Land Use Group Gets Costs and Fees for Killing B&B

Friends of Spring Street v. Nevada City, No. C086563 (D3 Apr. 4, 2019)

Plaintiffs challenged both a local zoning ordinance and a City’s decision to permit an Applicant to run a B&B in a residential area—a nonconforming use under that ordinance. Plaintiffs lost the facial challenge, but—after an intervening appeal—won the as-applied. They seek to recover their costs, see Code of Civil Procedure § 1032, and their attorneys’ fees under the private attorney general doctrine, see § 1021.5. The trial court denied both, finding that the split decision meant there was no prevailing party. 

So far as costs go, when a plaintiff obtains only non-monetary relief, § 1032(a)(4) permits the court to decide who is the prevailing party for cost award purposes. Generally, the court looks to “whether the party succeeded at a practical level by realizing its litigation objectives . . . and the action yielded the primary relief sought in the case.” Because Plaintiffs were successful in getting the decision approving the B&B reversed, they met that standard and should have been awarded costs. The fact that Applicant could potentially re-apply to the City at some point in the future does not change that fact.

Similarly, Plaintiffs should not have been denied their fees under § 1021.5. Plaintiffs conveyed an important benefit on the public. Generally, they vindicated the application of local zoning law. And in particular, they obtained a ruling that upheld the intent of a local ballot initiative that was the basis of their as-applied challenge. But the trial court made no finding on the other element of § 1021.5—whether the necessity and financial burden of private enforcement make a fee award appropriate—so it will need to decide that on remand.

Reversed and remanded.