The California Supreme Court, on May 17, 2023, granted review of the First District Court of Appeal’s decision in Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, where the Court of Appeal invalidated the EIR for UC Berkeley’s Long Range Development Plan and a housing development at People’s Park. The appellate court found two issues with the EIR: (1) it did not sufficiently justify the decision not to consider alternative locations for the student housing project at People’s Park, and (2) it did not assess potential noise impacts from student parties. The decision invigorated calls for CEQA reform and attracted scrutiny for its recognition of “party noise” as an environmental impact.

Background on the Appellate Decision

Two neighborhood groups challenged a hybrid programmatic and project-level EIR that analyzed the environmental impacts from both UC Berkeley’s Long Range Development Plan (LRDP) at a program level and the housing development at People’s Park, among other specific projects, at a more detailed, project level. The trial court denied the writ petition and entered judgement in favor of the UC Regents. Good Neighbor appealed.

On February 24, 2023, the First District issued a decision addressing Petitioners’ arguments regarding (1) the alternatives analysis for both the LRDP and the People’s Park development; (2) the EIR’s noise impact analysis; and (3) the EIR’s analysis of population growth and displacement of existing residents. The court found that the EIR did not sufficiently justify the decision not to consider alternative locations for the People’s Park development and should have analyzed impacts of “party noise” from student parties. The court rejected the remainder of Good Neighbor’s arguments.

LRDP Alternatives

The court rejected Petitioners’ argument and held that the EIR was not required to analyze LRDP alternatives that would limit student enrolment. The EIR analyzed alternatives that involved less development; strategies to reduce carbon emissions by building more housing near campus, reducing parking, and increasing remote instruction and working; and more housing for faculty and staff located on the campus itself rather than in the surrounding community. The alternatives did not include reducing the total campus population, but did consider different options for managing the campus population that could lessen or avoid impacts.

An EIR need only include alternatives necessary to permit a reasoned choice and examine in detail only those that the lead agency determines could feasibly attain most of the basic objectives of the project. When an agency deliberately limits the scope and nature of the problem that it wants to solve through the project objectives, the agency should not be required to consider alternatives that address a much bigger problem or that add difficult issues the agency has chosen not to tackle.

The LRDP deliberately kept separate the complex process for setting enrollment levels. The LRDP does not set enrollment levels, require enrollment increases, or commit to any amount of enrollment or development. It estimates future enrollment only for the purposes of developing a land use and infrastructure plan that could meet the campus’ future needs. The court held that the EIR’s alternatives were appropriately tailored to the LRDP’s purpose and scope.

People’s Park Alternatives

Petitioners argued that the EIR should have analyzed alternative locations to the People’s Park development in depth. The court held that the EIR did not sufficiently justify the decision to not analyze an alternative location. While analysis of alternative sites is not required in all cases, the court found that because there was evidence of potential alternative sites, the EIR should have explained the reasons for excluding consideration of the alternative sites. 

The court’s decision was influenced by the historical significance of People’s Park. In the 1960s, UC Berkeley acquired the parcel that eventually become People’s Park to develop parking, student housing, and office space. This development was never realized due to funding constraints, and over the years the community transformed the parcel into an unofficial community gathering space. The park has historical significance because of its association with social and political activism in Berkeley. The park is a local historical landmark and several nearby structures also have historical significance.

While the LRDP portion of the EIR analyzed other locations for housing on a program level, the project-specific analysis did not consider any alternatives to the project site in detail. Alternative locations for the housing project were rejected during the scoping process on the basis that re-siting it would have reduced the total number of beds within the LRDP, other sites were smaller, and other sites also contained historical resources. The court found these reasons too conclusory and determined that the analysis was inadequate.

Noise Impacts

In a troubling extension of the industry and legal standard for analyzing noise impacts, the court found that the EIR should have analyzed potential noise impacts from loud student parties in residential areas near the campus. The EIR did not analyze “party noise” because it determined it would be speculative to assume that the addition of students would generate substantial late night noise impacts at certain times in particular areas. But the court found that because there was evidence in the record of student parties violating the city’s noise ordinance, there was a reasonable possibility that adding more students to residential neighborhoods would make the problem worse, and the EIR should have analyzed this issue.

The UC Regents argued that, with respect to social noise, CEQA only applies to “crowd noise generated at a discrete facility that is designed to host noisy crowds,” citing Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714. The court rejected this argument, holding that the geographic area of a potential impact is not limited to discrete facilities but includes any area where direct or indirect impacts may occur.

Issues Before the Supreme Court

The appellate court decision was met with criticism and renewed calls for CEQA reform. The court’s recognition of “party noise” as an environmental impact sparked concerns that the precedent would further weaponize CEQA against urban housing developments. The decision also caught the attention of Governor Newsom, who, following publication of the case, issued a statement that, “[a] few wealthy Berkeley homeowners should not be able to block desperately needed student housing for years and even decades. CEQA needs to change and we are committed to working with the legislature so California can build more housing.” 

The UC Regents filed a petition for review on March 28, 2023. The Governor, the City of Berkeley, and several other organizations submitted amici letters urging the Court to grant review. The Supreme Court, in early May, granted the petition to consider two issues:

(1) Does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) require public agencies to consider as an environmental impact the increased social noise generated by student parties that a student housing project might bring to a community?

(2) Under CEQA, when a lead agency has identified potential sites for future development and redevelopment in a programmatic planning document, is the agency required to revisit alternative locations for a proposed site-specific project within the program?

Now that the Supreme Court has granted review the Court will provide guidance on the key issues presented by the case.  

Photo of Kathryn L. Oehlschlager Kathryn L. Oehlschlager

With more than a decade of experience in environmental law, Kathryn Oehlschlager has built a robust practice spanning environmental and land use compliance counselling, state and federal enforcement defense, and major litigation.

Public and private clients turn to Kathryn for advice on compliance…

With more than a decade of experience in environmental law, Kathryn Oehlschlager has built a robust practice spanning environmental and land use compliance counselling, state and federal enforcement defense, and major litigation.

Public and private clients turn to Kathryn for advice on compliance with all facets of environmental and land use law, including CEQA, NEPA, federal and state endangered species laws, contaminated site remediation, water quality and supply issues, and laws regulating solid and hazardous waste.  She routinely represents clients in all aspects of the California Environmental Quality Act (CEQA) project review process, including preparation, review, and analysis of negative declarations, draft environmental impact reports, and final environmental impact reports. (Read more…)