In a published opinion filed February 24, 2023, the First District Court of Appeal (Div. 5) reversed a judgment upholding the adequacy of the EIR for the University of California, Berkeley’s long range campus development plan (“LRDP”) and a controversial housing development project at the historic People’s Park. Make UC a Good Neighbor v. Regents of University of California (Resources for Community Development, Real Party in Interest) (2023 ___ Cal.App.5th ___. The opinion comes in a case that has been much publicized in popular news media as involving both development of an iconic historic site, currently plagued with crime and homelessness, and treatment of housed college students as presumptive purveyors of “party noise” environmental impacts; it has also (justifiably) resulted in renewed calls for CEQA reform, including from Governor Newsom.
“Don’t Kill The Messenger”
While the facts, issues, and holdings of the case – right or wrong – are fairly simple and straightforward, the controversy surrounding it led the Court to preface its opinion with the following unusual disclaimer:
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. We do not take sides on policy issues. Our task is limited. We must apply the laws that the Legislature has written to the facts in the record. In each area where the EIR is deficient, the EIR skipped a legal requirement, or the record did not support the EIR’s conclusions, or both.”
Factual and Procedural Background
UC campuses are required by law to periodically adopt LRDPs to guide their decisions on land and infrastructure development. UC Berkeley’s approvals of its 2021 LRDP, which estimates but intentionally does not cap future enrollment (which is determined through a separate legal process), and its related EIR were the subject of Petitioner’s challenges in this case.
While the 2021 LRDP does not set limits on the campus’s future population, it does “establish a maximum amount of new growth that the university may not substantially exceed without amending the plan and conducting additional environmental review.” UC Berkeley currently ranks a distant last in the UC system with regard to providing housing for its students (measured in terms of “beds”); it does so for only 23% of them. Its prior 2005 LRDP planned only 2,600 new beds through 2021, 10,000 short of projected enrollment increases over that period, and UC constructed less than half of those, while at the same time increasing enrollment beyond the plan’s projection. By 2018-2019, student enrollment exceeded the 2005 LRDP’s projections by over 6,000 students, and out of the campus’s 39,708 students, the university houses fewer than 9,000 – a “matter of urgent concern” which led to a UC Berkeley task force report and resulting housing goals embodied in the 2021 LRDP. As currently drafted, the 2021 LRDP anticipates (but does not commit to) constructing up to 11,731 new net beds to accommodate a project increase in campus population of up to 13,902 new residents (including students, faculty, and staff). Even so, it projects that another 8,173 students, faculty, and staff will be added to the campus population by 2036-2037 who won’t be provided with university housing.
The petitioner group (“Petitioner”) challenged the Regents’ adoption of the 2021 LRDP and their certification of the accompanying “hybrid” program/project EIR, which analyzed not only the potential environmental impacts of adopting and implementing the plan, but those of two site-specific housing development projects to be located at the Helen Diller Anchor House (Housing Project No. 1, not at issue in the appeal) and the People’s Park (Housing Project No. 2). After the trial court denied the writ petition, Petitioner appealed and obtained a stay and writ of supersedeas to prevent demolition of the People’s Park pending resolution of the appeal.
The Court of Appeal’s Opinion
Regents’ EIR Was Not Required To Consider LRDP Alternative Limiting Student Enrollment
The Court of Appeal first rejected Petitioner’s argument that the 2021 LRDP EIR was faulty for failing to analyze an LRDP alternative limiting student enrollment. The Court noted that the “lead agency – not the public – is responsible for proposing [the potentially feasible] alternatives” that an EIR must consider, and that it “need not consider every conceivable alternative but instead a reasonable range of [potentially feasible] alternatives to the project, or to the project’s location, that could reduce a project’s significant environmental impacts, [and] meet most of the project’s basic objectives[.]” The “rule of reason” requires the EIR to “set forth only those alternatives necessary to permit a reasoned choice” and examine in detail only those alternatives the lead agency determines could feasibly attain most of the basic project objectives; courts presume an EIR complies with CEQA and a petitioner’s burden is to both (1) demonstrate the EIR’s selected alternatives are “manifestly unreasonable” and (2) identify evidence of an unanalyzed “potentially feasible alternative that meets most of the basic project objectives.”
Applying the substantial evidence standard to this predominantly factual issue, the Court held Petitioner failed to meet its burden. A LRDP is required to provide guidance for physical development, land use designations, building locations, and infrastructure systems over its time horizon; the LRDP here did so, and estimated future enrollment, but did not set enrollment levels, and its 14 listed project objectives were primarily comprised of “broad goals for land use, landscapes, open space, mobility, and infrastructure.” The EIR identified eight (8) alternatives, scoped out four (4) from in-depth consideration for various reasons, and analyzed the remaining four (4) in depth; these were: the no project/continue 2005 LRDP alternative; a 25% reduced development (in terms of new beds and development square footage) alternative; a VMT/GHG/commute reduction alternative; and a faculty/staff housing-prioritization alternative. Among the alternatives rejected for detailed analysis in the EIR was one focused on reducing the number of future graduate students; it was rejected, according to the EIR, because it would undercut a “core” project objective to “support and enhance UC Berkeley’s status as a leading public research institution.” Addressing public comments urging consideration of an alternative reducing, capping or otherwise limiting undergraduate enrollment, the FEIR responded that “the plan does not set undergraduate enrollment, increase enrollment, or commit the campus to any particular enrollment level” and that “enrollment is determined annually in a separate process.”
After reviewing the EIR’s explanation of the separate, complicated process for planning and setting enrollment levels in the UC system, which is required by statute to plan for space to accommodate and accept the top 12.5% of state high school graduates and eligible community college transfer students, the Court held that the LRDP’s “limited scope and purpose” which deliberately kept separate the “complex annual process for setting enrollment levels” was permissible. A lead agency is permitted to define the nature and scope of its project through its project objectives, and here those objectives – nearly all 14 of which relate to land use and development goals – made clear that the LRDP’s limited purpose was to guide future development, and did not include setting enrollment levels. Petitioner’s alternatives argument failed because it “ignore[d] the plan’s limited purpose and scope” and Petitioner did not argue that the Project’s objectives were “too narrowly drawn” or that CEQA required the development and enrollment planning process to be combined – the latter potential “piecemealing” argument being one the Court stated it would reject in any event. The Court found that the EIR’s alternatives were tailored to the LRDP’s limited purpose, and while they did not include reducing total campus population, they did include managing it in various ways that could lessen or avoid its environmental impacts, e.g., reducing car travel, increasing on-campus housing, increasing remote working and instruction.
The Court rejected Petitioner’s remaining alternatives arguments by: (1) holding that even if an enrollment alternative did not conflict with project objectives and was potentially feasible, it would not require EIR study where Petitioner failed to meet its burden to show the existing range was unreasonable; (2) unlike the situation in case law relied on by Petitioner, the EIR here included a reduced development alternative; and (3) while it must mitigate for projected campus population increases, nothing in CEQA requires the Regents to consider alternatives to its process for setting enrollment levels whenever it adopts a LRDP. (Citing Save Berkeley’s Neighborhoods v. Regents of University of California (2020) 51 Cal.App.5th 226, 237-241 (my 7/2/20 post on which can be found here), and Pub. Resources Code, § 21080.09.) (The Court observed in a footnote that the Legislature recently adopted a CEQA exemption for site-specific student and faculty housing projects meeting certain criteria and that are consistent with a LRDP (Pub. Resources Code, § 21080.58), but that the exemption does not apply to LRDPs.)
EIR Was Required To Consider Alternative Sites To People’s Park Housing Development Project
The Court held that the EIR’s alternatives analysis for the site-specific Housing Project No. 2 stood on a different footing and was inadequate due to the Regents’ failure to explain why they did not analyze any feasible alternative sites that could attain basic project objectives and avoid or lessen the impacts of developing the People’s Park site. While analysis of alternative sites is not required in all cases, there was, per the Court, “plenty of evidence that alternative [potential student housing] sites exist” and, if a lead agency concludes no feasible alternative locations exist, “it must disclose the reasons for this conclusion, and should include the reasons in the EIR.” (CEQA Guidelines, § 15126.6(f)(2)(B).) The Court thus held that “[u]nder these circumstances, we are constrained to find the EIR failed to consider and analyze a reasonable range of alternatives.”
Central to this aspect of the Opinion is the historic significance of the People’s Park, which is located on a parcel the university originally acquired in the 1960s to develop parking, student housing, and office space, but which was quickly taken over and transformed into an unofficial community gathering space by residents, students and community organizers. People’s Park’s historic significance is due to its association with social and political activism in Berkeley, as a hub of anti-Vietnam War protest and the site of both peaceful protests and violent clashes between protesters and law enforcement. Various proposals to develop it since have met with opposition, and, apart from occasional special events, the park is now predominantly used “by transient and unhoused people in multiple encampments” and “afflicted with crime, ranging from disturbing the peace and drug and alcohol violations to much more serious offenses including sexual assault, arson, and attempted murder.” It was designated by the City of Berkeley as a local historic landmark in 1984 and numerous structures in its immediate vicinity also have historic significance, including two National Register-listed resources.
The EIR determined that the housing project would result in a substantial adverse change to a historic resource, which no one disputed constitutes a significant environmental impact under CEQA. It would demolish the park and its “amenities” to provide 1,113 new student beds, eight staff/faculty beds, 125 beds for lower-income and formerly homeless persons, as well as a public market, a clinic, and 1.7 acres of publicly accessible and landscaped green space that would commemorate the park’s history and legacy. Due to its proposed scale and proportion, with a large footprint and up to 17 stories in building height, the project could also adversely impact the many other smaller-scale historic resources in its vicinity.
The EIR did not analyze any alternatives in detail; it scoped out and rejected two alternatives involving (1) designing buildings to maintain the park’s key features (which staff apparently rejected out of-hand) and (2) locating the housing project on one of the university’s many other area properties. The EIR rejected the second alternative because (1) it could reduce the total number of LRDP-projected beds, (2) many eligible sites are smaller, and (3) many eligible sites also contain potentially impacted historic resources.
The Court held the EIR’s above reasons were insufficient and that the Regents’ attempts to offer new and contradictory reasons in its brief that were found nowhere in the EIR did not avail it. Simply put, the EIR was required to contain conclusions, based on facts and analysis, showing no potentially feasible alternative sites existed; its “vague and equivocal statements” and “ambiguous generalizations” fell short in all respects and failed to serve CEQA’s purpose of enabling informed agency decision-making and public discussion. Compounding these deficiencies was the EIR’s “questionable” treatment of “potential adverse environmental impacts on People’s Park and various other, unnamed historical resources as if they were interchangeable” and “fungible.” Finally, the Regents cited no evidence supporting the EIR’s claim that alternative sites would have a “greater potential for ground disturbance” and the point was thus deemed abandoned.
Nor could the Regents cure these EIR deficiencies through their briefing by arguing that a “primary [site-specific] objective” of the Project was to “revitalize the People’s Park site,” thus rendering other sites in conflict with this objective. The Court examined the EIR’s stated objectives and found that neither they nor the record supported this contention. Nor did the Court accept the claim that alternative sites for Housing Project No. 2 were infeasible because all other proposed nearby sites were required for other uses. Nothing in the EIR or record supported the claim that the objectives could not be attained without developing every potential site, and in any event a potentially feasible alternative cannot be rejected for not fully meeting all project objectives.
The Court added that, even if it accepted the Regents’ argument – omitted from the EIR – that their primary objective was to fix problems at this particular site, such an explanation contradicted the reasons for rejecting alternative sites that they gave in the DEIR, in the FEIR’s responses to comments, and in their findings. Per the Court, this constituted an unacceptable “hiding the ball” approach that rendered the EIR’s range of alternatives unreasonable and prejudicially precluded informed public participation and decision-making, regardless of whether a different outcome would have occurred had the claimed objective been disclosed.
Regents Did Not Impermissibly “Piecemeal” By Including Only University’s On-Campus And Adjacent Properties In LRDP
The Court rejected Petitioner’s argument that the Regents “piecemealed” the LRDP by limiting its geographic scope to the campus and neighboring properties and excluding several properties that were more distant. An EIR “piecemeals” a project when it splits one large project into smaller ones resulting in piecemeal review obscuring the whole project’s full impacts. Per the Court, for this to occur, the projects must not only be related but “linked in a way that logically makes them one project, not two.” By contrast, two related projects are properly kept separate when “they serve different purposes or can be implemented independently.”
Here, for a number of logical reasons, the Court found it “perfectly rational for the university to develop a coherent plan for the campus and its adjacent properties while developing separate plans for more remote properties” and it refused to “second guess” the Regents’ choice in doing so, which it held was within their lawful discretion under the governing statute.
EIR Failed To Analyze Loud “Student Party Noise” Impacts From Both LRDP And Housing Project On Neighboring Residential Areas
Reasoning that CEQA includes “noise” as part of the “environment” (citing Pub. Resources Code, §§ 21060.5, 21068) and noting that the Regents generally conceded that CEQA applies to the type of noise at issue – i.e., “crowds of people talking, laughing, shouting, and playing music that disturbs neighboring residents” (citing Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 732-734, my 5/12/15 post on which can be found here) – the Court found that because a “fair argument” could be made that the project’s “noisy student party” impacts were potentially significant, the EIR needed to address and resolve this issue and was deficient because it did not. (Citing Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109.)
At oral argument the Regents conceded, and the Court found abundant substantial evidence in the record to support, that noisy student parties are a “longstanding problem” in Berkeley’s residential neighborhoods near the campus. This evidence included the City’s 2007 findings that such noise was a “public nuisance”; the fact that the City addressed the matter by adding warnings and fines to its municipal code; the implementation of a joint city/university police safety patrol and reporting process addressing the problem; the data showing the issuance of hundreds of code enforcement citations; adoption of a 2016 city ordinance restricting high-density “mini-dorms” that contributed to the “chronic,” “severe” and “intolerable” party noise problem; and the existence of an advisory committee and university-funded neighbor groups addressing the issue.
Despite this evidence, and the fact that the EIR defined a significant noise impact as an increase in ambient noise exceeding local standards (including the city’s noise ordinances), the EIR did not analyze the issue; did not address baseline noise conditions in affected neighborhoods or the effects of increasing student populations in those neighborhoods; did not assess the efficacy of identified noise reduction efforts; and did not make findings on whether adding thousands of students would cause a significant noise increase.
Despite their concession “that loud student parties are a real problem in residential neighborhoods,” the Regents argued it would be “speculative” to assume added students “would generate substantial late night noise impacts simply because they are students” and claimed such speculation reflected “an anti-student bias.” The University’s development partner similarly argued that Petitioner’s noise arguments were “based on prejudice, stereotypes, and ‘tales from NIMBY neighbors’ rather than evidence” and that accepting the arguments would allow NIMBYs “to force affordable housing proponents to conduct noise studies based solely on biased opinions that poor and formerly homeless people are noisier than other neighbors.” While the Court agreed that “stereotypes, prejudice, and biased assumptions about people served by a CEQA project” are not substantial evidence supporting a fair argument, it held the argument was a “straw man” here because the record as a whole contained “[q]uite a bit of proper evidence” that was sufficient to support a fair argument, as well as the Regents’ own (presumably unbiased) concession that student noise is a “genuine problem.” Indeed, it found the Regents’ contrary suggestion – that new students might quietly socialize on the internet, rather than participate in loud parties – itself to be “conjecture, unsupported by the record.”
The Court also rejected the Regents’ additional arguments, including waiver and that the case would be extended to typical household noise, as having no merit. It found unsupported by authority the Regents’ contention that CEQA only applies to “crowd noise generated at a discrete facility that is designed to host noisy crowds” and held that “CEQA applies when it is reasonably foreseeable that a project may cause an impact, directly or indirectly.” (Citing Pub. Resources Code, § 21065; CEQA Guidelines, §§ 15064(d)(2), 15358(a)(2); and Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1198-1199, my 8/21/19 post on which can be found here.)
In sum, the Court held that “the Regents must analyze the potential noise impacts relating to loud student parties” rather than “skip[ping] the issue, based on the unfounded notion that the impacts are speculative[.]”
EIR Did Not Fail To Properly Address Population Growth And Consequent Displacement Impacts
The EIR recognized that the LRDP’s estimated influx of new residents (students, faculty, staff and family members) would introduce substantial unplanned population growth, either directly or indirectly, and that the planned development projects could result in displacing substantial numbers of existing residents, houses or businesses. It found these impacts would be significant if not mitigated, and therefore provided that the university would mitigate them by (1) providing the Association of Bay Area Governments (“ABAG”) with annual summaries of enrollment projections and housing production data, and (2) implementing its UC Relocation Assistance Act Policy, under which the university would survey and analyze relocation needs, provide minimum notice and monetary assistance and other relocation assistance, including in some cases “last resort housing.”
The Court rejected Petitioner’s argument that the first mitigation measure was unenforceable; it found that both ABAG and the City of Berkeley are statutorily required to plan for population growth, including that projected in the LDRP, and there was no basis to believe they would violate their statutory duties in that regard.
With regard to the second impact – displacement – Petitioner argued the EIR’s analysis was inadequate for (1) failing to address indirect displacement resulting from adding 8,173 people for whom the University would not construct housing, and (2) failing to analyze the environmental impacts of both direct and indirect displacement, including crowding, homelessness, and related impacts, and the need for building replacement housing.
Stating that CEQA does not treat social and economic effects (such as displacement) as significant environmental effects in and of themselves, but that CEQA review may be triggered if they indirectly cause physical environmental impacts, the Court drew upon recent urban decay cases that “have emphasized how difficult it can be to establish a factual foundation for this sort of theory, even under the fair argument standard.” (Citing Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, my 7/14/16 post on which can be found here; and Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, my 2/5/18 post on which can be found here.) The Court held that, in light of these cases, Petitioner’s record evidence – which consisted principally of the Berkeley planning director’s comments in the context of a housing shortage; a San Francisco Department of Public Health Report generally observing that a lack of affordable housing and displacement may result in homelessness; and public comments summarily asserting that the university’s growth contributed to Berkeley homelessness – was insufficient to support the requisite fair argument of environmental impact. Per the Court:
The displacement theory is more complicated than the blight scenario: new residents compete for housing, which drives up prices to a point that existing residents cannot afford, which causes them to become homeless, which leads to environmental impacts relating to homelessness (e.g., impacts to parks). [Establishing] [e]ach of those steps [in the chain of causation] requires expertise, a factual foundation, and analysis that does not exist in our record. The theory may appeal to common sense, and it may ring true in a region with crazy housing costs and rampant homelessness. But as [the cases] explain, when a theory requires expert opinion, courts cannot substitute common sense, lay opinion, fears, or suspicions. [Citations omitted.]”
Nor, the Court held, did the EIR err in not applying its “replacement housing” standard of significance to indirect displacement (as the university as lead agency had discretion in setting its standards of significance), or in analyzing growth-inducing impacts at a general level of detail.
Conclusion and Implications
This case is obviously controversial for good reason, as it touches on numerous important CEQA issues with significant implications for society and the law as a whole.
Beginning with the issue of the adequacy of the alternatives analysis for the People’s Park housing project, the Court’s holding that the Regents inadequately analyzed alternative locations given the project’s stated objectives is correct. Equally apparent is that the Regents could have easily avoided this problem by more carefully drafting their project objectives in the EIR. Specifically, they could have drafted specific objectives that targeted fixing the site-specific problems – i.e., blight, crime, homelessness – at People’s Park. Absent making that type of EIR fix, however, they will need to analyze feasible alternative locations that would avoid People’s Park impacts in detail.
Turning to the “noisy student parties” impacts issue, I find the Court’s analysis disappointing – and quite possibly wrong – because it did not address this hugely important issue in greater depth than it did. There is no doubt that student party noise is, as the university conceded, a real and genuine problem in campus-adjacent residential neighborhoods, but whether, in this urban-housing context, it should be considered a “social” problem outside of CEQA’s purview, or an “environmental” problem properly addressed through CEQA analysis, is quite debatable. It is well-established that the significance of an environmental effect varies with its context – i.e., the environmental setting – and that is particularly true in the area of noise impacts, where, for example, noise levels or events that could be considered significant adverse impacts in a quiet, rural area would not be so considered in a densely populated urban area. Other considerations also seem relevant, including whether a particular project—such as a quarry, factory, warehouse, sports stadium, or other industrial or commercial enterprise—must inevitably produce the noise levels complained of by the very nature of its operations, or whether the noise at issue is a result of random, noncommercial human activities that violate existing noise standards (like student party noise). For these reasons, I am sympathetic to the university’s arguments that CEQA’s scope should be limited to crowd noise at a discrete facility designed to host crowds.
One should also not lose sight of CEQA’s fundamental, pro-housing, overarching purposes, which require public agencies to give major consideration when exercising discretion to approve or carry out activities that affect the quality of the environment to prevent damage to the environment when feasible, while providing a decent home and satisfying living environment for all California residents. (Pub. Resources Code, §§ 21000(g), 21001(d), (f), (g); CEQA Guidelines, § 15002(a).) Students and other low-income apartment dwellers are California residents, too. Treating random unplanned loud noise from residents of urban housing developments – even if foreseeable – as an adverse environmental impact could set a dangerous precedent for further weaponizing CEQA against the very kind of dense, affordable housing projects the State is desperately seeking to encourage to combat the housing crisis and GHG/VMT impacts, based on statistical evidence of higher rates of crimes committed in urbanized areas. But with residential housing projects, noise and crime are people or social impacts, and there is something very disturbing about treating “people as pollution” (as some have phrased it) for CEQA purposes, especially since our Supreme Court has made clear that “CEQA is not intended as a population control measure.” (Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204, 220.)
Adding to the problematic nature of the Court’s analysis is that the primary case authorities cited in the Opinion to support it appear readily distinguishable. Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714 involved a special event center project bringing loud amplified music and crowd noise to a quiet rural setting in the heavily wooded Santa Cruz Mountains. Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171 involved the threshold test for an activity to be considered a “project” subject to CEQA review. Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal.App.5th 160 involved a sports arena’s crowd noise impacts on residential neighborhoods.
Even assuming the Court of Appeal’s opinion is a correct analysis of CEQA’s application to foreseeable noise impacts, it simply underscores that CEQA is a badly broken law that needs to be fixed by the Legislature in this regard. Just as the Legislature had no trouble declaring that traffic congestion was no longer a CEQA impact when that served the State’s “greater good” – in the form of policies of encouraging dense infill housing and combatting climate change – the Legislature could (and should) now declare student or urban housing “party noise” impacts not be environmental impacts for CEQA purposes, in order to serve more important State policies.
Turning finally to the Opinion’s discussion of the “displacement” issue, it appears to be a solid and accurate analysis as far as it goes in holding, based on analogous urban decay “indirect impact” cases, that the record evidence was simply insufficient, absent expert evidence, to establish the necessary causal links to support a “fair argument” of the claimed indirect impacts requiring their analysis in an EIR. That said, more in depth legal analysis would also have been welcome; the Opinion might have discussed CEQA Guidelines Appdx. G, section XIV, calling for analysis of a project’s displacement impacts and/or the fairly recent case of Hollywoodians Encouraging Rental Opportunities v. City of Los Angeles (2019) 37 Cal.App.5th 768 (my 7/29/19 post on which can be found here), which discussed a hotel project’s alleged tenant displacement impacts.
In any event, let’s hope that this case serves as a catalyst to some kind of meaningful CEQA reform, whether by the Legislature or Supreme Court.