While Burlingame Elementary School District officials appeal a court decision to halt construction at Hoover Elementary School, petitioners in the case are seeking attorneys’ fees to the amount of $996,482.
The district was surprised by the amount of money, said Superintendent Maggie MacIsaac. Last week, the district filed an appeal in the state appellate court to San Mateo County Superior Court Judge Marie Weiner’s May ruling in favor of the Alliance for Responsible Neighborhood Planning. The alliance sued the district, stating it needed to prepare a full environmental impact report on traffic impacts for the entire property, which means all construction must be stopped until this is done.
“It’s going to be up to the judge,” MacIsaac said. “She’ll decide if they’re reasonable or exorbitant legal fees.”
The breakdown is $995,467 for attorneys’ fees, while there are $1,015 additional expenses. For work on the merits of the instant action, including the initial complaint, the ex parte application for a temporary restraining order, the motion for preliminary injunction and response to the district’s motion to modify the final injunction, petitioners seek a lodestar fee — the fee come up with by multiplying the number of hours reasonably spent by trial counsel by a reasonable hourly rate — of $557,548. Petitioners are also seeking $19,758 for time preparing this motion.
“An award of fees and expenses is warranted … because petitioners succeeded in enforcing an important right that significantly benefited the general public and/or a large class of persons, and the necessity and financial burden of private enforcement are such as to make the award appropriate,” according to the motion filed by the alliance’s attorney Kevin Haroff on Tuesday. “Petitioners enforced the public’s right to have the district comply with the requirements of the California Environmental Quality Act.”
The petitioners are also seeking an additional $418,161 — found by multiplying the attorneys’ fees by 1.75 — since the significance of the issues raised by the litigation resulted in commentary on local social media websites repeating inflammatory statements about the petitioners and counsel being “selfish” and “NIMBY” advocates. The media scrutiny and public commentary made prosecuting the litigation more challenging, but also the substantial and beneficial impact the litigation has had within the community. Petitioners are not requesting a multiplier to enhance the fees awarded for the work done in preparing the motion, according to the motion.
The money would come out of the district’s Measure D $56 million bond program passed by voters in November 2012. The overall budget for Hoover, which was purchased by the district in 2010 for $4.8 million, was $23 million and the district has not gone over that budget, MacIsaac said. Measure D was used to cover most of the costs. The district’s overall budget for the 2014-15 school year is $24 million, but fees wouldn’t come out of the general budget, she said.
“There are always going to be costs [for construction projects],” she said. “It’s something we’re certainly not looking forward to having to pay. It would be at the expense of updating our facilities and making sure we have room for students in our school district.”
Conversely, the petitioners note that throughout the case, they sought to minimize fees and expenses whenever possible and much of the work required for the case was performed by a single attorney. Petitioners sought to minimize potential liability for attorneys’ fees by engaging in meaningful and early settlement discussions, the motion stated.
“Unfortunately, efforts to efficiently manage the litigation were often compromised by the district’s use of strategies and tactics that routinely complicated the prosecution of the case,” the motion stated. “Efforts to reach an early settlement were consistently rebuffed, with statements alleging that petitioners settlement proposals were ‘too onerous’ and that ‘the matter must be fully litigated.’”
The group of Hillsborough residents, made up of Christine Fitzgerald, Diane Haggerty and Elizabeth Vorsatz, filed the lawsuit in January 2013. At a July 2013 hearing, the Haroff said the district failed to address traffic impacts in its December 2012 mitigated negative declaration study and review. A mitigated negative declaration is like an EIR but less extensive.
The 1.75 multiplier compensates the prevailing party for taking a risk on a type of litigation that’s really costly knowing it may have to come out of their pocket, Fitzgerald said.
“It did litigate a traffic issue that really impacts the entire community,” she said. “The total amount the district has spent is going to be pretty close to the amount of money we spent. A lot of the attorney’s fees we spent were in response to things the district filed and we eventually won on. They took some pretty definitive positions on issues that caused us to respond.”
Growing enrollment in the district resulted in the purchase of the school, which closed in 1979 after 48 years of use. The district is projected to grow to 3,500 students by 2018 from its current size of 3,234 students, MacIsaac said. Since the purchase, the district worked to renovate the building to meet current standards. The plan for the school called for two 8-foot-wide curbside bays to be created for pickup and dropoff along the west side of Summit Drive adjacent to the school providing enough curb space for 15 cars. The existing school site curb would be shifted west to provide for the bays and two 10-foot-wide vehicle travel lanes, which will increase the width of Summit Drive to 17 feet in some areas.
The hearing on the attorneys’ fees takes place 2 p.m. Aug. 15 at San Mateo County Superior Court in Redwood City.
(650) 344-5200 ext. 105