A citizens group and an environmental organization do have a right to attorneys' fees in successful litigation regarding El Dorado County's handling of a large subdivision, the Third District Court of Appeal has ruled. However, the court tempered that right by saying that the aesthetic protections won by the groups and their members should be a factor in the awarding of fees. In other words, because they gained aesthetic protections, the groups might not get as much in attorneys' fees as they would have otherwise. The issue regards the awarding of fees under the private attorney general theory of Code of Civil Procedure §1021.5. For a party to receive fees under this theory, the litigation must "vindicate an important public right," confer a "significant benefit on the general public or a large class of persons," and impose a "financial burden on plaintiffs which was out of proportion to their individual stake in the matter." At issue is approximately $360,000 for legal work at the trial and appellate court levels. In the original case, the Third District ruled that El Dorado County's approval of the 566-lot, 7,868-acre Cinnabar development was inconsistent with a draft general plan. Families Unafraid to Uphold Rural El Dorado County (FUTURE) v. Board of Supervisors, (1998) 62 Cal.App.4th 1332; see CP&DR Legal Digest, May 1998. In the attorneys' fees portion of the case, neither the county nor the developer, Cook Ranch Partners, disputed that the action enforced a public right and provided a significant public benefit. However, they argued that the financial burden of litigation for members of FUTURE and the Foothill Conservancy were not out of proportion with their stake in the matter. El Dorado Superior Court Judge Winslow Christian ruled for the county and the developer, which is the real party in interest. The Third District, in a 2-1 ruling, reversed the lower court. The court pointed to undisputed declarations that the lead attorney, who is a member of FUTURE, and plaintiffs who own property in the vicinity stand to lose nothing financially if Cinnabar is developed. In fact, the high-end, large-lot development could actually increase their property values. And landowners would receive compensation for any small strips of property condemned to allow road widening, the court noted. The court dismissed the argument from the county and the developer that the project opponents were simply NIMBYs. "The fact is that ‘nimby' plaintiffs are often at the forefront of private environmental enforcement in the public interest. CEQA enforcement is built on such private enforcement," Justice George Nicholson wrote. But the court tempered its decision by citing the First Appellate District's ruling in Williams v. San Francisco Bd. of Permit Appeals, (1999) 74 Cal.App.4th 961. In Williams, the court concluded that a plaintiff's personal interest — under the §1021.5 financial burden criterion — can include aesthetic interests. In Williams, a landowner successfully sued to prevent construction of a four-story apartment building next to his single-family Victorian home. The Williams court refused to award attorneys' fees because the homeowners' "interest in maintaining the aesthetic integrity of his immediate neighborhood and protecting both his property's privacy and its access to light, air and views, constitutes an ‘individual stake' equally as significant as a purely pecuniary one." In remanding the case, the appellate panel directed the Superior Court to consider "plaintiffs' non-financial interests" in both the trial and appeal. But Nicholson did add this warning: "[F]or an aesthetic or environmental interest to block an award of attorney fees under the ‘financial burden' criterion, that interest must function essentially in the same way in the comparative analysis as a financial interest, clearly an objective interest. A subjective, vaguely-grounded aesthetic interest, even if ‘heart-felt,' will not be considered sufficient; nor will a mere abstract interest in aesthetic integrity or environmental preservation suffice to block an award of attorney fees." In a concurring and dissenting opinion, President Justice Richard Sims wrote that the plaintiffs are entitled to attorneys' fees but that their aesthetic interests should not be considered. Sims said Williams was wrongly decided and the court should not follow it. "There is simply no way reasonably to place a pecuniary valuation on the sorts of abstract aesthetic interests that are at issue in this litigation," he wrote. The Case: Families Unafraid to Uphold Rural El Dorado County v. El Dorado County Board of Supervisors, No. C031681, 00 C.D.O.S. 2509, 2000 Daily Journal D.A.R. 3329, filed March 29, 2000. The Lawyers: For FUTURE: Randy Barrow, Mackenroth, Ryan & Fong, (916) 924-1912. For the county, Edward Knapp, chief assistant county counsel, (530) 621-5770. For Cook Ranch Partners, Howard Ellman, Ellman Burke, Hoffman & Johnson, (415) 777-2727.