Key Points

• The First District Court of Appeal in Make UC A Good Neighbor v. Regents of University of California reversed the trial court’s dismissal of a neighborhood group’s challenge to the adequacy of an EIR for the University of California, Berkeley’s long range development plan and student housing project in People’s Park.
• The court held that the EIR failed to consider reasonably feasible alternative sites and analyze potential noise impacts from student parties, and instructed the UC to return to the trial court and patch the substantive holes in the EIR.
• After the ruling, the University of California filed a petition for review before the California Supreme Court and Governor Newsom called for legislative action. And there is currently legislation pending that would undo the decision. Assembly Bill 1307 proposes amending CEQA to specify that, for residential projects, the unamplified voices of residents is not a significant effect on the environment. In other words, most student parties will no longer spoil a CEQA document.

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The First District Court of Appeal, on February 24, 2023, thwarted UC Berkeley’s plan to build student housing in People’s Park, in Make UC A Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656. The court reversed the trial court’s dismissal of a neighborhood group’s petition challenging the adequacy of the environmental impact report (EIR) for UC Berkeley’s long range development plan (LRDP) and student housing project in People’s Park. The court held the EIR failed to (1) consider reasonably feasible alternative sites and (2) analyze potential noise impacts from student parties. (The University of California Regents certified the EIR and defended the lawsuit, so this article will refer to the Regents and UC Berkeley collectively as “UC.”)

In tandem with the housing project in People’s Park, the court also considered the adequacy of the EIR’s analysis of the UC’s long range development plan, and held that the EIR adequately analyzed and mitigated all potential environmental impacts, and was not required to evaluate a limit on student enrollment.

This case represents the highly polarizing conflict between the UC’s need for student housing and the neighborhood’s concerns about issues that might arise from the housing project, environmental, non-environmental and everything in between. In fact, the court acknowledged as much:

We are, of course, aware of the public interest in this case – the controversy around developing People’s Park, the university’s urgent need for student housing, the town-versus-gown conflicts in Berkeley on noise, displacement, and other issues, and the broader public debate about legal obstacles, to housing construction.”

The construction and availability of student housing has not kept pace with the UC’s increase in enrollment, and the UC’s long range development plan is a high-level planning document that, in part, seeks to cure this problem. The problem, however, is that the UC’s solution involved the redevelopment of People’s Park, a historical and cultural landmark that is listed in the National Register of Historic Places as a historic setting for political activism since the 1960’s. Currently, it serves as a public park largely occupied by transient and unhoused people.

In an effort to save the park, Make UC a Good Neighbor and the People’s Park Historic District Advocacy Group filed a Petition for Writ of Mandate challenging the EIR on several grounds, including that the UC failed to properly consider project alternatives, noise from student parties, and potential displacement from population growth, and that the EIR improperly piecemealed environmental review. The trial court denied the Petition, and the neighborhood groups appealed. The court of appeal overturned the trial court’s decision on two key issues: project alternatives and noise from student parties.

The EIR’s Discussion of Project Alternatives Was Inadequate

First, the court held that the EIR did not analyze any alternative project sites for People’s Park, without valid justification. As explained by the court, “CEQA requires that an EIR consider and analyze a reasonable range of potentially feasible alternatives to the project, or its location, that would attain most of its basic objectives but reduce its environmental impacts.” (Guidelines, § 15126.6, subd. (a).) There was evidence in the record of alternate university-owned sites for student housing that would avoid significant impacts to the historic resources located at the People’s Park site. However, the UC did not provide a valid reason for not analyzing these sites as alternatives. Specifically, the EIR considered and dismissed two alternatives. One alternative was to design buildings in a way that preserves the park’s important features, but this was immediately rejected by the staff who concluded that it was not possible.

The second alternative was to construct the housing project on another property owned by the university in the area. The EIR dismissed this option because (1) it could reduce the number of beds projected in the LRDP, (2) the eligible sites were smaller, and (3) it would not avoid impacts to historic resources, since these sites also contained historic resources. According to the court, the UC’s reasons for its rejection were vague, non-starters, and unsupported by the record. The court also reasoned that a new project objective of revitalizing the People’s Park site, raised only in briefing, contradicted the UC’s rationale and was not supported by the EIR. The court stated that even if it were to accept the UC’s argument that its primary objective was to revitalize People’s Park, this explanation conflicted with other information in the record. Namely, insofar as the EIR included a goal to revitalize property, it was not property specific; rather, this objective pertained to the UC’s long range development plan that, in general, presented a “menu of options” for the revitalization of underutilized UC properties. There was no mandate that People Park must be redeveloped. Moreover, the UC did not raise this objective in the alternatives chapter, or in response to public comments, failing to equally inform the public as required by CEQA. The court also noted that failure to meet one project objective did not justify its exclusion from consideration, and concluded that the UC’s unsupported conclusory statements were not sufficient and did not meet CEQA’s requirement to evaluate a reasonable range of potentially feasible alternatives.

The EIR Failed to Consider Noise from Student Parties

Second, the court held that the EIR failed to adequately analyze noise impacts from student parties. The documented, longstanding problem of disruptive student parties in the city constituted substantial evidence of a potentially significant noise impact that the EIR should have analyzed. For instance, the record showed that the City had tried to address the noise problem through adoption of ordinances, whose findings showed the severity of the issue. Based on this evidence, the court rejected the UC’s argument that noise concerns amounted to stereotypes and biased assumptions. The court could not reconcile the UC’s argument with the UC’s concession that loud student parties in the subject neighborhoods are a problem.

The EIR Properly Evaluated the Impacts of the Long Range Development Plan

Meanwhile, the court upheld the EIR’s analysis of the UC’s long range development plan. The long range development plan predicts future enrollment for planning purposes but does not set a limit on the campus’s future population or determine enrollment levels. However, it specifies a maximum growth amount that the university cannot exceed without further environmental review. The Appellants argued that the EIR was inadequate, and that it was required to consider an alternative that would limit student enrollment. The court upheld the EIR on the grounds that (1) EIR was not required to analyze an alternative to the plan that would limit student enrollment; (2) the EIR did not improperly restrict the geographic scope of the plan to the campus and nearby sites; and (3) the EIR adequately assessed and mitigated environmental impacts related to population growth and displacement of existing residents.

This Impact of this Decision May Be Short-Lived If the Supremes or Legislature Intervene

However, the party is not over for this project. The Appellate court rejected the EIR and instructed the UC to return to the trial court and patch the substantive holes in the EIR. In a public statement, UC Berkeley expressed its intention to petition the California Supreme Court for review and reaffirmed its dedication to transforming People’s Park into an area that accommodates student housing and provides support to low-income locals. On March 28, 2023, the UC filed a Petition for Review. The Petition is bound to have broad support, including from the City of Berkeley. On March 21, 2023, the City of Berkeley resolved to submit a letter in support of the UC’s petition for review.

There is also a possibility for a legislative fix. Following the decision, Governor Newsom put out a statement criticizing the use of CEQA by wealthy homeowners to block “desperately needed student housing,” and said he was “committed to working with lawmakers this year to making more change so our state can build the housing we desperately need.” On February 16, 2023, Assembly Bill 1307 was introduced and it proposes amending CEQA to specify that, for residential projects, the unamplified voices of residents is not a significant effect on the environment. And on February 17, Assembly Bill 1700 was introduced, which would amend CEQA to specify that population growth in and of itself, resulting from a housing project and noise impacts of a housing project, are not an effect on the environment for purposes of CEQA.

Takeaways

There are several takeaways from this decision for developers and lead agencies alike. Regarding the alternatives analysis, it is risky to evaluate no alternative sites. However, if a lead agency does not evaluate available alternative sites, it must provide a valid reason, supported by the record, to meet CEQA’s requirement to analyze a reasonable range of alternatives. Additionally, a CEQA noise analysis for student housing projects should evaluate noise from parties, particularly when there is a documented history of disruption from other student housing projects. It is a reminder that a lead agency should take seriously every environmental claim made during an administrative proceedings, even those claims that might instigate, at least proverbially, an eye-roll.

If you have questions about CEQA review of student housing projects, upcoming legislative updates to CEQA, or any other land use issue you are facing, please contact the authors or the Hanson Bridgett Land Use Group.