Updated 2 p.m. Sunday
An appeals court has ruled that UC Berkeley may not move forward with plans to build student housing on People’s Park until it addresses problems within the project’s environmental impact report.
The 1st District Court of Appeals issued a unanimous decision (PDF) Friday to overturn a July 2022 ruling that allowed the university to begin construction on housing for roughly 1,100 students as well as 125 lower-income and unhoused residents.
“The EIR failed to justify the decision not to consider alternative locations to the People’s Park project,” the ruling reads. “In addition, it failed to assess potential noise impacts from loud student parties in residential neighborhoods near the campus, a long-standing problem that the EIR improperly dismissed as speculative.”
In a statement, UC Berkeley vowed to appeal the case to the state’s supreme court.
“Left in place, this decision will indefinitely delay all of UC Berkeley’s planned student housing, which is desperately needed by our students and fully supported by the City of Berkeley’s mayor and other elected representatives,” the university wrote.
The ruling stems from a 2021 lawsuit filed by neighbors and activists concerned about the influx of student residents adversely affecting the neighborhood and seeking to preserve People’s Park as a historic landmark of student protest and a residence and resource site for unhoused residents.
“Our decision does not require the Regents to abandon the People’s Park project. However, they must return to the trial court and fix the errors in the EIR,” the decision reads.
Harvey Smith, president of the People’s Park Historic District Advocacy Group — one of the plaintiffs in the case — said even though the court’s decision seemed like a “win” because they “decided in our favor,” he expressed disappointment that UC Berkeley was still going ahead with their decision to build student housing on People’s Park.
“[UC Berkeley] is stubborn, arrogant, and they want to continue fighting this rather than take the more reasonable course of saying … let’s move on” he said. “They have 15 alternative sites that they have enumerated.”
Apart from deciding the future of People’s Park, many are watching the case for the effects it could have on a contentious state environmental law.
The California Environmental Quality Act (CEQA) requires that builders and local governments analyze the environmental impacts of proposed development projects and work to mitigate them.
Critics of the law have long argued that it has been abused by those opposed to developments near their homes and businesses as a way to block or delay new housing under the pretense of seeking more information to assess environmental concerns.
With the appellate court now ruling that the university should consider the noise impact from student parties, some worry CEQA (pronounced see-kwuh) will now be applied in similar fashion elsewhere, blocking or delaying housing development across California.
“This decision has the potential to prevent colleges and universities across the State of California from providing students with the housing they need and deserve,” the university wrote. “This decision bestows new privileges and power to the privileged and powerful by arming NIMBY neighbors with additional weapons to obstruct the development of all new urban housing.”
California state Senator Scott Wiener vented his frustration with what he called “an absurd and dangerous” ruling on Twitter, vowing legislative action.
The Court of Appeal just issued an absurd & dangerous ruling that people are pollution & CEQA requires evaluation of the type of people who will live in proposed new housing.
We’ll shortly introduce legislation to put an end to this nonsense. Stay tuned. https://t.co/472falo0u1
— Senator Scott Wiener (@Scott_Wiener) February 25, 2023
The court seemed to anticipate this backlash in their ruling.
“We are, of course, aware of the public interest in this case … We do not take sides on policy issues,” the judges wrote. “Our task is limited. We must apply the laws that the Legislature has written to the facts in the record.”
“We agree that the Legislature did not intend CEQA to be used as a redlining weapon by neighbors who oppose projects based on prejudice rather than environmental concerns,” the judges added later in the 47-page decision.
Harvey Smith insists that the university’s concern over the impact to CEQA is a red herring, and that the goal of plaintiffs is not to block student housing, but to preserve the park.
“Our group is definitely in favor of student housing. Just put it in a spot that’s appropriate … and People’s Park is totally inappropriate,” Smith said. “It’s a historic site … open space in that part of Berkeley is desperately needed.”
Tim Iglesias, professor emeritus of the University of San Francisco School of Law, said this decision would require any person proposing a development to look into and consider so-called “social noise” and “indirect displacement,” which he said could be “very problematic going forward for other developments.” Ultimately, Iglesias said he believes the ruling will increase political pressure to reform CEQA.
Chris Elmendorf, law professor at UC Davis, sees at least three potential routes to CEQA reform: a bill through the Legislature; CEQA guidelines (issued by the governor’s Office of Planning and Research, and the Natural Resources Agency); or a ballot measure.
Elmendorf said the ruling is both interesting and troubling. “They put the People’s Park project on hold until the city goes back and does its environmental study with more analysis of potential alternative sites for the project and more analysis of the potential for the project to generate social noise from boisterous students in residential neighborhoods.”
Elmendorf describes this as troubling because it extends CEQA to require analysis not only of the effects of noise that might be generated by a project “but also noise and other behaviors that may be attributable to the people brought into a neighborhood or a community by a project.” Elmendorf says the implications could go beyond universities.
The ruling by three judges is the latest in a series of delays and obstacles for UC Berkeley’s $312 million plans for the park.
Although the university was given the green light to begin work last summer, groups of students and activists flocked to People’s Park to protest the project and the displacement of unhoused neighbors. Fences erected for the work were pulled down and construction equipment was sabotaged. Soon after, a judge granted a temporary stay order halting construction.
As noted in the ruling, UC Berkeley has an acute need for more student housing.
“UC Berkeley provides housing for only 23 percent of its students, by far the lowest percentage in the UC system. For years, enrollment increases have outpaced new student housing,” the decision reads.
KQED’s Anaïs-Ophelia Lino and Annelise Finney contributed reporting to this story.
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