Sierra Club v. PlacerCounty

Filed 3/28/07 Sierra Club v. Placer County CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

----

These are actions under the California Environmental Quality Act (hereafter, CEQA; Pub. Resources Code, 21000 et seq.) and planning and zoning law. Several environmental groups and the Town of Loomis (Loomis) sued Placer County (County) and the developers of a large residential development in the southwestern part of the county, claiming that Countys approval of the project was based on an inadequate environmental impact report (EIR) and was inconsistent with Countys General Plan. The trial court upheld the Countys certification of the projects EIR but invalidated the Countys approval of the projects corresponding specific plan because the record did not contain an identifiable plan.

Most of the issues have been settled while on appeal. We decide those that remain as follows: (1) we disagree with the developers and the County and find the trial court properly granted one of the environmental groups--a citizens group--attorney fees under the private attorney general doctrine, but we agree the amount of fees awarded is excessive and we remand on this issue; and (2) we reject the premise underlying the developers cross-appeal regarding the trial courts invalidation of the specific plans approval. Accordingly, we affirm in part, reverse in part, and remand.

Background

The project at the center of these disputes is Bickford Ranch (the Project), a proposed new residential community of roughly 1,900 homes on 1,900 acres within a rural area of western Placer County north of Loomis, east of Lincoln, and west of Newcastle.

On December 18, 2001, the County certified the final EIR for the Project and then approved the Project by approving, among other things, its Specific Plan (hereafter, Specific Plan or 2001 Specific Plan).

In January 2002, Loomis and the Bickford Ranch Heritage Coalition of WPCARE (WPCare), a citizens group, filed a petition for writ of mandate (Super. Ct. Placer County, No. SCV12793) against County and the developers of the Project (Bickford Holdings, U.S. Home Corporation, and successors, among others; hereafter, Bickford). Loomis alleged that the EIR inadequately evaluated and mitigated the Projects traffic impacts. WPCare alleged that the EIR inadequately evaluated and mitigated several land use, public utility and environmental impacts. Both Loomis and WPCare alleged that the Project is inconsistent with Countys General Plan.

Also in January 2002, the Sierra Club, together with the Sierra Foothills Audubon Society and the California Oak Foundation (collectively, Sierra Club), filed a petition for writ of mandate and complaint for declaratory relief (Super. Ct. Placer County, No. SCV12789) against County and Bickford. This pleading, too, alleged EIR inadequacies and plan inconsistencies, and included several matters not covered in the pleading from Loomis and WPCare.

In supplemental and amended pleadings, Loomis, WPCare and Sierra Club also alleged that County, in approving the Project, had certified an inaccurate administrative record, in that it included items not considered by the Board when it made its December 18, 2001, decisions regarding the Specific Plan, and had failed to adopt a coherent, organized and identifiable Specific Plan.

In its judgment following a bench trial, the trial court rejected the challenges to the Projects EIR and upheld the Countys certification of that document. But the trial court invalidated the Countys approval of the Projects Specific Plan, and approvals based on that plan. The court found that the Specific Plan had been presented to the County for approval in an unassembled collection of documents, so irregular in format and content as to be lacking in that degree of certainty, integrated organization and clarity of legislative intent required to constitute a legislative enactment of a [s]pecific [p]lan.

The trial court determined that it could rule on the EIRs certification notwithstanding the invalidation of the Specific Plans approval because the Specific Plans irregular and disorganized nature did not bear on the adequacy of the EIR: County certified the EIR before acting on the Specific Plan; the Project had been adequately described for EIR purposes; and the sufficiency of the EIR was based on the Projects application and description rather than on the Projects Specific Plan approval. (Tit. 14, Cal. Code Regs., 15124.)^[1] In light of its invalidation of the Specific Plans approval, the trial court determined that all the planning consistency and related issues were rendered moot for purposes of the present litigation.^[2]

The trial court also awarded attorney fees to Sierra Club and WPCare under the private attorney general doctrine (Code Civ. Proc., 1021.5 (hereafter, section 1021.5)), but denied Loomiss request for such fees.

Sierra Club and Loomis appealed the EIR rulings, and Bickford cross-appealed the invalidation of the Specific Plans approval. (C047630.) County did not appeal the Specific Plans invalidation, but instead complied with the writ of mandate and set aside that plan (County apparently later approved a new specific plan). Sierra Club also filed a protective appeal against Bickford. (C047440.) Finally, Bickford and County appealed the award of attorney fees to Sierra Club and WPCare, and Loomis cross-appealed the denial of its attorney fees. (C049357.) We consolidated all three appeals (and related cross-appeals).

Sierra Club has settled its appeals (C047440, C047630). Bickford and County have settled their appeal involving the attorney fees awarded to Sierra Club. Loomis has settled its appeal and cross-appeal.^[3] What is left, then, of these appeals and cross-appeals is as follows: (1) Bickford and Countys appeal from the award of attorney fees to WPCare (C049357); and (2) Bickfords cross-appeal alleging the validity of the Specific Plan approval in 2001 (C047630).

Discussion

1. Bickford and Countys Appeal Regarding

Attorney Fees Awarded to WPCare (C049357)

Bickford and County contend the trial court erred in awarding approximately $133,000 in attorney fees to WPCare under the private attorney general doctrine embodied in section 1021.5. We disagree that the trial court erred in awarding attorney fees to WPCare, but we agree the amount awarded was excessive.

Section 1021.5 gives the trial court discretion to award fees to a successful party if that partys action (1) vindicated an important public right, (2) conferred a significant benefit on the general public or a large class of persons, and (3) was necessary and imposed a financial burden on the successful party which was disproportionate to its individual stake in the matter. (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 334 (Concerned Citizens); Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (2000) 79 Cal.App.4th 505, 511 (Families Unafraid).)

The award of fees under section 1021.5 is an equitable function, and the trial court must realistically and pragmatically evaluate the impact of the litigation to determine if the statutory requirements have been met. [Citation.] This determination is best decided by the trial court, and the trial courts judgment on this issue must not be disturbed on appeal unless the appellate court is convinced that it is clearly wrong and constitutes an abuse of discretion. (Concerned Citizens, supra, 131 Cal.App.4th at p. 334.) An abuse of discretion exists where there is no reasonable basis for the determination. (Families Unafraid, supra, 79 Cal.App.4th at p. 512.)

We first consider whether the trial court abused its discretion in awarding any attorney fees to WPCare under section 1021.5.

In its petition for writ of mandate, WPCare alleged, in general, that the Countys approval of the Project was based on an inadequate EIR and that the Project was inconsistent with Countys General Plan. The bulk of WPCares petition alleged substantive EIR deficiencies that covered the EIR spectrum: impacts, mitigations, and alternatives.

During the course of litigation, WPCare discovered that the record--generated and certified by County--referenced various versions of the Projects Specific Plan purportedly approved by the County on December 18, 2001. The flavor of this confusion is captured in the following remarks from the trial court:

Prior to the [Countys] [i.e., Board of Supervisors] action on December 18 [certifying the EIR, adopting the Specific Plan and Design Guidelines, and adopting a Statement of Overriding Considerations regarding the Specific Plan], each Board member had been provided with the December 10 version of the Specific Plan, accompanied by cut sheet changes . . . .

. . . [T]he action taken by the [County] on December 18, 2001, was the purported approval of the December 18 version of the Specific Plan (trial ex. 2)[, which is the December 10 version accompanied by the cut sheet changes; hereinafter, December 18 version].

After the discovery that the administrative record purportedly certified by the [County] . . . contained no Specific Plan, the post-hoc version (hereinafter referred to as the post-hoc version) of the Specific Plan was created. It appears to be an amalgamation of the elements of the December 18 version and elements not found in the December 18 version. A comparison (trial ex. III) demonstrated that there are 27 differences in text between the December 18 version and the post-hoc version.

The post-hoc version was not the version adopted by the [County] on December 18 . . . .

The trial court continued:

The difficulties encountered by even an informed reader i[n] attempting to understand the significance of the unassembled collection of documents [comprising the Specific Plan] presented to the Board [of Supervisors] on December 18 are illustrated by the lament of one of its members:

[T]here were cut sheets I guess with the Specific Plan . . . . It would have been helpful to kind of put all those together so we wouldnt have to go through each plan to find all these things. . . . I mean, Im looking on the cut sheet and theyre not mentioned. Well, apparently theres three or four different amendments that are made and they are all slipped into a different booklet. It would have been helpful that we got them all together . . . .

In light of these significant irregularities in the record, WPCare filed a supplement and an amendment to its petition for writ of mandate. The supplement added a cause of action, alleging that the County-certified administrative record was inaccurate regarding the Specific Plan. The amendment added another cause of action, alleging that the County failed to adopt a coherent, organized and identifiable Specific Plan.

Following a bench trial, the trial court agreed with these allegations, and concluded: [T]he December 18 version of the Specific Plan is so irregular in its format and content as to be lacking in that degree of certainty, integrated organization and clarity of legislative intent required to constitute it the legislative enactment of a specific plan . . . . The trial court issued a writ of mandate for the County to vacate its approval of the Specific Plan and related approvals (Design Guidelines, Development Agreement, and Statement of Overriding Considerations as to the Specific Plan). But the court upheld the Countys certification of the EIR, finding it legally adequate and in compliance with CEQA.

Consequently, as for WPCares lawsuit, the trial court (1) agreed with WPCare that the Countys approval of the Projects Specific Plan and the CEQA-related Statement of Overriding Considerations as to the Specific Plan (and related approvals) were invalid due to the lack of an identifiable Specific Plan in the record; (2) disagreed with WPCares alleged EIR insufficiencies (impacts, mitigations, alternatives, and completeness); and (3) deemed the planning and zoning consistency issues moot--for purposes of this litigation--in light of the invalidation of the Specific Plan approval.

The basis of WPCares award of attorney fees under section 1021.5, then, rests on (1) above--the invalidation of the Specific Plan approval and related approvals. The question becomes whether the trial court abused its discretion in awarding attorney fees to WPCare under section 1021.5 on this basis; that is, whether this decision was clearly wrong and without any reasonable basis. (Concerned Citizens, supra, 131 Cal.App.4th at p. 334; Families Unafraid, supra, 79 Cal.App.4th at p. 512.) We think not. We conclude, as to the section 1021.5 requirements pertinent here, that the trial court could find WPCare to be a successful party that vindicated an important public right and conferred a significant benefit on the general public.

WPCare likens its position to that of the environmental group in Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488 (Protect Our Water). There, the appellate court reversed the trial court and directed it to grant the groups section 1021.5 motion for attorney fees in an inadequate record case. We think the analogy is apt.

Protect Our Water was a section 1021.5 case that arose out of an underlying mandate action by several environmental groups (including Protect Our Water; hereafter, collectively POW) to set aside, principally on EIR adequacy grounds, a countys conditional use permit for a massive surface mining project. In the underlying mandate action, which also resulted in a published opinion (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362), the appellate court reversed the trial court and directed it to issue the writ of mandate because the administrative record generated by the county was so inadequate that the county could not demonstrate on appeal that it had made the CEQA findings required for approval of the project; the key undisclosed CEQA findings involved the reasons for the projects approval notwithstanding its significant environmental effects. (Protect Our Water, supra, 130 Cal.App.4th at pp. 491-492, 494, 496, quoted material at p. 491.) In light of this resolution, the appellate court in the mandate action did not address the merits of the substantive EIR issues raised by POW. (Id. at p. 491.)

In directing the trial court to grant POWs section 1021.5 motion for attorney fees, the Protect Our Water court found POW to be a successful party, stating:

We agree with POW that it was the prevailing party in the mandate proceeding. . . . Reduced to basics, the [c]ounty was the loser. POW sought an order setting aside the [c]ountys approval of the project. Our opinion directed exactly that result. POW also sought an order setting aside the [c]ountys certification of the EIR. Although [we] did not direct that result because we did not reach the merits of the issue on appeal, . . . we did state that the administrative record as it stood was inadequate to support the certification. . . . Had POW not challenged the [c]ountys noncompliance with CEQA, albeit on other grounds, we would not have been required to consider the adequacy of the record and therefore would not have rendered the opinion [in the mandate action] we did. We did not reach the merits of POWs claims because there was another ground upon which to grant the requested relief--the inadequate substantive record. [Fn. omitted.] (Protect Our Water, supra, 130 Cal.App.4th at pp. 494-495.)

Similarly, here, the County and Bickford could be viewed as the loser. WPCare sought a writ of mandate to set aside the Countys approval of the Projects Specific Plan and that is what WPCare obtained. True, WPCare lost on the bulk of its lawsuit--its challenge to the EIRs sufficiency, and POW did not lose in such fashion. But unlike POW, WPCares lawsuit did allege that the County-generated administrative record was inaccurate and that the County failed to adopt a coherent, organized and identifiable specific plan, and WPCare won on these points. The trial court did not abuse its discretion in finding WPCare to be a successful party for section 1021.5 purposes.

That leads us to the section 1021.5 requirements involving an important public right and a significant public benefit. Protect Our Water guides our analysis in this respect as well, in stating:

POWs mandate action also had a significant positive impact upon the interests of the public. Our Opinion [in the mandate action] decided that the [c]ounty had not complied with the letter or spirit of CEQA because the [c]ounty did not produce an administrative record adequate for review of the [c]ountys decisions leading to the approval of the project. By publishing that Opinion, we announced that complete recordkeeping during the CEQA review process is a matter of significant public concern. [Fn. Omitted.] Specifically, we stated, to anyone who will listen: CEQA has very specific requirements regarding what findings must be in the record [citation], and we addressed at length the public policy considerations supporting, and the public benefits derived from, the requirement that a governmental agency produce a written record sufficient to support its environmental decisions. [Citation.] We would be confident in finding a significant public benefit in the outcome of POWs mandate proceeding if our Opinion had no more effect than to prompt the [c]ounty to alter for the better its methods of creating and managing its CEQA records.

. . . [W]e stated explicitly that the critical inadequacy of the record was more fundamental than organizational. For example, in our Opinion we stated:

. . . The documents generated by the [c]ounty are inadequate for review. . . . We find it inconceivable that, given the scope and magnitude of this project, the documents comprising the administrative record are so defectively drafted. This responsibility fell squarely on the [c]ounty. [Citations.] And we hold the [c]ounty to it. Were we not to do so, we would be defeating one of the basic purposes of CEQA--to disclose to the public the reasons for a projects approval if the project has significant environmental effects. (See [CEQA] Guidelines,  15002, subd. (a)(4).) (Protect Our Water, supra, 130 Cal.App.4th at pp. 495-496, italics in original.)

Here, the administrative record is so inadequate regarding the Specific Plan that the plan could not even be identified. (See Protect Our Water, supra, 130 Cal.App.4th at p. 491. Because of this insufficient administrative record, the trial court had to invalidate not only the Specific Plans approval, but also the approval of the Specific Plan-based Design Guidelines, Development Agreement, and CEQA-related Statement of Overriding Considerations. In light of these record-based invalidations, and particularly the one involving the Statement of Overriding Considerations, we can say, as did the court in Protect Our Water, that if we do not hold the County and the project applicant to their duty to prepare a complete and accurate administrative record, we would be defeating one of the basic purposes of CEQA--to disclose to the public the reasons for a projects approval if the project has significant environmental effects; and we would defeat as well one of the basic purposes of planning law--to disclose to the public the specific plan that details the development of the project that has been approved. (Protect Our Water, supra, 130 Cal.App.4th at p. 496.)

We emphasize, as did the court in Protect Our Water, that a successful section 1021.5 attorney fee request based on an inadequate administrative record must involve a record that is so inadequate as to a fundamental determination that meaningful agency consideration and judicial review of that determination is impossible. For example, here the County could not demonstrate on appeal that it had made the Specific Plan findings required for approval of the Project. (See Protect Our Water, supra, 130 Cal.App.4th at p. 491 [record was so inadequate that the [agency] could not demonstrate on appeal that it had made the CEQA findings required for approval of the project].)

We conclude the trial court had a reasonable basis for determining that WPCares lawsuit vindicated an important public right and conferred a significant public benefit. We conclude the trial court did not abuse its discretion in awarding attorney fees to WPCare pursuant to section 1021.5. On three grounds, Bickford and County disagree.

First, Bickford and County point to the trial courts stated reasons for finding that WPCares lawsuit vindicated an important public right and conferred a significant public benefit: the lawsuit ensured that the project approved was the project environmentally assessed, and ensured that the Projects Specific Plan was consistent with the Countys General Plan. Bickford and County argue that WPCares lawsuit did not ensure these things because the trial court upheld the environmental assessment (i.e., the EIR) and deemed the issue of general plan consistency moot. But WPCares lawsuit ensured that the Project as finally approved will align with the project as assessed in the EIR (or that a new or additional EIR will be required), and WPCares lawsuit preserved the important issue of plan consistency for later determination. Furthermore, the trial court did not have the benefit of the Protect Our Water decision when it awarded attorney fees to WPCare, but its reasons echo Protect Our Waters concern for an adequate administrative record of the environmental process.

Second, Bickford and County direct our attention to three decisions--Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960 (Grimsley), Balch Enterprises, Inc. v. New Haven Unified School Dist. (1990) 219 Cal.App.3d 783, and Stevens v. City of Glendale(1981) 125 Cal.App.3d 986. From these, Bickford and County argue that WPCare is not entitled to section 1021.5 attorney fees because WPCares litigation success involved nothing more than disclosing a record deficiency, a mere procedural defect that cannot justify a section 1021.5 award. The three cited decisions do invoke the principle of mere procedural defect. For example, in Grimsley, the most pertinent of the three, the appellate court affirmed the denial of a section 1021.5 award by quoting the trial court approvingly: [J]udgment in favor of plaintiff was on the narrowest grounds of the numerous grounds alleged by plaintiff. These grounds were essentially procedural defects in the adoption by the County of San Benito of a general plan. The ruling resulted in a finding that because of the flawed procedure, no general plan was adopted. (Grimsley, supra, 169 Cal.App.3d at p. 965, see also p. 964; see also Balch, supra, 219 Cal.App.3d at pp. 795, 796 [in reversing an award of section 1021.5 attorney fees, the success of plaintiff was based on no more than a procedural defect]; Stevens, supra, 125 Cal.App.3d at p. 1000 [the petitioners asserted important rights in their petition, but they prevailed only on a technical point of lack of public notice of the final EIR].)

As explained above, there is much more involved here than a technical procedural defect. The administrative record here was so inadequate that the Projects Specific Plan could not be identified. Not only was the Specific Plans approval invalidated, but so too the approval of the Specific Plan-based Design Guidelines, the Development Agreement, and the Statement of Overriding Considerations. This places the present case within the Protect Our Water sphere rather than the Grimsley orbit.

And third, Bickford and County point to Code of Civil Procedure section 388 and Public Resources Code section 21167.7. Under these two statutes, when a party files an amended or a supplemental pleading that alleges facts or issues concerning pollution or adverse environmental effects which could affect the general public, that party is to furnish a copy of the pleading to the Attorney General. WPCare did not do so here, or at least did not timely do so. A failure along these lines may foreclose a private party from claiming section 1021.5 attorney fees because that partys environmental action may have been unnecessary had the Attorney General had the chance to intervene. (Schwartz v. City of Rosemead(1984) 155 Cal.App.3d 547, 560 [involving Code of Civil Procedure section 388s predecessor, section 389.6]; Committee to Defend Reproductive Rights v. A Free PregnancyCenter(1991) 229 Cal.App.3d 633, 645.)

Confronted at the section 1021.5 hearing with this failure to furnish the new pleadings to the Attorney General, counsel for WPCare argued that these pleadings did not change, amplify or expand the environmental allegations that were originally pleaded--these new pleadings raised only the issue of the inadequate record concerning the Specific Plan. We agree. The new pleadings did not raise any public-related environmental or pollution issues for the Attorney Generals consideration that had not been raised in the original pleadings that had been timely served on the Attorney General. Furthermore, the Attorney Generals failure to intervene in this longstanding action in light of these timely-served original pleadings supports the trial courts implicit finding that a private suit as to specific plan validity was necessary.

If the new pleadings did not raise any substantive environmental or pollution issues, Bickford then argues, WPCares causes of action for specific plan invalidity did not vindicate an important public right or confer a substantial public benefit for section 1021.5 purposes. We disagree. As we have noted, WPCares causes of action regarding specific plan validity: (1) ensured that the Project as finally approved will align with the project as assessed in the EIR (or that a new or additional EIR will be required); (2) preserved the important issue of general plan consistency for later determination; and (3) involved much more than a technical procedural defect. In light of these reasons, the inadequacy of the record here involving the lack of an identifiable Specific Plan for the Project was significant enough that the trial court was not clearly wrong in awarding section 1021.5 attorney fees to WPCare. (Concerned Citizens, supra, 131 Cal.App.4th at p. 334.) The reasoning underlying Protect Our Water exemplifies that the trial court had a reasonable basis for awarding such fees. (Families Unafraid, supra, 79 Cal.App.4th at p. 512.) WPCare did prevail on an important point, ensuring that the County and project applicants present accurate documents for fundamental determinations such as project approvals, and for public and governmental review of those determinations. (Protect Our Water, supra, 130 Cal.App.4th at pp. 495-497.)

However, when we turn to the question of whether the trial court abused its discretion regarding the amount of attorney fees it awarded to WPCare, these considerations play out differently. We conclude the trial court did abuse its discretion along these lines.

The trial court awarded WPCare slightly over $133,000 in attorney fees pursuant to section 1021.5. This award covered WPCares entire lawsuit on its merits and encompassed 440 hours of attorney time, 40 hours of paralegal time, and a lodestar enhancement of 20 percent.

But judgment in favor of [WPCare] was on the narrowest grounds of the numerous grounds alleged by [WPCare]. (See Grimsley, supra, 169 Cal.App.3d at p. 965.) The bulk of WPCares lawsuit alleged substantive EIR deficiencies. WPCare lost on those claims--the trial court found the EIR sufficient under CEQA. As WPCare acknowledges in its brief on appeal (albeit in the context of explaining why the supplement and the amendment to its petition that raised the record inadequacy regarding the Specific Plan did not need to be furnished to the Attorney General):

[The] Supplement to Petition for Writ of Mandate [was] dated August 20, 2003, and filed August 21, 2003. As of that date, the case had been fully briefed by all parties and the trial on the merits was about to begin. The Supplement to Petition addressed a solely procedural issue which was discovered after the briefs on the merits were submitted. The court allowed all petitioners to file a Fourteenth Cause of Action alleging that the Administrative Record certified by the [County] was inaccurate, because the record included items that were not considered by the [County] when it adopted Resolution 2001-341 [adopting the Specific Plan and Design Guidelines] on December 18, 2001. Trial commenced on September 15 and 16, 2003. Along similar lines, WPCare subsequently filed an amendment to its petition, adding a fifteenth cause of action that alleged that County failed to adopt a coherent, organized and identifiable Specific Plan.

A reduced fee award is appropriate when a section 1021.5 claimant achieves only limited success, as when the claimant prevails on only one of its causes of action. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249; see also Greene v. Dillingham Construction N.A., Inc. (2002) 101 Cal.App.4th 418, 423.) Here, WPCare achieved only limited success, prevailing on only one of its causes of action (the fourteenth and fifteenth causes of action actually allege a violation of the same primary right and therefore constitute a single cause of action). (See Bay Cities Paving & Grading, Inc. v. Lawyers Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.) As noted, WPCare did prevail on an important point, ensuring that the County and project applicants present accurate documents for fundamental determinations like project approvals, and for public and governmental review of those determinations. (Protect Our Water, supra, 130 Cal.App.4th at pp. 495-497.) But WPCare lost on the bulk of its claims--the EIR insufficiency issues--and its planning consistency issues were deemed moot (although these consistency issues may subsequently be raised given a proper specific plan).

As this court stated in City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, a litigant [seeking section 1021.5 attorney fees] should not be penalized for failure to find the winning line at the outset, unless the unsuccessful forays [among other exceptions] address discrete unrelated claims[.] (Id. at p. 1303.) WPCares EIR claims are discrete from its Specific Plan claims. WPCare alleged that the EIR was deficient in several substantive respects, and alleged that the Specific Plan was deficient in an important but singular, procedural regard. In this same vein, the litigation claims involving the EIR and the Specific Plan were not related. The quote from WPCares brief on appeal (see p. 21, infra) aptly illustrates the distinct nature of the litigation involving the EIR and the Specific Plan.

We conclude the trial court abused its discretion regarding the amount of attorney fees it awarded to WPCare. We will remand for the trial court to reconsider that amount.

2. Bickfords Cross-Appeal (C047630)

Bickford has filed a cross-appeal, contending that the County validly approved the Specific Plan in December 2001. According to Bickford, this cross-appeal is still alive in two respects: (1) if we agree with Bickford that the 2001 Specific Plan was validly approved, WPCare will not be a successful party on this ground and will not be entitled to attorney fees under the section 1021.5 private attorney theory; and (2) Bickford contends the County validly approved the 2001 Specific Plan and therefore that plan governs the Project.

As we have seen in the preceding section of this opinion, however, the trial court found the 2001 Specific Plan so irregular that it could not even be identified, and there is substantial evidence supporting this finding. How can one assert the validity of a specific plan that cannot even be identified? Furthermore, the County did not appeal the invalidation of its 2001 Specific Plan approval; and Bickford has admitted on appeal that the County approved a new specific plan and that Bickford has used the new plan to proceed with the Project.

We reject the premise of Bickfords cross-appeal in C047630.

Disposition

The order granting section 1021.5 attorney fees to WPCare is affirmed, except the amount of fees awarded is excessive (C049357); the matter is remanded to the trial court to reconsider this amount. We grant the requests filed on January 22, 2007, by Town of Loomis to dismiss its appeal in C047630 and its cross-appeal in C049357. The judgment is affirmed to the extent it invalidates the approval of the 2001 Specific Plan (C047630). Each party shall pay its own costs on appeal.^[4]

DAVIS , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

Publication courtesy of San Diego free legal advice.

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^[1] Hereafter, section 15000 et seq. of title 14 of the California Code of Regulations shall be referred to as the CEQA Guidelines.

^[2] In sum, the trial court in the judgment (1) ruled on the merits against the claims of Loomis, WPCare and Sierra Club that the EIR was inadequate regarding certain environmental impacts, alternatives and mitigations; (2) invalidated the Countys approval of the Projects Specific Plan and approval of the Specific Plan-based Design Guidelines, Development Agreement and Statement of Overriding Considerations because the Specific Plan was too irregular in format, content and organization to constitute a legislative enactment of a specific plan; (3) declined to rule on claims that the Specific Plan was inconsistent with Countys General Plan in light of ruling (2); and (4) declined to rule on the substantive claims involving the adequacy of the Statement of Overriding Considerations because those claims related to the Specific Plan approval that was invalidated in ruling (2).

^[3] We grant the January 22, 2007, requests by Town of Loomis to dismiss its appeal in C047630 and its cross-appeal in C049357.

^[4]We deny Bickford and Countys request in C049357 to take judicial notice of Countys 2004 approval of a new specific plan and related matters.