Lead Opinion
The plaintiff Tahoe Keys Property Owners’ Association (TKPOA) brought an action against defendants State Water Resources Control Board, State of California Regional Water Quality Control Board—Lahonton Region (Lahonton), and State of California Resources Agency (Resources Agency),
Factual and Procedural Background
In this appeal we do not have before us a fully developed factual record for two reasons. First, this is an appeal from the denial of a request for a preliminary injunction. A preliminary injunction is a provisional remedy and, except in unusual circumstances, a request for a preliminary injunction would not support a final determination on the merits. (See Camp v. Board of Supervisors (1981)
Only a brief factual recitation drawn from the parties’ submissions, including the verified complaint, is necessary. The area known as the Tahoe Keys consists of 26 subdivisions bordering on Lake Tahoe. The Tahoe Keys is a waterfront development which was created by extensive dredge and fill
The Tahoe Keys development commenced in the spring of 1959 and continued during the 1960’s. In 1970 the developer conveyed its interest in the common areas to TKPOA, and in a resolution Lahonton has stated that the modifications to the former stream environment zone (SEZ) were accomplished prior to 1972.
The Tahoe Basin is a unique natural environment.
Virtually contemporaneous with rising concerns over the degradation of the Tahoe Basin and the creation of TRPA and CTRPA, our Legislature
In the early 1980’s, at a time when structures had been built upon roughly two-thirds of the lots in the Tahoe Keys, both CTRPA and Lahonton classified the area as a stream environment zone under their respective regulations.
In 1982, by resolution No. 82-8, Lahonton reclassified the Tahoe Keys as a man-modified stream environment zone. The resolution contains factual findings in support of the reclassification. Included among Lahonton’s determinations were findings that the modification of the upper Truckee Marsh resulted in significant reduction of the natural water treatment capacity of the zone and that substantial deterioration of Lake Tahoe had resulted, and that the construction and continuing operation and maintenance of the Tahoe Keys lagoons and peninsulas contributes significant quantities of nutrients to the waters of Lake Tahoe. The resolution imposes requirements for the buildout of the area. The requirement with which we are concerned here is
Also in 1982, by resolution No. 82-10, CTRPA reclassified the Tahoe Keys as a substantially altered stream environment zone. The CTRPA resolution included factual findings similar to the Lahonton resolution. CTRPA also imposed a $4,000 per lot mitigation fee on further construction.
From the time of the Lahonton and CTRPA resolutions in 1982 until February 1991, TKPOA did not protest the imposition of mitigation fees and individual lot owners who obtained building permits paid their fees into the mitigation fund. During that time approximately 300 residences were constructed and, with interest, the mitigation fund grew to approximately $1.5 million.
By letter dated February 15,1991, TKPOA objected to the past and future imposition of the mitigation fee. It demanded that the mitigation fees which had been collected be refunded and that no such fee be imposed on future construction. Lahonton rejected TKPOA's demand by resolution No. 6-91-47. TKPOA commenced this action in June 1991.
TKPOA sought preliminary injunctive relief to restrain CTRPA and Lahonton from collecting any further mitigation fees and from making any expenditures from the mitigation fund pending trial.
Discussion
“The law is well settled that the decision to grant a preliminary injunction rests in the sound discretion of the trial court.” (IT Corp. v. County of Imperial (1983)
In determining whether or not to issue a preliminary injunction, a trial court must evaluate two interrelated factors. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm the plaintiff may suffer if the injunction is denied as compared to the
TKPOA sets forth several legal theories upon which it believes it is entitled to relief. While these legal theories require separate consideration with respect to the likelihood that TKPOA will prevail on the merits, the harm which TKPOA may suffer if provisional relief is denied is a factor which is common to the propriety of preliminary injunctive relief under every theory. Accordingly, before individually addressing the potential merits of TKPOA’s theories, we will first address TKPOA’s claim of interim harm by denial of preliminary injunctive relief.
The showing of potential harm that a plaintiff must make in support of a request for preliminary injunctive relief may be expressed in various linguistic formulations, such as the inadequacy of legal remedies or the threat of irreparable injury (compare Civ. Code, § 3422 with Code Civ. Proc., § 526),
TKPOA presented little evidence or argument that would support a claim of irreparable injury in the event of the denial of provisional relief.
With respect to expenditures from the mitigation fund, TKPOA’s showing was even more scant. The mitigation fund was established by the payment of fees by individual lot owners who built on their lots in the nine years between defendants’ reclassification of the Tahoe Keys and TKPOA’s objection to the fees. Repayment through the assessment of damages, the legal remedy, is the only relief that can be accorded those persons and an order enjoining expenditures from the mitigation fund will neither ameliorate their damages nor hasten their recovery. TKPOA’s attempt to establish the potential of harm from a denial of provisional relief was based upon the assertion that in light of the state’s budget difficulties it would appear that the state could not respond in damages if TKPOA prevails. We, like the trial court, find that assertion to be entitled to short shrift. Although it is common knowledge that the state has suffered through budgetary difficulties in the last several years (see Department of Personnel Administration v. Superior Court (1992)
On the other side of the scale we consider the potential harm to defendants if a preliminary injunction is granted. Where, as here, the plaintiff seeks to
With respect to TKPOA’s request for an injunction against further collection of mitigation fees from individual lot owners, we find significant potential harm to defendants. TKPOA is acting in a representative capacity in seeking to restrain defendants from collecting mitigation fees from individual lot owners pending trial on the merits. No individual lot owner is a party to this action. Accordingly, if the defendants are provisionally restrained but ultimately prevail, the trial court will lack the ability to recompense defendants for the fees they will have been precluded from collecting in the interim. In that event the defendants will be relegated to the potentially expensive and time-consuming necessity of bringing multiple collection actions against individual lot owners in an effort to recoup their damages. This is a compelling reason for denial of TKPOA’s request for provisional relief against the collection of mitigation fees from individual lot owners. (See Santa Cruz F. B. Assn. v. Grant (1894)
Based upon these factors we find little risk of irreparable harm to TKPOA if provisional relief is denied and significant risk of harm to defendants if such relief is granted.
The next step in our analysis must be consideration of TKPOA’s specific theories for relief and the likelihood that it will prevail on the merits. We turn now to those theories.
TKPOA asserts that the decision in Nollan v. California Coastal Comm’n, supra,
In Nollan, the plaintiffs were the owners of a beach-front lot on which a small, dilapidated bungalow stood. They desired to demolish the bungalow and replace it with a three-bedroom house consistent with the neighborhood. The Coastal Commission agreed to issue a building permit provided the plaintiffs would agree to record a lateral public easement across the beachfront portion of their property.
In addressing the redefined question, the high court made it clear that a physical taking of property as a condition for issuance of a land-use permit will not per se violate the Constitution, but will instead be subjected to heightened scrutiny. (483 U.S. at pp. 836, 841 [97 L.Ed.2d at pp. 689, 692].) In general, if the government could deny a use permit in the fiirtherance of a legitimate police-power purpose then it may exact a physical taking to serve the same purpose. (Id. at p. 836 [97 L.Ed.2d at pp. 688-689].) The government may act to regulate land use to serve a broad range of purposes. (Id. at pp. 834-835 [97 L.Ed.2d at pp. 687-688].) But to be valid as a land-use regulation, a condition that results in a physical taking must “ ‘substantially advanced ’ ” some legitimate government purpose connected with the project at issue. (Ibid.) This requires that the governmental purpose relate to the project at issue, and that there be a nexus between the condition and the governmental purpose. (Id. at p. 837 [
In Notion, the justifications given by the Coastal Commission were essentially specious. Indeed, the Supreme Court found it “impossible to understand” how the condition exacted by the commission furthered the public purposes advanced as justification. (
TKPOA’s assertion that the decision in Nollan is dispositive here cannot withstand scrutiny. In Lucas v. So. Carolina Coastal Council (1992)
In light of Lucas it appears that the first step in a “Takings Clause” analysis is to determine the type of case being considered. In Lucas, the regulation at issue forbade the plaintiff from any development of his land and the state court found this regulation deprived him of all economically beneficial or productive use of the land but upheld the restriction because it served a valid state interest. (505 U.S. at p._[
In a decision rendered between Nollan and Lucas, the high court considered the standards for determining whether a case falls into the first category of “Takings Clause” cases, that is, physical takings. In Yee v. Escondido (1992)
The decision in Nollan must be considered in light of Yee and Lucas. When we do so we perceive that the analysis in Nollan was actually directed to determining whether it would fall into the first or the third category of ‘Takings Clause” cases, that is, whether or not it was a physical taking case. There the Coastal Commission attempted to avoid the conclusion that a physical taking was involved by asserting that the taking was part of its regulation of land use. However, the court held that where the government accomplishes a permanent physical invasion through its land-use regulations the courts must be “particularly careful” to ensure that the regulations substantially advance a legitimate state interest since there is a heightened risk that the purpose is the avoidance of the compensation requirement rather than the attainment of the stated police power objective. (Nollan v. California Coastal Comm’n, supra,
Unlike Nollan, this case falls squarely into the third, catch-all category of “Takings Clause” cases. There has been no physical invasion of
2. Regulatory Taking.
As we have noted above, this case cannot be resolved without a case-specific factual inquiry. (See Blue Jeans Equities West v. City and County of San Francisco (1992)
In considering challenges to the validity of land-use regulations of this type, we must initially consider whether the regulation substantially advances a legitimate state interest. (Agins v. Tiburon (1980)
The government may constitutionally engage in land-use regulation to serve a broad range of interests. (Nollan v. California Coastal Comm’n, supra, 483 U.S. at pp. 834-835 [
The mitigation fee charged to TKPOA’s members was calculated based upon estimates of the quantities of nutrients entering Lake Tahoe as a result of the development and continuing maintenance and operation of the Tahoe Keys subdivisions and lagoons. And the mitigation fund was specifically dedicated to partial mitigation of the effects of that source of pollution through projects to abate or at least offset the polluting effects of the Tahoe Keys. Thus, on the face of the regulation there appears to be a sufficient nexus between the effect of the regulation and the objectives it was supposed to advance to support the regulatory scheme. (See Yee v. Escondido, supra,
In these circumstances our focus must turn to the question set forth by the United States Supreme Court in this manner: “[W]here the government merely regulates the use of property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole.” (Yee v. Escondido, supra, 503 U.S. at p. [
While the public as a whole will doubtlessly benefit generally from the preservation of Lake Tahoe and its environs, we perceive no reason in the record to doubt that landowners in the area, such as TKPOA and its members, will benefit specially. After all, they are not simply transient visitors but plan to live there or at least have a concrete investment in the area. Since preservation of the area will confer benefits upon plaintiff and its members beyond those received by the general public, it is fair that they shoulder more of the burden. (See White v. County of San Diego (1980)
In its argument TKPOA compares its members to a class that is more limited than the general public, namely, other landowners in the Tahoe Basin. It asserts that the $4,000 mitigation fee applies only to the Tahoe Keys and that its members are thus singled out for payment of the fee. The scope of this argument is too narrow. Land-use regulations need not apply across the board to everyone arguably concerned. Rather, the government is permitted to adjust the benefits and burdens of economic life in a manner that secures an average reciprocity of advantage. (Lucas v. So. Carolina Coastal Council, supra, 505 U.S. at p.__ [
Governmental efforts to regulate land use in the Tahoe Basin have been of an unusually comprehensive scope, with the basic concept being “to provide for the region as a whole the planning, conservation and resource development essential to accommodate a growing population within the region’s relatively small area without destroying the environment.” (People ex rel. Younger v. County of El Dorado, supra,
On the other side of the ledger, we may consider the special benefits which will accrue to the parties. Through comprehensive land-use planning in the Tahoe Basin the natural beauty of the region, and hence of the property of landowners in the basin, may be preserved. However, unlike many landowners, TKPOA’s members will not be required to contribute to this end by forgoing their intended use of the land. Since TKPOA’s members will be permitted to build residences upon their land, they are in a particularly advantageous position to reap the benefits of the regulatory program. In short, the preservation of the area will preserve the natural beauty that made their property desirable in the first place, that in turn will serve to maintain or enhance the market value of the property, and it is likely that the shortage of similarly situated properties that has been created or enhanced by govemmentally enforced use restrictions will exert an upward pressure on market values of the homes in the Tahoe Keys.
When we consider the benefits and burdens of the regulatory program on a basin-wide basis based upon the facts shown in the record and those which we may judicially notice, we cannot conclude that TKPOA has shown a substantial likelihood that it will succeed in establishing that its members have been unfairly singled out to the bear the burden of the governmental efforts to preserve the Tahoe Basin.
TKPOA also compares its members who have or will be required to pay the mitigation fee to members who built earlier and thus were not required to pay the fee. According to this argument the damage to Lake Tahoe from the
The factual premises of this argument are not established in the record. Although CTRPA and Lahonton cited a loss of natural treatment capacity from the destruction of the Truckee Marsh, in their resolutions both agencies specifically found that continuing operation and maintenance of the Tahoe Keys subdivisions and lagoons contribute significant quantities of nutrients to the waters of Lake Tahoe. A computation of the mitigation fee was an attachment to the Lahonton resolution. Although full explanation of the computation would require testimonial evidence from the parties and probably from experts, on its face the computation appears to refute TKPOA’s assertions. Thus, the fee was based upon the total dissolved nitrogen entering the lake as a result of the Tahoe Keys development. Of the 2,920-kilogram total, only 300 kilograms were attributed to lost natural treatment capacity.
In any event, a landowner cannot defeat a land-use regulation simply by pointing to someone else who by prior use escaped the regulation, for otherwise there could be no land-use planning. As a general rule, land use regulation must be prospective in nature because the state is constitutionally limited in the extent to which it may, through land use regulation,
In addition to these matters, the defendants properly point out that there is substantial doubt that TKPOA will even be allowed to proceed to the merits of its claim. It is significant that TKPOA engaged in extensive negotiations with CTPRA and Lahonton over the reclassification of the Tahoe Keys; that it proposed a mitigation fee as a condition of reclassification;
Upon a consideration of the record, including the procedural hurdles TKPOA must overcome before addressing the merits of its claim and its
3. Non-Constitution-based Claims.
TKPOA’s claim of irremediable injury in support of its request for preliminary injunctive relief was based primarily on the argument that its constitutional rights are being violated and that damages cannot be deemed an adequate remedy for constitutional violations. With respect to TKPOA’s assertion of claims that are not based upon the Constitution, its showing of irremediable injury all but disappears. This is a substantial reason for denying provisional relief, at least in the absence of a strong showing of a substantial likelihood that TKPOA will prevail at trial. We find no such showing here and need only briefly discuss the nonconstitutional theories of relief.
TKPOA asserts that CTRPA should be enjoined from collection and expenditure of the mitigation fee and fund because it failed to obtain Lahonton’s execution of the MOU reflecting the parties’ agreement. We disagree. In challenging the imposition of the mitigation fee it is the resolution imposing the fee and not the MOU that TKPOA must attack. The CTRPA resolution referred to an MOU that had been prepared to set forth the mitigation package proposed by TKPOA, but neither the resolution nor the fee was made contingent upon execution of the MOU. In any event, if TKPOA believed execution of the MOU was essential that was a matter it could have and should have raised at the time. It cannot now challenge the resolution and fee on this basis. (See Edmonds v. County of Los Angeles, supra,
TKPOA asserts that collection and expenditure of the mitigation fees should be enjoined based upon conflicts between the CTRPA and Lahonton resolutions. We perceive no fatal conflicts. The MOU prepared to reflect TKPOA’s proposal stated that it was the intent of parties that the mitigation fund be utilized for on-site mitigation if such mitigation is best effective. The CTPRA resolution said that the fund would be used for on- or off-site mitigation measures, but said that priority would be given to on-site measures. It also provided that expenditure of the fund would be determined jointly between it, TKPOA, and Lahonton. The Lahonton resolution provided for mitigation measures within the Tahoe Basin, but clearly contemplated that approval of projects would be a joint endeavor between it and any other affected agency with the active participation of TKPOA. Under these circumstances expenditures under the CTPRA resolution and expenditures under the Lahonton resolution will not inevitably conflict. In the absence of a concrete proposed off-site project endorsed by Lahonton but rejected by CTRPA and TKPOA, there is no basis for judicial intervention.
TKPOA asserts that unless expenditure of the mitigation fund is enjoined, the defendants may make expenditures in violation of its right to participate in the determination of how the fund should be spent. We have noted that both resolutions contemplated the active participation of TKPOA in the decisionmaking process. On the record it appears that TKPOA did actively participate in discussion and negotiations concerning expenditure of the fund until it adopted the position that the mitigation fee was invalid and began proceedings to challenge the fee. TKPOA’s right to participate in the decisionmaking process is satisfied if it is given the opportunity to do so; its refusal to participate as a litigation tactic cannot serve as the basis for enjoining CTRPA and Lahonton in the performance of their legal duties.
The order denying TKPOA’s request for a preliminary injunction is affirmed.
Sims, J., concurred.
Notes
The official actions of which TKPOA complains were taken, in part, by the California Tahoe Regional Planning Agency (CTRPA). CTRPA has been statutorily deactivated and the secretary of the Resources Agency has been designated as successor of CTRPA for litigation purposes. (Gov. Code, § 67132.) Defendants point out that the secretary of the Resources Agency rather than the agency should have been the named defendant, but they do not object to consideration of the issues on this ground. Since we are concerned here with a land-use regulation imposed by CTRPA, we will refer to CTRPA in the body of this opinion, although it is the secretary of the Resources Agency who now represents those state interests.
Lake Tahoe is renowned for its clarity and it has been said that only two other sizable lakes in the world are of comparable clarity—Crater Lake in Oregon and Lake Baikal in what was formerly the Soviet Union. (See Lake Country Estates v. Tahoe Planning Agcy. (1979)
TKPOA states that the Tahoe Keys was designed to accommodate 335 townhouse units and 1,249 single-family residences. By 1981, before the actions at issue here, all of the townhouses and approximately 800 of the residences had been constructed.
The mitigation fee imposed by CTRPA is not in addition to the fee imposed by Lahonton; rather, it is the same fee. It also appears that the fee includes a $750 fee imposed by TRPA. No issue is presented here with respect to any portion of the fee required by TRPA.
TKPOA attached a copy of the MOU to its complaint. The MOU recites that it is an agreement between TKPOA, CTRPA, and Lahonton. The CTRPA resolution by which the Tahoe Keys was reclassified refers to the MOU. The Lahonton resolution does not refer to the MOU, but does reflect that TKPOA was to be an active participant in determining how the mitigation fund would be used. TKPOA asserts that the MOU was never formally executed by Lahonton.
TKPOA states that following Lahonton’s rejection of its demand it commenced a proceeding for administrative review by the State Water Resources Control Board pursuant to Water Code section 13320, subdivision (a). TKPOA concedes that it has not exhausted that remedy. However, citing National Audobon Society v. Superior Court (1983)
TKPOA asserts that no expenditure was made from the mitigation fund until this litigation was commenced, at which time Lahonton began to take action on proposed expenditures. Although it appears uncontroverted that no expenditure had been made before this litigation, it does not appear that Lahonton engaged in a sudden rush to spend the fund in light of the litigation. In fact, for several years the parties, with the active participation of TKPOA, had been engaged in negotiations, studies, and workshops with respect to proposed mitigation projects. One project proposed by TKPOA had become the focus of the discussions. That project involved the circulation of Tahoe Keys water to the Pope Marsh as a means of filtering the water before it entered Lake Tahoe. The proposal required the participation and approval of the United States Forest Service, which suggested an initial pilot project to test the efficacy of the proposal before a decision on full implementation. Shortly after this litigation commenced Lahonton was scheduled to consider funding the pilot project from the mitigation fund. However, the project required the participation of TKPOA and in light of its demand for repayment of the mitigation fund it informed Lahonton that it would not participate if the pilot project would be funded through the mitigation fund. That effectively prevented implementation of the pilot project and it does not appear that approval of any other expenditure from the fund was imminent.
The Civil Code refers to inadequacy of legal remedies rather than irreparable injury, but the Civil Code provisions with respect to injunctive relief govern only final injunctions and not preliminary injunctions. (Civ. Code, § 3421.) The Code of Civil Procedure, which governs both final and provisional relief, refers to irreparable injury. (Code Civ. Proc., § 526.)
TKPOA presented the declaration of Gregory A. Bennallack, an owner of an unimproved parcel within Tahoe Keys. He believes the mitigation fee is unconstitutional and unfair. He asserted the obvious, that if defendants are allowed to continue collecting the fee he will be unable to build upon his land without paying the fee. He did not suggest that continued collection of the fee would prevent or dissuade him from building upon his land and said nothing which would suggest that he could not be fully compensated by repayment of the fee in the event TKPOA prevails.
Even in the absence of a provisional injunction the litigation itself is likely to have a chilling effect on defendants’ use of the mitigation fund, since they will have to make then-decisions with an awareness that if TKPOA prevails the mitigation fund will have to be repaid. However, that is a matter the defendants will have to consider in the exercise of then-administrative discretion; it is a different matter to assert that they should be judicially enjoined from exercising that discretion.
The public easement sought by the Coastal Commission was “lateral” because it was not an access easement from the public road to the beach, but crossed the back or beach side of the plaintiffs’ property from one private property to another.
Governments are vested with the power of eminent domain which enables them to take private property to serve any legitimate public interest, provided that the property owner is compensated for the taking. Accordingly, the mere assertion that a taking serves a public interest is not sufficient to support an uncompensated taking, since the Constitution specifically requires that compensation be paid in such circumstances. While the government may engage in legitimate land-use regulation, it cannot be permitted to use the occasion of an application for a land-use permit as an excuse to extort private property from its owner where the taking would otherwise require compensation. Accordingly, to support an uncompensated taking it must appear both that the public purpose have a relationship to the property or the project at issue and that the taking advances that public purpose rather than some purpose unrelated to the property or the project at issue. (Ibid.)
The Coastal Commission asserted that the Nollans’ new house would interfere with visual access to the beach, would somehow create a “psychological barrier” to beach use by interfering with the public’s desire to use public beaches, and, somewhat inconsistently, would increase the use of public beaches thus creating the need for more beach access. The court accepted visual access as a legitimate public interest but noted that a lateral easement across the back of the Nollans’ property could not alleviate that concern. The court appeared incredulous about the other justifications but did not specifically consider whether they were sufficient to constitute a legitimate public interest because a lateral easement could not advance those interests. (Ibid.)
This does not mean that any governmental action that appears to fall into one of the first two categories is necessarily invalid unless pensation is paid to the property owner. For example, the state may enforce its statutes against public and private nuisances even if doing so deprives an owner of all economic use of the land. (Id. at p._[
In the ad hoc factual inquiry required for the third category of cases the extent to which a landowner is restricted in the use of the property is relevant in determining whether the regulation goes too far, but even where almost all of the economically beneficial or productive use of the property is prohibited a case-specific factual inquiry is still required. In short, whether a case falls into the second category is an “ ‘all-or-nothing’ ” matter. (Ibid.)
In Nollan, the Coastal Commission asserted, among other things, that the plaintiffs’ project in conjunction with prior development would create a visual barrier to the shoreline. The court said that to remedy that problem the commission could have compelled the Nollans to grant a permanent easement for viewing purposes as a condition for issuance of a building permit. The compelled dedication of such a “viewing spot” would obviously have addressed the cumulative impacts of beach-front construction but would have fallen upon the Nollans alone, yet the court saw no constitutional obstacle sufficient to invalidate such a condition without a case-specific factual inquiry.
The cited cases were concerned with the establishment of special assessment districts under California law. However, the legal standard for determining the validity of a special assessment district and that for determining the validity of a land-use regulation as stated in Yee, supra, are strikingly similar and we find special assessment cases persuasive on this question.
The figure for lost treatment capacity was “30% of 1000 kg/yr,” apparently indicating that only 30 percent of the actual lost treatment capacity was used in the computation. This was added to 2,620 kilograms per year that was “contributed by current Tahoe Keys Development.”
In its initial request to CTPRA and Lahonton for reclassification of the Tahoe Keys, TKPOA proposed the creation of a mitigation fund to support offsite mitigation measures to be funded by the assessment of $1,000 against new construction. Through negotiations the suggestion was altered in some respects, such as the amount of the fee, the manner of it collection, and the establishment of a priority for onsite mitigation projects. However, it does appear that the suggestion that a mitigation fee be imposed originated with TKPOA.
Even if we were to assume that this rule does not serve as a complete bar to TKPOA’s claims, it still appears that TKPOA will be precluded from obtaining all of the relief it seeks. For example, it is regarded as fundamental that a landowner who obtains a building permit
Concurrence Opinion
I concur in the result but write separately because I believe it is unnecessary for this court to consider the question whether plaintiff is likely to prevail on the merits at trial.
In determining whether to grant or deny a request for a preliminary injunction, the trial court must consider the likelihood that the plaintiff will prevail on the merits at trial and must weigh the interim harm to the plaintiff if the injunction is denied against the interim harm to the defendant if the injunction is granted. (Cohen v. Board of Supervisors (1985)
I agree with the majority’s conclusion that the record shows little risk of irreparable harm to plaintiff if provisional relief is denied and significant risk of harm to defendants if such relief is granted. Therefore, the trial court did not abuse its discretion in denying the preliminary injunction. (Cohen v. Board of Supervisors, supra, 40 Cal.3d at pp. 286-287.)
Because the trial court’s order may be affirmed on the interim harm analysis alone, I decline to consider whether plaintiff has shown it is likely to prevail at trial on its claim that the mitigation fee charged as a condition for obtaining building permits is unlawful.
Appellant’s petition for review by the Supreme Court was denied June 16, 1994.