The state adopted legislation imposing a monetary exaction to defray a portion of the costs incurred by the Department of Fish and Game to review EIRs and negative declarations. The legislation was challenged on a number of grounds, including that the exaction was a tax, not a regulatory fee, and therefore under Proposition 13, had to be approved by two-thirds of the state legislators. The court found that, given the depart-ment's important responsibilities under CEQA and other environmental laws, the fees collected did not surpass the cost of the regulatory program and were reasonable in terms of how much each person must pay. The court concluded that a fee is not a tax simply because a payer is required to pay a predetermined fixed amount. Despite Challenger's Financial Interest In Outcome One of the significant financial risks to a public entity when defending a challenge to its land use decision is an award of attorney's fees to the challengers if they are successful.
State law permits the court to award such fees under the so-called private attorney general theory.
That is, attorney's fees may be awarded where the litigation serves to vindicate an important public right, confers a significant benefit on the public and imposes a financial burden on the challengers disproportionate to their own individual stake in the matter. The trial court denied attorney's fees, however, on grounds that the petition alleged that the challengers' property would be taken as a result of the project and therefore they failed to meet their obligation to show that their financial burden in bringing the action was out of proportion to their financial interest in the outcome. The appellate court disagreed, finding that undisputed evidence in support of the attorney's fees established the mere potential that a portion of one or more of the challengers' properties could lose a few feet due to widening the road to the project, but that was a minimal consideration when compared to the 600 hours spent on the litigation. Moreover, the evidence was undisputed that property values in the area would go up as a result of the project. Under the circumstances, it was an abuse of the trial court's discretion to deny attorney's fees and the matter was referred to the trial court for further proceedings.