Lawyers, Monks and Money

Fee decree may 'chill' enviro lawsuits

Photo by James BunoanThe Vedanta Society of Southern California, owners of a monastery in Trabuco Canyon and the 40 acres of bucolic land that surround it, is used to kicking ass on developers and county officials in court.

But some fear a rare legal victory for the county of Orange and California Quartet development company may thwart future cases to protect the environment and other issues in the so-called "public interest."

After upholding yet another trial court victory for the Vedanta Society regarding Trabuco Canyon development, the 4th District Court of Appeals in Santa Ana did something unexpected: it ruled that the county and the developer were not obligated to reimburse the Vedanta Society for its attorney fees. Then the justices did something even more unexpected: they published that opinion, which means other courts can cite it in denying fees in similar public-interest cases.

Charles Mitchell, general counsel for the Vedanta Society of Southern California and vice president of its board of trustees, predicts the decision will have a "chilling effect on anyone who would undertake a case that's a benefit to the public."

"It would affect all kinds of public-interest law, for example, the ACLU on the left side and the Pacific Legal Foundation on the right," he says. "I would imagine that the court watchers in other public-interest organizations such as the Center for Law and Public Interest would look at this in horror."

Robert Scott Wylie, an associate dean at Whittier Law School in Costa Mesa and a lawyer with extensive experience in pro bono cases in the public interest, knows of many cases where courts drastically discounted the attorney fees being sought. But having such fees wiped out entirely was a new one on him.

Attorneys generally take these cases with no expectation of ever being paid by their clients, but with the understanding that they can seek fees from opposing parties or their insurance carriers. Wylie concedes that there is debate within pro bono lawyering circles as to whether certain cases are truly in the public interest.

"Is it public interest," he asks, "if you volunteer to do legal work for the [nonprofit] Performing Arts Center, which has an $18 million endowment? Many say of course it is, many say not. Others say it's public interest only if you are at the service of people who are indigent. Others say it extends to public-policy concerns."

Proposals to build homes on the unincorporated land next to the Vedanta Society property have been rolling into the County Hall of Administration since the early 1970s. However, over that same period, lawyers for the peace-loving monks have strung together a series of legal victories that have stalled development.

The recent case before the appeals court was based on a couple of Vedanta Society lawsuits. In February 1998, the county Board of Supervisors voted 2-2 on an environmental impact report (EIR) for a project that would have erected 705 mobile homes on the 222 acres of land between the Vedanta Society property and St. Michael's Catholic Abbey. Supervisor Jim Silva abstained because of a conflict of interest.

The county interpreted the split vote as meaning the action automatically reverted back to a previous vote by the county planning commission to approve the EIR. The Vedanta Society sued, arguing that the board had to approve and adopt the EIR on its own under the California Environmental Quality Act.

Before that case could even be heard in court, the supervisors in December 1998 approved a scaled-down project that would have allowed 299 single-family homes on the same land. They also grandfathered in the original EIR for the 705 mobile homes. The society filed a second suit arguing that what was essentially a totally new project would require its own EIR.

The trial court bunched the two cases into one and ruled in favor of the Vedanta Society. The supervisors' tie vote and the EIR addendum were deemed invalid, and the judge agreed with several environmental arguments raised by the Vedanta Society. The judge also decided that the county and developer must pony up more than $300,000 to cover a good chunk of the plaintiff's attorney fees.

The county and California Quartet appealed in June 2000. Four months later, the appellate court upheld the trial court simply on the basis of the split vote and the EIR addendum, ruling that it did not even need to look at the environmental evidence.

That came back to haunt the Vedanta Society. Because the appeals court did not weigh the environmental consequences, the justices later ruled that they acted only on procedural issues, not on anything that was in the public interest. So the Vedanta Society was not entitled to legal fees.

David J. Hesseltine, an attorney with the Irvine firm Connor, Blake and Griffin that is handling the land-use aspects of the case for the Vedanta Society, says all is not lost. He filed for a rehearing on Dec. 11 on the basis that the appellate justices misunderstood some evidence. If he does not prevail there, Hesseltine vows to turn to the state Supreme Court for relief.

Meanwhile, he's suing again. The county supervisors last month approved an all-new version of the project for California Quartet that would allow up to 283 homes on the land. The Vedanta Society is challenging the documents, procedures and analysis on which the supervisors based their votes. The Vedanta Society also argues that the county and developer have repeatedly ignored an alternative plan that would bring fewer residences and less environmental disruption to the ecologically sensitive canyon.

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