FRIENDS OF STREET v. CITY OF HAYWARD

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Court of Appeal, First District, Division 4, California.

FRIENDS OF “B” STREET et al., Plaintiffs, Appellants and Respondents, v. CITY OF HAYWARD and the City Council of Hayward et al., Defendants, Respondents and Appellants.

Civ. 40086.

Decided: November 17, 1977

Jane W. Greenfield, Greenfield, Glasrud, Fisher & Skinner, Hayward, for Friends of “B” Street, et al. John W. Scanlon, City Atty., Myron A. Johnson, Asst. City Atty., Thomas R. Curry, Deputy City Atty., Hayward, for City of Hayward, et al.

Friends of “B” Street, an unincorporated citizens' group (hereinafter “Friends”) sought a writ of mandamus and an injunction to compel the City of Hayward (hereinafter “the city”) (1) to prepare an environmental impact report pursuant to the California Environmental Quality Act (hereinafter “CEQA” (Pub.Resources Code, § 21000 et seq.)) before proceeding with a certain proposed street-widening project; (2) to 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) to 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 to file a “Negative Declaration” certifying that the project would not have significant environmental effects, since there was substantial evidence to the contrary. On the second cause of action, judgment was rendered for the city on the ground that “petitioners lack(ed) standing to seek the relief prayed for.” The court rejected the Friends' requests for attorney's fees, stating that “the Court lacks power to make such an award.”

The Friends have appealed from the judgment insofar as it determined that, as to the second cause of action, they “lacked standing to seek the relief prayed for” and from that portion of the judgment denying them attorney's fees. The city has cross-appealed from the judgment insofar as it determined that it was improper for the city to file a “Negative Declaration” with respect to the proposed project.

Attorney's Fees Under the “Substantial Benefit” Theory

Ordinarily, attorney's fees are not recoverable absent express statutory or contractual authority providing for such an award. (See Mandel v. Hodges (1976) 54 Cal.App.3d 596, 619, 127 Cal.Rptr. 244 (Code Civ.Proc., § 1021.) However, the California courts have recognized three nonstatutory exceptions to this general rule. One of these, the “common fund” principle, is not applicable here.1 The Friends contend that they are entitled to an award of attorney's fees under another exception, the “substantial benefit” rule. (See Mandel v. Hodges, supra, 54 Cal.App.3d 596, 127 Cal.Rptr. 244; Fletcher v. A. J. Industries, Inc. (1968) 266 Cal.App.2d 313.) Under the “substantial benefit” rule, an award of attorney's fees may be made to the successful litigant “where (1) the suit is one in which the court's equitable powers come into play; (2) it is commenced and maintained as a representative action; and (3) it results in a disposition that confers substantial benefits, pecuniary or otherwise, upon the persons represented.” (Mandel v. Hodges, supra, 54 Cal.App.3d at p. 622, 127 Cal.Rptr. at p. 261.)2 It has been held that, in order for attorney's fees to be awarded under the “substantial benefit” rule, a substantial benefit, whether pecuniary or nonpecuniary, must have been conferred upon the defendant. (See, e.g., D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1, 25, 112 Cal.Rptr. 786, 520 P.2d 10.) However, in Serrano v. Priest (Serrano III) 20 Cal.3d 25, fn. 10 at p. 40, 141 Cal.Rptr. 315, 322, 569 P.2d 1303, 1310, the California Supreme Court recognized that an award of attorney's fees under the “substantial benefit” theory “does not depend upon substantial benefit to the defendant.” The Serrano III court stated: “Although the trial court found that substantial benefits had been bestowed on the state's public school children and taxpayers by Serrano (see fn. 11, post, and accompanying text) it concluded that fees could not be awarded on the ‘substantial benefit’ theory because no such benefit had accrued to ‘the defendants in this case.’ While we believe, as we explain infra, that the trial court properly declined to base its award on this theory, we are also convinced of the correctness of plaintiffs' argument that such an award does not depend upon substantial benefit to the defendant. Despite the fact that the trial court's position on this point may find some support in the language of D'Amico and other cases, we have concluded that the proper rule as reflected in the Court of Appeal cases we have reviewed ‘permit(s) reimbursement (of attorneys fees) in cases where the litigation has conferred a substantial benefit on the members of an ascertainable class, and where the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them.’ (Mills v. Electric Auto-Lite (1970) 396 U.S. 375, 393-394, 90 S.Ct. 616, 626, 24 L.Ed.2d 593, 607; see generally Comment, Equal Access, supra, 122 U.Pa.L.Rev. 636, 662-666.)”

As the Supreme Court pointed out in Serrano III, supra, 20 Cal.3d 25, 38, 141 Cal.Rptr. 315, 321, 569 P.2d 1303, 1309, the “substantial benefit” theory has been applied “in a wide variety of circumstances, including those involving governmental defendants.” (See, e.g., Card v. Community Redevelopment Agency (1976) 61 Cal.App.3d 570, 131 Cal.Rptr. 153; Mandel v. Hodges, supra, 54 Cal.App.3d 596, 127 Cal.Rptr. 244; Knoff v. City etc. of San Francisco (1969) 1 Cal.App.3d 184, 81 Cal.Rptr. 683.)

But the filing of an environmental impact report (EIR) is not intrinsically either beneficial or detrimental; it is a procedure which the Legislature has required in order to foster attention to environmental values. Only when a proposed project is built (or the building of the project has been withheld) will benefit or detriment (according to the opposing views of different elements in the community) be felt. Thus, an essential element of the substantial benefit rule was missing, and the court acted correctly when it declined to award attorney's fees on that theory.

Attorney's Fees Under the “Private Attorney General” Theory

The Friends also contend that they should have been awarded fees under the “private attorney general” theory. But the California Supreme Court has expressly withheld recognizing that theory as to statutory (as contrasted with constitutional) rights. (Serrano v. Priest, supra, 20 Cal.3d 25, 47, 141 Cal.Rptr. 315, 569 P.2d 1303.) We are persuaded that as an intermediate appellate court we should not take it upon ourselves to fashion a new remedy of statewide application where the Supreme Court has so recently declined to do so.

The Claim for Injunctive Relief

The Friends contend that the trial court erred in granting judgment in favor of the city on the second cause of action on the ground that “petitioners lack standing to seek the relief prayed for.” (Emphasis added.)3 The relief prayed for was an injunction to stop the street-widening project until the city had complied with certain provisions of the state Planning and Zoning Law (see Gov. Code, § 65000 et seq.) In this regard, appellants alleged the following: “Respondent, Planning Commission, failed to proceed in the manner required by law, in (that) Gov. Code § 65302 requires that a City's General Plan shall have a noise element and a circulation element consisting of the general location and extent of existing and proposed major thoroughfares. Any City and County project must conform with these elements of the general plan. Hayward's General Plan and specific circulation element therein, does not provide for any improvement or widening of B Street as part of a major thoroughfare network. Furthermore, the general plan of the City of Hayward does not even include a noise element.”

The complaint prayed:

“(b) That this court enjoin the respondents from taking any action whatsoever in furtherance of the execution of this project until:

(i) The city develop a noise element to their General Policies Plan in conformance with the Law.

(ii) The circulation element of the general plan be amended to reflect the city's plan to widen A, B, D, and Fourth Street as part of an overall transportation plan; or until the A, B, D, and Fourth Street projects be modified to conform to the present circulation element.

(iii) The city modify the project to conform to the general plan policies on strip development, and the central business district.“

Two questions are thus presented: (1) Are the Friends entitled to an injunction against the “B” Street Project on the ground that the city's general plan fails to contain a noise element as required by section 65302 of the Government Code, and (2) are appellants entitled to such an injunction on the ground that the proposed street-widening project is inconsistent in several respects with the city's own general plan?

Under section 65300 of the Government Code, a city is required to adopt a comprehensive, long-term general plan for the use and physical development of land within the city. The general plan is designed to serve “as a pattern and guide for the orderly physical growth and development and the preservation and conservation of open space land of the county or city and as a basis for the efficient expenditure of (the city's or county's) funds relating to the subjects of the general plan, . . .” (See Gov. Code, § 65400.) The general plan “is, in short, a constitution for all further development within the city.” (O'Loane v. O'Rourke (1965) 231 Cal.App.2d 774, 782, 42 Cal.Rptr. 283, 288; 58 Ops.Cal.Atty.Gen. 21.)

Section 65302 of the Government Code provides that “[t]he general plan shall consist of a statement of development policies and shall include a diagram or diagrams and text setting forth objectives, principles, standards, and plan proposals.” Section 65302 then states the mandatory elements of a general plan. The general plan must include a land use element, a circulation element, a housing element, a conservation element, an open-space element, a seismic safety element, a noise element, a scenic highway element, and a safety element. The requirements of section 65302 are applicable to charter cities, such as respondent City of Hayward (see Gov. Code, § 65302). Section 65700 of the Government Code also provides that the provisions of chapter 3 of the state Planning and Zoning Law “shall not apply to a charter city, except to the extent that the same may be adopted by charter or ordinance of the city; except that charter cities shall adopt general plans in any case, and such plans shall be adopted by resolution of the legislative body of the city, or the planning commission if the charter so provides, and such plans shall contain the mandatory elements required by Article 5 (commencing with Section 65300) of Chapter 3 . . . .”

The Friends alleged that the City of Hayward had failed to comply with section 65302 of the state Planning and Zoning Law, in that the city's general plan failed to include a noise element as required by the statute. But that deficiency would not be a basis for enjoining all public works projects within the city. The trial court acted correctly in concluding that the proper remedy was an action to compel the city to adopt the mandated noise element.

A similar conclusion emerges with respect to the allegation that the “B” Street Project was inconsistent in several respects with the city's general plan. Specifically, the Friends alleged that the project was not consistent with the provisions of the general plan regarding strip development or with the circulation element of the plan. Section 65302, subdivision (b), of the Government Code provides that the general plan must contain a circulation element “consisting of the general location and extent of existing and proposed major thoroughfares, transportation routes . . . all correlated with the land-use element of the plan.” In their prayer, the Friends sought to have the city enjoined from continuing with the “B” Street Project “until the circulation element of the general plan [is] amended to reflect the city's plan to widen A, B, D, and Fourth Street . . . ; or until the A, B, D, and Fourth Street projects [are] modified to conform to the present circulation element.” The prayer also sought an injunction against the project until the city modified the project, “to conform to the general plan policies on strip development, and the central business district.”

Since the Legislature has provided that a charter city must adopt a general plan, and that its general plan must contain a circulation element as one of its components, the Legislature must have intended that the city would comply with whatever general plan and circulation element it adopted. But it does not follow that an injunction against the construction of public works is an available remedy, indirectly to compel compliance with the Planning and Zoning Law. The statute makes no provision for such a remedy and we find nothing to suggest that the Legislature intended to create the remedy, at least as against a chartered city (but cf., Gov. Code, § 65402, subd. (a), in regard to general law cities). We conclude that the court acted correctly when it denied an injunction on the second cause of action.

The City's Appeal

The city contends that it was error for the court to determine that there had been an abuse of discretion in dispensing with an EIR on the basis of the “Negative Declaration.” The CEQA applies to all local agencies as to any project which may have a significant effect upon the environment. (Pub. Resources Code, § 21151; Shawn v. Golden Gate Bridge etc. Dist. (1976) 60 Cal.App.3d 699, 701, 131 Cal.Rptr. 867.) CEQA provides a three-tiered structure: If a proposed project falls within a category exempt from the Act by administrative regulation, or if it is certain that the project will not have a significant effect upon the environment, no further agency evaluation is required. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74, 118 Cal.Rptr. 34, 529 P.2d 66; Shawn v. Golden Gate Bridge etc. Dist., supra, 60 Cal.App.3d 699, 703, 131 Cal.Rptr. 867; see COAC, Inc. v. Kennedy Engineers (1977) 67 Cal.App.3d 916, 921, 136 Cal.Rptr. 890.) If there is a possibility that the project may have a significant effect on the environment, the agency must conduct an initial threshold study. (Cal.Admin.Code, tit. 14, § 15080.) If the initial study reveals that the project “will not have a significant effect on the environment,” the lead agency may complete a “Negative Declaration” briefly describing the reasons that a proposed project will not have a significant effect on the environment.4 (People v. County of Kern, supra 62 Cal.App.3d 761, 777-778, 133 Cal.Rptr. 389; Shawn v. Golden Gate Bridge etc. Dist., supra, 60 Cal.App.3d 699, 703, 131 Cal.Rptr. 867; see Pub. Resources Code, § 21064; Cal.Admin.Code, tit. 14, §§ 15033, 15035, 15083.) However, if the project is one “ ‘which may have a significant effect on the environment,’ ” an environmental impact report must be prepared. (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d 68, 74, 118 Cal.Rptr. 34, 37, 529 P.2d 66, 69; COAC, Inc. v. Kennedy Engineers, supra, 67 Cal.App.3d 916, 921, 136 Cal.Rptr. 890; see Pub. Resources Code, § 21151; Cal.Admin.Code, tit. 14, §§ 15080, 15084.) “An EIR should be prepared whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant effect on the environment.” (Cal.Admin.Code, tit. 14, § 15084, subd. (b).) In No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d 68, 85-86, 118 Cal.Rptr. 34, 45-46, 529 P.2d 66, 77-78, the California Supreme Court stated:

Thus we conclude, as did the court in County of Inyo v. Yorty, that an agency should prepare an EIR whenever it perceives “some substantial evidence that the project ‘may have a significant effect’ environmentally.” (32 Cal.App.3d (795) at p. 809 (108 Cal.Rptr. 377 at p. 387) ) as stated by Judge J. Skelly Wright in Students Challenging Reg. Agency Pro. v. United States (D.D.C.1972) 346 F.Supp. 189, 201, an environmental impact report should be prepared “whenever the action arguably will have an adverse environmental impact.” (Italics in original.)

Furthermore, the existence of serious public controversy concerning the environmental effect of a project in itself indicates that preparation of an EIR is desirable. One major purpose of an EIR is to inform other government agencies, and the public generally, of the environmental impact of a proposed project (see County of Inyo v. Yorty, supra, 32 Cal.App.3d 795, 810, 108 Cal.Rptr. 377; Environmental Defense Fund, Inc. Coastside County Water Dist., supra, 27 Cal.App.3d 695, 704-705; cf. Jones v. District of Columbia Redevelopment Land Agcy. (1974) (162 U.S.App.D.C. 366) 499 F.2d 502, 511 (NEPA)), and to demonstrate to an apprehensive citizenry that the agency has in fact analyzed and considered the ecological implications of its action. A simple resolution or Negative Declaration, stating that the project will have no significant environmental effect, cannot serve this function. (Footnotes omitted.)

“Significant effect” means “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the activity including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.” (Cal.Admin.Code, tit. 14, § 15040.) Section 15081 of the state EIR guidelines provides the following criteria for determining whether a proposed project may have a “significant effect” upon the environment:

15081. Determining Significant Effect. (a) The determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data. An iron clad definition of significant effect is not possible because the significance of an activity may vary with the setting. For example, an activity which may not be significant in an urban area may be significant in a rural area. There may be a difference of opinion on whether a particular effect should be considered adverse or beneficial, but where there is, or anticipated to be, a substantial body of opinion that considers or will consider the effect to be adverse, the lead agency should prepare an EIR to explore the environmental effects involved.

(b) In evaluating the significance of the environmental effect of a project, the Lead Agency shall consider both primary or direct and secondary or indirect consequences. Primary consequences are immediately related to the project (the construction of a new treatment plant may facilitate population growth in a particular area), while secondary consequences are related more to primary consequences than to the project itself (an impact upon the resource base, including land, air, water and energy use of the area in question may result from the population growth).

(c) Some examples of consequences which may be deemed to be a significant effect on the environment are contained in Appendix G.

(Cal.Admin.Code, tit. 14, § 15081.) Section 15082, subdivisions (a) through (d), provides that a proposed project must be found to have a significant effect on the environment if:

(a) The project has the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal, or eliminate important examples of the major periods of California history or prehistory.

(b) The project has the potential to achieve short-term environmental goals to the disadvantage of long-term environmental goals.

(c) The project has possible environmental effects which are individually limited but cumulatively considerable. As used in the subsection, “cumulatively considerable” means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.

(d) The environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.

(See Cal.Admin.Code, tit. 14, § 15082, subds. (a)-(d).)

The short-term effects of the 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 the bridge construction. 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 change of the residential character of the area. 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. The trial court did not err in concluding that there was enough evidence of significant environmental effect to require preparation of an EIR.

Affirmed; the parties will bear their own costs.

FOOTNOTES

1.  When a number of persons are entitled in common to a specific fund, and an action brought by a plaintiff or plaintiffs for the benefit of all, results in the creation or preservation of that fund, such plaintiff or plaintiffs may be awarded attorney's fees from the common fund which was created or preserved by the action. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25, 112 Cal.Rptr. 786, 520 P.2d 10.)

2.  It is noted that, in addition to the equitable “substantial benefit” rule recognized by the courts, the California Legislature has recently enacted a provision providing for an award of attorney's fees to a successful party in certain actions where a significant benefit has been conferred on the general public or a large class of persons. (See § 1021.5, Code Civ.Proc., added by Stats.1977, ch. 1197, effective Jan. 1, 1978.)

3.  As respondents correctly point out, the question “does not involve a determination of appellants' standing to seek relief generally nor does it involve a determination of appellants' standing to seek relief by writ of mandate to compel compliance with the State Planning and Zoning Act.” Respondents apparently concede that appellants have such “standing.” Rather, the issue is “whether . . . an injunction against proceeding with a street widening project is relief which is available to appellants in order to remedy alleged violations of the State Planning and Zoning Act.” Thus, the question is not one of standing, but of available remedies for violations of the state Planning and Zoning Law.

4.  Section 15083, subdivision (c) of the state EIR guidelines provides as follows:(c) Contents. A Negative Declaration shall include:(1) A brief description of the project; including a commonly used name for the project if any;(2) The location of the project and the name of the project proponent;(3) A finding that the project will not have a significant effect on the environment;(4) An attached copy of the Initial Study documenting reasons to support the finding.(5) Mitigation measures, if any, included in the project to avoid potentially significant effects.(Cal.Admin.Code, tit. 14, § 15083, subd. (c); see People v. County of Kern (1976) 62 Cal.App.3d 761, 778 at fn. 5, 133 Cal.Rptr. 389.)

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and ROTHENBERG (Under assignment by the Chairperson of the Judicial Council), J., concur.