Update 2/28/23: This article has been updated to include additional information from UC Davis law professor Chris Elmendorf.
An appellate court ruled Friday that UC Berkeley may not proceed with plans to build student and low-income housing at People’s Park, prompting calls from local and state officials to reform the California Environmental Quality Act, or CEQA, which lies at the heart of the lawsuit.
The decision sends the case back to a lower court, where campus must amend the project’s Environmental Impact Report, or EIR, to include analyses of potential alternative sites and noise impacts from “loud student parties.” While the ruling does not force campus to abandon development at People’s Park, campus spokesperson Dan Mogulof said it could delay this and other housing projects “indefinitely.”
“What do you get if you lose a CEQA case? What do you get if you win the CEQA case? You get more CEQA,” Mogulof said. “It can’t kill the project. It’s a way to add expense, the way it’s being used now, and delay and difficulty.”
Under CEQA, public agencies in California must conduct an EIR for any project that may have a significant impact on the environment, which includes mitigation strategies and potential alternatives. The project can be approved even if the EIR finds significant environmental harm, as long as this harm is disclosed to decisionmakers and the public beforehand.
Make UC A Good Neighbor and The People’s Park Historic District Advocacy Group, the two groups who brought the lawsuit, claimed that campus did not adequately address alternatives to the People’s Park housing project in the EIR and therefore violated CEQA.
The court found this argument reasonable “to a point,” ruling that campus failed to justify the decision not to assess alternative sites to the park. Alternative site analysis is not required in all cases, and Mogulof maintained that the park project has no alternatives because it “is defined by aspects and elements that can only take place at one site.”
It is this reasoning that is invalid, according to the decision.
“It can be risky to adopt an EIR that analyzes no potentially feasible alternatives. It is especially risky here given that the university owns several other nearby properties that it has designated, in its development plan, as sites for student housing,” the opinion reads. “If the Regents wanted to consider potentially feasible sites for student housing that would avoid impacts to the park, there are some obvious candidates.”
With regard to student noise, the court decided that campus must amend the EIR to include potential noise impacts on the surrounding residential area — noise was initially dismissed by the regents in the final EIR, stating it was “speculative” to assume students would inherently generate more noise. This decision in particular has prompted public outcry about CEQA’s scope.
Chris Elmendorf, a law professor at UC Davis who has written extensively about CEQA, said other student housing projects may not be greatly affected by the ruling because the state passed a bill last year exempting universities from CEQA review under certain labor, site and building technology conditions.
“I have heard that UCs have been reluctant to use that bill,” Elmendorf said in an email. “But I suspect this decision may be the kick in the rear that motivates them to use it.”
He added that non-student housing could be “greatly affected” by the ruling, however. Projects could be disqualified from CEQA streamlining because of potential social noise, Elmendorf explained, forcing the lead agencies to conduct a full EIR.
However, The People’s Park Historic District Advocacy Group President Harvey Smith said he believes the public outcry over the noise impact ruling caused a “distortion of the decision,” and wants to shift focus to the alternative sites instead.
“We absolutely want more student housing at Berkeley,” Smith said. “All we want the university to do is to recognize that they should have explored alternative sites.”
Despite siding with the plaintiffs on noise and alternative sites, the court rejected their other arguments about the project’s geographic scope and potential for causing displacement. The ruling also maintains that campus was not required to analyze an alternative plan for the park that would “change the nature” of the project, such as limiting enrollment.
Campus is now preparing to appeal the case to the California Supreme Court, according to Mogulof. But in the meantime, park residents and advocates on the ground describe a state of “legal limbo” while construction remains paused.
“The park residents and the general community, like those who are now in the Rodeway Inn, are very interested in how this stuff proceeds,” said Lisa Teague, a harm reduction advocate at People’s Park. “We’re not just sitting back and waiting. We’re going to keep supporting the community.”
Teague added that several projects are ongoing, including planting trees, expanding the kitchen capacity and hosting events for community members.
Additionally, several local and state legislators have condemned the ruling and called for amendments to CEQA, including Berkeley City Councilmember Rigel Robinson, state Sen. Scott Wiener (D-San Francisco), Assemblymember Buffy Wicks (D-Berkeley) and Gov. Gavin Newsom.
“The impact of this ruling will ripple far beyond this important site, and may complicate new affordable housing development statewide,” Robinson said in an email. “Onward, to the California Supreme Court.”