Friends of "B" Street v. City of Hayward

Opinion

Friends of “B” Street, an unincorporated citizens’ group (Friends), sought a writ of mandamus and an injunction to compel the City of Hayward to (1) prepare an environmental impact report pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) before proceeding with a proposed street improvement project (the “B” Street Project); (2) refrain from proceeding with the project until the general plan of the city met the requirements of the state Planning and Zoning Law (specifically Gov. Code, §§ 65302, 65855 and 65860); and (3) refrain from proceeding with the project on the grounds of an alleged violation of Government Code sections 3600-3760.

The mandamus cause of action was tried first and submitted on documentary evidence. The court rendered judgment granting the writ on the ground that it was an abuse of discretion for the city council to adopt a “negative declaration” certifying that the project would not have a significant environmental effect, since there was substantial evidence to the contrary. On the second cause of action the court rendered judgment for the city on the ground that injunctive relief was not an available remedy. The court rejected the Friends’ request for attorney fees, stating that “the Court lacks power to make such an award.” The court dismissed the third cause of action without prejudice.

The Friends appealed from the judgment insofar as it denied them attorney fees and denied the injunctive relief sought in the second cause of action. The city cross-appealed from the judgment insofar as it determined that it was improper for the city to adopt a “negative declaration” with respect to the proposed project. This court affirmed the judgment in a published opinion filed November 17, 1977. The California Supreme Court granted a hearing and retransferred the cause to this court on September 20, 1979, for reconsideration in light of Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917 [ 154 Cal.Rptr. 503 , 593 P.2d 200 ], Northington v. Davis (1979) 23 Cal.3d 955 [ 154 Cal.Rptr. 524 , 593 P.2d 221 ], Save El Toro Assn. v. Days (1977) 74 Cal.App.3d 64 , 70-74 [141 CaLl.Rptr. 282], and Woodland Hills Residents Assn., Inc. v. City Council (1975) 44 Cal.App.3d 825 , 838 [ 118 Cal.Rptr. 856 ].

The trial court’s findings predated the enactment of section 1021.5, but they are so unambiguous and so close in language to the statutory requirement of “enforcement of an important right affecting the public interest” that remand for a further finding on this point is unnecessary. (Cf. Woodland Hills II, supra, 23 Cal.3d at p. 938 [remand necessary because trial court did not undertake the necessary inquiry].) The court" withheld an award of attorney fees only because it concluded that it lacked the authority to make such an award.

The trial court concluded that as a result of the Friends’ suit, “there has been a conferral of substantial benefits upon a large class of a pecuniary and/or nonpecuniary nature.” This finding is dispositive as to the second statutory requirement, that “a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons....” (Code Civ. Proc., § 1021.5.)

The trial court did not, however, render a determination on the third statutory requirement, that “the necessity and financial burden of private enforcement are such as to make the award appropriate.” The court determined that the Friends had “successfully carried the difficult and heavy burdens of enforcing important environmental laws,” but did not determine to what extent, if any, this burden justified an attorney fee award. An award of attorney fees pursuant to section 1021.5 requires a determination by the trial court, upon remand of the cause, as to whether the necessity and financial burden of private enforcement placed a burden on the Friends disproportionate to their individual interests in the matter and made an attorney fee award appropriate. (Woodland Hills II, supra, 23 Cal.3d at pp. 941-942.)

I

ndependent of the private attorney general theory, the Friends are entitled to an attorney fee award under the substantial benefit rule, a nonstatutory equitable basis for attorney fee awards. (See Woodland Hills II, supra, 23 Cal.3d at pp. 942-943.) This rule “permits the award of fees when the litigant, proceeding in a representative capacity, obtains a decision resulting in the conferral of a ‘substantial benefit’ of a

An award of fees under the substantial benefit rule does not require substantial benefit to the defendant, but permits the award where it will operate to spread costs proportionately among the benefited members of an ascertainable class, e.g., where the defendant represents or acts on behalf of the benefited class. (Id., at pp. 943-944; see also Serrano v. Priest, supra, 20 Cal.3d at p. 40, fn. 10.) “So long as the costs bear a reasonable relation to the benefits, the ‘involuntary client’ who retains a substantial gain from the litigation will generally have no just cause to complain.” (Woodland Hills II, supra, 23 Cal.3d at p. 945; italics added.)

The court in Woodland Hills II stated that, while the substantial benefit rule has its clearest application where litigation results in the conferral of a substantial benefit of a pecuniary nature, “there have been instances in which litigation has produced nonpecuniary benefits of such a concrete and clearly substantial value that equitable considerations have suggested the injustice in permitting others to obtain such benefits without contributing to their cost.” (Woodland Hills II, supra, 23 Cal.3d at pp. 945-946.) The stare decisis result of litigation, however, is not alone sufficient to justify an attorney fee award under the rule. {Id., at pp. 946-947.) Nor was an award justified in Woodland Hills II on the basis that the litigation resulted in the effectuation of the statutory policy requiring approved subdivision maps to be consistent with a general plan. “[T]he private attorney general doctrine rather than the substantial benefit theory is the appropriate basis for evaluating attorney fee requests arising from the effectuation of such statutory policies.” (Id., at p. 947.) This is because the unjust enrichment justification for the substantial benefit rule is ill suited for application to benefits “less tangible and more ephemeral in nature.” (Id., at p. 945.)

By contrast, in Northington v. Davis, supra, 23 Cal.3d 955 , 961-962, the court held that the trial court there could consider the propriety of

The Friends’ litigation did not merely result in the preparation of an EIR, but also prevented the illegal expenditure of public funds on the “B” Street Project (i.e., expenditure without preparation of the required EIR). The trial court commanded the city to take no further action on development and construction of the “B” Street Project until an EIR had been prepared. That work on the project might resume after the statutory requirements were satisfied was apparently not a bar to an award of attorney fees under the substantial benefit rule in Northington and does not prevent the award under that theory here. The illegal expenditure of public funds was prevented in both cases. The Northington decision thus authorizes an award of attorney fees under the substantial benefit rule, but only to the extent that the fees bear a reasonable relation to the benefits of the litigation.

The city made no attempt to show that the results of the Friends’ lawsuit could have been obtained by available means other than litigation. (See Save El Toro Assn. v. Days (1979) 98 Cal.App.3d 544 , 555 [ 159 Cal.Rptr. 577 ].) The trial court correctly determined that because of the Friends’ suit, “there has been a conferral of substantial benefits upon a large class of a pecuniary and/or nonpecuniary nature.” (3) The court may thus award attorney fees to the Friends pursuant to the substantial benefit rule, in an amount reasonably related to the benefits conferred by the litigation. Because the “benefits conferred” within the context of the substantial benefit rule might not justify an award of a fee fully commensurate with the time spent by the attorney, the court may find it necessary to determine whether the Friends are also entitled

The trial court also may grant injunctive relief for want of a noise element in the city’s general plan, with which the “B” Street Project is to be consistent. Government Code section 65302 prescribes no remedy for failure of a general plan to contain a mandatory element; therefore, any appropriate legal or equitable remedy may be employed. The Friends, however, could bring a direct action to compel the city to adopt the mandated noise element. (See 58 Ops.Cal.Atty.Gen. 21, 27 (1975).) Whether the injunctive relief sought is the appropriate remedy to be employed here, in light of the availability of relief by alternative means, is to be determined by the trial court, within the exercise of its sound discretion.

The city, as cross-appellant, challenges the trial court’s determination that the city council abused its discretion in dispensing with an EIR on the basis of a negative declaration. CEQA requires all local agencies to prepare an EIR on any project “which may have a significant effect on the environment.” (Pub. Resources Code, § 21151; Shawn v. Golden Gate Bridge etc. Dist. (1976) 60 Cal.App.3d 699 , 701 [ 131 Cal.Rptr. 867 ].) The act provides a three-tiered structure to guide agencies: If a

The trial court in the present case determined that the city council abused its discretion when it adopted a negative declaration, because it was presented with “[substantial evidence that the project might have a significant effect environmentally. ” The city contends that the court should have confined its review to a determination whether the decision to adopt a negative declaration was supported by substantial evidence, and that the decision should have been upheld because regardless of any evidence that the project might have a significant environmental effect there was substantial evidence to the contrary.

The city relies upon Pacific Water Conditioning Assn., Inc. v. City Council (1977) 73 Cal.App.3d 546 , 558 [ 140 Cal.Rptr. 812 ], in which the trial court had found substantial evidence to support a determination that a proposed ordinance would have no significant environmental effect. The appellant asserted that there was substantial evidence to the contrary and contended that the city was required to prepare an EIR whenever it perceived some substantial evidence that a project may have a significant environmental effect. The court stated that the appellant was “correct that that is the standard to be observed by the agency in making its determination. [Citations.] But that is not the applicable standard for judicial review. The test to be applied by a reviewing court is whether there is any substantial evidence in light of the entire record to support the decision of the agency.” (Id.; accord, Shawn v. Golden Gate Bridge etc. Dist., supra, 60 Cal.App.3d 699 , 704; Snyder v. City of South Pasadena (1975) 53 Cal.App.3d 1051 , 1060 [ 126 Cal.Rptr. 320 ]; Running Fence Corp. v. Superior Court (1975) 51 Cal.App.3d 400 , 423 [ 124 Cal.Rptr. 339 ]; Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42 Cal.App.3d 712 , 725 [ 117 Cal.Rptr. 96 ]; Hixon v.

Pacific Water Conditioning states the correct standard of judicial review. But if a local agency is required to secure preparation of an EIR “whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact” (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 75; italics added), then an agency’s adoption of a negative declaration is not to be upheld merely because substantial evidence was presented that the project would not have such impact. The trial court’s function is to determine whether substantial evidence supported the agency’s conclusion as to whether the prescribed “fair argument” could be made. If there was substantial evidence that the proposed project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR and adopt a negative declaration, because it could be “fairly argued” that the project might have a significant environmental impact. Stated another way, if the trial court perceives substantial evidence that the project might have such an impact, but the agency failed to secure preparation of the required EIR, the agency’s action is to be set aside because the agency abused its discretion by failing to proceed “in a manner required by law.” (Pub. Resources Code, § 21168.5.)

Pacific Water Conditioning did not properly apply this standard of judicial review. It was not enough for the court to determine that the agency was presented with substantial evidence that the proposed ordinance would not have a significant environmental impact. The court should have assessed the evidence to the contrary to determine whether it could be fairly argued that the ordinance might have such impact. Only in this manner can a reviewing court determine whether an agency’s decision to authorize a negative declaration was supported by substantial evidence in light of the whole record.

One court properly refused to conclude that the adoption of a negative declaration is an abuse of discretion whenever any controversy as to possible environmental impact is presented: “We reject the inference that the existence of factual controversy, uncertainty, conflicting assertions, argument, or public controversy can of themselves nullify the adoption of a negative declaration and require the preparation of an EIR when there is no substantial evidence in the record that the project as designed and approved will fall within the requirements of [CEQA].”

In the present case the adoption of a negative declaration was an abuse of discretion. The city’s initial study revealed that the short term effects of the “B” Street Project include increased dust and auto exhaust, disruption of business during the construction of the project, and increased bank erosion and possible loss of wildlife habitat along San Lorenzo Creek during construction of a bridge. Among the long term effects of the project are increased traffic, increased noise, paving and removal of grass and garden areas, the removal of vegetation, landscaping, shrubs and hedgerows, the removal of 153 mature trees (some more than 80 years old) which presently line the street, and the elimination of on-street parking on “B” Street and Center Street, aggravating present parking problems that already exist in the area. Two neighborhood stores would be removed, and 12 families would be displaced due to the removal of residential structures. The project would result in the loss of the residential community characteristic of the area, and a decrease in residential property values. The residential desirability of adjacent properties would be adversely affected by the increased noise and exposure to traffic, reduced setbacks of the structures from the street, and the loss of on-street parking. The conversion of single-family dwellings to commercial or multi-family use would be accelerated. The project would also result in a decreased visual or aesthetic quality of the area due to the removal of the trees, grass and garden areas, and the decrease in the setback of the structures from the street. This evidence indicated that a finding of significant environmental effect was mandatory. (Cal. Admin. Code, tit. 14, § 15082.) The trial court correctly determined that there was substantial evidence that the “B” Street Project might have a significant environmental effect.

The judgment is reversed insofar as it denies the Friends’ request for attorney fees and denies injunctive relief on the second cause of action, and is affirmed in all other respects. The cause is remanded for pro

Rattigan, Acting P. J., and Poché, J., concurred.

The petition of defendants and appellants for a hearing by the Supreme Court was denied September 3, 1980.