Make UC a Good Neighbor v. The Regents of the University of Cal.

Filed 3/16/23 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
MAKE UC A GOOD NEIGHBOR et A165451
al.,
Plaintiffs and Appellants,
(Alameda County Super. Ct. No.
v. RG21110142)
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA et
ORDER GRANTING PETITION
al.,
FOR MODIFICATION AND
Defendants and Respondents, MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
RESOURCES FOR COMMUNITY
DEVELOPMENT et al.,
Real Parties in Interest.
THE COURT:
Respondents’ petition for modification is GRANTED. The
opinion filed on February 24, 2023, shall be MODIFIED as
follows:
1. On page 3, the first sentence in Background A. is replaced in
its entirety as follows: “Each UC campus periodically adopts a
long range development plan, a high-level planning document
that helps guide the university’s decisions on land and
infrastructure development. (See Ed. Code, § 67504, subd.
(a)(1).)”
1
2. On page 16, in the second full paragraph, the second sentence
is replaced in its entirety as follows: “Moreover, Good
Neighbor’s argument ignores the problem that the rejected
alternative in this case (capping future enrollment) would
change the nature and scope of the project.”
3. On page 29, in the last sentence of the second full paragraph,
the word “their” is substituted for the word “its,” so that the
sentence reads: “While the Regents could have chosen to
include all their properties in a single plan, that is far
different from saying that separate plans serve no logical
purpose or could not be implemented independently.”
4. On page 34, in the first sentence of the first full paragraph of
subsection 3, the phrase “will cause a potential noise increase”
is deleted and replaced with “may potentially cause a noise
increase.”
5. On page 36, in the final sentence of the first partial
paragraph, the word “waved” is substituted for the word
“waived,” so that the sentence reads as follows: “None of this
can be waved away as speculation, unsubstantiated opinion,
or bias.”
6. On pages 44-45, in the second sentence of the Disposition, the
words “and displacement” are deleted, so that the sentence
reads as follows: “The matter is remanded to the superior
court with directions to vacate its order and judgment denying
Good Neighbor’s petition for writ of mandate and enter a
modified judgment consistent with our conclusions that the
EIR inadequately analyzed potential alternatives to Housing
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Project No. 2 and impacts from noise. (CEQA, § 21168.9,
subd. (a).)”
The modifications make no change to the judgment.
03/16/2023
Dated: _____________ Jackson, P.J.
__________________________, P.J.
3
Alameda County Superior Court, No. RG21110142, Hon. Frank
Roesch.
Law Offices of Thomas N. Lippe, APC, Thomas N. Lippe; Soluri
Meserve, A Law Corporation, Patrick M. Soluri, Osha R.
Meserve, and James C. Crowder, for Plaintiffs and Appellants.
The Sohagi Law Group, PLC, Nicole H. Gordon, Margaret M.
Sohagi, Mark J.G. Desrosiers; Lubin Olson & Niewiadomski LLP,
Charles R. Olson, Philip J. Sciranka; Office of The General
Counsel – University of California, Charles F. Robinson, Alison
L. Krumbein; UC Berkeley, Office of Legal Affairs, David M.
Robinson, for Defendants and Respondents.
Buchalter, A Professional Corporation, Douglas C. Straus, Alicia
Cristina Guerra, for Real Party in Interest Resources for
Community Development.
4
Filed 2/24/23 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
MAKE UC A GOOD NEIGHBOR et
al.,
Plaintiffs and Appellants,
A165451
v.
THE REGENTS OF THE
(Alameda County Super. Ct. No.
UNIVERSITY OF CALIFORNIA et
RG21110142)
al.,
Defendants and Respondents;
RESOURCES FOR COMMUNITY
DEVELOPMENT et al.,
Real Parties in Interest.
This case concerns the adequacy of an environmental
impact report, or EIR, for (1) the long range development plan for
the University of California, Berkeley through the 2036-2037
academic year; and (2) the university’s immediate plan to build
student housing on the current site of People’s Park, a historic
landmark and the well-known locus of political activity and
protest. Appellants Make UC a Good Neighbor and The People’s
Park Historic District Advocacy Group (collectively, Good
Neighbor) challenge the EIR’s sufficiency as to both.
As we will explain, we are unpersuaded by Good Neighbor’s
contention that the EIR was required to analyze an alternative to
the long range development plan that would limit student
enrollment. We also reject Good Neighbor’s view that the EIR
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improperly restricted the geographic scope of the plan to the
campus and nearby properties, excluding several more distant
properties. Nor did the EIR fail to adequately assess and
mitigate environmental impacts related to population growth and
displacement of existing residents.
Two of Good Neighbor’s arguments, however, find more
traction. The EIR failed to justify the decision not to consider
alternative locations to the People’s Park project. In addition, it
failed to assess potential noise impacts from loud student parties
in residential neighborhoods near the campus, a longstanding
problem that the EIR improperly dismissed as speculative.
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.
Finally, 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. As explained more
below, whether CEQA will require further changes to the project
depends on how the Regents choose to proceed and the results of
the analyses they conduct. Ultimately, CEQA allows an agency
to approve a project, even if the project will cause significant
environmental harm, if the agency discloses the harm and makes
required findings. The point of an EIR is to inform
decisionmakers and the public about the environmental
consequences of a project before approving it.
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BACKGROUND
A.
Each UC campus is required periodically to adopt a long
range development plan, a high-level planning document that
helps guide the university’s decisions on land and infrastructure
development. (See Ed. Code, § 67504, subd. (a)(1).) The plan at
issue here, adopted in 2021, estimates future enrollment for
planning purposes but does not determine future enrollment
levels or set a limit on the campus’s future population. It does,
however, 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 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
(or “beds”). The prior long range development plan, adopted in
2005, called for construction of just 2,600 beds through 2021.
This was 10,000 beds short of the projected enrollment increases
over the same period. The university only constructed 1,119 of
those planned beds. Making matters worse, within two years of
adopting the 2005 plan, the university increased enrollment
beyond the plan’s 2021 projection. By the 2018-2019 academic
year, student enrollment exceeded the 2005 projections by more
than 6,000 students. With a population of 39,708 students, the
university provides housing for fewer than 9,000.
This has transpired in the midst of a decades-long regional
housing crisis. A report by a UC Berkeley task force convened to
address this “matter of urgent concern” identified a menu of
options that could significantly expand student and faculty
housing, including numerous potential housing development
sites. Informed by the report, the UC Berkeley chancellor’s office
launched a housing initiative to improve existing housing and
construct new housing for students, faculty, and staff.
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The 2021 plan encompasses a general strategy for meeting
the housing goals identified in the chancellor’s initiative. The
university anticipates (but is not committed to) constructing up to
11,731 net new beds to accommodate a projected increase in the
campus population (students, faculty, and staff) of up to 13,902
new residents. In addition, the plan projects that another 8,173
students, faculty and staff will be added to the population by the
2036-2037 academic year who will not be provided with
university housing.
B.
Good Neighbor’s lawsuit is based on the California
Environmental Quality Act (CEQA).1 The “foremost principle”
under CEQA is that the Legislature intended that it “ ‘be
interpreted in such manner as to afford the fullest possible
protection to the environment within the reasonable scope of the
statutory language.’ ” (Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 390
(Laurel Heights).)
An EIR, the “heart of CEQA,” (Guidelines, § 15003, subd.
(a)), is, with narrow exceptions, required whenever a public
agency proposes to undertake or approve a project that may have
a significant effect on the environment. (Laurel Heights, supra,
47 Cal.3d at p. 390.) Its purpose is to provide public agencies and
the general public with detailed information about the proposed
project’s likely environmental impacts; to list ways those effects
might be minimized; and to identify alternatives to the project as
proposed. (CEQA, § 21061; Save Berkeley’s Neighborhoods v.
Regents of University of California (2020) 51 Cal.App.5th 226,
1 All references to “CEQA” are to the California
Environmental Quality Act. (Pub. Resources Code, § 21000 et
seq.) All references to “Guidelines” are to the state CEQA
Guidelines, which implement the provisions of CEQA. (Cal. Code
Regs., tit. 14, § 15000 et seq.)
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235 (Save Berkeley’s Neighborhoods).) The EIR protects the
environment and helps ensure enlightened public debate by “ ‘
“inform[ing] the public and its responsible officials of the
environmental consequences of their decisions before they are
made.” ’ ” (Save Berkeley’s Neighborhoods, at pp. 235-236;
Friends of College of San Mateo Gardens v. San Mateo County
Community College Dist. (2016) 1 Cal.5th 937, 944.)
The most common type of EIR, a project EIR, examines the
environmental impacts of all phases of a specific development
project, including planning, construction, and operation.
(Guidelines, § 15161; In re Bay-Delta etc. (2008) 43 Cal.4th 1143,
1169 (Bay-Delta).) A program EIR, in contrast, is often used at a
relatively early stage of the planning process, before specific
components of the program are ready for approval. (See
Guidelines, § 15168, subds. (a)-(c).) “An advantage of using a
program EIR is that it can ‘[a]llow the lead agency to consider
broad policy alternatives and program wide mitigation measures
at an early time when the agency has greater flexibility to deal
with basic problems or cumulative impacts.’ ” (Bay-Delta, at p.
1169; Guidelines, § 15168, subds. (a), (b)(4).) Program EIRs are
commonly employed in conjunction with “tiering,” the use of
project EIRs to analyze the environmental impacts of detailed
proposals that were not addressed by the program-level planning
document. (Bay-Delta, at p. 1170.)
C.
The EIR at issue here is a hybrid: it encompasses both a
program EIR intended to identify and assess potential
environmental impacts from the approval and implementation of
the long range development plan and a more detailed, project-
level environmental review to analyze the potential impacts of
two specific developments proposed for People’s Park (Housing
Project No. 2) and a site not at issue in this appeal, the Helen
Diller Anchor House (Housing Project No. 1). While these
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housing projects are conceptually part of the university’s long
range development plan, they are also separate projects for
purposes of CEQA (see CEQA, § 21065) and are analyzed
separately in the EIR when required.
Respondents Regents of the University of California
certified the EIR and approved the housing projects in July and
September 2021. In October 2021, Good Neighbor filed a (first
amended) petition for writ of mandate naming the Regents,
University of California President Michael Drake, and UC
Berkeley Chancellor Carol Christ (collectively, Regents). The
writ petition alleges multiple CEQA violations and asks the court
to void the approvals of the development plan and housing
projects, void the certification of the EIR, and suspend all related
activities pending compliance with CEQA.
Following various procedural skirmishes, in August 2022
the trial court denied the writ petition and entered judgment in
favor of the Regents. Good Neighbor appealed and filed a
petition for writ of supersedeas and request for immediate stay in
this court, seeking to preserve People’s Park from demolition
pending resolution of its appeal. We granted the stay and
subsequently issued a writ of supersedeas ordering that all
construction and further demolition, tree-cutting, and landscape
alteration activities at People’s Park be stayed pending resolution
of the appeal. We now turn to Good Neighbor’s appellate
challenges to the adequacy of the EIR.
DISCUSSION
A.
Alternatives to the development plan
Good Neighbor argues the Regents violated CEQA by
failing to analyze an alternative to the development plan that
would limit student enrollment. We disagree.
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1.
As noted, the purpose of an EIR is to provide the
government and the public with enough information to make
informed decisions about the environmental consequences of a
project and ways to avoid or reduce its environmental damage.
(Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d
553, 564-565 (Goleta).)
To that end, an EIR must consider potentially feasible
alternatives to a project. (Goleta, supra, 52 Cal.3d at p. 565; see
Guidelines, §§ 15126.6, subd. (a), 15364.) The lead agency—not
the public—is responsible for proposing the alternatives. (Goleta,
at p. 568.) The lead agency need not consider every conceivable
alternative but instead a reasonable range of alternatives to the
project, or to the project’s location, that could reduce a project’s
significant environmental impacts, meet most of the project’s
basic objectives, and are at least potentially feasible. (Guidelines,
§ 15126.6, subds. (a)-(c), (f); see generally, 1 Kostka & Zischke,
Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar
2022) §§ 15.7-15.9 (Kostka & Zischke).)
When reviewing a challenge to the alternatives, courts
apply the rule of reason: “ ‘the EIR [must] set forth only those
alternatives necessary to permit a reasoned choice’ and . . .
‘examine in detail only the ones that the lead agency determines
could feasibly attain most of the basic objectives of the project.’ ”
(Bay-Delta, supra, 43 Cal.4th at p. 1163, quoting Guidelines, §
15126.6, subd. (f).) Courts presume an EIR complies with this
rule; it is a petitioner’s burden to demonstrate it does not.
(California Native Plant Society v. City of Santa Cruz (2009) 177
Cal.App.4th 957, 987 (California Native Plant Society).) We must
defer to the Regents’ selection of alternatives unless Good
Neighbor (1) demonstrates the alternatives selected by the
Regents are “ ‘ “ ‘ manifestly unreasonable and . . . do not
contribute to a reasonable range of alternatives’ ” ’ ” and (2)
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identifies evidence of a potentially feasible alternative that meets
most of the basic project objectives. (South of Market Community
Action Network v. City and County of San Francisco (2019) 33
Cal.App.5th 321, 345 (South of Market).) The inquiry concerns
predominantly factual issues, to which we apply the substantial
evidence standard. (Cleveland National Forest Foundation v.
San Diego Assn. of Governments (2017) 17 Cal.App.5th 413, 435
(Cleveland National Forest).)
2.
Below, we provide further background on the alternatives
evaluated in the EIR as well as information on the university’s
enrollment process.
The development plan will provide general guidance for the
campus’s land development and physical infrastructure. (See Ed.
Code, § 67504, subd. (a)(1) [Legislature intends long range
development plans to “guid[e] . . . physical development,
including land use designations, the location of buildings, and
infrastructure systems, for an established time horizon”].) The
plan includes an estimate of future enrollment but does not set
enrollment levels, require enrollment increases, or commit to any
amount of enrollment or development. The EIR lists 14
objectives, mostly comprising broad goals for land use,
landscapes, open space, mobility, and infrastructure.
Based on the purpose and objectives, the EIR identifies
eight alternatives for the plan. It excluded four alternatives from
full consideration for various reasons, and it fully analyzed the
remaining four.
In the fully analyzed group, alternative A (the no project
alternative) would entail continuing to implement the old (2005)
development plan. That plan includes constructing up to 1,530
additional beds as well as 2,476,929 square feet of academic and
other space—far less than the proposed development plan (11,731
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beds and over three million square feet of other space). The old
plan omits Housing Project Nos. 1 and 2 as well as features in the
proposed plan to reduce vehicle miles traveled, upgrade utilities,
increase energy efficiency, and add renewable energy systems.
Alternative B is described as a reduced development plan.
It envisions a 25 percent reduction in new undergraduate beds
and academic square footage (9,479 total new beds and 1,713,441
square feet of academic space) compared with the proposed plan.
The two housing projects would be included but would be
reconfigured and smaller, with a commensurate reduction in
beds.
Alternative C focuses on features that would reduce vehicle
miles traveled and greenhouse gas emissions through numerous
projects to increase remote learning and working, limit parking,
and build 500 more faculty and staff beds to reduce commuting.
Alternative D prioritizes more housing for faculty and staff
compared to the proposed development plan—an additional 1,000
beds in two campus locations.
The EIR analyzes each alternative’s environmental impacts
topic-by-topic, compares them to the proposed plan, measures
them against the objectives, and determines which alternative is
environmentally superior. The EIR concludes that alternative A
(no project) would be the environmentally superior alternative,
followed by alternative C (reduced vehicle miles). Except for
alternative A, which would conflict with many of the plan’s
objectives, the remaining alternatives would meet most of the
objectives.
Among the four alternatives that were eliminated from
consideration without a detailed analysis in the EIR, the Regents
considered an alternative that focused on reducing the number of
future graduate students. This alternative was rejected because,
according to the EIR, it would undercut a “core” project
9
objective—to support and enhance UC Berkeley’s status as a
leading public research institution.
In comments on the draft EIR, members of the public urged
the Regents to consider an alternative that reduced, capped, or
otherwise limited undergraduate enrollment. The Regents
responded, in the final EIR, that the plan does not set
undergraduate enrollment, increase enrollment, or commit the
campus to any particular enrollment level; enrollment is
determined annually in a separate process.
As the EIR explains, the process for setting enrollment
levels in the UC system is complicated, with multiple players,
interests, and trade-offs. By statute, the UC system (as a whole)
must plan for adequate space to accept all eligible California
resident students who apply as well as eligible transfer students.
(See Ed. Code, §§ 66011, subd. (a), 66202.5, 66741.) The
California Master Plan for Higher Education requires the system
to accept the top 12.5 percent of the state’s public high school
graduates and eligible transfer students from community
colleges. The Legislature sometimes uses the budget process to
inject itself into the enrollment debate, as it did in 2016,
prompting the largest annual enrollment increase in resident
students since World War II, and in 2017, when the university
agreed to cap enrollment of nonresident students.
To find places for these students, the university’s Office of
the President coordinates enrollment annually in an iterative
process with 10 UC campuses, each of which has different
enrollment goals and different demands for its academic
programs. UC Berkeley is the second-largest campus in the
system. The physical capacity of a campus is just one factor in
setting enrollment levels; in recent years, four UC campuses,
including UC Berkeley, together exceeded their planned capacity
by 12,000 students. The Office of the President tracks existing
and projected enrollment data, as well as annual and long-term
10
plans for the numbers and types of students that can be
accommodated at each campus. The university prepared its last
long-term enrollment plan in 2008 for a 13-year period; it is
currently developing a new long-term plan.
3.
The main issue is whether Good Neighbor has
demonstrated that the range of alternatives in the EIR is
manifestly unreasonable. (South of Market, supra, 33
Cal.App.5th at p. 345.) Good Neighbor does not really quarrel
with the EIR’s alternatives as far as they go. Rather, it argues
that the EIR’s range is too narrow without at least one
alternative that would limit student enrollment. It observes that
the number of students is a major driver of environmental
impacts. Fewer students would mean, for example, fewer cars
and new buildings, which, in turn, would mean fewer impacts to
resources protected by CEQA such as air, water, and cultural
resources. Good Neighbor also points to other UC campuses that
have settled disputes with neighboring communities by agreeing
to link enrollment increases to housing—for example, UC Davis’s
agreement to provide on-campus housing for new students over a
baseline figure.
The problem with Good Neighbor’s argument is that it
ignores the plan’s limited purpose and scope. The plan
deliberately keeps separate the complex annual process for
setting student enrollment levels.
An agency is generally not required to consider alternatives
that would change the nature of the project. (Marin Mun. Water
Dist. v. KG Land California Corp. (1991) 235 Cal.App.3d 1652(Marin Municipal); see Kostka & Zischke, supra, § 15.8.) In
Marin Municipal, a water agency adopted a moratorium on new
water connections in response to a drought that caused an acute
water shortage. In its EIR, aside from the no-project alternative,
the agency considered just one alternative to address the crisis—
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mandatory water conservation. (Id. at pp. 1657, 1665.) The
petitioners argued the agency should have considered more
comprehensive alternatives such as adopting a tiered rate
system, developing reclaimed water, or securing other new
supplies. The court rejected the argument, emphasizing that the
agency’s objective was “not to solve the [agency’s] long-term
water supply problems; rather, its more modest goal was to
prevent an immediate over-commitment of the [agency’s] water
supply.” (Id. at p. 1666.) It held that the range of alternatives
was reasonable. (Ibid.; compare Cleveland National Forest,
supra, 17 Cal.App.5th at pp. 435-437 [concluding range of
alternatives was unreasonable when the purpose of a plan was to
reduce greenhouse gas emissions, but the EIR included no
alternative designed to reduce driving, the primary source of
emissions].)
Rio Vista Farm Bureau Center v. County of Solano (1992) 5
Cal.App.4th 351 (Rio Vista) is also helpful. A county adopted a
program EIR for a hazardous waste management plan. The
county limited the scope of the plan to a high-level assessment of
its need for new facilities and siting criteria for potential
facilities. It deliberately stopped short of proposing specific sites
or development of actual facilities. (Id. at pp. 370-372.) The EIR
analyzed three similarly high-level alternatives. (Id. at p. 378.)
The court rejected the petitioner’s argument that the county must
consider more detailed alternative plans relating to site-specific
issues, such as locating facilities outside the county or limiting
the size of facilities. (Ibid.) The court observed that the
alternatives in the EIR were “tailored to the nature of the Plan,
in which site selection criteria, not specific sites, were proposed.”
(Id. at pp. 378-379.) It held that the high-level alternatives in the
EIR offered decisionmakers sufficient information to make a
reasoned choice. (Id. at p. 379.)
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The holdings in Marin Municipal and Rio Vista are
reinforced by the process that agencies use to develop the
alternatives. A lead agency begins by determining the project’s
purpose and objectives. (Guidelines, § 15124, subd. (b).) It then
uses the purpose and objectives to develop a reasonable range of
alternatives to analyze in the EIR. (Ibid.; Bay-Delta, supra, 43
Cal.4th at p. 1163.) This exercise would be meaningless if, long
after the EIR is certified, a court tells the agency that it was also
required to consider alternatives that serve different purposes
and objectives. Generally, when an agency has deliberately
limited the scope and nature of the problem that it wants to
solve, the agency should not be required to consider alternatives
that address a much bigger problem (Marin Municipal) or that
add difficult issues the agency has chosen not to tackle (Rio
Vista). The EIR’s purpose and objectives will often reflect these
kinds of limits.
Here, like in Rio Vista, the Regents adopted a program EIR
for a limited, high-level land use plan and made a reasoned
decision to exclude the enrollment process from the scope of the
project. The EIR is quite clear that setting enrollment levels is
not the plan’s purpose. The purpose is to guide future
development regardless of the actual amount of future
enrollment. The plan leaves enrollment decisions to the existing
long range and annual planning processes. It estimates future
enrollment only for purposes of developing a land use and
infrastructure plan that could meet its future needs, consistent
with the Legislature’s instruction to develop long range plans
based on the campus’s “academic goals and projected enrollment
levels.” (Ed. Code, § 67504, subd. (a)(1).)
Likewise, nearly all of the 14 project objectives in the EIR
relate to land use and development goals, not enrollment policy
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for a public university.2 None of the objectives would have helped
the Regents craft alternatives that address the public policy
considerations, institutional values, and tradeoffs involved in
limiting enrollment at its premier campus. (See Guidelines, §
15124, subd. (b).) Given the complexity of, and the competing
interests in, setting annual enrollment levels, the Regents would
presumably need to add objectives to the EIR to develop
workable alternatives for limiting enrollment—which only
emphasizes that Good Neighbor’s favored alternative is a horse of
a different color.
Notably, Good Neighbor does not argue that the objectives
themselves are too narrowly drawn, which could certainly expand
the nature and scope of the alternatives. (See, e.g., We Advocate
Through Environmental Review v. County of Siskiyou (2022) 78
Cal.App.5th 683, 691-693; North Coast Rivers Alliance v.
Kawamura (2015) 243 Cal.App.4th 647, 669.) Nor does it argue
that CEQA requires the Regents to combine the two processes
(development and enrollment planning) into a single project. In
any case, we would reject that argument. (See Aptos Council v.
County of Santa Cruz (2017) 10 Cal.App.5th 266, 279-282
[agencies may separate related projects when they serve different
2 A typical objective is: “Maintain natural areas as well as
generous natural and built open spaces on the Campus Park and
the Clark Kerr Campus.” Other objectives concern bicycle and
pedestrian networks and mobility; car access and parking;
designing facilities for sustainability, efficiency, and seismic
safety; efficient use of resources; open space; improving the
housing portfolio; infrastructure; and historic landscapes and
architecture. The only objective arguably relevant to
enrollment—at least for graduate students—calls for supporting
UC Berkeley’s status as an internationally renowned public
research university by expanding its graduate schools and
research programs.
14
purposes or can be implemented independently]; Rio Vista, supra,
5 Cal.App.4th at pp. 371-373.)
As in Rio Vista and Marin Municipal, the alternatives in
the EIR are tailored to the plan’s limited purpose. The
alternatives presented the Regents with a variety of ways to meet
the plan’s objectives while reducing the plan’s significant
impacts. The range of alternatives include less development
(Alternative B); strategies to reduce carbon emissions by building
more housing near the campus, reducing parking, and increasing
remote instruction and working (Alternative C); and more
housing for faculty and staff located on the campus itself
(Alternative D). Importantly, although the alternatives do not
include reducing the total campus population, they do include
managing the campus population in ways that could lessen or
avoid its impacts by, for example, reducing car travel to the
campus; providing more housing for people on campus rather
than the surrounding community; and reducing the daily campus
population through remote working and instruction. In text,
tables, and charts, the EIR explains how, to varying degrees, the
alternatives would meet or conflict with different objectives,
analyzes the impacts, and proposes mitigation measures. Other
than making the general point that some impacts could also be
mitigated or avoided by an alternative that reduces the future
campus population, Good Neighbor does not explain what is
wrong with the alternatives in the EIR.
We do not find Good Neighbor’s remaining arguments
persuasive.
First, Good Neighbor attacks the Regents’ contention that
the Regents were excused from evaluating enrollment
alternatives because either the alternatives would conflict with
the objectives or they are infeasible. We need not reach those
issues. Even assuming that an enrollment alternative poses no
such conflict and is potentially feasible, we still must determine
15
whether the range of alternatives that the EIR did analyze meets
the rule of reason. (See South of Market, supra, 33 Cal.App.5th
at p. 345; City of Maywood v. Los Angeles Unified School Dist.
(2012) 208 Cal.App.4th 362, 420-421; Guidelines, § 15126.6, subd.
(f).) Put another way, if the range of alternatives is reasonable, it
does not become unreasonable simply because another potential
alternative exists.
Second, Good Neighbor argues that the EIR must consider
reducing enrollment as a means of reducing development and the
impacts associated with development. It cites Watsonville Pilots
Assn. v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1087-
1090 (Watsonville Pilots), in which a city rejected, without
analysis, a reduced development alternative in its EIR for a
general plan update. The court held that a reduced development
alternative should have been included because it would meet
most of the project objectives, reduce many of the project’s
environmental impacts (largely caused by growth), and address a
gap in the range of alternatives. (Ibid.)
Unlike Watsonville Pilots, however, this EIR did include a
reduced development alternative—alternative B, which would
reduce housing and academic space development by 25 percent.
Moreover, Good Neighborhood’s argument ignores the problem
that capping future enrollment levels would change the nature
and scope of the project. That was not an issue in Watsonville
Pilots. (See Watsonville Pilots, supra, 183 Cal.App.4th at pp.
1087-1088.)
Third, and finally, Good Neighbor notes that CEQA
requires the Regents to consider future campus population
estimates when they prepare an EIR for a long range
development plan and to mitigate significant impacts. (See
CEQA, § 21080.09, subds. (b), (d); Ed. Code, § 67504, subds.
(a)(1), (b)(1).) Good Neighbor then suggests that, because the
Legislature requires the Regents to mitigate impacts from
16
campus population increases, it must also consider alternative
ways to avoid or reduce impacts when setting enrollment levels.
We do not see it that way. We agree that the Regents must
consider, and mitigate, projected campus population increases
when the Regents prepare an EIR for a long range development
plan, as we held in Save Berkeley’s Neighborhoods, supra, 51
Cal.App.5th at pp. 237-241. The EIR does so. But nothing in
CEQA section 21080.09 indicates that the Legislature intended to
force the Regents to consider alternatives to its process for setting
enrollment levels whenever they adopt a new development plan.
Indeed, in a recent amendment to the statute, the Legislature
exempted enrollment and enrollment increases from the
definition of a project under CEQA.3 (Sen. Bill No. 118 (2021-
2022 Reg. Sess.), Stats. 2022, ch. 10, § 1, eff. March 14, 2022;
CEQA, § 21080.09, subd. (d).)
Good Neighbor has not met its burden of demonstrating
that the range of alternatives for the long range development
plan is manifestly unreasonable.
B.
Alternatives to Housing Project No. 2
(People’s Park)
We now turn to Good Neighbor’s challenge to the
alternatives analysis for Housing Project No. 2, which would be
built on the present site of People’s Park. As noted, although this
3 For clarity, we note that the Legislature also recently
exempted from CEQA student and faculty housing projects that
meet certain criteria. (CEQA, § 21080.58.) The legislation
(which became effective January 1, 2023) applies to site-specific
housing projects that are consistent with a long range
development plan. (CEQA, § 21080.58, subd. (b)(1)(A)(i).) It does
not exempt long range development plans, which remain subject
to CEQA. (CEQA, § 21080.09, subd. (b).)
17
site-specific project is related to the long range development plan,
and part of the same EIR, it is a separate project (for CEQA
purposes) from the plan, and the EIR separately discusses
alternatives to the plan and the housing project.
As explained in the previous section, 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); Bay-Delta, supra, 43
Cal.4th at p. 1163.) Good Neighbor contends the EIR violated
this mandate by failing to analyze any alternative locations for
Housing Project No. 2 that would spare People’s Park from
demolition.
We agree, to a point. We do not hold the Regents must
necessarily study an alternative site or sites for the People’s Park
project. We are mindful that an analysis of alternative sites is
not required in all cases. (California Native Plant Society, supra,
177 Cal.App.4th at p. 993.) Here, however, the Regents not only
declined to analyze any alternative locations; they failed to
provide a valid reason for that decision. (Guidelines, § 15126.6,
subd. (f)(2)(B).) There is plenty of evidence that alternative sites
exist—the development plan identifies several other university-
owned properties as potential student housing sites. (See Goleta,
supra, 52 Cal.3d at p. 574 [public agency’s access to alternative
sites may expand the range of feasible alternative locations].)
Under these circumstances, we are constrained to find the EIR
failed to consider and analyze a reasonable range of alternatives.
1.
In the 1960’s, the university acquired and cleared the
parcel that eventually became People’s Park, intending to develop
it for parking, student housing, and office space. Funding for the
project ran short, and the site remained undeveloped. Over the
following year, residents, students, and community organizers
18
transformed it into an unofficial community gathering space—
People’s Park.
The park’s historic significance stems from its association
with social and political activism in Berkeley. A hub of protest
against the Vietnam War, in 1969 the park was the site of both
violent confrontations between protesters and law enforcement
and peaceful demonstrations. Through the early 1970’s, People’s
Park grew to symbolize anti-war activism and suppression of the
counterculture movement. Since those times, various proposals
by the Regents to develop the site have been met with protest
and/or community opposition.
The park is currently used as a venue for occasional special
events, including concerts, fairs, basketball tournaments, and
theatrical performances. Its predominant use, however, is by
transient and unhoused people in multiple encampments. The
park is also 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.
The City of Berkeley designated the park as a landmark in
1984. There are 10 historic structures in its immediate vicinity,
buildings of two to four stories dating from the 19th- and early
20th-century. These include two National Register-listed
resources: the First Church of Christ, Scientist, and Anna Head
School for Girls.
To build the housing project, the Regents propose
demolishing the park and its amenities and constructing two new
buildings. The new buildings would provide approximately 1,113
student beds, eight staff and faculty beds, and 125 beds for lower-
income and formerly homeless persons. The project would
include a public market, a clinic, and some 1.7 acres of publicly
accessible, landscaped green space that would commemorate the
history and legacy of People’s Park.
19
The EIR determined the project would result in a
substantial adverse change to a historic resource: “Housing
Project [No.] 2 would require demolition of existing structures,
which currently include a public restroom, basketball courts, and
stage, and would reconfigure the existing open space. . . . These
proposed changes would leave the park without integrity of
design, materials, workmanship, feeling, or association, that is, it
would remove its ability to convey its historic significance.
Therefore, demolition of the site would result in a significant
impact.” Nobody disputes that, under CEQA, the Regents
properly identified this as a significant impact on the
environment. (Guidelines, § 15064.5, subds. (a)(2), (b)(2)(A)-
(b)(2)(B).)
In addition, Housing Project No. 2 could have significant
and unavoidable impacts on the 10 historic resources in the
vicinity because its proposed scale and proportion, with a larger
footprint and height of up to 17 stories, would likely be
incompatible with the smaller structures.
The EIR does not analyze in detail any alternatives to
Housing Project No. 2. In the EIR scoping process, the staff
identified two alternatives before rejecting them. The first was
intended to preserve the park by designing buildings that would
maintain the park’s key features. The EIR explains that staff
concluded this was not possible and rejected the idea. The
parties focus on the second rejected alternative, which suggested
locating the housing project on one of the many other university-
owned properties in the area.
The EIR gives three reasons for rejecting the alternative
location proposal. First, “[l]ocating [the project] on other UC
Berkeley properties in the City Environs Properties or the Clark
Kerr Campus that are designated for future student housing
could reduce the total projected number of beds within the
proposed LRDP Update development program . . . , or could
20
require UC Berkeley to identify additional housing sites that are
not currently UC Berkeley properties for housing.”
Second, development of the project at a different location
“would be constrained by site access and parcel size, as many of
the eligible sites are smaller than the proposed development
sites. Therefore, the development programs would need to either
be reduced, or the housing projects would require multiple sites,
further diminishing the total number of beds described in the
proposed [long range] development program.”
Third, relocating the project would not avoid adverse
historical impacts: “While a potential alternate site alternative
would reduce the significant historic resource impacts at both
[Anchor House and People’s Park] sites, they would also have the
potential to introduce new historic resource impacts at many of
the sites in the City Environs Properties and the Clark Kerr
Campus, as both contain historic resources or are adjacent to
such resources.”
In comments on the draft EIR, members of the public asked
what specific sites were considered as potential alternatives for
Housing Project No. 2. The final EIR responded by identifying
numerous potential housing sites that the plan also proposes for
new development, redevelopment, and renovation. Like the draft
EIR, the final EIR stated that developing Housing Project No. 2
on one or more of those sites would result in fewer beds and
potentially introduce new historic resource impacts. In addition,
the final EIR stated that “accommodating the same number of
beds on multiple sites would cause greater potential for ground
disturbance and thus consequently, greater construction
impacts.” The Regents adopted the conclusions stated in the
draft EIR.
21
2.
The Regents’ strategy is puzzling. 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. So if the Regents wanted to consider
potentially feasible sites for student housing that would avoid
impacts to the park, there are some obvious candidates.
Moreover, the Regents concede that, if there are no feasible
alternative locations for the project, the EIR should state the
reasons for that conclusion. (Guidelines, § 15126.6, subds. (c),
(f)(2)(B); Laurel Heights, supra, 47 Cal.3d at p. 404 [agency
cannot expect the public to accept its determination on blind
trust].) But the record does not support the reasons stated in the
EIR, and the Regents do not try to defend them. Instead, in their
brief, they offer new reasons that contradict their earlier reasons
and that are nowhere found in the EIR.
The EIR’s first reason, again, is that developing an
alternative site instead of People’s Park “could” either reduce the
total number of beds that would be built under the long range
development plan or require the university to acquire additional
properties. This vague, equivocal statement—maybe an
alternative site would reduce the total beds, maybe not—falls
short of a conclusion, based on facts and analysis, that no
potentially feasible sites exist. (See Guidelines, §§ 15126.6,
subds. (c), (f)(2)(B) [“If the Lead Agency concludes that no feasible
alternative locations exist, it must disclose the reasons for this
conclusion”], 15364 [defining feasibility as “capable of being
accomplished in a successful manner within a reasonable period
of time, taking into account economic, environmental, legal,
social, and technological factors”], 15126.6, subd. (f)(1) [feasibility
includes assessing whether the developer “can reasonably
acquire, control or otherwise have access to [an] alternative site”
22
or already owns one].) Nor do the Regents point to evidence in
the record that would shore up this assertion.
Moreover, the rationale is based on a nonexistent conflict
with the long range plan. The plan sets no minimum number of
beds to be built. Its objective for housing is to “[i]mprove the
existing housing portfolio” and “support” the Chancellor’s housing
initiative by providing “additional” beds. The total number of
beds discussed in the plan—11,731—is not a hard number but,
instead, merely “the estimated potential envelope of net new
development that may occur over time,” depending on actual
enrollment growth, available financing, and other factors. The
EIR acknowledges as much in considering a reduced development
alternative—alternative B—that proposed 2,500 fewer beds. The
Regents are careful to say, repeatedly, that the plan is not a
commitment to build anything, much less 11,731 beds. Similarly,
the Regents cite no evidence that acquiring new properties
conflicts with the plan or is infeasible. (See Goleta, supra, 52
Cal.3d at p. 574; Guidelines, § 15126.6, subd. (f)(1).) The plan
expressly contemplates acquiring additional properties in the
future; it even sets guidelines for doing so. In short, the alleged
conflict with the plan does not support an infeasibility finding.
The second reason also is a non-starter. The EIR explained
that relocating the project to an alternate site or sites would
result in fewer new beds, or require multiple sites, because
“many” of the eligible sites are smaller than People’s Park.
(Italics added.) Again, this is not a finding that there are no
alternative sites that could support an equivalent project. Nor
does the EIR or administrative record supply evidence to support
such an assertion. (See Goleta, supra, 52 Cal.3d at p. 569;
Guidelines, § 15126.6, subd. (c).) In fact, the EIR indicates that
at least three of the nearby sites identified for student housing
could provide more beds than the 1,113 beds at the People’s Park
23
site: Clark Kerr – Central (1,439 net new beds); Channing
Ellsworth (2,980 beds); and Fulton-Bancroft (1,200 beds).
The third reason is similarly flawed. The EIR ruled out
consideration of alternate locations in part because re-siting the
project from People’s Park would “have the potential” to adversely
affect other historic resources at “many of the sites in the City
Environs Properties and the Clark Kerr Campus,” as both areas
“contain . . . or are adjacent to [historic] resources.” (Italics
added.) In other words, relocating Housing Project No. 2 from
People’s Park, where it will definitely destroy a significant
historic resource, to many (but not all) of the sites in those areas
might (but might not) affect some different historical resource
because such a resource might (or might not) be on or near the
site. This artfully drafted language, yet again, cannot substitute
for a conclusion based on facts in the record that there are no
potentially feasible alternative sites where the project would
cause less damage to historic resources.
The EIR’s rationale here is questionable for another reason
as well: it treats potential adverse environmental impacts on
People’s Park and various other, unnamed historical resources as
if they were interchangeable. Historical places and structures
are rarely, if ever, fungible items of equivalent historical
significance and value. Even were we to assume re-siting the
project would cause adverse impacts to some other historic
resource, those impacts would almost necessarily differ in quality
and degree from Housing Project No. 2’s impacts on People’s
Park.
The Regents cite no evidence to support the final EIR’s
additional reason that alternative sites would have a “greater
potential for ground disturbance.” We deem this point
abandoned. (See State Water Resources Control Bd. Cases (2006)
136 Cal.App.4th 674, 836.)
24
While an EIR need not exhaustively explain its reasons for
excluding an alternative from analysis (Guidelines, § 15126.6,
subds. (c), (f)(2)(B)), unsupported conclusory statements do not
suffice. (Laurel Heights, supra, 47 Cal.3d at p. 404.) The
Regents’ explanation, premised as it is on ambiguous
generalizations rather than analysis and evidence, failed to serve
the purpose of enabling informed decision-making and public
discussion. (See San Bernardino Valley Audubon Society, Inc. v.
County of San Bernardino (1984) 155 Cal.App.3d 738, 750-751
[EIR’s statement that development at another site “may” result
in similar adverse impacts without discussing whether there
actually were other potentially suitable sites held insufficient];
San Joaquin Raptor/Wildlife Rescue Center v. County of
Stanislaus (1994) 27 Cal.App.4th 713, 735-736 (San Joaquin
Raptor).)
3.
In their briefs, the Regents spend most of their time
developing new reasons for declining to analyze any alternative
sites for Housing Project No. 2.
First, they argue that a “primary objective” of the project is
to revitalize the People’s Park site, and therefore developing any
other site would conflict with that objective. (See Guidelines, §
15152, subd. (a); Jones v. Regents of University of California
(2010) 183 Cal.App.4th 818, 827-828 (Jones) [upholding rejection
of alternative site because it would conflict with most project
objectives].) The Regents point to one of the EIR’s seven
objectives for Housing Project No. 2: “[r]edevelop and revitalize a
UC Berkeley property to provide safe, secure, high quality, and
high density student housing to help meet the student housing
needs of UC Berkeley.” While they acknowledge the reference to
“a” UC Berkeley property does not convey a site-specific objective
of addressing problems unique to People’s Park, they maintain
the record “clearly” demonstrates that this is what it meant.
25
We disagree. The objective applies equally to many of the
potential sites that the university has identified for
redevelopment in its long range development plan. This is
unsurprising. One of the plan’s objectives is to provide
“renovated safe, secure, accessible, and high-quality housing.”
The plan therefore identifies a host of underutilized, university-
owned properties as potential sites to redevelop as student
housing, including the three alternative properties mentioned
above (Clark Kerr – Central, Channing Ellsworth and Fulton-
Bancroft) and Housing Projects Nos. 1 and 2, all of which the EIR
categorizes as redevelopment housing projects. The record simply
does not support the Regents’ position that its objective to
redevelop “a” UC Berkeley property fatally conflicts with
redeveloping all other UC Berkeley properties.
The Regents summarily assert it is infeasible to construct
Housing Project No. 2 on a different site because the university
must utilize all of the proposed housing sites near Campus Park
to achieve its objective of maintaining that area as the central
location for academic, research and student life uses. The
Regents identify nothing in the EIR or the record supporting
their claim that the objective cannot be achieved without
developing every potential site in the area. As noted, the Regents
disclaimed any commitment to build anything other than the two
housing projects; the other proposed sites, according to the EIR,
are simply a “menu of possible options” for future development.
In any event, the Regents may not exclude a potentially feasible
alternative from analysis simply because it does not fully meet all
project objectives. (Habitat & Watershed Caretakers v. City of
Santa Cruz (2013) 213 Cal.App.4th 1277, 1304; Watsonville
Pilots, supra, 183 Cal.App.4th at p. 1087.)
Finally, we would find the EIR flawed even if we accepted
the Regents’ argument. The primary explanation they offer now
but omitted from the EIR (i.e., they did not consider other sites
26
because they want to fix the problems at this particular site)
contradicts the explanation they gave to the public in the EIR
(they considered other sites but found them infeasible because
they were too small, etc.). In the chapter on alternatives, where
the Regents stated their reasons for rejecting alternative sites,
the Regents gave the latter explanation, not the former. When
squarely asked by public commentors why they rejected other
sites, they did so again. And again in the findings. Hiding the
ball is unacceptable. In the seminal Laurel Heights case, in
which the Regents failed to explain why they rejected alternative
sites for a development project, our Supreme Court observed:
“The Regents miss the critical point that the public must be
equally informed” of the reasons. (Laurel Heights, supra, 47
Cal.3d at p. 404, italics omitted.) They missed that point here,
too.
In sum, we conclude that, absent a viable explanation for
declining to consider alternative locations, the range of
alternatives in the EIR was unreasonable. (See Watsonville
Pilots, supra, 183 Cal.App.4th at pp. 1087-1090.) Because the
Regent’s explanation was incomplete and inaccurate, it precluded
informed public participation and decision-making, so it is
prejudicial regardless of whether a different outcome would
otherwise have resulted.4 (CEQA, § 21005, subd. (a).)
4 We note, again, that recent legislation exempts certain
student and faculty housing projects from CEQA. (CEQA, §
21080.58, added by Sen. Bill No. 886 (2021-2022 Reg. Sess.),
Stats. 2022, ch. 663, § 1, eff. Jan. 1, 2023.) Among other
limitations, the legislation does not apply to student housing
projects that would require the demolition of a structure listed on
a local historic register. (CEQA, § 21080.58, subd. (d)(1)(D).)
People’s Park is a local historic landmark.
27
C.
Piecemealing
We reject Good Neighbor’s argument that the Regents
improperly “piecemealed” the long range development plan by
limiting its scope geographically to the campus and neighboring
properties, thereby excluding several properties further away. We
review piecemealing claims de novo. (Banning Ranch
Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th
1209, 1224 (Banning Ranch).)
Piecemealing concerns the scope of the project analyzed in
the EIR. CEQA requires that a lead agency describe and analyze
the entire project rather than split one large project into smaller
ones, resulting in piecemeal environmental review that obscures
the project’s full environmental consequences. (Guidelines, §
15378; Banning Ranch, supra, 211 Cal.App.4th at p. 1222.) It is
not simply a matter of whether two projects are related. The
projects must be linked in a way that logically makes them one
project, not two. A classic example is Laurel Heights, where a
university described the project only as its initial plan to occupy
part of a building, omitting its future plan to occupy the entire
building. (Laurel Heights, supra, 47 Cal.3d at p. 396.) Another
example is a county’s truncated description of a housing
development that neglected to include the sewer lines and related
facilities designed to serve the project. (San Joaquin Raptor,
supra, 27 Cal.App.4th at pp. 729-731.)
But two projects may be kept separate when, although the
projects are related in some ways, they serve different purposes
or can be implemented independently. (See Banning Ranch,
supra, 211 Cal.App.4th at pp. 1223-1224 [summarizing the case
law]. An example is Communities for a Better Environment v.
City of Richmond (2010) 184 Cal.App.4th 70, 99, where the court
concluded that a proposed hydrogen production facility at an oil
refinery served a different purpose than a pipeline to transport
28
excess hydrogen from same facility, and thus could be evaluated
in a separate EIR.
Here, Good Neighbor argues that the geographic distinction
is “arbitrary” and that there is no “independent utility” to
adopting separate plans for the remote properties because
ultimately they are all part of the UC Berkeley campus and serve
its educational mission.
In our view, however, it is perfectly rational for the
university to develop a coherent vision for the campus and its
adjacent properties while developing separate plans for more
remote properties. When a group of projects are related
geographically, the Guidelines encourage agencies to analyze
them together as one large project in a program EIR, which is
precisely what the Regents have done. (See Guidelines, § 15168,
subd. (a)(1) [agency may prepare program EIR for a series of
actions that can be characterized as one large project and are
related geographically].) While the Regents could have chosen to
include all its properties in a single plan, that is far different
from saying that separate plans serve no logical purpose or could
not be implemented independently.
As the EIR explains, the properties in the plan comprise all
of UC Berkeley’s major instructional facilities and are the
primary locations used by nearly all the members of the campus
population for instruction, research, and extracurricular
activities. The plan itself sets goals and principles that focus on
how the campus and adjacent properties function together (e.g.,
accessibility, connectivity), contribute to the university’s
institutional objectives (e.g., fostering collaboration), and will be
used by the university community. We won’t second guess the
Regents’ decision to group the campus-area properties together
for planning purposes. (Cf. Jones, supra, 183 Cal.App.4th at p.
829 [rejecting argument that university was required to consider
off-site alternative locations for campus laboratory, given
29
university’s goals to foster collaboration and a culture of
interdisciplinary problem-solving].)
Good Neighbor suggests that, because the Legislature
requires each UC “campus” to have a long range development
plan (Ed. Code, § 67504, subd. (a)(1)), all of UC Berkeley’s
properties must be included in a single plan, regardless of their
proximity to the actual campus. The statute does not say so.
(See Ed. Code, § 67504, subd. (a)(1).) We think it allows the
Regents a measure of discretion on this point.
D.
Noise
We agree with Good Neighbor that—as to both the
development plan and Housing Project No. 2—the EIR failed to
analyze potential noise impacts from loud student parties in
residential areas near the campus, where student parties have
been a problem for years.
1.
CEQA includes “noise” as part of the “ ‘[e]nvironment.’ ”
(CEQA, §§ 21060.5, 21068.) The Legislature has declared that it
is the state’s policy to “[t]ake all action necessary to provide the
people of this state with . . . freedom from excessive noise.”
(CEQA, § 21001, subd. (b).) As a general matter, the Regents
concede that CEQA applies to the type of noise at issue here—
crowds of people talking, laughing, shouting, and playing music
that disturbs neighboring residents. (See, e.g., Keep Our
Mountains Quiet v. County of Santa Clara (2015) 236
Cal.App.4th 714, 732-734 [EIR required for crowd noise and
music at wedding venue].)
In preparing an EIR, the lead agency must “consider and
resolve every fair argument that can be made about the possible
significant environmental effects of a project.” (Protect the
30
Historic Amador Waterways v. Amador Water Agency (2004) 116
Cal.App.4th 1099, 1109 (Amador).) The agency must make
findings in the EIR that such an effect either is, or is not,
significant. (Ibid.; CEQA¸ § 21100, subds. (b)(1), (c).) A finding of
insignificance requires only a brief statement of reasons, but a
finding of significance triggers the requirement to consider
mitigation measures. (CEQA, §§ 21002.1, subds. (a), (b), 21100,
subds. (b)(3), (c).) Because the Regents did not consider and
resolve whether noisy parties are a significant effect of the
projects, the initial question for us is whether there is a fair
argument, based on substantial evidence in the record as a whole,
that they may be significant effects. (See Visalia Retail, LP v.
City of Visalia (2018) 20 Cal.App.5th 1, 13, 17 (Visalia).) If so,
the Regent’s failure to make findings one way or the other may
have violated CEQA’s procedural requirements. (See Amador,
supra, 116 Cal.App.4th at pp. 1111-1112.)
The fair argument standard is a low threshold, which
reflects CEQA’s preference for resolving doubts in favor of
environmental review. (Taxpayers for Accountable School Bond
Spending v. San Diego Unified School Dist. (2013) 215
Cal.App.4th 1013, 1035 (Taxpayers).) The lead agency cannot
weigh conflicting evidence: if any substantial evidence exists of a
potential significant effect, the agency must analyze the issue
even if other evidence indicates that that the project will not have
a significant effect. (Guidelines, § 15384, subd. (a).) Substantial
evidence may include personal observations of residents, expert
opinions, and reasonable inferences based on facts, but not
argument, speculation, or unsubstantiated opinions. (Guidelines,
§ 15384, subds. (a)-(b); Taxpayers, supra, at pp. 1035-1036.) We
owe no deference to the lead agency on its decision to forgo an
analysis although we will give them some deference on disputed
issues of credibility. (Taxpayers, at p. 1035.) Our standard of
review is de novo. (Ibid.)
31
2.
At oral argument, the Regents conceded that noise from
student parties is a problem in Berkeley’s residential
neighborhoods near the campus. The record indicates it is a
longstanding problem.
In 2007, the City of Berkeley found that parties in
residential areas “frequently become loud and unruly,” cause
“excessive noise,” and constitute a public nuisance, and it added a
set of warnings and fines to its municipal code. (Berkeley Mun.
Code, §§ 13.48.010–13.48.070). The city and university police
implemented a joint public safety patrol and weekly reporting
process to discourage such parties. Neighborhood groups
submitted data of hundreds of citations under the ordinance but
stated that enforcement efforts have flagged in recent years and
that the parties and noise have increased.
In 2016, the City of Berkeley took further steps to mitigate
noisy parties in these neighborhoods when it adopted an
ordinance restricting so-called mini-dorms—private homes
converted to high-density student housing (e.g., four-bedroom
homes housing 12 to 14 students). The city found that these
mini-dorms were disrupting the neighborhoods near the campus
in numerous ways, including “loud and unruly parties” that
“frequently” require police officers to respond. The city found the
disturbances had “become much more severe and intolerable
because they are no longer occasional, but have become chronic.”
For several years, the university has engaged with
neighbors and the city on the noise issue through an advisory
body that, according to the EIR, “is dedicated to improving the
quality of life in the neighborhoods adjacent to UC Berkeley
properties.” It has “launched and supported good-neighbor
initiatives, campaigns, and programs” aimed at reducing noise
from parties, as well as other conflicts. The advisory body “meets
regularly” with the city and community stakeholders to hear
32
updates on the work they have done together and to plan new
initiatives. Other materials in the record explain that neighbor
groups have been meeting with the university since 2008
specifically to address noisy parties, and the university has
provided funding for their efforts, beginning in 2011.
The EIR defines a significant noise impact as an increase in
ambient noise that would exceed local standards, including
Berkeley’s noise ordinances. But the EIR does not analyze the
issue: it does not address the relevant baseline noise conditions in
the neighborhoods afflicted with loud parties, the effect of
increasing the student population in those neighborhoods, or the
efficacy of the noise reduction efforts it identified, and it makes
no findings on whether adding thousands more students to the
area would cause a significant noise increase.
Multiple individuals and organizations objected to the
EIR’s failure to address impacts from loud parties. The
commentors include neighborhood groups that, in partnership
with the university, have been trying to mitigate student noise
for more than a decade. They submitted surveys, reports, and
data indicating that the effort had been largely unsuccessful and
that the number of such incidents had stayed the same or
increased in all but one member neighborhood since 2011. They
complained that the development plan proposes to triple the
number of undergraduates living at the Clark Kerr campus
without studying the potential noise impacts on the surrounding
neighborhoods.
The Regents refused to analyze the issue because,
according to the final EIR, it is “speculative to assume that an
addition of students would generate substantial late night noise
impacts simply because they are students.”
33
3.
Although the Regents concede that loud student parties are
a real problem in the residential neighborhoods, they insist there
is no substantial evidence in the record that adding thousands
more students will cause a potential noise increase. Instead, the
record contains only opinions and speculation that reflect an anti-
student bias. They say that “[n]ewer students could just as well
spend more time studying or socializing quietly on the internet
compared to prior students.”
Similarly, their partner in the People’s Park project,
Resources for Community Development (RCD), says that Good
Neighbor’s argument is based on prejudice, stereotypes, and
“tales from NIMBY neighbors” rather than evidence. RCD warns
that a ruling for Good Neighborhood will allow “NIMBY project
opponents” 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.
As a general matter, we agree with the Regents and RCD
that stereotypes, prejudice, and biased assumptions about people
served by a CEQA project—such as a church, school, gym, or
housing project—are not substantial evidence that can support a
CEQA claim under the fair argument standard. (See Guidelines,
§ 15384, subd. (a) [substantial evidence does not include
argument, speculation, and unsubstantiated opinion].) And 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. (See Guidelines,
§§ 15002, subd. (a) [purpose of CEQA is to prevent environmental
damage], 15131 [CEQA applies to environmental, not social,
impacts]; cf., Save the Plastic Bag Coalition v. City of Manhattan
Beach (2011) 52 Cal.4th 155, 169-170 & fn. 5 (Save the Plastic
Bag) [CEQA petitioner with “no demonstrable concern for
protecting the environment” may lack standing].)
34
But here, this is a straw man argument. The Regents and
RCD focus on isolated statements from a noise expert who
referred to the movie “Animal House,” offered colorful opinions
about student attitudes toward drinking, and suggested the vast
majority of loud and unruly drunk college students are male, not
female. We will set those statements aside.
As the lead agency, the Regents are required to consider
the entire record. (Guidelines, § 15384, subd. (a).) Quite a bit of
proper evidence remains. We have no reason to assume, for
example, that the City of Berkeley’s noise ordinances are based
on anti-student bias. The city found that “loud and unruly”
student parties have gone from an “occasional” problem to one
that is “chronic” and “intolerable.” It has declared noise from
parties to be a public nuisance. Data from enforcement efforts
indicates that student parties consistently violate these
ordinances. Neighborhood groups have worked for years to
mitigate loud student parties. Based on their experience,
observations, and neighborhood surveys, they say the mitigation
efforts have been largely unsuccessful and that the noise problem
has increased. The record also includes public comments based
on personal observations that loud parties are an increasing
problem. (See Taxpayers, supra, 215 Cal.App.4th at pp. 1035-
1036 [substantial evidence includes “ ‘[r]elevant personal
observations of area residents on nontechnical subjects’ ”], 1054-
1055 [neighbors’ observations of traffic problems established fair
argument of potential impact].)
Indeed, the Regents’ argument is hard to square with their
concession that loud student parties in these neighborhoods are a
problem. For more than a decade, the university has partnered
with the city and with neighborhood groups to discourage loud
parties. It provided funding to neighborhood groups for this
purpose. It collects data on the issue and meets regularly with
the city and neighborhood groups to discuss progress and
35
potential new initiatives. Presumably the university said and did
these things because the university agrees that student noise is a
genuine problem and not because the university is prejudiced
against its students. None of this can be waived away as
speculation, unsubstantiated opinion, or bias.
The evidence meets the fair argument standard. Given the
long track record of loud student parties that violate the city’s
noise ordinances (the threshold for significance), there is a
reasonable possibility that adding thousands more students to
these same residential neighborhoods would make the problem
worse. (See Guidelines, Appendix G, XIII, subd. (a), § 15384,
subd. (b) [substantial evidence includes reasonable assumptions
predicated on facts].) The Regents’ suggestion that new students
might instead “socializ[e] quietly on the internet” is conjecture,
unsupported by the record. (See City of Hayward v. Trustees of
California State University (2015) 242 Cal.App.4th 833, 858-859
[no substantial evidence supported university’s assumption that
5,500 new students would not use regional parks].) New
students arrive every year, yet the noise problem has persisted
since at least 2007.
The Regents’ additional arguments have no merit.
First, in a supplemental brief, the Regents assert that
CEQA only applies to crowd noise generated at a “discrete
facility” that is designed to host noisy crowds. (See, e.g., Keep
Our Mountains Quiet v. County of Santa Clara, supra, 236
Cal.App.4th at pp. 732-734 [crowd noise at wedding venue].)
They cite no authority for this sweeping rule. CEQA applies
when it is reasonably foreseeable that a project may cause an
impact, directly or indirectly. (CEQA, § 21065; Union of Medical
Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th
1171, 1198-1199; Guidelines, §§ 15064, subd. (d)(2), 15358, subd.
(a)(2).) The geographic area of a potential impact is not limited to
discrete facilities but includes any area where direct or indirect
36
impacts may occur. (Guidelines, § 15360; Save the Plastic Bag,
supra, 52 Cal.4th at pp. 173-174; e.g., Mission Bay Alliance v.
Office of Community Investment & Infrastructure (2016) 6
Cal.App.5th 160, 210 [EIR for sports arena considered indirect
impacts on nearby neighborhoods of noise from crowds after they
leave the arena].) These are settled principles of law, grounded
in statutes, the CEQA Guidelines, and Supreme Court cases.
The Regents make no attempt to explain why they do not apply
here.
Second, the Regents assert Good Neighbor waived any
challenge to the EIR’s noise analysis because it presented some of
its materials after the Regents approved the plan (but before they
approved Housing Project No. 2). That is incorrect. Petitioners
raised the noise issue in timely comments on the draft EIR and
thus preserved the issue. (CEQA, § 21177, subds. (a), (b).)
Third, and finally, the Regents warn that this case will
encourage existing homeowners to oppose “development of a
single family home on the empty lot next door” unless the lead
agency studies and mitigates “typical household noise” like
“children playing or dogs barking.” We are not sure what they
mean. The scenario they posit is a frivolous CEQA claim under
existing case law: the alleged impact is obviously insignificant
(see Guidelines, Appendix G, XIII, subd. (a)), and it affects only
isolated individuals rather than the environment of people
generally. (Clews Land & Livestock, LLC v. City of San Diego
(2017) 19 Cal.App.5th 161, 196 [dismissing as insignificant
CEQA claim by neighboring horse ranch that school project must
address noise from “children laughing and playing”]; Dunning v.
Clews (2021) 64 Cal.App.5th 156, 173-175 [malicious prosecution
action for frivolous CEQA noise claim].) Nothing in this case
suggests otherwise.
The Regents must analyze the potential noise impacts
relating to loud student parties. Their decision to skip the issue,
37
based on the unfounded notion that the impacts are speculative,
was a prejudicial abuse of discretion and requires them now to do
the analysis that they should have done at the outset. (See
Amador, supra, 116 Cal.App.4th at pp. 1111-1112; CEQA, §
21100, subds. (b)(1), (c).) We express no opinion on the outcome
of a noise analysis. The Regents must determine whether the
potential noise impacts are in fact significant, and, if so, whether
mitigation is appropriate; ultimately, CEQA provides discretion
to proceed with a project even if some impacts cannot be
mitigated. (CEQA, §§ 21002, 21002.1, subds. (a)-(c), 21100,
subds. (b), (c); see also, § 21168.9.)
E.
Population Growth
Good Neighbor contends the EIR violates CEQA because it
failed to address properly the impacts of population growth and
the consequent displacement of existing residents. We disagree.
1.
The EIR estimates that the long range development plan
will add up to 13,902 residents to Berkeley for whom the
university plans to provide housing. This population is
comprised primarily of undergraduate and graduate students,
graduate student family members, faculty, and staff. In addition
to this “[d]irect” population growth, the EIR anticipated
“[i]ndirect” population growth of another 8,173 residents in
Berkeley and surrounding cities—students, faculty, staff and
family members for whom the university would not provide
housing.
The EIR’s Population and Housing analysis concluded this
influx of residents would result in two significant impacts if
38
unmitigated.5 First, the plan would induce substantial
unplanned population growth “either directly (for example, by
proposing new homes and businesses) or indirectly (for example,
through extension of roads or other infrastructure).” (“Impact
POP-1.”) As mitigation, the university would provide Berkeley
and the Association of Bay Area Governments (ABAG) with
annual summaries of enrollment projections and housing
production data to “ensur[e] that local and regional planning
projections account for UC Berkeley-related population changes.”
As so mitigated, the impacts of unplanned population growth
would be less than significant.
Second, the EIR found the development projects anticipated
by the plan could result in displacing substantial numbers of
existing residents, houses or businesses. (“Impact POP-2.”) This
impact was also found to be significant, but less than significant
if mitigated by implementing the UC Relocation Assistance Act
Policy to help displaced residents find replacement housing.
Pursuant to that policy, the university would survey and analyze
relocation needs, employ minimum notice requirements, pay
moving expenses and relocation payments, and provide “other
aspects of relocation assistance” including, in some cases, “last-
resort housing.”
2.
Good Neighbor asserts the mitigation measure for POP-1
impacts (substantial unplanned population growth) is
unenforceable. “Mitigation measures must be fully enforceable
through permit conditions, agreements, or other legally-binding
instruments.” (Guidelines, § 15126.4, subd. (a)(2); CEQA, §
5 The EIR noted that other consequences of project-driven
growth such as impacts on transportation infrastructure,
utilities, public services, recreational facilities, noise levels, air
and water pollution, and greenhouse gas emissions were
evaluated elsewhere in the document.
39
21081.6, subd. (b); Federation of Hillside & Canyon Associations
v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1261.) While
the Regents can ensure the university provides the City of
Berkeley and ABAG with summaries of annual enrollment and
construction information, they have no authority to compel either
entity to undertake planning for university-driven population
growth. (See Sierra Club v. California Coastal Com. (2005) 35
Cal.4th 839, 859 [CEQA does not expand the authority of public
agencies; agencies must rely on their existing powers to mitigate
environmental impacts].) Good Neighbor argues such planning is
unlikely to occur because “Berkeley’s General Plan is twenty
years old” and the university’s population is “ ‘not formally
coordinated’ ” with ABAG.
The argument misses its mark. ABAG is required by
statute to allocate responsibility for the Bay Area’s regional
housing needs among its constituent cities and counties,
including Berkeley. (Gov. Code, § 65584.04.) In devising its
methodology for that allocation, it must consider multiple factors
based on data from its constituent local governments. Those
factors specifically include “[t]he housing needs generated by the
presence of . . a campus of . . the University of California within
any member jurisdiction.” (Gov. Code, § 65584.04, subd. (e)(9).)
Berkeley, in turn, is required to include its allocated share of
regional housing in its general plan’s housing element, which it
must review and revise every eight years. (Gov. Code, §§ 65583,
subd. (a)(1), 65588, subd. (e)(3)(A). In view of these statutory
obligations, there is no reason to believe either entity will fail in
the future to plan for the population growth projected in the long
range development plan. (See CEQA, § 21081, subd. (a)(2); City
of Marina v. Board of Trustees of California State University
(2006) 39 Cal.4th 341, 365 [payment of share of improvement
costs was valid mitigation measure where statutory directives
indicated recipient agency would construct the needed
infrastructure].)
40
We reject Good Neighbor’s argument that the city will not
actually do the planning. Good Neighbor cites a single sentence
in the EIR stating that the population projections in the city’s
general plan EIR do not go beyond 2020, which in turn cites a
“Draft General Plan EIR” dated 2001 that is not in our record.
This is thin stuff. It does not tell us when the next housing
element update is due or the status of any update in progress.
We will not infer from it that the city will violate its statutory
planning deadlines.
3.
We now turn to displacement. Impact POP-2, as noted
above, concerned the “direct” displacement of existing tenants
when university-owned buildings were demolished to make way
for new development. “Though the proposed LRDP Update, at
full development, would result in a substantial net increase in
housing at UC Berkeley (11,731 beds), it is possible that housing
development will be less than the total projected, or that
individual future housing projects may involve the displacement
of existing people or housing.” Therefore, “this impact is
considered significant.” However, the impact would be reduced to
less than significant when mitigated by adherence to the
Relocation Assistance Policy’s procedures for helping displaced
residents obtain new housing.
Good Neighbor contends this analysis is legally inadequate
for two related reasons. First, it fails to address potential
environmental impacts caused by “indirect” displacement, i.e.,
displacement of existing residents caused by adding 8,173 people
for whom the university will not provide housing. Second, it fails
to assess the environmental impacts of direct and indirect
displacement, including health and safety effects of crowding and
homelessness and the need for construction of replacement
housing.
41
Good Neighbor’s first theory illustrates CEQA’s long reach.
CEQA does not treat a project’s social and economic effects (such
as displacement) as significant environmental impacts.
(Guidelines, §§ 15064, subd. (e), 15131, subd. (a).) However, if a
project may cause social or economic impacts that, in turn, cause
physical effects on the environment, the EIR may be required to
trace this chain of causation and analyze the resulting indirect
environmental impacts. (Guidelines, §§ 15064, subd. (e), 15131,
subd. (a).) The issue has arisen, for example, in cases where a
proposed regional shopping center threatens to put downtown
stores out of business and leave them vacant (economic effects),
eventually leading to boarded up stores and urban blight
(environmental effects). (See Citizens Assn. for Sensible
Development of Bishop Area v. County of Inyo (1985) 172
Cal.App.3d 151, 169-170.)
More recent cases have emphasized how difficult it can be
to establish a factual foundation for this sort of theory, even
under the fair argument standard. In Joshua Tree Downtown
Business Alliance v. County of San Bernardino (2016) 1
Cal.App.5th 677 (Joshua Tree), the petitioner cited testimony of a
prominent local business owner that a proposed Dollar General
store would take business away from existing local businesses,
leading to urban blight. (Id. at pp. 686-688, 690-692.)
The court of appeal concluded the evidence failed to show a
potential environmental effect. While members of the public may
provide opinion evidence where the issue does not require special
expertise, it explained, the same is not true for technical or
scientific information. (Joshua Tree, supra, 1 Cal.App.5th at pp.
690-691.) “ ‘[I]n the absence of a specific factual foundation in the
record, dire predictions by nonexperts regarding the
consequences of a project do not constitute substantial evidence.’
” (Id. at p. 691.) The business owner was not an economist or
otherwise qualified to opine on whether the new store would
42
cause urban decay; moreover, she offered no particular factual
basis for her conclusion that it would. (Ibid.) Her conclusion was
thus speculative and, although it made a certain amount of sense,
did not constitute substantial evidence of an environmental
impact. (See Joshua Tree, at p. 690; see also, Visalia, supra, 20
Cal.App.5th at pp. 9-17, 14-15.)
Good Neighbor relies principally on comments by
Berkeley’s planning director that, in the context of a housing
shortage, displacement of residents resulting from unplanned
and unmitigated population growth would exacerbate the city’s
existing homeless crisis. Homelessness, in turn, whether
resulting from students unable to afford housing6 or residents
displaced by students, “leads to physical impacts on parks,
streets and other public spaces, public safety issues related to
homeless encampments locating in unsafe locations, and an
increase in public health problems.” In addition, the record
includes a San Francisco Department of Public Health report on
impacts of inadequate housing, which observes generally that a
lack of affordable housing and displacement may result in
homelessness. Comments on the draft EIR from members of the
public summarily asserted the university’s growth contributed to
homelessness in Berkeley.
In view of Joshua Tree and Visalia, this evidence is
insufficient. 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). Each of those steps requires expertise, a factual
6According to the university’s housing survey,
approximately 10 percent of undergraduates and approximately
20 percent of doctoral students had experienced homelessness
while attending the university.
43
foundation, and analysis that does not exist in our record. There
is no evidence whatever on the magnitude of any potential
environmental impacts. The theory may appeal to common
sense, and it may ring true in a region with crazy housing costs
and rampant homelessness. But as Joshua Tree and Visalia
explain, when a theory requires expert opinion, courts cannot
substitute common sense, lay opinion, fears, or suspicions.
(Joshua Tree, supra, 1 Cal.App.5th at pp. 690-691; Visalia, supra,
20 Cal.App.5th at pp. 15-17; CEQA, § 21080, subd. (e); see also,
Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, 894.)
Finally, Good Neighbor asserts the EIR failed to assess
whether indirect displacement will necessitate the construction of
replacement housing elsewhere, which the EIR identified as a
standard of significance for housing and population impacts. Not
so. The “replacement housing” standard of significance refers to
new housing constructed for tenants whose university-owned
housing will be demolished to make way for new development,
not to indirect displacement. It is within the lead agency’s
discretion to formulate standards of significance. (King &
Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th
814, 884; Kostka & Zischke, supra, § 13.8.)
To the extent Good Neighbor is suggesting the EIR failed to
adequately address the growth-inducing impacts of indirect
displacement (see Guidelines § 15126.2, subd. (e)), we also
disagree. The EIR analyzes the growth-inducing impacts at a
general level of detail, as CEQA requires. (Napa Citizens for
Honest Government v. Napa County Bd. of Supervisors (2001) 91
Cal.App.4th 342, 369; Clover Valley Foundation v. City of Rocklin
(2011) 197 Cal.App.4th 200, 227-228.)
DISPOSITION
The judgment is reversed. The matter is remanded to the
superior court with directions to vacate its order and judgment
denying Good Neighbor’s petition for writ of mandate and enter a
44
modified judgment consistent with our conclusions that the EIR
inadequately analyzed potential alternatives to Housing Project
No. 2 and impacts from noise and displacement. (CEQA, §
21168.9, subd. (a).)
Good Neighbor is entitled to costs on appeal. (Cal. Rules of
Court, rule 8.278.)
45
______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
SIMONS, J.
A165451
46
Alameda County Superior Court, No. RG21110142, Hon. Frank
Roesch.
Law Offices of Thomas N. Lippe, APC, Thomas N. Lippe; Soluri
Meserve, A Law Corporation, Patrick M. Soluri, Osha R.
Meserve, and James C. Crowder, for Plaintiffs and Appellants.
The Sohagi Law Group, PLC, Nicole H. Gordon, Margaret M.
Sohagi, Mark J.G. Desrosiers; Lubin Olson & Niewiadomski LLP,
Charles R. Olson, Philip J. Sciranka; Office of The General
Counsel – University of California, Charles F. Robinson, Alison
L. Krumbein; UC Berkeley, Office of Legal Affairs, David M.
Robinson, for Defendants and Respondents.
Buchalter, A Professional Corporation, Douglas C. Straus, Alicia
Cristina Guerra, for Real Party in Interest Resources for
Community Development.
47