by William W. Abbott In land use litigation, particularly CEQA cases, a successful petitioner can file a motion with the court seeking an award of attorneys fees. The award of fees is highly discretionary with the trial court, and occasionally, the trial court decisions are reversed by the appellate court. In a recent court decision, Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, the appellate court reversed a trial court’s decision refusing to award fees to a petitioner. In reversing the trial court decision, the appellate court established the threshold for what constitutes a “prevailing party” as a fairly low barrier. The recent Protect Our Water decision (“POWII“) is the second iteration of a case featured (“POWI“) in an earlier Abbott & Kindermann article. POWI resulted in a judicial decision invalidating a local land use decision on the basis of a poorly organized administrative record and administrative findings. As a result of POWI, the trial court rendered a judgment and peremptory writ resulting in the land use decision being set aside, but no invalidation of the EIR. The court also halted all activities on the project. The petitioner sought an award of fees as authorized by Code of Civil Procedure 1021.5 (sometimes referred to as the private attorney general doctrine) which the trial court rejected, finding that the petitioners were not successful parties, one of the requisite tests (It is important to remember that the developer will not, in the vast majority of circumstances, ever recover their attorney fees if they are successful in defending the action). The POWII court rejected the trial court’s determination of successful party status. The appellate court viewed favorably the fact that the County was required to set aside its land use approval (even though the EIR was not set aside), thus making the petitioners “successful”, albeit in a narrow capacity. The court also noted that its prior opinion, written broadly and intended to be a warning shot across the bow of all public entities, was intended to have broad ramifications. “We intended by our Opinion to educate all those governmental agencies chared with the responsibility to implement CEQA, including the County, about the pivotal imporantance of a complete administrative record of the crucial decisions made during the CEQA process.” This determination satisfied another requirement for an award of attorneys fees, that being a significant public benefit (In footnote 8 of the decision, the court noted that mere publication of POWI was evidence of the public significance of the earlier decision). As a result of the POWII, the case goes back to the trial court for a determination of what constitutes a reasonable fee. Once a legal challenge is filed to a project approval, the lead agency and developer must each evaluate a number of factors when deciding to defend or return to the administrative proceedings. One of those variables to be considered has to be the likelihood of an adverse award of attorney fees to the petitioners if they are successful. As POWII illustrates, it may not take much for a petitioner to be considered successful, and to have generated a significant public benefit thus earning a claim for fees. William W. Abbott is a partner with Abbott and Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.