In Save Our Access v. City of San Diego, 92 Cal. App. 5th 819 (2023), the court of appeal ruled that the City of San Diego improperly relied upon an earlier Program EIR for a community plan to support its subsequent decision to exclude the community plan area from a building height limit, because…

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

The firm’s annual publication, CEQA Year in Review, a summary of 2022 published decisions involving the California Environmental Quality Act, is now available.

A SUMMARY OF PUBLISHED APPELLATE OPINIONS UNDER THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT

Introduction

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