Save the Agoura Cornell Knoll v. City of Agoura Hills

46 Cal.App.5th 665

259 Cal.Rptr.3d 707

SAVE THE AGOURA CORNELL KNOLL et al., Plaintiffs and Respondents,

v.CITY OF AGOURA HILLS et al., Respondents;

Doron Gelfand et al., Real Parties in Interest and Appellants.

B292246, B295112

Court of Appeal, Second District, Division 7, California.

Filed February 24, 2020

Gaines & Stacey, Fred Gaines and Lisa A. Weinberg, Encino, for Appellants Doron Gelfand and Agoura and Cornell Roads, LP.

Advocates for the Environment, Dean Wallraff and Kathleen R. Unger, Los Angeles, for Respondents Save the Agoura Cornell Knoll and California Native Plant Society.

ZELON, J.

In this CEQA¹ action, appellants Agoura and Cornell Roads, LP (ACR) and Doron Gelfand (Gelfand) (collectively, Appellants), appeal from the trial court’s judgment granting a peremptory writ of mandate that directed the City of Agoura Hills (City) to set aside its approval of a mixed-use development project, and to prepare an environmental impact report (EIR) for the project. Appellants also appeal from the trial court’s post-judgment order granting attorney’s fees to the petitioners in the action, Save the Agoura Cornell Knoll and California Native Plant Society (collectively, Petitioners). Among other arguments, Appellants assert that the trial court erred in concluding that the project’s potentially significant environmental impacts required the preparation of an EIR rather than the mitigated negative declaration adopted by the City. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. The Proposed Project

This action challenges the City’s approval of a mixed-use commercial and residential development proposed by Appellants. The project, known as the Cornerstone Mixed-Use Project, proposed the development of 35 residential apartment units plus retail, restaurant, and office space on an 8.2-acre site.

The project site is on an undeveloped hillside at the southeast corner of Agoura Road and Cornell Road in Agoura Hills, California. The property is mostly covered with grasses and scattered oak trees, and its dominant feature is a knoll with oak trees at the corner of Agoura Road and Cornell Road. In addition to oak trees and scrub oak habitat, the site contains both native and non-native plants, including three plant species that are considered to be rare, threatened, or endangered. Although the site is vacant with no existing structures, commercial retail centers are located to the west, northwest, and north of the property.

The majority of the project site is located in an area covered by the Agoura Village Specific Plan (AVSP). The portion of the site that is outside the AVSP-covered area is located in a Significant Ecological Area. The AVSP sets forth regulations and guidelines for new developments in the planning area. The City certified a final EIR for the AVSP in 2006, and adopted the AVSP in 2008. As proposed, the Cornerstone Mixed-Use Project would consolidate 24 parcels into two lots, with approximately 6.23 acres in Lot 1 and 1.98 acres in Lot 2. The area in Lot 2 would be reserved for open space in accordance with the AVSP.

II. Administrative Proceedings

ACR is a California limited partnership and the owner of the property located at the project site. Gelfand is a limited partner of ACR. Gelfand submitted applications to the City for a development permit, a conditional use permit, an oak tree permit, and a tentative parcel map for the Cornerstone Mixed-Use Project. After reviewing various studies and reports to evaluate the potential environmental impacts, the City issued a final Initial Study-Mitigated Negative Declaration (MND) for the project in November 2016. At a public hearing held on January 5, 2017, the Agoura Hills Planning Commission voted to approve the project and adopt the MND.

The Los Angeles/Santa Monica Mountains chapter of the California Native Plant Society (CNPS), a statewide non-profit organization focused on the preservation of native California plants, appealed the Planning Commission’s decision. On March 8, 2017, the Agoura Hills City Council held a public hearing on the appeal. At the close of the hearing, the City Council approved the Cornerstone Mixed-Use Project and adopted the MND. The City Council found that, based on the record before it, there was no substantial evidence that the project would have a significant effect on the environment because the project plans incorporated feasible mitigation measures that would reduce any potential environmental impacts to a less than significant level. On March 16, 2017, the City filed a Notice of Determination of its approval of the project and adoption of the MND.

III. Writ Proceedings

Save the Agoura Cornell Knoll (STACK), a local citizen’s group, filed a verified petition for writ of mandate on April 7, 2017, and a first amended petition on August 10, 2017. The first amended petition added CNPS as a petitioner. It named the City, the Agoura Hills City Council, and the Agoura Hills Planning Commission as respondents, and ACR and Gelfand as real parties in interest. The petition alleged three causes of action for violation of CEQA, violation of planning and zoning law, and violation of the City’s Oak Tree Ordinance. On January 29, 2018, Appellants and the City each filed an opposition to the petition. On February 13, 2018, Petitioners filed a reply.

The trial court held a hearing on the writ petition on March 13, and May 22, 2018. On May 23, 2018, the court issued a 64-page decision granting in part and denying in part the petition. The court granted the petition as to the causes of action for violation of CEQA and violation of the City’s Oak Tree Ordinance, and denied the petition as to the cause of action for violation of planning and zoning law. With respect to the CEQA claim, the court concluded that there was substantial evidence to support a fair argument that the project may have significant environmental impacts on cultural resources, sensitive plant species, oak trees, and aesthetic resources, and that the MND’s proposed mitigation measures are inadequate to reduce those impacts to less than significant. With respect to the Oak Tree Ordinance claim, the court concluded that the permit issued by the City violated the ordinance’s prohibition against the removal of more than 10 percent of the total estimated oak tree canopy or root structure on the project site.

On June 26, 2018, the trial court entered judgment in favor of Petitioners on their causes of action for violation of CEQA and violation of the Oak Tree Ordinance, and ordered the issuance of a peremptory writ of mandate. On July 20, 2018, the court issued the writ of mandate directing the City to set aside its approval of permits for the project. The writ also directed the City to set aside the MND that it had adopted for the project and to prepare an EIR in compliance with the court’s May 23, 2018 decision. On August 23, 2018, Appellants filed an appeal from the judgment (Appeal B292246).

IV. Post-Judgment Attorney’s Fees

On August 24, 2018, Petitioners filed a motion to recover their attorney’s fees pursuant to Code of Civil Procedure section 1021.5. Petitioners sought a total of $339,559 in attorney’s fees, which included a request for a lodestar multiplier of 2.0. On November 1, 2018, Appellants and the City each filed an opposition. The City opposed only the requested multiplier. Appellants contested Petitioners’ entitlement to attorney’s fees, the amount of fees sought, and Gelfand’s individual liability for a fee award.

On November 15, 2018, the trial court partially granted the motion and found that Petitioners were entitled to attorney’s fees in the amount of $142,148. The court denied Petitioners’ request for a lodestar multiplier, and ordered supplemental briefing on whether Gelfand was individually liable for the fee award. On December 18, 2019, after considering the parties’ supplemental briefs, the trial court found that Gelfand and ACR were jointly and severally liable for the attorney’s fees. The court awarded Petitioners a total of $142,148 in attorney’s fees with 50 percent payable by the City and 50 percent payable by ACR and Gelfand. On January 9, 2019, Appellants filed an appeal from the post-judgment order for attorney’s fees (Appeal B295112).²

DISCUSSION

In Appeal No. B292246, Appellants challenge the trial court’s issuance of a writ of mandate directing the City to set aside its approval of the Cornerstone Mixed-Use Project and to prepare an EIR for the project. In Appeal No. B295112, they contest the trial court’s post-judgment award of attorney’s fees to Petitioners as the successful parties in the CEQA action.

I. Overview Of CEQA

CEQA and the regulations implementing it "embody California’s strong public policy of protecting the environment." ( Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285, 142 Cal.Rptr.3d 539, 278 P.3d 803.) As the California Supreme Court has explained, "CEQA was enacted to advance four related purposes: to (1) inform the government and public about a proposed activity’s potential environmental impacts; (2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for governmental approval of a project that may significantly impact the environment." ( California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382, 196 Cal.Rptr.3d 94, 362 P.3d 792.)

"CEQA review is undertaken by a lead agency, defined as ‘the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment.’ [Citation.]" ( Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, 712, 220 Cal.Rptr.3d 812, 399 P.3d 37, italics omitted.) The lead agency’s implementation of CEQA "proceeds by way of a multistep decision tree, which has been characterized as...