Filed 6/21/17 Banning Ranch Conservancy v. City of Newport Beach CA4/3








NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


BANNING RANCH CONSERVANCY,

Plaintiff and Appellant,

v.

CITY OF NEWPORT BEACH et al.,

Defendants and Appellants;

NEWPORT BANNING RANCH LLC et al.,
Real Parties in Interest and Appellants.


G049691

(Super. Ct. No. 30-2012-00593557)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert Louis Becking, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.
Aaron Harp, City Attorney and Leonie Mulvihill, Assistant City Attorney; Remy Moose Manley, Whitman F. Manley and Jennifer S. Holman for Defendants and Appellants.
Leibold McClendon & Mann and John G. McClendon for Plaintiff and Appellant.
Manatt, Phelps & Phillips, Susan K. Hori and Benjamin G. Shatz for Real Parties in Interest and Appellants.
Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney General, and Jamee Jordan Patterson, Deputy Attorney General, for California Coastal Commission as Amicus Curiae.

* * *

Real parties in interest Newport Banning Ranch LLC, Area Energy LLC, and Cherokee Newport Beach, LLC proposed to develop a portion of the approximately 400-acre property, commonly known as Banning Ranch, for residential and commercial purposes, while preserving the remaining acreage as open space and parks (the Project). The City of Newport Beach and its City Council (collectively the City) approved the Project. Banning Ranch Conservancy (the Conservancy), “a community-based organization dedicated to the preservation, acquisition, conservation and management of the entire Banning Ranch as a permanent public open space, park, and coastal nature preserve,” filed a mandamus action against the City.
The trial court agreed with the Conservancy’s claim that the City violated the Planning and Zoning Law (Gov. Code, § 65000 et seq.) and its own general plan by its failure to adequately coordinate with the California Coastal Commission before the City approved the Project. But the court rejected the Conservancy’s claim that the City violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) by failing to identify in the environmental impact report (EIR) the “environmentally sensitive habitat areas” (ESHAs) — a defined term in the California Coastal Act of 1976 (Coastal Act; Pub. Resources Code, § 30000 et seq.). Accordingly, the court issued a peremptory writ of mandate commanding the City to “set aside and vacate all approvals relating to the Project, except as to the approval of the [EIR] and take no further steps toward approving or otherwise implementing the development of the Project site unless and until Respondents fully comply with [the general plan] in accordance with this Court’s . . . determination.”
All interested parties appealed. On appeal, we agreed with the trial court’s decision regarding compliance with CEQA, but disagreed with the trial court’s decision regarding the City’s compliance with its general plan. Essentially, we reasoned that the City was owed deference to its interpretation of its own general plan.
Our Supreme Court granted review of our decision and disagreed with both the trial court’s and our opinions regarding compliance with CEQA. As a result, the Supreme Court found it unnecessary to address the general plan issue in light of its CEQA decision. (Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 924 [“The City’s EIR is inadequate because it omitted any consideration of potential ESHA on the project site, as well as ESHA that were already identified. Because [the Conservancy] is entitled to relief on its CEQA claims, we need not address the general plan issues.”].) The high Court remanded the matter “for further proceedings consistent with the views expressed herein.” (Id. at p. 943.) It’s remittitur states: “Costs, if any, must be awarded by the Court of Appeal.”
Our review of the Supreme Court’s opinion discloses that the trial court’s judgment and writ of mandate must be reversed by eliminating its approval of the EIR. Following the lead of the Supreme Court, we need not address the general plan issues. Accordingly, we reverse the judgment with directions to issue a new and different writ of mandate commanding the City to set aside and vacate all approvals relating to the Project and to take no further steps toward approving or otherwise implementing the development of the Project site unless and until the City certifies an EIR which addresses the deficiencies identified by the Supreme Court and is otherwise in compliance with the requirements of CEQA.
The remaining issue is the award of costs. The parties have filed supplemental briefs on this issue. The City and the real parties in interest request that each party bear its own costs, arguing that “each side has won and lost certain issues.” The Conservancy argues in response that the Supreme Court’s remittitur states that “[c]osts, if any, must be awarded by the Court of Appeal.” (Italics added.) We conclude the word “must” requires that we render a decision as to the award of costs, not that an award of costs is mandated. Nevertheless, despite the wins and losses scored by each side in this litigation, and the shifting of issues on which each side won or lost, in the end the Conservancy prevailed in its efforts to set aside Project approval. Thus, we conclude the Conservancy is the prevailing party for purposes of making a cost award. (See Cal. Rules of Court, rule 8.278(a)(1), (3).)

DISPOSITION

The judgment is reversed with directions to the trial court to issue a new and different writ of mandate commanding the City to set aside and vacate all approvals relating to the Project and to take no further steps toward approving or otherwise implementing the development of the Project site unless and until the City certifies an EIR which addresses the deficiencies identified by the Supreme Court and is otherwise in compliance with the requirements of CEQA. The Conservancy shall recover its costs incurred on appeal.



IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.