In a dispute over a traffic impact fee imposed on a residential building permit by El Dorado County, the U.S. Supreme Court unanimously rejected the long-standing position of California and other state courts that the Takings Clause of the U.S. Constitution applies differently when permit conditions are imposed legislatively rather than administratively. Sheetz v. County

The First District Court of Appeal largely upheld the City of Oakland’s EIR and CEQA findings for the Oakland A’s proposed new baseball stadium and surrounding mixed-use development, with the exception of one mitigation measure that was improperly deferred. East Oakland Stadium Alliance v. City of Oakland, 89 Cal.App.5th 1226 (2023).

The proposed project at the Port of Oakland’s Howard Terminal would include, in addition to the stadium, development of the surrounding area with residential, retail, commercial, and hotel uses; a performance venue; parking for 8,900 vehicles; and publicly accessible open space.

Railroad Safety Impacts

The project site is bounded on the north by active railroad tracks that run down the middle of a major street. The EIR found that the passenger and freight trains using these tracks would pose a safety hazard to ballpark visitors. Mitigation measures for this impact included installing fences on both sides of the tracks along the entire project frontage to prevent pedestrians and vehicles from crossing the tracks between intersections, eliminating one intersection, building a bicycle and pedestrian overcrossing, and building a vehicle overcrossing. The city found that although these measures would improve safety conditions, but the project’s impact would remain significant and unavoidable. The petitioners asserted three reasons why there was inadequate mitigation for safety impacts of railroad traffic on ballpark visitors:

  • Multi-Use Path: Part of the fencing mitigation included a multi-use path on property owned by Union Pacific Railroad. During the CEQA process, Union Pacific informed the city that it would not allow any part of its property to be used for the project. The Final EIR acknowledged that Union Pacific’s position would preclude the multi-use path. The court rejected the petitioners’ argument that the EIR was flawed because the multi-use path was not feasible given Union Pacific’s refusal to allow it. The court explained that “[t]he path does not itself contribute to the fence’s mitigation of safety hazards. Rather, the path appears to be simply an amenity. . . . With or without a multi-use path, the fence will have the desired effect of precluding access to the tracks between intersections, and there is no evidence to suggest that loss of the path will reduce the effectiveness of the fencing.”
  • Pedestrian and Bicycle Overcrossing: The EIR identified a tentative location for the overcrossing, while recognizing that the actual location could not be determined yet because it would be subject to the jurisdiction of the California Public Utilities Commission. This tentative location scored highest among four potential locations that were evaluated in a technical study. At this location, the overcrossing was estimated to be used by 60 percent of gameday visitors. The EIR concluded that the overcrossing would improve safety and therefore reduce the severity of hazards posed by the railroad tracks, but also recognized that some visitors would continue to use at-grade crossings. The court rejected the petitioners’ argument that the pedestrian and bicycle overcrossing would be ineffective. The court held that the EIR’s analysis of this topic was supported by substantial evidence: “The EIR unquestionably contains substantial evidence to support a finding that the overpass will significantly mitigate the hazards by diverting thousands of visitors from at-grade intersections.”
  • Temporary Closure of Intersections: The petitioners argued that the EIR should have considered the temporary closure of intersections at the railroad tracks during ballpark events as a mitigation measure. The court held that this argument was not raised with sufficient specificity during the CEQA process and therefore had not been properly exhausted. One comment letter had stated that “the most effective and safest way to preclude the possible use of at-grade crossings is by closing them, whether temporarily or permanently.” The court held, however, that this suggestion to temporarily close intersections, considered in the context of the broader comment letter, did not fairly apprise the city of the issue because it gave no indication that it was intended to refer to a suggested mitigation measure. The court explained that this single reference to temporarily closing intersections was an isolated and unelaborated comment, appearing toward the end of a long letter that included lengthy discussions other potential mitigation measures (including lengthy discussion advocating permanent closure of intersections).

Continue Reading Court of Appeal Upholds Most of EIR for New A’s Stadium

Attorneys from Perkins Coie presented the 33rd Annual Land Use and Development Law Briefing on January 31, 2023.

Topics included:

  • Key Developments in Land Use Law
  • Legislative Changes Impacting Housing
  • Real Estate Due Diligence
  • CEQA: Key Cases, Legislation and Trends
  • Climate Change and CEQA / CARB Scoping Plan
  • Wetlands and Endangered Species Update

A full

A hotel owner brought a lawsuit against a county transportation authority and a general contractor for nuisance and inverse condemnation alleging that the construction of an underground subway line disrupted the operation of the hotel and caused various problems, such as noise and dust, which interfered with the use and enjoyment of the property and


Old East Davis Neighborhood Association v. City of Davis
73 Cal. App. 5th 895 (2022)

The court of appeal upheld the City’s determination that a mixed-use development was consistent with general plan policies requiring new buildings to maintain scale transition and provide an architectural fit with the neighborhood. The court observed that the applicable policies did not provide a formulistic method for determining whether a proposed structure met the transition requirements. Rather, this determination relied on subjective measures and the dispute was over conflicting evidence on matters such as whether step-backs, extra-wide alleys and other factors created a scale that was consistent with the area’s traditional scale and character. Reviewing each of the City’s consistency determinations, the court found that a reasonable person could have reached the same conclusion based on the record, and the City’s decision was therefore supported by substantial evidence.

Bankers Hill 150 v. City of San Diego
74 Cal. App. 5th 755 (2022)

Relying on the Density Bonus Law, a developer proposed a 20-story mixed-use project with affordable units that would exceed the maximum zoned capacity by 57 units. The developer also sought development incentives, including avoiding a setback restriction and eliminating on-site truck loading spaces. The court rejected petitioner’s claim that the project approval conflicted with several General Plan policies. It ruled that the City did not abuse its discretion in finding that several cited policies were inapplicable and that the project did not conflict with the policies that were applicable. It also found that if the City had denied the requested incentives or failed to waive inconsistent design standards, it would have physically precluded construction of the project and the affordable units, which would defeat the goals of the Density Bonus Law.

AIDS Healthcare Foundation v. City of Los Angeles
78 Cal. App. 5th 167 (2022)

The court rejected a claim that the City’s approval of a mixed-use project violated provisions enacted by the former Community Redevelopment Agency requiring 15 percent of units to be reserved for low-income housing. The court held that the 2011 Redevelopment Dissolution Law rendered the 15 percent requirement inoperative.

Tiburon Open Space Committee v. County of Marin
78 Cal. App. 5th 700 (2022)

Under stipulated judgments in federal court, the County agreed to approve development of a minimum of 43 residential units on 110 acres of land subject to compliance with applicable land use laws, including CEQA. The court dismissed petitioner’s claims that the County had effectively contracted away its police powers in the stipulated judgments and abdicated its duties under CEQA by approving the project. The court observed that the project EIR was over 800 pages and went through extensive redrafts, and that the lengthy administrative approval process provided ample opportunities for public input. The County Board would not have gone through such a “protracted charade” had it intended to bypass CEQA. The court also upheld the County’s determination that a less dense project alternative was legally infeasible under CEQA, stating that “no reason in law or logic prevents a final federal court judgment from having [that] impact.”Continue Reading 2022 Land Use and Development Law Case Summaries



The courts issued 16 published CEQA decisions in 2022, continuing a trend of fewer published opinions than the pattern established in earlier years. The only California Supreme Court opinion, County of Butte v. Department of Water Resources, addressed federal preemption of CEQA, a rarely litigated issue.

The most important cases of the year centered on the adequacy of EIRs. The court in League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer addressed three hot CEQA topics, finding an EIR’s greenhouse gas mitigation measures and energy analysis inadequate, but upholding the EIR’s wildfire evacuation analysis.

Several important EIR cases focused on project alternatives. A decision that attracted significant notice – Save the Hill Group v. City of Livermore – held that an EIR’s discussion of project alternatives was inadequate because it did not explore the possibility of a public purchase of the project site for open space rather than its development for residential use.

In We Advocate Through Environmental Review v. County of Siskiyou, the court found the EIR’s list of project objectives so closely mirrored the proposed project that it foreclosed identification of a reasonable range of project alternatives. And in Tiburon Open Space Committee v. County of Marin, the county had settled federal litigation over a development site, promising to approve at least 43 residential units. In subsequent CEQA litigation, the court upheld the county’s rejection of an alternative allowing fewer than 43 units, concluding that the stipulated judgment in the federal litigation rendered the reduced alternative legally infeasible. Another EIR case answers the question whether an agency may approve a revised project that is a variation on the proposed project and alternatives considered in the EIR. The court held the city did not have to recirculate the EIR because the revised project was simply another permutation of the options that were fully covered by the EIR. Southwest Regional Council of Carpenters v. City of Los Angeles. .Finally, in an unusual case, a court held that a landowner could pursue a malicious prosecution action against counsel for unsuccessful CEQA plaintiffs. Jenkins v. Brandt-Hawley.

The following summaries identify the key issues in the cases decided in 2022.. Each of these case summaries links to a post on this site the provides a more detailed description of the court’s opinion.

Stephen Kostka and Julie JonesContinue Reading CEQA YEAR IN REVIEW — 2022

The court of appeal held that an attorney’s actions in filing and prosecuting a meritless challenge to construction of a single-family home supported a claim for malicious prosecution. Jenkins v. Brandt-Hawley, No A162852 (1st Dist., Dec 28, 2022).

The underlying lawsuit challenged permits issued by the Town of San Anselmo allowing the Jenkins family to

A Summary of Published Appellate Opinions Under the California Environmental Quality Act

In 2017, the California Supreme Court issued two decisions involving highly controversial questions of first impression.  In the closely-watched Cleveland National Forest Foundation case, the court reversed the court of appeal’s ruling that the EIR for SANDAG’s regional transportation plan was fatally flawed