequences”; (3) “a lead agency may leave open the possibility of employing better mitigation efforts consistent with improvements in technology without being deemed to have impermissibly deferred mitigation measures”; and (4) “[a] lead agency may adopt mitigation measures that do not reduce the project’s adverse impacts to less than significant levels, so long as the agency can demonstrate in good faith that the measures will at least be partially effective at mitigating the Project’s impacts.”

The Friant Ranch project is a Specific Plan calling for approximately 2,500 age-restricted (ages 55+) residential units, and other uses, including a commercial center and a neighborhood electric vehicle network. Fresno County’s EIR for the project generally discussed the health effects of air pollutants such as Reactive Organic Gases (ROG), oxides of nitrogen (NOx), and particulate matter (PM), but without predicting any specific health-related impacts resulting from the project. The EIR found that the project’s long-term operational air quality effects were significant and unavoidable, even with implementation of all feasible mitigation measures. The EIR recommended a mitigation measure that included a “substitution clause,” allowing the County, over the course of project build-out, to allow the use of new control technologies equally or more effective than those listed in the adopted measure.

After the trial court denied Sierra Club’s petition for writ of mandate, the Court of Appeal reversed, holding that the EIR’s air quality analysis and air quality mitigation measures violated CEQA. On October 1, 2014, the Supreme Court granted review of the appellate court’s decision. In a unanimous decision issued December 24, 2018, the Supreme Court reversed in part, and affirmed in part, the Court of Appeal’s decision.

The Court first considered which standard of judicial review applies to claims that an EIR’s discussion of environmental impacts is inadequate or insufficient. The Court explained that an EIR’s discussion of environmental impacts is adequate and sufficient where “the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.” To that end, an EIR must “reasonably describe the nature and magnitude of the adverse effect.” The evaluation does not need to be exhaustive, but the courts will review the discussion “in light of what is reasonably feasible.” Claims that an EIR lacks analysis or omits the magnitude of the impact involve mixed questions of law and fact, and thus are generally reviewed de novo. The courts will apply the substantial evidence standard, however, to claims challenging the EIR’s underlying factual determinations, such as which methodologies to employ. “Thus, to the extent a mixed question requires a determination whether statutory criteria were satisfied, de novo review is appropriate; but to the extent factual questions predominate, a more deferential standard is warranted.”

The Court next considered whether the Friant Ranch EIR’s air quality analysis complied with CEQA. The Court held that an EIR must reflect “a reasonable effort to discuss relevant specifics regarding the connection between” and the estimated amount of a given pollutant the project will produce and the health impacts associated with that pollutant. Further, the EIR must show a “reasonable effort to put into a meaningful context” the conclusion that the project will cause a significant air quality impact. Although CEQA does not mandate an in-depth health risk assessment, CEQA does require an EIR to adequately explain either (a) how “bare [emissions] numbers” translate to or create potential adverse health impacts; or (b) what the agency does know, and why, given existing scientific constraints, it cannot translate potential health impacts further.

With respect to the Friant Ranch EIR, the EIR quantified how many tons per year the project will generate of ROG and NOx (both of which are ozone precursors), but did not quantify how much ozone these emissions will create. Although the EIR explained that ozone can cause health impacts at exposures for 0.10 to 0.40 parts per million, this information was meaningless because the EIR did not estimate how much ozone the Project will generate. Nor did the EIR disclose at what levels of exposure PM, carbon monoxide, and sulfur dioxide would trigger adverse health impacts. In short, the EIR made “it impossible for the public to translate the bare numbers provided into adverse health impacts or to understand why such translation is not possible at this time (and what limited translation is, in fact, possible).”

The Court noted that, on remand, one possible topic to address would be the impact the Project would have on the number of days of nonattainment of air quality standards per year, but the Court stopped short of stating such a discussion is required. Instead, the County, as lead agency, has discretion in choosing the type of analysis to supply.

The Court further held that the EIR did not fulfill CEQA’s disclosure requirements in that it stated that the air quality mitigation would “substantially reduce” air quality impacts but failed to “accurately reflect the net health effect of proposed air quality mitigation measures.”

Next, the Court examined whether the air quality mitigation measure impermissibly deferred formulation of mitigation because it allowed the County to substitute equally or more effective measures in the future as the Project builds out. The Court held that this substitution clause did not constitute impermissible deferral of mitigation because it allows for “additional and presumably better mitigation measures when they become available,” consistent with CEQA’s goal of promoting environmental protection. The Court also explained that mitigation measures need not include quantitative performance standards. If the mitigation measures are at least partially effective, they comply with CEQA; this is true even if the measures will not reduce the project’s significant impacts to less-than-significant levels.

RMM attorneys Jim Moose, Tiffany Wright, and Laura Harris represented the Real Party in Interest in the case.

(Laura M. Harris)

First District Court of Appeal Holds Private Sand Mining is Not a Public Trust Use

In a decision issued on remand from San Francisco Baykeeper Inc., v. State Lands Commission (2015) 242 Cal.App.4th 202 (Baykeeper I) the First District Court of Appeal, in San Francisco Baykeeper Inc. v. State Lands Commission (2018) 29 Cal.App.5th 562 (Baykeeper II) upheld the State Lands Commission’s (SLC’s) reapproval of leases authorizing a private company to dredge mine sand from sovereign land under the San Francisco Bay. Although SLC staff had erroneously concluded that sand mining is a public trust use, the appellate court held that substantial evidence in the record supported SLC’s finding that the mining leases would not impair the public trust.

In Baykeeper I, the Court of Appeal held that SLC violated the public trust doctrine by approving a sand mining project without considering whether the 10-year sand mining leases were a proper use of public trust lands. The court also held that SLC had complied with CEQA with respect to the leases. Based on SLC’s failure to consider the public trust, the court in Baykeeper I remanded the matter to the trial court, who issued a peremptory writ of mandate directing SLC to reconsider the sand mining project in light of the common public trust doctrine. In response, SLC staff prepared a report, which concluded that sand mining is a public trust use based upon waterborne commerce and because sand miners engage in navigation. The report also concluded that granting the mining leases would not impair the public right to use the lease parcels for public purposes. Staff reasoned that the mining leases were restricted in terms of duration and location, that the mining would be heavily regulated and supervised, and that previous leases had not caused any substantial impairment to the public trust. Based on the new analysis, the trial court discharged the writ of mandate. Petitioner and Appellant San Francisco Baykeeper, Inc. (Baykeeper) appealed that decision.

On appeal, Baykeeper and an amicus curiae group of law professors argued that SLC’s “overbroad” definition of a public trust use was inconsistent with Baykeeper I and case law interpreting the public trust doctrine. The Court of Appeal agreed, holding sand mining does not qualify as a public trust use of submerged lands. The court reasoned that if it were to agree with SLC, any private commercial use of trust property that involves a boat would constitute a trust use (and thus SLC could automatically authorize it pursuant to its authority to prefer one public trust use over another). This conception of what constitutes a public use is impermissibly overbroad because it would give the state too much discretion to allocate trust property without fulfilling its duty to preserve trust resources for public use and enjoyment.

Although the court held SLC staff was mistaken in concluding that sand mining qualifies as a public trust use, the court held that the record supported SLC’s conclusion that the mining leases in question would not interfere with the public trust. Baykeeper argued that the leases would impair the public trust by causing erosion at Ocean Beach and San Francisco Bar, both of which are public trust resources. Citing SLC’s CEQA findings on this issue, which the court upheld in Baykeeper I, the court held that substantial evidence supported SCL’s finding that the project would not have a significant impact related to coastal morphology.  In doing so, the court affirmed that SLC was entitled to incorporate its CEQA data into its subsequent public trust analysis. Baykeeper also argued that new scientific evidence shows a “definitive causal link” between sand mining and erosion, but the court held that the scientific disagreement between Baykeeper and SLC on the issue was not a ground for overturning a finding by SLC that is supported by substantial evidence. The court therefore upheld the trial court’s decision to discharge the writ of mandate.

(Laura M. Harris)

Third District Holds EIR Is Required When Lay Opinion Supports Fair Argument of Aesthetic Impacts

In Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358, the Third District Court of Appeal held that the county is required to prepare an EIR when the lay opinions of local community members create a fair argument of potentially significant aesthetic impacts.

The project at issue was a proposed Dollar General store in a designated rural commercial zone in downtown Georgetown, an unincorporated community in El Dorado County. Although the community is not a designated historic resource, it has a historical design overlay zone, and new construction is required to “generally conform” to the county’s Historic Design Guidelines. The county prepared a mitigated negative declaration. The county also determined, through an extensive design review process in which the proposed design was revised and refined to more fully express the “Gold Rush Era” aesthetic, that the project was consistent with the design guidelines, relying in part on peer review by experts in historic architecture. Over the course of the design and environmental review processes, local residents expressed their opinions that the project was visually incompatible with the existing aesthetic character of the community. Nonetheless, the county adopted the MND, and the Georgetown Preservation Society sued. The Society prevailed in the trial court, asserting that local residents’ lay opinions on the compatibility of the proposed store design with the existing aesthetic character of the town provided substantial evidence in support of a fair argument and that an EIR was required. The applicant and the county appealed.

First, the court held that the county’s finding that the project complied with applicable planning and zoning rules via the historic design review process is not entitled to deference in the context of the county’s compliance with CEQA, and the fair argument standard still applies. Although an agency’s planning and design review forms part of the entire body of evidence to consider when determining whether the fair argument standard has been met, application of such design guidelines does not insulate the project from CEQA review at the initial study phase under the fair argument standard.

Second, the court stated that lay commentary can establish a fair argument that the project may cause substantial environmental impacts. The court rejected the appellants’ arguments that here, the county’s design review criteria recommending specific architectural styles and features constituted a technical subject. Therefore the court held that lay commentary on nontechnical matters is admissible and probative. Here, the court cited the large number of local residents who submitted comments on this issue, including some claiming backgrounds in design and planning.

Relatedly, the court held that the county’s position that cited evidence from lay persons was not credible, the county’s decision-makers were first obligated to state, in the record and with particularity, which evidence lacked credibility and why. The appellants asserted that much of the cited testimony lacked basis in facts, but the court held that the county could not discount such evidence in litigation after failing to do so in the administrative record. The court further stated that even if the county had made such determinations here, doing so would have been an abuse of discretion because the court found the testimony constituted substantial evidence supporting a fair argument.

The court noted that it was not offering an opinion as to whether the project would have a substantial impact on aesthetics, but only that an EIR was required in order to fully examine the issue.

Real parties in interest were presented by Sabrina V. Teller, L. Elizabeth Sarine, and Sara F. Dudley.

Fourth District Finds LUP Policies Constitutional; Other Challenges Barred as Untimely Under CCP § 1094.5

In Beach and Bluff Conservancy v. City of Solano Beach (2018) ­­28 Cal.App.5th 244, filed October 17, 2018, the Fourth Appellate District concluded that a petitioner’s remedy for challenges to policies under the California Coastal Act was exclusively limited to a writ of administrative mandamus (Code Civil Proc., § 1094.5) and that to the extent the challenge raised constitutional claims, those challenges failed on the merits.

In 2014, the California Coastal Commission approved the city’s amended land use plan (ALUP), pursuant to its local coastal program under the provisions of the Coastal Act. The amendments provided conditions and restrictions on the use, expansion, and repair of private coastal access stairways and retaining walls to protect new development or accessory buildings, and conditions under which private access stairways must be converted to public use.

Petitioner Beach and Bluff Conservancy alleged that the ALUP policies violated the Coastal Act, were unconstitutional, or both, and filed both a writ of mandate under traditional mandamus (CCP § 1085) and complaint for declaratory relief. The lower court ruled for the Conservancy, finding two of seven policies inconsistent with the Coastal Act. This appeal and cross-appeal followed.

First, the court found that, as the Coastal Act expressly provides, a writ of mandate is the exclusive remedy for a challenge to a Commission-certified policy on the ground that it is inconsistent with the Act. The Coastal Act requires the Commission to certify a local government’s LUP and amendments as consistent with the Act, by vote of the commissioners, pursuant to a noticed public hearing followed by written findings. In doing so, the Commission clearly acts in a quasi-judicial capacity, under CCP section 1094.5. It is well-established that an action for declaratory relief is not appropriate to review an administrative decision. Accordingly, the court held that the petitioner’s challenges to four ALUP policies alleging they were inconsistent with the Act were barred by the petitioner’s failure to file a timely writ petition for administrative mandamus.

Although the Conservancy’s facial constitutional challenges were not subject to CCP’s section 1094.5 filing procedures, the court held that these allegations failed on the merits.  Facial constitutional challenges are generally disfavored because they often rest on speculation and may lead to premature interpretation of the enactment on the basis of a “bare-bones” record.  A petitioner has a heavy burden to demonstrate that an enactment is facially unconstitutional.

The court found that the petitioner’s regulatory takings challenge failed because they could not demonstrate that the enactments effected a physical taking or deprived the owners of all economically beneficial or viable use of their property. The policy that provided for conversions of private stairways to a public stairways could not be deemed to facially conflict with constitutional takings principles, because the policy did not inevitably require a property conversion. Rather, the policy provided that conversion would occur only if specified conditions are met (when public access can be feasibly provided and the stairway already uses some public land per a deed restriction or public easement).

The court also ruled that allegations under the “unconstitutional conditions doctrine,” which limits the government’s power to require surrender of a constitutional right in exchange for a discretionary benefit, also failed. The doctrine applies only where the condition constitutes an exaction in the form of a conveyance of a property interest or the payment of money. It does not apply where, as here, the government simply restricts the use of property without demanding an exaction. And, the Nollan/Dolan test developed to determine if an exaction is permissible applies only to permit approvals, and not to facial constitutional challenges.

Lastly, the court opined that the disposition of this appeal does not preclude future “as-applied” constitutional challenges to the ALUP. Citing federal law with approval, the court stated that the doctrine of res judicata (and collateral estoppel) does not bar claims that arise from events that postdate the filing of the initial complaint. Affected property owners can always challenge the application of these policies as applied to their properties.

First District Holds that Claims that Could Have Been Raised in Prior Litigation Are Barred by the Doctrine of Res Judicata

In Atwell v. City of Rohnert Park (2018) 27 Cal.App.5th 692,  the First District Court of Appeal upheld a lower court’s ruling in favor of the respondent city on a motion for judgment on the pleadings, finding that petitioner’s claims were barred by the doctrine of res judicata. The First District’s opinion, not originally slated for publication, held that subsequent individual petitioners were in privity with the Sierra Club in a prior suit, that the same claim of inconsistency with the general plan could have been raised in that prior suit, and the public interest exemption to the doctrine of res judicata did not apply in the circumstances of the instant case.

In 2010, the city certified an EIR and related approvals for Walmart to expand an existing store to include a 24-hour supermarket. The city found that the project was consistent with its General Plan’s Policy LU-7, concerning land use for grocery stores. Sierra Club filed suit in 2012 under the California Environmental Quality Act (CEQA) and the state Planning and Zoning law (“Sierra Club action”). While Sierra Club raised the general plan consistency issue in its initial pleading, it did not argue it in its briefing. The court in the Sierra Club action consequently did not address the issue in its decision invalidating the EIR.

The city prepared a revised EIR in 2015, but it did not alter the consistency analysis involving Policy LU-7. The city subsequently reapproved the project. In its 2015 findings, the city stated that the project was even more consistent with Policy LU-7 than before, as it would serve several neighborhoods that were now coming online in the store’s vicinity. Petitioners in the instant action, who had not participated in the prior Sierra Club action, filed this suit. The city successfully moved for a judgement on the pleadings, and this appeal followed.

Following a final judgment on the merits, the doctrine of res judicata bars a party, and persons in privity with that party, from relitigating a claim that was actually litigated or that could have been litigated in the prior action. At issue is whether the current petitioners are in privity with Sierra Club, and if the general plan consistency claim was litigated in the prior action.

The court concluded that the two petitions raised the same general issue, as both alleged inconsistencies with the same general plan policy. The court considered it irrelevant that Sierra Club did not argue this issue in its briefing, even though it raised it, as res judicata extends to claims that could have been litigated, even if they weren’t.

In reaching this decision, the court dismissed the petitioners’ argument that the claims were different because they challenged the newer 2015 findings. For purposes of res judicata, plaintiffs have suffered the same injury when the same primary right is at stake, even if there are different theories of recovery, different forms of relief sought, or if there are new facts supporting recovery. The court distinguished the instant case from other decisions in the land use and CEQA context, where the second suit was a factually-distinct attempt to comply with CEQA and concerned distinct episodes of noncompliance. That was not the case here. Even though the city’s 2015 resolutions were “new” and revisions were made to other sections of the EIR as a result of the Sierra Club action, the court decided that the later petition did not raise concerns about those revisions, and those revisions were unrelated to Policy LU-7.

The court found that the instant and previous parties were in privity, even though the later petitioners were unaffiliated with Sierra Club, did not otherwise coordinate with or collaborate with the Sierra Club, did not participate in the prior suit, and were seeking redress for both public and private harms.

A nonparty is in privity with a prior party if they have an interest so similar to that party’s interest that the party acted as the nonparty’s virtual representative in the first action, such that the nonparty can reasonably expect to be bound by the prior decision. The actual relationship between the parties is not the key question, but rather, those entities’ relationship to the subject matter of the litigation.

Here, both appellants’ petition and the prior petition alleged claims as members of the public and harms that would be suffered by the community. The petitioners failed to distinguish the harms that they would suffer, directly or indirectly, from the harms alleged in the Sierra Club action, nor could the court find meaningful distinction.

The petitioners were adequately represented in the prior suit, even though Sierra Club ultimately decided not to pursue the general plan consistency claim. Lack of adequate representation has been found when the prior petitioner abnegated its role as a public agent, committed a procedural error that prejudiced the outcome, or lacked the funding to pursue the claim. There was no such evidence in this case. The court therefore assumed that the Sierra Club diligently litigated their petition, and made an informed decision not to pursue the consistency argument. The current petitioners were bound by this tactical decision.

The court rejected the petitioners’ argument under the public policy exception. The public policy exception holds that when the issue is a question of law rather than of fact, the prior determination is not conclusive either if injustice would result or if the public interest requires that relitigation not be foreclosed. The petitioners argued that they raised a unique and important issue of statutory construction. But this situation was not a question of law regarding statutory interpretation. Rather, at issue was the interpretation of an ordinance as applied to a project approval. Such a claim inherently requires the court to consider the facts and circumstances surrounding the project, and not just questions of law.

Finally, the court stated that even if the claims were not barred by res judicata, the city’s finding of consistency was not arbitrary and capricious. The city had discretion to interpret its own policies, and could determine that the project would meet that policy’s goal of creating neighborhood-serving supermarkets.

First District Finds Noise Analysis by Non-Expert Attorneys Not Substantial Evidence

In Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, the First District upheld a negative declaration for a youth treatment center, finding that noise analysis offered by non-expert attorneys was not substantial evidence in support of a fair argument of a potentially significant noise impact from outdoor recreation activities and the parking lot at the center.

In 2014, Santa Rosa approved plans to convert the shuttered Warrack Hospital to the SAY Organization’s new Dream Center. SAY is a non-profit organization that provides housing, counseling, and job services to youth and families in Sonoma County. The facility would offer temporary housing, job skills training, health services, and enrichment activities. The property is in a developed area, surrounded by residential housing, offices, and a hospital.

SAY filed applications for a conditional use permit, rezoning, and design review to implement the project. The initial study/negative declaration concluded there would be no significant impacts, and the planning commission approved the project. Two neighbors appealed the decision to the city council on the basis that the city’s noise impact analysis was flawed. The neighbors filed suit after the city rejected their appeal. The lower court found for the city, and petitioners appealed.

The First District evaluated whether substantial evidence supported a fair argument that noise impacts from the project’s parking lot and outdoor recreation area could be significant, thus requiring an EIR.

Petitioners urged the court to reject the city’s noise study, and rely instead on their independently calculated findings purporting to show the project’s noise levels would be significant. Petitioners’ attorneys extrapolated their own analysis from a previous study conducted by noise experts for the city, for another project, at a different site. Petitioners also argued that the city’s noise ordinance set the maximum allowable noise levels, and any noise that would exceed those thresholds was a significant impact.

The court rejected all of petitioners’ arguments. First, the court rejected petitioners’ interpretation of the city’s noise ordinance, finding that its “base” noise values set the standard or normally acceptable levels, not maximum allowable levels, and thus, were not significance thresholds for CEQA’s purposes. Furthermore, the ordinance was not as inflexible and quantitative as petitioners alleged, but rather, allowed for experts to consider factors such as the noises’ level, intensity, nature, and duration when determining if impacts would be significant. Under this analysis, petitioners failed to identify any evidence in the record that noise impacts would exceed the allowable threshold.

The court rejected the petitioners’ contention that their noise calculations based on another study for a different project were substantial evidence that this project could result in noise impacts. Substantial evidence must be reasonable, credible, and of solid value. In testing for potential significant impacts, a party cannot just import the values of one study onto those of another, particularly in the absence of qualified expert opinion. Petitioners’ convoluted methodology and ultimate conclusions were based on speculation, rested on supposition and hypothesis, and were not confirmed by experts. The analysis also ignored key facts, such as limitations on parking lot use and hours of operation.

The court also noted that petitioners’ conclusions, which they drew from the different project’s noise study, were not presented to the city during the approval process, and did not appear in any part of the administrative record; rather the other study was simply attached to their comments during their city council appeal. Only during appellate briefing did petitioners present the calculations they extrapolated from the other study. For that reason alone, the court stated it was justified in rejecting the petitioners’ calculations.

Given the court’s conclusion that the offered evidence lacked the requisite foundation and credibility, petitioners failed to demonstrate, even under the comparatively low fair argument standard, that further environmental review was required.

(Bridget K. McDonald)

Second District Upholds Fee Award on Unsuccessful CEQA Claims

On May 3, 2018, in partially published decision in La Mirada Avenue Neighborhood Association of Hollywood v. City of Los Angeles (2018) ­­­­2 Cal.App.5th 586, the Second District Court of Appeals upheld a plaintiff fee award under Code of Civil Procedure section 1021.5, including fees for plaintiff’s unsuccessful CEQA claims.

The underlying dispute concerns the city’s approval of a Target superstore in an area controlled by a subarea of a specific plan. In approving the project, the city granted eight variances to Target. The plaintiff prevailed on its claims that the six of the eight variances were not supported by substantial evidence, but lost on its CEQA claims. An appeal was dismissed as moot (Mirada I).

During the appeal’s pendency, the city created a new planning subarea for the project, where no variances would be required, and approved the project. Those approvals were vacated, and an appeal is pending.

This opinion concerns the lower court’s order of over $900,000 in plaintiff attorney’s fees from Mirada I. The city and Target appealed, contending that the plaintiff is not the successful party and that no significant benefit has been conferred on a large class of persons.  No fees have been earned, appellants contend, because Target successfully advocated for a change in the zoning law, which will allow the store to proceed, and the project’s validity under the changed law is yet to be determined. Appellants further argued that in any event, the fees are excessive. The Second District rejected all of those contentions.

The court applied the “catalyst test” to determine the plaintiff’s status as a successful party under CCP section 1021.5. Under the catalyst test, it is sufficient to earn fees if a plaintiff can demonstrate that their litigation motivated the defendants to alter their behavior. It does not require that the plaintiff achieve a specific outcome.

Here, the plaintiff was “successful” in two ways. First, they vindicated their interest when the variances were set aside and further development was enjoined. Second, the suit prompted the “legislative fix” of creating a changed zoning subarea for the project. The court also determined that the plaintiff conferred a “significant benefit” to the entire city of Los Angeles, considering the significance of the benefit and the size of the class receiving the benefit, in light of the circumstances. When the benefit is a policy change, as here, the court considers whether the law being enforced furthers a significant policy. The court found that the plaintiff secured the benefit of getting the city to comply with the municipal code concerning variances. The orderly enforcement of this vital public interest benefits all city residents.

The appellants also argued that since the suit concerning the new zoning subarea was still pending, the rights at issue were still unsettled, and therefore, the plaintiff was not entitled to fees. Resolving this issue in favor of the plaintiff, the court stated that where a party has obtained a final judgment in its favor on the merits, under the law in existence at the time, and where what remains to be finally adjudicated is the validity of a project under the law as subsequently amended, a plaintiff is entitled to fees.

In support of this rule, the court reiterated that the focus of the inquiry is the litigation objectives of the prevailing plaintiff, not the defendant’s goals. Plaintiff accomplished their stated purpose of judicial review of the city’s variance process. It was not necessarily their goal to stop the project entirely. Additionally, section 1021.5 does not require a showing that the entire dispute is settled. The plaintiff obtained a final judgment in their favor on the merits, under the law in existence at the time. A court can only resolve disputes based on existing law, not the law as it might be amended in the future. The court declined to contemplate whether plaintiff would be entitled to fees under the new zoning of the subarea, which was not at issue in the Mirada I litigation.

Finally, the court found that the lower court did not abuse its discretion in calculating the fee amount, including a multiplier, by allowing the attorneys to recover fees for their time spent on the unsuccessful CEQA claims, noting that attorneys cannot know from the outset which claims will be successful.

City Must Place Certified Referendum on Ballot, First District Rules

In Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, the First Appellate District reversed the trial court’s ruling, finding that a certified voter referendum must be placed on the ballot, and rejecting the city’s argument that doing so would conflict with the Planning and Zoning Law.

In August 2015, the city adopted a resolution amending the general plan to re-designate the subject parcel from administrative professional office (APO) to low-density single-family residential (R-20). After the general plan amendment became effective, the city approved an ordinance codifying the zoning change. The updated zoning would allow for the development of 44 single-family homes proposed by a developer. Subsequently, appellants timely certified a referendum seeking to repeal the ordinance, or alternatively, to have the ordinance submitted to a public vote. The city refused to place it on the ballot. The city maintained that it had discretion to do so, because the referendum was de facto invalid. The city reasoned that if it passed, the referendum would result in an inconsistency between the general plan (R-20 zoning) and the municipal code (which would revert it to APO). Under the Government Code, a zoning ordinance that conflicts with the general plan is invalid. Appellants filed a petition for writ of mandate to compel the city to place the referendum on the ballot. After the trial court ruled for the city, this appeal followed.

In finding for the appellants, the court relied on the Sixth District’s recent decision under similar facts in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34 (review granted Aug. 23, 2017). Key to the Bushey court’s decision was the difference between a referendum and an initiative. An initiative is the power of electorate to propose new laws. In contrast, a referendum grants the electorate the power to approve or reject existing laws. A referendum which vacates an ordinance, like the one at issue here, maintains the status quo. If the voters approved the referendum, then the city must adopt alternative zoning which is consistent with the general plan. If the voters reject the referendum, then no inconsistency is created.

Furthermore, the city does not have discretion to unilaterally keep a properly certified referendum off of the ballot. When presented with the certified referendum, the city’s options were to repeal the zoning ordinance, place the referendum on the ballot and suspend the ordinance, or after placing the referendum on the ballot, file a writ of mandate to have the referendum removed. When a local agency inappropriately refuses to place a referendum on the ballot, this refusal, although improper, may be retroactively validated by the court. Here, the city should have placed the referendum on the ballot, then filed a writ of mandate. Nevertheless, for reasons stated, the court did not validate the city’s decision. The remaining issue of the appellant’s attorneys’ fees was remanded to the trial court.