KINDS OF ISSUES
What kinds of legal issues do you handle?
Our firm handles a wide array of land use and environmental matters, both before administrative agencies and in litigation. The vast majority of work is done on behalf of environmental and community groups, though we occasionally advise individual clients and some governmental agencies regarding environmental matters and land use issues. We do not, however, handle personal injury litigation, even if it arises from environmental exposures. Nor do we become involved in issues related to the financial responsibility of property owners for the clean-up of contaminated land, although issues of contamination sometimes are relevant in our representation of various groups regarding opposition to certain projects, or support for others.

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OPPOSING OR SEEKING MODIFICATION OF PROJECTS BEFORE LOCAL OR STATE GOVERNMENTAL AGENCIES.
I, or a group I belong to, are concerned about a proposed development. When should I/we consult an attorney?
You should consult an attorney sooner, rather than later, regarding environmental concerns about a project. Many individuals and groups consult an attorney only after a project is approved and often have legal options foreclosed as a result. The problem is that usually legal grounds for challenging a project cannot be raised in litigation unless some party has first raised it before the agency that approves the project. As a result, it is generally very valuable to consult with an attorney during the administrative process. Our firm frequently prepares comment letters on projects in order to attempt to persuade the decisionmakers to disapprove or modify a project, and to protect the right of clients to raise issues in litigation if they should so choose.

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Can I/we represent ourselves during the administrative process?
Yes, but for the reasons set forth above it is good to at least consult an attorney during that process. Also, it is often a good idea to form a group to pool resources and talents, and increase political power. We can provide suggestions for forming groups or advise those that have already formed. In court, a group may not represent itself as it can in the administrative process.

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What is the role of the California Environmental Quality Act ("CEQA") in decision making?
When there is a discretionary action to be taken by a governmental agency and that action may have a significantly adverse effect on the environment, the agency has to comply with the California Environmental Quality Act ("CEQA"). Generally, a government agency will have to prepare, circulate for public comment, and approve an Environmental Impact Report ("EIR"), a Mitigated Negative Declaration ("MND"), or a Negative Declaration ("ND"), though there are certain statutory exceptions to the requirement for preparation of such documents. Further, certain environmental protection agencies are not subject to the requirement for preparing EIRs, MND, ND, but are still subject to CEQA’s substantive requirements. Though there may be substantive violations of other law (local codes, planning laws, Coastal Act, Water Code, etc.), CEQA often provides a useful tool for challenging a project.

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If there are a lot of technical issues associated with a project and the environmental review document what can we do?
We can assist you in identifying experts to critique EIRs, create a record that an EIR rather than an MND or ND should be prepared, and evaluate a project proponent’s application. Sometimes there are people within a community that have expertise on traffic, water quality, engineering, geotechnical issues, biology, and other relevant issues. If the group does not have the necessary expertise, it will likely be important to try to obtain that expertise by securing the assistance of an expert. Obviously, searching the internet may yield a great deal of information that you could put into the administrative record. However, it may be important to obtain an expert that can review agency documents, including an EIR. It is often useful to go to local universities and colleges, or local environmental groups to see if they can provide assistance.

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LITIGATION
If a project is approved, how much time do we have to sue?
If the action involves a challenge under CEQA, an action must be filed very quickly, generally within thirty days of the filing with the County Clerk of a document known as a "Notice of Determination". If no CEQA action is appropriate because the CEQA review is adequate, but a challenge to legality of other action is appropriate, different statutes apply, but most also have a fairly short time limit. For example, an allegation of violation of a local code, general or specific plan, or Subdivision Map Act must be filed within 90 days. Challenges to actions of the Coastal Commission not involving CEQA challenges (but most challenges do) likewise must be brought within 90 days. Other statutes or ordinances have other deadlines for filing. These deadlines are called the statute of limitations for the action.

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Will filing the suit stop the project?
No, not necessarily. If there is a threat of imminent harm being done as a result of proposed grading or construction, or other physical activity on site, either a stay of the permit or a temporary restraining order, or TRO, followed by a preliminary injunction, must be sought.

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How long will the litigation in the Superior Court take?
A petition for a writ of mandate is litigated far more quickly than a typical civil case. CEQA has within it various statutory time frames for bringing a matter to hearing. With all of the statutory deadlines, a hearing on a CEQA case normally occurs within six to nine months of the filing of the petition.

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What happens after the trial court decides the case?
Either side can appeal a decision of the trial court to the Court of Appeal. In the majority of the cases that we handle, the matter is heard "de novo", meaning the Court of Appeal will hear the matter as if there were not a decision by the trial court.
How long does an appeal take?
If a CEQA matter is involved, the matter will have preference on the civil calendar. How long it takes depends upon the workload of the court, but normally the matter is heard in less than a year of the filing of the notice of appeal, and sometimes much sooner. Like the trial court, a court of appeal has 90 days to decide a matter.

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What happens after the Court of Appeal’s decision?
Unlike the right to review of the decision of a trial court, review by the California Supreme Court of a Court of Appeal decision is entirely at the Supreme Court’s discretion, after the filing of a petition for review. The Supreme Court’s role is not so much to right any wrong done by the Court of Appeal, but rather to clarify the law. Therefore, a decision is more likely to be reviewed if the opinion of the Court of Appeal is published and involves important questions of law or conflicting court of appeal decisions. Many Court of Appeal decisions are not published, making it more difficult to obtain review.

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LEGAL FEES AND COSTS
What kind of a financial commitment is required for your firm to represent me or my group?
Like snowflakes, no two cases are alike. We try to arrange our fee structure to meet the circumstances so that both the clients and we are satisfied. Our firm is often able to take matters where the client is responsible for our fees calculated at a reduced fee basis, substantially below customary rates for attorneys of our experience and expertise ("market rates"). The exact hourly rate at which we will agree to represent an organization depends on a number of factors, including the likelihood that we would recover our market rate fees from the opposing party if we prevail in litigation. Attorneys’ fees can be recovered under California law if a party prevails and the matter results in enforcement of an important right affecting the public interest, the action confers a significant public benefit, and the financial burden of private enforcement, compared to private gain, makes an award appropriate. If we obtain the market rate after prevailing in the litigation or settling the matter, and the client has kept up on its financial commitment, we then can reimburse the client for the money that they have paid us.

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OTHER POSSIBLE COSTS OF LITIGATION
Can we be sued by the developer or landowner for objecting to a project, or filing a lawsuit to stop the project?
Lawsuits are very rarely filed against project opponents, but such suits have occurred. California law provides a privilege for communications, including lawsuits, involving matters of public interest. The law also provides methods by which any suit based upon a challenge to a project may be quickly resolved. Suits that are brought because of actions such as opposition to a project are called SLAPP suits, standing for Strategic Litigation against Public Participation.

In California, the legislature recognized that defendants bring actions against plaintiffs in retaliation for the plaintiffs’ suing to enforce state law, and passed a law to protect plaintiffs against these suits by giving those plaintiffs participating in matters of public significance a means of quickly disposing of the case. If there is a suit against our clients, and we have no reason to believe our clients have done anything improper, we will generally be willing to represent our clients in the defense of such a SLAPP suit, through an anti-SLAPP motion, with no charge for fees, as we would expect to recover the fees from the party bringing the challenge.

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Can we be required to pay the costs of the opposing counsel if we lose?
Petitioners are not liable for opposing counsel’s attorneys’ fees, except in very extraordinary circumstances. One limited exception is where sanctions are imposed because of egregious actions by counsel. This has never occurred in any of our cases.

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Are there other costs of litigation of which we should be aware?
A petitioner in a writ case must pay the costs of preparation of the administrative record for the court. Further, if a petitioner is unsuccessful in litigation, they do have to pay certain statutorily established costs, including: filing, motion and jury fees; juror food and lodging while kept together during trial and during deliberation; taking, videotaping and transcribing necessary depositions, copying depositions and travel to depositions; service of process by a public officer or other means; expenses of attachment and keeper’s fee; premiums on necessary surety bonds; ordinary witness fees; fees of expert witnesses ordered by the court; transcripts of court proceedings ordered by the court; attorneys fees authorized by contract, statute or law; court reporters fees; cost of exhibits if helpful to the trier of fact; and preparing the administrative record.
NOTICE: These materials have been prepared by Chatten-Brown & Carstens for informational purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel. The information contained in this web site is provided only as general information which may or may not reflect the most current legal developments. This information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice or to substitute for obtaining legal advice from an attorney licensed in your state. This web site may be considered advertising under applicable laws and ethical rules.

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2601 Ocean Park Blvd., Suite 205, Santa Monica, CA 90405
Ph. 310.314.8040 - Fax 310.314.8050
cbc@cbcearthlaw.com