Save Berkeley's Neighborhoods v. Regents of the Univ. of Cal.

Filed 4/27/23; Certified for Partial Publication 5/19/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SAVE BERKELEY’S
NEIGHBORHOODS,
Plaintiff and Appellant, A163810
v. (Alameda County
THE REGENTS OF THE Super. Ct. No. RG19022887)
UNIVERSITY OF CALIFORNIA et
al.,
Defendants and Appellants.
Save Berkeley’s Neighborhoods (SBN) filed a petition for writ of
mandate pursuant to the California Environmental Quality Act (Pub.
Resources Code,1 § 21000 et seq.; CEQA) challenging (1) the Regents of the
University of California’s (Regents) adoption of a project to develop new
academic, residential, and parking buildings on University of California,
Berkeley’s (UC Berkeley) campus, and (2) the Regents’ certification of the
related final supplemental environmental impact report (SEIR). The trial
court granted the petition, finding in relevant part that certain aspects of the
SEIR’s analysis of increased student enrollment at UC Berkeley did not
All undesignated statutory references are to the Public Resources
1
Code unless otherwise noted.
comply with CEQA. The court ordered the Regents to decertify and revise
the SEIR and suspend any further increases to student enrollment.
On appeal, the Regents assert the judgment suspending student
enrollment exceeds the court’s jurisdiction and runs afoul of Senate Bill
No. 118 (Reg. Sess. 2021–2022) (Senate Bill 118), and the SEIR complies with
CEQA. In supplemental briefing, the Regents further assert SBN’s challenge
to the SEIR’s analysis of student enrollment increases is moot due to the
Regents’ subsequent certification of a new long-range development plan (2021
LRDP) and related environmental impact report (2021 EIR).
SBN filed a cross-appeal, asserting the trial court erred in finding
(1) the SEIR’s project description complied with CEQA, (2) the SEIR’s
mitigation for significant impacts on historic resources was appropriate, and
(3) the SEIR adequately analyzed aesthetic impacts from increased
enrollment. SBN further claims the trial court erred in denying its claims for
equitable and promissory estoppel.
We conclude certification of the 2021 EIR and passage of Senate
Bill 118 moots SBN’s challenge to the student enrollment increases and
makes unenforceable the trial court’s orders suspending student enrollment
increases. We also affirm the trial court’s conclusion that the SEIR’s project
description complies with CEQA and find no error in the SEIR’s discussion of
mitigation measures for historic resources.2 Because there are no
2 On March 8, 2022, the Regents requested this court take judicial
notice of (1) its approval of its 2021 LRDP and 2021 EIR, and (2) a document
entitled, “California Environmental Quality Act Findings of Fact Regarding
The Final Environmental Impact Report for the UC Berkeley 2021 Long
Range Development Plan.” On August 8, 2022, the Regents requested this
court take judicial notice of an order and judgment denying petitions for writ
of mandate in Berkeley Citizens for a Better Plan v. Regents of University of
California (Super. Ct. Alameda County, No. 21CV000995). SBN opposed
both requests as irrelevant to the issues in this appeal. On September 16,
2
outstanding issues regarding the SEIR’s compliance with CEQA, we vacate
the trial court’s order and remand the matter for the court to enter an order
dismissing SBN’s petition.
I. BACKGROUND
A. Factual Background
In 2005, the Regents prepared and adopted a long-range development
plan (LRDP) to provide “a framework for land use and capital investment to
meet the academic goals and objectives of [UC Berkeley] through the year
2020.” In connection with the LRDP, the Regents prepared an EIR regarding
the programmatic effects of the LRDP (2005 EIR). The 2005 EIR noted the
LRDP did not commit UC Berkeley to any specific project, but “represents a
maximum amount of net new growth in the UC Berkeley space inventory
through 2020–2021, which the University could substantially exceed only by
2022, amici curiae City of Goleta and City of Santa Cruz filed a request,
which was opposed by the Regents, that this court take judicial notice of a
petition and complaint in two other matters and a report from the Santa
Cruz Fire Department. We deny these three requests for judicial notice
because these documents are “not relevant to disposition of this appeal.”
(Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 221, fn. 13.) On December 1,
2022, the parties filed a joint motion and request for judicial notice of the
draft 2021 EIR and the final 2021 EIR. We grant this request. The Regents
also separately requested this court take judicial notice of six petitions
challenging its adoption and certification of the 2021 LRDP and 2021 EIR.
On December 16, 2022, SBN opposed the Regent’s request and filed its own
motion, requesting this court take judicial notice of a comment letter
submitted by the Southside Neighborhood Consortium to the draft 2021
LRDP and 2021 EIR. We also deny these two requests for judicial notice
because these documents are “not relevant to disposition of this appeal.”
(Ibid.)
On September 2, 2022, SBN requested leave to file a sur-reply brief. In
light of the new arguments raised by the Regents in their reply brief due to
the Legislature’s adoption of Senate Bill 118, we grant SBN’s request and
have considered the arguments raised in SBN’s sur-reply.
3
amending the LRDP.” As part of that analysis, and as relevant to this
appeal, the 2005 EIR projected UC Berkeley’s campus population would
levelized at 51,250 by 2020.
In 2018, the Regents approved a new development for additional
academic space and campus housing, and certified the SEIR. The project
sought to demolish an existing parking structure and construct apartment
housing above a new parking structure and a new academic building adjacent
to the new residential building (Upper Hearst Development project). The
SEIR also “establishe[d] an updated population baseline to reflect the
existing campus headcount (which is greater than the projections in the [2005
EIR]),” and evaluated the environmental impacts of this updated population
baseline in connection with both the 2005 EIR and the SEIR.
B. Save Berkeley I
In 2018, SBN filed a petition for writ of mandate and a complaint for
declaratory relief challenging the Regents’ decisions to increase enrollment
beyond the level set forth in the 2005 EIR without further CEQA review.
(Save Berkeley’s Neighborhoods v. Regents of University of California (2020)
51 Cal.App.5th 226, 233 (Save Berkeley I).) That petition alleged, “When [the
Regents] prepared the 2005 EIR for the development plan, the projected
increase of 1,650 students was part of the ‘project description,’ as that term is
used in CEQA. (See [Cal. Code Regs., tit. 14], § 15124.) [The Regents] then
changed the project when they approved enrollment increases beyond this
amount. These enrollment increases caused, and continue to cause,
significant environmental impacts that were not analyzed in the 2005 EIR,
including increased use of off-campus housing by U.C. Berkeley students
(leading to increases in off-campus noise and trash), displacement of tenants
and a consequent increase in homelessness, more traffic, and increased
4
burdens on the City of Berkeley’s public safety services (police, fire, and
ambulance).” (Save Berkeley I, at p. 233, fn. omitted.) SBN alleged CEQA
required the Regents “to prepare an EIR to analyze these impacts and to
identify and adopt mitigation measures to reduce them.” (Save Berkeley I, at
p. 233.)
The Regents filed a demurrer, “contending [SBN] cannot state a cause
of action for violation of CEQA because, under section 21080.09, the
enrollment increases are not a CEQA ‘project’ or a project change requiring
subsequent environmental review. [The Regents] also argued [SBN’s] claims
were barred by the applicable statute of limitations or moot. In support of
the latter argument, [the Regents] asked the trial court to judicially notice
their issuance of a ‘Notice of Preparation of a Draft Supplemental [EIR]’ for a
project entitled ‘Upper Hearst Development for the Goldman School of Public
Policy and Minor Amendment to the 2020 Long Range Development Plan,’
which is dated August 15, 2018. [The Regents] contended the [SEIR] would
analyze not only a new physical development but also the increase in current
and foreseeable campus population levels.” (Save Berkeley I, supra,
51 Cal.App.5th at pp. 233–234.)
“The trial court sustained the demurrer without leave to amend,
concluding [SBN’s] petition was barred by the statute of limitations ‘[t]o the
extent [it] challenges the adequacy of the 2005 EIR’ and that ‘ “informal,
discretionary decisions” to increase student enrollment beyond that
anticipated in the [development plan]’ did not constitute ‘project changes’
necessitating CEQA review.” (Save Berkeley I, supra, 51 Cal.App.5th at
p. 234.)
Our colleagues in Division Five of this court reversed. The court noted
SBN alleged in its petition that the Regents “made several discretionary
5
decisions to change the project by increasing enrollment beyond 1,650
students,” these increases “have caused, and continue to cause, significant
environmental impacts that were not analyzed in the 2005 EIR,” and the
Regents “failed to analyze the new impacts in a CEQA document” or “adopt
mitigation measures to reduce or avoid them.” (Save Berkeley I, supra,
51 Cal.App.5th at p. 237.) The court concluded these allegations adequately
supported SBN’s claim that the Regents “made substantial changes to the
original project that trigger the need for a subsequent or supplemental EIR.”
(Ibid.)
The court also rejected the Regents’ argument that section 21080.09
effectively exempted them from analyzing the changed increases in
enrollment unless or until a physical development project is approved. (Save
Berkeley I, supra, 51 Cal.App.5th at p. 237.) It concluded, “When a public
university prepares an EIR for a development plan, section 21080.09 requires
universities to expand the analysis to include a related feature of campus
growth, future enrollment projections, which is entirely consistent with the
traditional, broad definition of a CEQA project.” (Id. at p. 239.) The court
further noted “a public university’s decision to increase enrollment levels can
be a ‘project’ subject to CEQA whether or not it is related to a development
plan.” (Id. at p. 240.) On remand, the trial court stayed the matter pending
resolution of this appeal.
C. The Current Petition
On June 13, 2019, SBN filed a petition for writ of mandate challenging
the Upper Hearst Development project and seeking to vacate the Regents’
certification of the SEIR on the grounds that the approval violated CEQA.
The petition identified various alleged omissions from the SEIR and asserted
the Regents (1) “[f]ailed and refused to recirculate a revised draft
6
supplemental EIR including said necessary information,” (2) failed to prepare
and certify “a subsequent, rather than supplemental EIR,” and (3) failed to
make certain required findings or support findings with substantial evidence.
The petition named the Regents, Janet Napolitano, and Carol T. Christ as
respondents in the action.3 The petition requested in relevant part that the
court void approval of the project and order the respondents to take any other
necessary acts to comply with CEQA.
Following briefing on the merits but in advance of the hearing, the
court requested the parties address nine issues. The majority of the
questions involved the increased student enrollment and whether that issue
was properly analyzed in the SEIR.
In responding to these questions, the Regents commented: “The project
analyzing the SEIR was the Upper H[ea]rst Development, which included a
projection of enrollment increases to 2022 when the project would open. And
these additional students were not part of any project approval. If you look
at the Regents[’] approval, they approved the GSPP [(Upper Hearst
Development)] project. They did not approve additional enrollment. . . . [¶]
. . . The future increases were part of the project analysis, cumulative
analysis in the SEIR. But again, they’re not part of any project approval.”
While the Regents argued student enrollment increases were not part
of the “project,” it acknowledged the analysis of increased enrollment was
part of the SEIR and subject to judicial review. Specifically, the Regents
3 SBN filed an amended petition for writ of mandate, which was
substantively identical to the initial petition except it added American
Campus Communities and Collegiate Housing Foundation as real parties in
interest. This court affirmed the order dismissing those parties in Save
Berkeley’s Neighborhoods v. Regents of University of California (2021)
70 Cal.App.5th 705.
7
stated: “[The court] will decide whether the [Regents] goes to [sic] analyzing
the environmental impacts of the 7,500 additional students above and beyond
the 2020 LRDP projections compliant with CEQA. That’s an issue, obviously,
in these cases. It’s part of this challenge, and I think I’ve consistently told
[the court] that, even though our approach to how we handle that is unusual,
but, obviously, it is subject to the court’s review and determination. [¶] . . . A
judicial determination on this issue in these cases will moot the [Save
Berkeley I] case. I believe that’s the relief that’s been requested in [Save
Berkeley I] was environmental review of the increased enrollment from 2005
to 2017. And that’s what the court will be ruling upon in these cases.”
The Regents also represented its assessment of student enrollment
increases went beyond merely providing a baseline for the Upper Hearst
Development project: “As to your second question . . . , did the Regents study
the environmental impacts of the increases in the SEIR? The answer is yes.
But to the rest of that question or were these increases simply used as a
baseline? The answer is no. And again, this is an unusual case. As we’ve
explained to the court before, the [Regents] analyzed the potential
environmental impacts of the additional students in connection with
preparation of an updated baseline in this SEIR. [¶] As we say in our briefs
. . . , normally the baseline or the conditions on the ground—existing
conditions when the NOP[4] is published. In this case, August of 2018.
However, as I’ve also said, there’s 7,500 additional students present or
enrolled at the UC Berkeley campus at the time the NOP was published.
They had already been enrolled. They were there and there was no
discretionary approval involved with those 7,500 students at that time. [¶]
Now, technically, under section 105125, the [Regents] would have said,
4 “NOP” is an acronym for “notice of preparation.”
8
they’re there. They’re part of the baseline. Let’s go on. Let’s look at the
impacts of the [Upper Hearst Development project], but it didn’t do that. And
I believe that, again, although unusual, if there’s nothing illegal or nothing
under the [Regent’s] approach that violates CEQA and in fact, it better serves
the purposes of CEQA by being an information disclosing document that
talked about the impacts of those students . . . as well as the project that was
under review.”
The trial court subsequently granted the writ of mandate. The court
noted the Regents’ “ ‘updated baseline’ analysis does not fit well within a
traditional CEQA framework.” It criticized the SEIR for “attempt[ing] to
analyze an increase in student enrollment without admitting that increasing
student enrollment is a project subject to review.” However, it concluded
SBN’s challenge to past enrollment increase was properly subject to judicial
review based on the statements made by the Regents’ counsel at the hearing.
In addressing the adequacy of the SEIR’s analysis, the court found the
SEIR insufficiently analyzed the impacts on housing, public services, and
noise, and failed to consider possible alternatives. Specifically, as to housing
and population, the court noted “the SEIR dismisses the displacement and
indirect population impacts of the ‘update’ portion of the updated baseline as
outside the scope of its study” and asserted “concerns about student and
induced nonstudent homelessness” involved “speculation” that “is beyond [the
SEIR’s] scope.” The court concluded “[i]ncreases in campus population
foreseeably lead to direct and indirect impacts on housing, population, and
displacement, and the failure to consider those impacts constitutes a
prejudicial abuse of discretion.” The court also determined the SEIR’s
conclusion “that no new displacement impacts would result from the
9
construction of new University housing” “fails to consider indirect
displacement impacts.”
As to impacts on the demand for public services, the court stated the
Regents dismissed staffing and equipment purchases as “ ‘fiscal matters’ ”
rather than environmental impacts. The court also noted the Regents did not
believe new or physically altered fire protection facilities would be required
due to the increased headcount. The court took issue with this approach,
noting the City of Berkeley submitted evidence of physical impacts due to
increased service calls and a corresponding need for additional personnel and
new facilities. The court concluded “no substantial contradictory evidence”
indicated the increased demand was not connected to the increased
headcount, and the SEIR’s failure to discuss this issue was an abuse of
discretion.
The court next addressed the parties’ arguments regarding noise and
aesthetic impacts. On these issues the SEIR concluded there was no
significant impact because neighborhoods around UC Berkeley already
accommodated a high proportion of off-campus student rentals. The court
explained this analysis constituted an abuse of discretion because it
“compares . . . its current student enrollment numbers to the present, post-
increase status quo” rather than “to a baseline before the increase.” The
court noted nothing supported the SEIR’s conclusion that increased
headcount would not exacerbate noise issues, and rejected the SEIR’s
conclusion that Berkeley’s noise ordinance was an adequate remedy.
However, the court found the Regents could reasonably conclude that once-a-
year, moving-day trash did not constitute a “ ‘substantial’ effect on the
environment.”
10
Finally, the court determined it “cannot endorse [the Regents’]
conclusion that the lack of analysis of a reduced enrollment alternative is
legally permissible” because “the environmental analysis was flawed.”
Apart from the student enrollment increases, SBN also argued the
Regents failed to properly consider (1) the historical context of the new
buildings comprising the Upper Hearst Development project, and (2) noise
and traffic impacts. As to the historical impacts, the SEIR considered
buildings on or immediately adjacent to the Upper Hearst Development
project site, and concluded the project would negatively impact three
historical buildings. The SEIR proposed as a mitigation measure retaining a
historical architect to review plans for the proposed buildings and “ ‘provide
input and refinements to the design team . . . to improve compatibility with
neighboring historical resources.’ ” SBN claimed the Regents failed to
consider surrounding historical resources and disputed the validity of the
proposed mitigation measure. The trial court rejected SBN’s arguments. It
first concluded the Regents did not abuse its discretion in limiting its review
of historical resources to those on or adjacent to the building site. The trial
court found the Regents did not abuse its discretion in adopting the proposed
mitigation measure because it required the Regents to take certain steps,
including adopting the United States Secretary of the Interior’s Standards for
the Rehabilitation and Guidelines for Rehabilitating Historic Buildings
(Secretary of the Interior’s Standards). (See Cal. Code Regs., tit. 14,
§ 15064.5, subd. (b)(3).)
The court also found the Regents did not fail to adequately analyze
noise and traffic impacts. The court concluded substantial evidence
supported the SEIR’s conclusion that a decrease in parking would correlate
with reduced trip generation. The court also rejected SBN’s arguments that
11
the SEIR failed to consider traffic impacts from construction of the Upper
Hearst Development project and noise impacts from construction and
subsequent use of the Upper Hearst Development project.
The trial court entered judgment and ordered the Regents, in relevant
part, “to void any decision or decisions they may have made prior to entry of
this Judgment to increase student enrollment in academic year 2022–2023 or
later above the level of student enrollment at UC Berkeley in academic year
2020–2021,” “to void their decision to carry out the Upper Hearst
Development [project],” and “to decertify the [SEIR].” The judgment also
ordered the Regents (1) “to suspend any further increases in student
enrollment at UC Berkeley . . . until [the Regents] have demonstrated full
compliance with this Judgment and Writ and the Court orders discharge of
the Writ”; and (2) revise the SEIR to remedy the deficiencies identified in the
judgment and certify the revised SEIR.
D. The Appeal and Writ Proceedings Before This Court
In October 2021, the Regents timely appealed from the order granting
the writ petition. SBN also filed a notice of cross-appeal. Approximately
three months later, and after the parties had proposed and the court
established a briefing schedule, the Regents filed a petition for writ of
supersedeas with this court. It argued the trial court’s order limiting
enrollment exceeded its authority and could “have serious, immediate, and
irreparable consequences.” The Regents asserted an immediate stay was
required “to ensure that thousands of matriculating high school seniors
deserving of admission to UC Berkeley are not denied that admission during
the pendency of the appeal.”
This court denied the request for temporary stay and the petition for
writ of supersedeas. We concluded “it appears far more probable that the
12
fruits of the judgment will be lost if a stay is issued than that the fruits of
reversal will be lost if it does not.” Moreover, this court noted the Regents
failed to demonstrate irreparable harm in light of its multi-month delay in
seeking a stay or supersedeas, and its failure to offer any explanation for
such delay. The Regents’ petition for review and application for stay to the
California Supreme Court were subsequently denied. The parties then
proceeded with this pending appeal.
II. DISCUSSION
A. Standard of Review
“ ‘[I]n a mandate proceeding to review an agency’s decision for
compliance with CEQA, we review the administrative record de novo
[citation], focusing on the adequacy and completeness of the EIR and whether
it reflects a good faith effort at full disclosure. [Citation.] Our role is to
determine whether the challenged EIR is sufficient as an information
document, not whether its ultimate conclusions are correct. [Citation.]’ An
EIR is presumed adequate. (§ 21167.3, subd. (a).)” (County of San Diego v.
Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal.App.4th 86, 96
(County of San Diego).)
“We review an agency’s action under CEQA for a prejudicial abuse of
discretion. (§ 21168.5.) ‘Abuse of discretion is established if the agency has
not proceeded in a manner required by law or if the determination or decision
is not supported by substantial evidence.’ ” (County of San Diego, supra,
141 Cal.App.4th at p. 96.)
“In defining the term ‘substantial evidence,’ the CEQA Guidelines[5]
state: ‘ “Substantial evidence” . . . means enough relevant information and
5 The CEQA Guidelines are found at California Code of Regulations,
title 14, section 15000 et seq.
13
reasonable inferences from this information that a fair argument can be
made to support a conclusion, even though other conclusions might also be
reached. Whether a fair argument can be made . . . is to be determined by
examining the whole record before the lead agency. Argument, speculation,
unsubstantiated opinion[,] narrative [or] evidence which is clearly erroneous
or inaccurate . . . does not constitute substantial evidence.’ ([Cal. Code Regs.,
tit. 14], § 15384, subd. (a).) ‘In applying the substantial evidence standard,
we resolve all reasonable doubts in favor of the administrative finding and
decision.’ ” (County of San Diego, supra, 141 Cal.App.4th at p. 96.)
Although an agency’s “factual determinations are subject to the
foregoing deferential rules of review, ‘questions of interpretation or
application of the requirements of CEQA are matters of law. [Citations.]
While we may not substitute our judgment for that of the decision makers,
we must ensure strict compliance with the procedures and mandates of the
statute.’ ” (County of San Diego, supra, 141 Cal.App.4th at p. 96.)
B. Judicial Review of the SEIR’s Analysis of Student Enrollment
Increases
As a threshold issue, the parties disagree as to whether the trial court
was entitled to evaluate the Regents’ analysis of the student enrollment
increases under CEQA. The Regents argue its discussion of student
enrollment increases was merely in connection with establishing a baseline
from which to evaluate the potential environmental impacts of the Upper
Hearst Development project. Conversely, SBN argues the Regents stated it
conducted a CEQA analysis of the enrollment increases that was subject to
judicial review in this proceeding, and the Regents thus waived any
argument to the contrary by stipulation, judicial admission, or waiver.
As an initial matter, we agree the Regents were not required to conduct
a CEQA analysis of the student enrollment increases as part of its analysis of
14
the Upper Hearst Development project. CEQA requires that a project’s
environmental impacts be assessed against “the existing ‘baseline physical
conditions.’ ” (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1167; see also
Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th
549, 559 [“the ‘normal’ rule is that the baseline must reflect the ‘physical
conditions existing at the time [the] environmental analysis’ begins”].) And
increased enrollment was indisputably already part of the existing
environmental conditions at the time the Regents began its environmental
review for the Upper Hearst Development project. Numerous courts have
concluded that a baseline should reflect existing conditions, even if doing so
precludes full environmental review of past actions. (See, e.g., Citizens for
East Shore Parks v. State Lands Com., at p. 561; Riverwatch v. County of San
Diego (1999) 76 Cal.App.4th 1428, 1452–1453 [respondents could not turn
back the clock and insist upon a baseline that excluded existing conditions];
Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1280–1281 [county
acted within its discretion in considering current airport operations for
baseline despite past airport development conducted without proper
authorization].)
Likewise, we note increased student enrollment would not necessarily
have triggered CEQA review due to Senate Bill 118. As discussed in greater
detail in part II.C.2., post, Senate Bill 118 amended section 21080.09,
subdivision (d) to state, “Enrollment or changes in enrollment, by themselves,
do not constitute a project.”
SBN asserts the Regents cannot now raise these arguments because
they have been waived by either stipulation or judicial admission. “A judicial
admission is a party’s unequivocal concession of the truth of a matter, and
removes the matter as an issue in the case.” (Gelfo v. Lockheed Martin Corp.
15
(2006) 140 Cal.App.4th 34, 48.) The doctrine of judicial admissions is similar
to the doctrine of judicial estoppel. The purpose of these doctrines is to
protect the integrity of the judicial process. (Jogani v. Jogani (2006)
141 Cal.App.4th 158, 169.) They are “ ‘ “aimed at preventing fraud on the
courts [and]” . . . “ ‘ “[are] invoked to prevent a party from changing its
position over the course of judicial proceedings when such positional changes
have an adverse impact on the judicial process . . . . ‘The policies underlying
preclusion of inconsistent positions are “general consideration[s] of the
orderly administration of justice and regard for the dignity of judicial
proceedings.” ’ . . . ‘It seems patently wrong to allow a person to abuse the
judicial process by first [advocating] one position, and later, if it becomes
beneficial, to assert the opposite.’ ” ’ ” (Id. at pp. 169–170.)
As noted in the factual background, prior to the merits hearing the trial
court asked the parties to address specific questions regarding whether the
student enrollment increases were part of the SEIR rather than just the
baseline and whether the impact of such increases were subject to judicial
review. As to those issues, the Regents acknowledged the court would
evaluate whether its analysis of “the environmental impacts of the 7,500
additional students above and beyond the 2020 LRDP projections [is]
compliant with CEQA.” The Regents further recognized it was “an issue . . .
in these cases,” “part of this challenge,” and “obviously . . . is subject to the
court’s review and determination.” The Regents further asserted: “A judicial
determination on this issue in these cases will moot the [Save Berkeley I]
case. I believe that[ ] the relief that’s been requested in [Save Berkeley I] was
environmental review of the increased enrollment from 2005 to 2017. And
that’s what the court will be ruling upon in these cases.”
16
The Regents also—in contrast to its arguments raised on appeal—
stated its analysis of the environmental impacts of the student enrollment
increases in the SEIR were not simply used as a baseline. The Regents
explained its approach to the trial court as follows: “[T]he [Regents] analyzed
the potential environmental impacts of the additional students in connection
with preparation of an updated baseline in this SEIR. [¶] As we say in our
briefs, . . . normally the baseline or the conditions on the ground—existing
conditions when the NOP is published. In this case, August of 2018.
However, as I’ve also said, there’s [sic] 7,500 additional students present or
enrolled at the UC Berkeley campus at the time the NOP was published.
They had already been enrolled. They were there and there was no
discretionary approval involved with those 7,500 students at that time. [¶]
Now, technically, under section 105125, the [Regents] would have said,
they’re there. They’re part of the baseline. Let’s go on. Let’s look at the
impacts of the [Upper Hearst Development project], but it didn’t do that. And
I believe that, again, although unusual, if there’s nothing illegal or nothing
under the [Regents’] approach that violates CEQA and in fact, it better serves
the purposes of CEQA by being an information disclosing document that
talked about the impacts of those students . . . as well as the project that was
under review.”6 (Italics added.) The trial court then relied on these
6 Without opining on the merits of such an argument as it was not
raised by SBN, we note section 21166 imposes an “obligation to conduct
supplemental review . . . regardless of whether the project under
consideration has undergone previous project-specific environmental review,
or is being carried out under a plan for which the agency has previously
certified a program EIR.” (Citizens for a Sustainable Treasure Island v. City
and County of San Francisco (2014) 227 Cal.App.4th 1036, 1051.) Such
supplemental review is triggered in part when “[s]ubstantial changes occur
with respect to the circumstances under which the project is being
undertaken which will require major revisions in the environmental impact
17
representations in stating, “At the hearing on the petition, . . . the parties
stipulated that the SEIR’s analysis of the impacts of the increase in
enrollment was subject to judicial review in this proceeding without resolving
the issue of whether the increases to student enrollment that led to the
Excess Population were a part of the project studied in the SEIR.” The trial
court thus concluded it “d[id] not need to determine whether that past
increase was part of the project under study here.”
Accordingly, the record indicates the Regents acknowledged the
increased enrollment was subject to judicial review, was part of the pending
challenge, and would be addressed by the trial court.7 The Regents cannot
report.” (§ 21166, subd. (b).) We note the draft SEIR stated: “UC Berkeley
made a commitment to the City of Berkeley that, if enrollment increased
beyond the projections set forth in the 2020 LRDP, it would undertake
additional review under CEQA. [¶] Consistent with this commitment, the
SEIR uses an updated population baseline and, in its environmental analysis
of each impact category, takes this updated baseline into account and
explains how it factors into and/or affects the environmental analysis and
significant conclusions reached in the 2020 LRDP EIR and this SEIR.”
(Italics added.) The final 2021 EIR also stated the SEIR addressed “the
‘significant environmental impacts of unanticipated enrollment growth that
has already occurred at UC Berkeley.’ ” Likewise, the Regents argued to
Division Five of this court in its prior appeal, Save Berkeley I, that the appeal
was moot because “[t]here is no effective relief that can be granted . . . . The
[SEIR] did exactly what [SBN] asks for and conducted supplemental CEQA
review of amendments to the LRDP, which included an analysis of the
impacts of increased enrollment.”
7 On appeal, the Regents contend these concessions do not constitute a
waiver or judicial admission because they only acknowledged the analysis of
increased enrollment was subject to judicial review and not that it was part
of the Upper Hearst Development project. What the Regents omit, however,
is what type of judicial review is appropriate in light of their simultaneous
argument that the trial court’s CEQA review was erroneous.
18
now argue otherwise. The trial court thus did not err in assessing the
adequacy of the Regents’ CEQA analysis of increased enrollment. 8
C. Validity of the Enrollment Increase Analysis Under CEQA
The Regents next challenge the trial court’s finding that the student
enrollment analysis failed to comply with CEQA. Specifically, the Regents
argue (1) SBN’s challenge to the student enrollment increase is moot due to
certification of the 2021 EIR, (2) the remedies imposed by the trial court
violate Senate Bill 118, and (3) the student enrollment analysis satisfied the
requirements of CEQA.
1. Mootness
In supplemental briefing, the Regents argue SBN’s challenge to the
SEIR’s analysis of student enrollment increases is moot considering the
subsequently certified 2021 EIR. In response, SBN asserts the 2021 EIR
does not supplant the analysis of increased campus population in the SEIR.
a. Additional Relevant Background
In 2021, the Regents issued a draft environmental impact report (2021
draft EIR) that, in relevant part, “would replace UC Berkeley’s existing
LRDP, which was evaluated in the certified EIR for a horizon year of 2020.”
(Fn. omitted.) The 2021 draft EIR utilized a “buildout horizon year of the
2036–37 academic year . . . to provide a basis for evaluating associated
environmental impacts in this EIR.” While “[t]he proposed LRDP Update
8 SBN also argues the trial court erred in denying its alternative claims
for equitable and promissory estoppel regarding the increased enrollment
analysis being part of the SEIR and subject to judicial review in this action.
However, it notes, “If this Court affirms the trial court’s order that the legal
sufficiency of the SEIR’s environmental evaluation of the Updated Campus
Headcount is subject to judicial review in this action, . . . [SBN’s] equitable
and promissory estoppel claims would be moot.” Accordingly, we find these
claims moot.
19
does not determine future UC Berkeley enrollment or population, or set a
future population limit for UC Berkeley,” the proposed LRDP update would
“establish a maximum amount of net new growth in UC Berkeley’s space
inventory during this time frame, which the UC Berkeley campus may not
substantially exceed without amending the LRDP and conducting additional
environmental review as necessary.”
The 2021 draft EIR evaluated the potential environmental impact of
the LRDP update on the areas of aesthetics, air quality, biological resources,
cultural resources, energy, geology and soils, greenhouse gas emissions,
hazards and hazardous materials, noise, population and housing, public
services, parks and recreation, transportation, tribal cultural resources,
utilities and service systems, and wildfire. In assessing the population
increase at UC Berkeley, the 2021 draft EIR utilized the existing conditions
as of 2018 as its baseline for assessing environmental impact.
In July 2021, the Regents issued the final EIR for the approval and
implementation of the proposed 2021 LRDP. In response to public comments,
the 2021 EIR included “Master Response 17,” entitled “2005 LRDP EIR
Population Projections.” The response sought to address requests by the City
of Berkeley and others “that the EIR account for the ‘significant
environmental impacts of unanticipated enrollment growth that has already
occurred at UC Berkeley as well as impacts of additional future population
growth proposed.’ ” Accordingly, the “response provides an evaluation of the
program-level environmental impacts of the LRDP Update to address UC
Berkeley population growth between 2007 (when the 2005 LRDP EIR student
and total UC Berkeley population projections were first exceeded) and the
2018–19 baseline population” used in the 2021 EIR. In doing so, the response
“analyzes the effects of population growth using as a baseline the population
20
level projected in the 2005 LRDP EIR, rather than the UC Berkeley
population in the 2018–19 school year.” This analysis focused on seven
categories: air quality, greenhouse gas emissions, noise, population and
housing, public services, parks and recreation, and transportation.9
With regard to noise, the 2021 EIR focused exclusively on traffic noise
as a result of the project. The 2021 EIR noted roadway volume, and the
corresponding noise level, decreased between 2007 and 2018. As a result, it
concluded the potential impact of increased traffic noise for the 2021 LRDP
using the 2018 baseline would reflect a greater environmental impact than if
analyzed using the 2007 baseline.
In connection with population and housing, the 2021 EIR acknowledged
using the 2007 baseline would increase the population seeking off-campus
housing, and “the local direct and increased population growth projected
under the LRDP Update . . . would be a significant impact.” The response
further noted, however, the impact “would be less than significant with the
implementation of Mitigation Measure POP-1.”10 It concluded “[t]he
increased population evaluated in this master response would not create any
additional impacts not evaluated in the [2021] Draft EIR.”
As to public services, the response first noted, “since 2007 [the
University of California Police Department] has not physically expanded its
9Because the trial court found the SEIR deficient as to housing, public
services, and noise, we only address the 2021 EIR’s discussion of those
categories rather than all seven categories.
10 “Mitigation Measure POP-1” states: “UC Berkeley would provide an
annual summary of LRDP enrollment and housing production data, including
its LRDP enrollment projections and housing production projections, to the
City of Berkeley and [the Association of Bay Area Governments] for
projection purposes, ensuring that local and regional projections are prepared
with knowledge of UC Berkeley enrollment and housing projections.”
21
facilities” and “according to City of Berkeley fiscal reports between 2008 and
2019, the [Berkeley Police Department] did not expand its physical facilities
as a result of the increased UC Berkeley population during this time period.”
The response thus concludes, “Because the exceeded population that occurred
in 2007 did not result in new or physically altered police facilities that would
have potentially resulted in environmental impacts, this population did not
impact police services beyond what was addressed in the [2021] Draft EIR.”
Second, the response reached a similar conclusion as to fire protection
services. It noted the increased population did not result in impacts to the
Berkeley Fire Department because it “did not expand its physical facilities as
a result of the increased UC Berkeley population [between 2008 and 2019].”
b. Analysis
“ ‘Because “ ‘the duty of . . . every . . . judicial tribunal . . . is to decide
actual controversies by a judgment which can be carried into effect, and not
to give opinions upon moot questions or . . . to declare principles or rules of
law which cannot affect the matter in issue in the case before it[,] [i]t
necessarily follows that when . . . an event occurs which renders it impossible
for [the] court, if it should decide the case in favor of plaintiff, to grant him
any effectual relief whatever, the court will not proceed to a formal judgment
. . . .’ [Citations.]” [Citation.] The pivotal question in determining if a case is
moot is therefore whether the court can grant the plaintiff any effectual
relief. [Citations.] If events have made such relief impracticable, the
controversy has become “overripe” and is therefore moot. [Citations.] [¶] . . .
When events render a case moot, the court, whether trial or appellate, should
generally dismiss it.’ ” (Parkford Owners for a Better Community v. County of
Placer (2020) 54 Cal.App.5th 714, 722; see also Golden Gate Land Holdings
LLC v. East Bay Regional Park Dist. (2013) 215 Cal.App.4th 353, 366 [“ ‘[A]
22
case becomes moot when a court ruling can have no practical effect or cannot
provide the parties with effective relief.’ ”].) “General principles for
determining whether an appeal is moot have been applied to CEQA cases.”
(Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538,
1547–1548.) However, courts have held the subsequent preparation and
certification of an EIR does not necessarily moot a prior appeal. (Save Tara
v. City of West Hollywood (2008) 45 Cal.4th 116, 127.) Instead, courts must
look at whether the project has “undergone irreversible physical or legal
changes” that render the relief sought unavailable. (Ibid.)
SBN first argues the 2021 EIR does not moot the current appeal
because it does not address the flaws in the SEIR or replace the 2005 EIR. It
contends the 2021 EIR uses 2018 as its baseline for analyzing the impacts of
increased enrollment on population, housing, and public services. SBN
further asserts this court can provide it with effective relief by ruling in
SBN’s favor on the inadequacy of the SEIR and require the Regents “to
adequately analyze [the] effects of the Updated Campus Headcount.” We
disagree.
Contrary to SBN’s position, the 2021 EIR specifically states it replaces
the 2005 EIR. The draft 2021 EIR notes the 2005 EIR “requires updating”
and “[t]he proposed LRDP Update analyzed in this EIR would replace the
current LRDP . . . .” Likewise, the final 2021 EIR states the updated LRDP
would “replace UC Berkeley’s existing LRDP.” The SEIR’s analysis of
student enrollment increases, which “supplement[ed] the 2005 EIR’s
analysis” thus addresses an EIR that is no longer in effect.
Moreover, the 2021 EIR directly analyzes the past increases since 2007
and is not, as SBN claims, limited to the increase in campus population
between 2018 and 2037. The 2021 EIR contains a section entitled “Master
23
Response 17. 2005 LRDP EIR Population Projections,” which “provides an
evaluation of the program-level environmental impacts of the LRDP Update
to address UC Berkeley population growth between 2007 (when the 2005
LRDP EIR student and total UC Berkeley population projections were first
exceeded) and the 2018–19 baseline population.” The 2021 EIR
acknowledged “UC Berkeley addressed this issue in 2019 as part of the
evaluation presented in the [SEIR],” but stated it was again addressing the
population growth in response to various comments requesting such an
analysis be included in the 2021 EIR. The 2021 EIR evaluated the
environmental impacts of UC Berkeley’s population growth between 2007
and 2018–2019 as to air quality, noise, parks and recreation, greenhouse gas
emissions, population and housing, transportation, and public services.
While we do not opine upon the adequacy of this analysis because challenges
to the 2021 EIR are not part of this appeal, SBN is incorrect that an analysis
of past student enrollment increases was not part of the 2021 EIR.
Finally, SBN asserts this court can provide effective relief by affirming
the trial court’s rulings in SBN’s favor. However, as discussed below Senate
Bill 118 precludes this court from doing so.11 Accordingly, SBN has failed to
identify any effective relief this court can provide in light of the Regents’
11 SBN also argues this court should rule on the merits of its claims
based on certain exemptions to technical mootness. Specifically, SBN claims
the issues raised are likely to reoccur and are of public interest. We decline
to apply such exemptions. First, the 2005 EIR has been replaced and thus
challenges to it are unlikely to reoccur. Nor is it likely that public agencies
will adopt and certify new EIR’s merely to avoid litigation; the lengthy and
onerous process of certifying such EIR’s negates such a risk. Likewise, while
the public may have an interest in the campus population at UC Berkeley,
those interests—as noted by SBN—are presumably represented in the
litigation involving the 2021 EIR.
24
certification of the 2021 EIR and passage of Senate Bill 118. We thus hold
SBN’s challenge to the increased enrollment analysis in the SEIR is moot.
2. Senate Bill 118
Regarding SBN’s challenge to the student enrollment increase analysis,
the judgment (1) voided “any decision or decisions [the Regents] may have
made . . . to increase student enrollment in academic year 2022–2023 or later
above the level of student enrollment at UC Berkeley in academic year 2020–
2021,” and (2) ordered the Regents “to suspend any further increases in
student enrollment at UC Berkeley, in academic years 2022–2023 and later,
above the level of student enrollment in academic year 2020–2021 until [the
Regents] have demonstrated full compliance with this Judgment and Writ
and the Court orders discharge of the Writ.” The Regents assert Senate Bill
118 makes these two provisions unenforceable. 12
Senate Bill 118 modified section 21080.09 to alter the focus from
enrollment to “campus population” and clarify that “Enrollment or changes in
enrollment, by themselves, do not constitute a project” for purposes of CEQA.
(§ 21080.09, subd. (d).) Senate Bill 118 also added subdivision (e), which
limited the remedies available to the court if it finds deficiencies in the
environmental review based on enrollment. Subdivision (e)(1) provides: “If a
court determines that increases in campus population exceed the projections
adopted in the most recent long-range development plan and analyzed in the
supporting environmental impact report, and those increases result in
significant environmental impacts, the court may order the campus or
medical center to prepare a new, supplemental, or subsequent environmental
12 The Regents also assert these two sections of the judgment and writ
violate section 21168.9 and legislative expectations for the University of
California system. We need not reach these issues because we conclude
Senate Bill 118 applies and voids these provisions.
25
impact report. Only if a new, supplemental, or subsequent environmental
impact report has not been certified within 18 months of that order, the court
may . . . enjoin increases in campus population that exceed the projections
adopted in the most recent long-range development plan and analyzed in the
supporting environmental impact report.” (§ 21080.09, subd. (e)(1).)
Subdivision (e)(2) then voids any preexisting injunctions or judgments:
“Notwithstanding any other provision of this division, any injunction or
judgment in effect as of the effective date of this subdivision suspending or
otherwise affecting enrollment shall be unenforceable.” (§ 21080.09,
subd. (e)(2).)
a. Validity of Senate Bill 118
SBN argues Senate Bill 118 violates the separation of powers doctrine
because the provision abrogating freezes on enrollment or campus population
unconstitutionally interferes with the court’s exercise of judicial powers.
“The separation of powers doctrine holds that one branch of the
government cannot exercise essential powers that our state Constitution has
delegated to another branch. [Citation.] ‘A core function of the Legislature is
to make statutory law . . . . A core function of the judiciary is to resolve
specific controversies between parties.’ [Citation.] Thus, ‘[w]hen cases
become final for separation of powers purposes, the Legislature may not . . .
bind the courts with an after-the-fact declaration of legislative intent.’
[Citation.] As the United States Supreme Court has explained in the context
of the parallel federal separation of powers doctrine, ‘[w]hen retroactive
legislation requires its own application in a case already finally adjudicated,
it does no more and no less than “reverse a determination once made, in a
particular case.” ’ ” (Smart Corner Owners Assn. v. CJUF Smart Corner LLC
(2021) 64 Cal.App.5th 439, 465–466 (Smart Corner Owners).)
26
“However, ‘[s]eparation of powers principles do not preclude the
Legislature from amending a statute and applying the change to both
pending and future cases, though any such law cannot “readjudicat[e]” or
otherwise “disregard” judgments that are already “final.” ’ [Citation.]
‘Because the judicial branch consists of a hierarchy of courts—from district
courts and appellate courts to the Supreme Court itself—a judgment has no
conclusive effect for separation of powers purposes until the time for appeal
has passed, or an appeal has been pursued and the review process is
completed. Therefore, separation of powers principles are not implicated, and
a lower court decision has not been unconstitutionally altered, when a
reviewing court applies a new retroactive statute to cases still pending on
appeal.’ [Citation.] ‘[O]nly those decisions that represent “the final word of
the [judicial] department as a whole,” as expressed by “the last court in the
hierarchy that rules on the case” ’ are constitutionally protected from the
effects of retroactive legislation.” (Id. at p. 466, italics omitted.)
Here, the judgment and writ issued by the trial court was not “final” for
separation of powers purposes. Rather, the Regents were entitled to, and did,
appeal to this court. During that time, the Legislature passed Senate
Bill 118. Accordingly, its application to this matter does not run afoul of the
separation of powers doctrine.13
Moreover, courts have rejected separation of powers challenges to
legislation that alters the prospective effect of an injunction. For example, in
in Mendly v. County of Los Angeles (1994) 23 Cal.App.4th 1193 (Mendly), the
plaintiffs initially filed suit challenging the adequacy of the county’s general
13SBN argues the rule requiring that judgments be final relates to a
prohibition on readjudicating finally resolved causes of action. However,
SBN fails to cite any authority imposing such an interpretation.
27
assistance grant and, with court approval, the parties entered into a
stipulated judgment that set forth a formula for payments for the next five
years. (Id. at p. 1202.) One year into the five-year period, the Legislature
passed urgency legislation which found that several counties had entered into
stipulated judgments requiring the payment of general assistance at certain
levels and that, due to an unanticipated fiscal emergency throughout the
state, those counties would suffer serious consequences if forced to maintain
those levels. (Id. at pp. 1200–1201.) Accordingly, the Legislature declared its
intent to “abrogate the provisions of existing agreements, including court-
ordered stipulated judgments, that require counties to provide general
assistance grants above the current levels” and further “declared the
provisions of any such agreement or court-ordered stipulated judgment ‘null
and void.’ ” (Id. at p. 1201.) The plaintiffs thereafter moved to enforce the
stipulated judgment, arguing in part that the legislation “ ‘represents an
impermissible legislative encroachment upon judicial authority in
contravention of the separation of powers doctrine under the California
Constitution,’ because the legislation discarded ‘a final judgment of a court.’ ”
(Id. at pp. 1203, 1211.) The court disagreed, concluding that the Legislature
had properly exercised its power to enact a law that prospectively abrogated
the effect of a judicial decision and that the legislation did not amount to a
modification of the judgment. (Id. at p. 1212.)
Similarly, in Sagaser v. McCarthy (1986) 176 Cal.App.3d 288 (Sagaser),
the plaintiffs unsuccessfully challenged an EIR for the construction of a
prison. While their appeal was pending, the Legislature introduced and the
Governor signed a bill containing an urgency clause that had the effect of
exempting the prison site from CEQA compliance. (Sagaser, at p. 298.)
Finding the legislation valid and constitutional, the court rejected several
28
challenges, including that the bill violated the separation of powers doctrine.
(Sagaser, at pp. 311–312.) Sagaser determined the prospective CEQA
exemption “did not readjudicate or review the judgment in an attempt to
determine whether the EIR was adequate.” (Sagaser, at p. 311.) The court
explained the Legislature did not assume the judicial branch’s role; rather,
the Legislature exercised its role in deciding that public policy reasons
dictated that CEQA compliance was unnecessary for construction of the
prison. (Sagaser, at pp. 311–312.)
SBN asserts the dissent, rather than the majority opinion, in Mendly
“provides the correct analysis” because nullifying judgments infringes on the
judiciary. SBN also seeks to distinguish Mendly because the judgment
“arguably intrude[d] upon[] the Legislature’s exercise of one of its core
legislative powers: i.e., adopting a budget.” We disagree. In Mendly, the
dissent took issue with the majority’s opinion by emphasizing the stipulated
judgment was a final judgment that involved a financial component; it was
not merely an injunction requiring the state to comply with a statute.
(Mendly, supra, 23 Cal.App.4th at pp. 1250–1251 (dis. opn. of Johnson, J.).)
These points of distinction are not relevant here, where the judgment is
neither final nor involves a financial payment. Rather, the order at issue
constitutes the type of injunction the dissent acknowledges is subject to
amendment by the Legislature. (Id. at p. 1250 [“Had [the] judgment merely
enjoined the county to conduct the types of studies and otherwise comply with
[the applicable statute], it would have fit the model of a ‘declaratory
judgment and injunctive decree.’ ”].)
SBN does not dispute the Legislature is entitled to amend CEQA to
meet changing policy goals. (See Saltonstall v. City of Sacramento (2014)
231 Cal.App.4th 837, 854 [“ ‘CEQA remains a legislative act, subject to
29
legislative limitation and legislative amendment’ ”].) And SBN has not cited
any authority suggesting the Legislature cannot prioritize access to education
via enrollment levels over certain environmental concerns. Accordingly, we
find Senate Bill 118 constitutional and applicable to the trial court’s
judgment.
b. Application of Senate Bill 118 to the Judgment
In evaluating whether Senate Bill 118 renders the trial court’s order
unenforceable, we apply well-established principles of statutory
interpretation. “ ‘We consider first the words of a statute, as the most
reliable indicator of legislative intent.’ [Citation.] In doing so, we give the
words ‘their usual and ordinary meaning,’ viewed in the context of the statute
as a whole. [Citation.] As part of this process, ‘ “ ‘[every] statute should be
construed with reference to the whole system of law of which it is a part so
that all may be harmonized and have effect.’ ” ’ [Citation.] [¶] When the
language of a statute is ambiguous—that is, when the words of the statute
are susceptible to more than one reasonable meaning, given their usual and
ordinary meaning and considered in the context of the statute as a whole—we
consult other indicia of the Legislature’s intent, including such extrinsic aids
as legislative history and public policy.” (Union of Medical Marijuana
Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1184.)
Here, subdivision (e)(2) of section 21080.09 makes any “injunction or
judgment in effect . . . suspending or otherwise affecting enrollment . . .
unenforceable.” Thus, the plain language of the statute renders
unenforceable the trial court’s order voiding any decisions by the Regents to
30
increase student enrollment and suspending any further increases in student
enrollment.14
Moreover, section 21080.09, subdivision (e)(1) limits any court from
entering a future order limiting UC Berkeley’s campus population due to
shortcomings in the SEIR. While courts are permitted to “enjoin increases in
campus population that exceed the projections adopted in the most recent
long-range development plan and analyzed in the supporting environmental
impact report,” subdivision (e)(1) requires the court to (1) “determine[] that
increases in campus population exceed[ed] the projections adopted in the
most recent long-range development plan and analyzed in the supporting
environmental impact report”; (2) determine “those increases result in
significant environmental impacts”; (3) “order the campus or medical center
to prepare a new, supplemental, or subsequent environmental impact report”;
and (4) find “a new, supplemental, or subsequent environmental impact
report has not been certified within 18 months of that order.” (§ 21080.09,
subd. (e)(1).) Here, the Regents have already satisfied the fourth step by
preparing and certifying the 2021 EIR, which addressed the increased
campus population at UC Berkeley. Accordingly, section 21080.09 prohibits
courts from granting the relief imposed in connection with SBN’s challenge to
the SEIR’s increased enrollment analysis and precludes any further
injunction as to enrollment or campus population at this time.
These two changes—certification of the 2021 EIR and passage of
Senate Bill 118—present a unique set of circumstances which, as a result,
restrict this court from “ ‘provid[ing] the parties with effective relief.’ ”
14Because we conclude section 21080.09, subdivision (e) voids the
enrollment pause remedy in the trial court’s judgment and writ, we need not
address the parties’ remaining arguments as to this issue.
31
(Golden Gate Land Holdings LLC v. East Bay Regional Park Dist., supra,
215 Cal.App.4th at p. 366.) We thus conclude SBN’s challenge to the
increased enrollment analysis in the SEIR is moot.
While the findings and judgment in connection with the increased
enrollment analysis are moot and superseded by Senate Bill 118, the same is
not necessarily true as to the Upper Hearst Development project.
Accordingly, we consider the issues raised in SBN’s cross-appeal to assess
whether the Regents’ certification of the Upper Hearst Development project
runs afoul of CEQA in connection with any of SBN’s nonenrollment-based
challenges.
D. The Cross-appeal
To the extent SBN’s cross-appeal challenges the trial court’s findings in
connection with the increased enrollment analysis, those issues are moot for
the reasons stated above. However, SBN also challenges certain aspects of
the SEIR addressing the Upper Hearst Development project. Specifically,
SBN argues (1) the SEIR’s project description violates CEQA, (2) the SEIR
failed to properly identify mitigation measures for significant impacts on
historic resources, and (3) the SEIR failed to consider increased aesthetic
impacts from increased enrollment.
1. The Project Description
SBN argues the “uncertain” project description “subverted public
comment.” SBN asserts the notice of preparation stated the SEIR would
conduct environmental review of student enrollment increases, whereas the
SEIR itself claimed such review was merely part of an “ ‘updated population
baseline’ ” and did not constitute a project under CEQA. SBN claims these
statements were confusing because the “ ‘project description’ ” must include
32
activities that may cause environmental impact, and an incomplete project
description undermines a full analysis of project impacts.
“An accurate description of the proposed project is ‘the heart of the EIR
process.’ [Citation.] ‘An accurate project description is necessary for an
intelligent evaluation of the potential environmental effects of a proposed
activity. [Citation.]’ [Citation.] ‘ “A curtailed or distorted project description
may stultify the objectives of the reporting process. Only through an
accurate view of the project may affected outsiders and public decision-
makers balance the proposal’s benefit against its environmental cost,
consider mitigation measures, assess the advantage of terminating the
proposal . . . and weigh other alternatives in the balance. An accurate, stable
and finite project description is the sine qua non of an informative and legally
sufficient EIR.” ’ ” (Rio Vista Farm Bureau Center v. County of Solano (1992)
5 Cal.App.4th 351, 369–370.) We review the adequacy of a project description
de novo. (Washoe Meadows Community v. Department of Parks & Recreation
(2017) 17 Cal.App.5th 277, 287.)
“To further the objectives of CEQA, the term ‘project’ is defined broadly
as any ‘activity which is being approved and which may be subject to several
discretionary approvals by governmental agencies.’ A project encompasses
‘the whole of an action, which has a potential for resulting in a physical
change in the environment, directly or ultimately . . . .’ ([Cal. Code Regs.,
tit. 14], § 15378, subds. (a), (c); [citation].)” (Rio Vista Farm Bureau Center v.
County of Solano, supra, 5 Cal.App.4th at p. 370, fn. omitted.)
However, section 21080.09, as amended by Senate Bill 118, clarified
“[e]nrollment or changes in enrollment, by themselves, do not constitute a
project as defined in Section 21065.” (§ 21080.09, subd. (d).) Thus,
33
section 21080.09 supports the SEIR’s omission of a direct reference to student
enrollment increases in the project description.
Moreover, the trial court concluded: “The SEIR describes the Upper
Hearst Development as the relevant project. That project description does
not shift from one part of the SEIR to another. The SEIR situates that
project within its larger context of increasing student enrollment and
discusses cumulative effects. The SEIR’s definition is clear enough that
reasonable members of the public would not be misled about the scope of the
project under review . . . .” We agree. The project described in both the draft
and final SEIR is the Upper Hearst Development project. The “Project
Summary” section of the SEIR contains three subsections: (1) “Proposed
Project”; (2) “Environmental Analysis”; and (3) “Project Alternatives.” While
the “Proposed Project” subsection discusses the Upper Hearst Development
project, the “Environmental Analysis” subsection of the project summary
states: “[T]he Draft SEIR also establishes an updated population baseline to
reflect the existing campus headcount (which is greater than the projections
in the [2005 EIR] . . . . [I]n its response to comments to the [2005 EIR], UC
Berkeley made a commitment to the City of Berkeley that, if enrollment
increased beyond the projections set forth in the [2005 EIR], it would
undertake additional review under CEQA. [¶] Consistent with this
commitment, the SEIR uses an updated population baseline and, in its
environmental analysis of each impact category, takes this updated baseline
into account . . . .” The project summary thus sets forth both the specific
construction project being reviewed—i.e., the Upper Hearst Development
project—and the scope of the environmental analysis being conducted—i.e.,
review of both the Upper Hearst Development project and the increased
student enrollment.
34
SBN argues County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d
185 (Inyo) and City of Santee v. County of San Diego (1989) 214 Cal.App.3d
1438 (Santee) support its position. We find those cases distinguishable. In
Inyo, the court evaluated the adequacy of an EIR addressing groundwater
extraction. (Inyo, at p. 189.) The court noted “the project concept expands
and contracts from place to place within the EIR.” (Id. at p. 190.) It noted
the EIR varied from a narrow project on groundwater, to a “ ‘reappraisal’ of
the rate of water export” to a third “ ‘recommended project’ ” involving both
groundwater extraction and management of certain water exports. (Id. at
p. 197.) The court concluded “[t]he incessant shifts among different project
descriptions . . . vitiate the city’s EIR process as a vehicle for intelligent
public participation” and ran afoul of CEQA. (Inyo, at pp. 197, 200.)
In Santee, the Fourth Appellate District evaluated an EIR addressing
construction of a temporary expansion to existing detention facilities.
(Santee, supra, 214 Cal.App.3d at p. 1443.) The court noted the EIR was
ambiguous and contradictory as to how long the “temporary” expansion
would be in use, with the EIR referencing both a three-year and a seven-year
period. (Id. at p. 1451.) The court also noted it was reasonably foreseeable
the expansion would be in use for longer than seven years. (Ibid.) The court
thus found the EIR inadequate, explaining the lack of clarity regarding the
length of its use was problematic and the EIR needed to address “the true
scope of the project for intelligent weighing of the environmental
consequences of the project.” (Id. at pp. 1454–1455.)
Here, the SEIR was consistent in its discussion of the project and the
scope of its environmental review. Likewise, while the SEIR discussed a
project that was a component of a larger framework for UC Berkeley’s
development and growth, the Regents had already adopted the programmatic
35
EIR—i.e., the 2005 EIR—that was missing in Santee. As SBN acknowledges,
“[t]he ultimate inquiry . . . is whether the EIR includes enough detail ‘to
enable those who did not participate in its preparation to understand and to
consider meaningfully the issues raised by the proposed project.’ ” (Sierra
Club v. County of Fresno (2018) 6 Cal.5th 502, 516.) We conclude the SEIR
properly did so.
2. Mitigation Measures for Significant Impacts to Historical
Resources
The SEIR’s mitigation measure to reduce significant impacts on
historic properties provides that “UC Berkeley shall retain a historic
architect . . . to review plans for the proposed academic and residential
buildings,” and that architect “shall provide input and refinements to the
design team . . . to improve compatibility with neighboring historical
resources and compliance with the Secretary of the Interior’s Standards.”
SBN argues this approach improperly defers creation of the actual
mitigation measure until after project approval, citing POET, LLC v. State
Air Resources Bd. (2013) 218 Cal.App.4th 681 (POET). This situation is
distinguishable from POET. In that matter, the State Air Resources Board
noted certain potential environmental impacts (increased emissions of
nitrogen oxide) and stated it believed such impacts “can be mitigated by
adjustments to fuel specifications” without the adoption of any specific
mitigation measure. (Id. at p. 734.) Here, the SEIR sets forth a specific
mitigation measure—retaining an architect to provide input on the design.
However, SBN’s argument that the mitigation measure is insufficient
has merit. “Partial effectiveness is necessary for the measure to be labeled a
‘mitigation measure.’ While the extent of the mitigation may be uncertain,
there must be some reductions or offsets for the label ‘mitigation measure’ to
be accurate. The partial effectiveness requirement is derived from the
36
mandatory language in our Supreme Court’s statement that ‘[m]itigation
measures need not include precise quantitative performance standards, but
they must be at least partially effective, even if they cannot mitigate
significant impacts to less than significant levels.’ ” (King & Gardiner Farms,
LLC v. County of Kern (2020) 45 Cal.App.5th 814, 865, italics added by King
& Gardiner Farms.) Likewise, CEQA Guidelines allow “[t]he specific details
of a mitigation measure” to be “developed after project approval . . . provided
that the agency (1) commits itself to the mitigation, (2) adopts specific
performance standards the mitigation will achieve, and (3) identifies the
type(s) of potential action(s) that can feasibly achieve that performance
standard and that will be considered, analyzed, and potentially incorporated
in the mitigation measure.” (Cal. Code Regs., tit. 14 § 15126.4,
subd. (a)(1)(B).)
SBN asserts the mitigation measure only “result[s] in
recommendations” for UC Berkeley to “ ‘consider.’ ” We agree. The
mitigation measure neither requires the Regents to comply with the
Secretary of Interior’s Standards nor incorporates recommendations from the
architect. Rather, it only requires the Regents to “retain a historic architect”
to review the building plans. While the architect “shall provide input and
refinements to the design team,” nothing in the mitigation measure requires
the design team to accept or incorporate those recommendations. 15
However, the lack of a meaningful mitigation measure does not
necessarily doom the SEIR in light of the Regents’ conclusion that the impact
of the project—regardless of whether it utilizes the mitigation measure—is
The trial court found the mitigation measure “requires the
15
University to adopt the Secretary of Interior’s Standards.” The Regents
acknowledge the mitigation measure does not impose such a commitment.
37
significant and unavoidable and no other mitigation measure is feasible.
Rather, we must consider whether the Regents have adequately complied
with statutory requirements for “significant and unavoidable” impacts.
“A public agency may approve a project that will have a significant
effect on the environment if the agency finds that: (1) ‘[s]pecific economic,
legal, social, technological, or other considerations . . . make infeasible the
mitigation measures or alternatives identified in the [EIR],’ and (2) the
significant effects on the environment are outweighed by ‘specific overriding
economic, legal, social, technological, or other benefits of the project.’ ” (Los
Angeles Conservancy v. City of West Hollywood (2017) 18 Cal.App.5th 1031,
1041.) Similarly, “[i]f the reductions and offsets achieved by feasible
mitigation measures [are] insufficient to render the environmental impact
insignificant, the lead agency still may approve the project if it adopts a
statement of overriding considerations.” (King & Gardiner Farms, LLC v.
County of Kern, supra, 45 Cal.App.5th at p. 852, citing § 21081, subd. (b).)
Here, the Regents found any mitigation effort would fail to reduce the
project impact to insignificant levels due to, in relevant part, “incompatibility
of scale and massing.” Due to this incompatibility, the Regents found “[t]he
Project [(Upper Hearst Development project)] will degrade the integrity of
feeling and setting of historical resources adjacent to the Project site, which
will contribute to a significant and unavoidable cumulative impact on
historical resources.” The Regents concluded “specific economic, legal, social,
technological, or other considerations make it infeasible to reduce this impact
to a less than significant level” because reducing the scale of the Upper
Hearst Development project “would not fully meet objectives related to
fulfilling the academic needs of the School’s program. . . . [and] would not
fully meet objectives to provide housing on-site . . . .” Accordingly, the
38
Regents found “the benefits of the Project outweigh the Project’s significant
adverse environmental effects” for various reasons, including “to support a
vital intellectual and engaged community,” to “provid[e] housing for UC
Berkeley faculty and staff that is easily accessible to campus,” and to
“recruit[] and retain[] top-tier graduate and professional students, expert
faculty and scholars, as well as ensuring the ongoing success and
sustainability of the School’s programs.”
SBN argues the Regents abused its discretion in approving the project
because the SEIR failed to explain the uncertainty regarding why the impact
on historical resources could not be reduced to insignificant levels.
Specifically, SBN argues the Regents did not clarify whether compliance with
the Secretary of the Interior’s Standards would be insufficient to reduce
impacts to less than significant, compliance with the standards would be
infeasible, or compliance would be feasible and reduce impacts to less than
significant but reserved the right not to comply with those standards. As
such, SBN argues this uncertainty violates CEQA. However, this argument
overlooks the basis identified in the SEIR for ongoing significant impacts—
namely, the “incompatibility of scale and massing.” And the Regents
concluded the only potential mitigation—a reduction in scale—was
incompatible with the project goals. Accordingly, we cannot conclude the
Regents abused their discretion in concluding there were no feasible
mitigation measures to reduce the impact on historical resources to less than
significant levels, and they appropriately adopted findings and a statement of
overriding considerations as required by CEQA.
3. Impact from Increased Street Trash
SBN argues the SEIR failed to adequately analyze comments that
increased enrollment caused significant aesthetic impacts from increased
39
trash dumped by students living off campus. We need not reach the merits of
this issue. As discussed in part II.C., ante, challenges related to the SEIR’s
analysis of increased enrollment are moot due to the Regents’ certification of
the 2021 EIR. This conclusion encompasses SBN’s challenge as to whether
the SEIR adequately analyzed aesthetic impacts from increased enrollment
beyond the levels set forth in the 2005 EIR.
III. DISPOSITION
The trial court’s judgment granting SBN’s writ petition is vacated, and
the matter is remanded to the trial court to enter an order dismissing SBN’s
petition. The parties shall bear their own costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(3).)
40
MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
SWOPE, J.*
A163810
Save Berkeley’s Neighborhoods v. Regents of University of California

Judge of the San Mateo County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
41
Filed 5/19/23
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SAVE BERKELEY’S
NEIGHBORHOODS, A163810
Plaintiff and Appellant,
(Alameda County
v. Super. Ct. No. RG19022887)
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA et ORDER CERTIFYING OPINION FOR
al., PARTIAL PUBLICATION AND
DENYING REHEARING
Defendants and Appellants.
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on April 27, 2023, was
not certified for publication in the Official Reports. After the court’s review of
a request under California Rules of Court, rule 8.1120, and good cause
established under rule 8.1105, it is hereby ordered that the opinion should be
published in the Official Reports, with the exception of parts II.A., II.B., and
II.D.
Appellant Save Berkeley’s Neighborhoods’ petition for rehearing is
denied.
There is no change in the judgment.
Dated:
___________________________
Margulies, Acting P.J.
Trial Court: Superior Court of Alameda County
Trial Judge: Hon. Brad Seligman
Counsel:
The Sohagi Law Group, PLC, Nicole H. Gordon, Margaret M. Sohagi, Mark
J.G. Derosiers; Office of the General Counsel—University of California,
Charles F. Robinson, Alison L. Krumbein; UC Berkeley, Office of Legal
Affairs and David M. Robinson for Defendants and Appellants.
Law Offices of Thomas N. Lippe, APC and Thomas N. Lippe for Plaintiff and
Appellant.
Colantuono, Highsmith & Whatley, PC, Holly O. Whatley, Pamela K.
Graham and Merete E. Rietveld for City of Goleta and City of Santa Cruz as
Amicus Curiae on behalf of Plaintiff and Appellant.
2