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California Supreme Court:
UC Berkeley’s Development Plan at People’s Park Survives Challenge
Guerrero Says Urgency Legislation Precludes Objections Based on Noise Generated by Students’ Voices
By a MetNews Staff Writer
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—AP In this file photo, a crew removes debris from People's Park in Berkeley, on Jan. 4. |
The California Supreme Court held yesterday that a 2023 Assembly bill that forbids consideration of “social noise”—created by human voices—in the evaluation of the effect on the environment of a residential project precludes a challenge to the University of California, Berkeley’s plan for construction of high-rise housing at nearby “People’s Park,” known for homeless encampments and demonstrations.
Chief Justice Patricia Guerrero wrote the opinion for a unanimous court reversing a judgment of Div. Five of the First District Court of Appeal. In an opinion by Justice Gordon Burns, that court held that the university’s environmental impact report (“EIR”) was inadequate because it failed to study social noise and failed to consider potential alternatives to the proposed housing project at the identified park.
Challenging the development plan were two advocacy groups, Make UC a Good Neighbor and People’s Park Historic District Advocacy Group, which Guerrero referred to collectively as “Good Neighbor.” They objected to a Long Range Development Plan (“LRDP”) approved by the U.C. Regents in July 2021 and the specific plan to redevelop People’s Park.
The decision paves the way for the redevelopment of the three-acre university-owned plot of land, known for serving as a gathering place for free meals, community gardens, art projects and homeless communities since its founding in 1969.
Redevelopment Plans
The specific redevelopment project, referred to as Housing Project No. 2, anticipates using the People’s Park site for student housing, a green space open to the public, and affordable housing for low-income or recently homeless members of the public.
The broader LRDP identifies campus space, housing and parking needs, and describes the land use, open space and infrastructure systems needed to support campus development in light of a projected 12,070 increase in the number of students on campus by the 2036-2037 school year.
In the summer of 2021, the U.C. Regents certified an environmental impact report (“EIR”) that included an assessment of the potential environmental impacts from both the broader 2021 LRDP and the People’s Park redevelopment plan.
In October 2021, Good Neighbor filed a petition for writ of mandate against the university, U.C. Regents, University President Michael V. Drake, University Chancellor Carol T. Christ, and identified Resources for Community Development, a low-income housing developer, as a real party in interest.
The writ asked the court to void the certification of the 2021 EIR for failing to address social noise and alternative housing sites. Alameda Superior Court Judge Frank Roesch denied the petition.
Urgency Legislation
In response to the First District decision—referred to by Guerrero as the Make UC decision—the Legislature enacted Assembly Bill 1307 as urgency legislation,” effective upon its passage on Sept. 7, 2023. The bill added §21085 and §21085.2 to the California Public Resources Code.
Sec. 21085 provides that “for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”
Sec. 21085.2 provides that universities are not required to consider alternatives to the location of residential or mixed-use housing projects in environmental impact reports as long as the project is on an urban site no larger than five acres and has already been evaluated in a long-range development plan.
The bill was enacted after review was granted by the California Supreme Court.
People’s Park Redevelopment
Guerrero noted that “[i]n mandamus proceedings, a reviewing court applies the law that is current at the time of judgment in the reviewing court” and that “Good Neighbor concedes that Assembly Bill 1307 resolves significant aspects of its claims—both with respect to the 2021 EIR’s analysis of social noise impacts and its consideration of alternative locations to Housing Project No. 2.”
Accepting the concession, she opined:
“Good Neighbor’s social noise claim with respect to Housing Project No. 2 necessarily fails. It cannot be said that the 2021 EIR is inadequate for having failed to study the effects of social noise associated with Housing Project No. 2, when no such analysis is required under section 21085.”
However, she said that “[w]hat remains for us to decide is Good Neighbor’s claim that the 2021 EIR is nonetheless deficient for failing to adequately consider the environmental impacts of social noise resulting more broadly from the 2021 LRDP—the long-range plan that governs physical development at UC Berkeley through the horizon year of 2036–2037.”
Ambiguous Language
Guerrero pointed out that Good Neighbor contends that, unlike People’s Park project, the 2021 LRDP does not constitute a “residential project” within the meaning of §21085.
As to the definition of the term, the chief justice said that “Section 21085’s brevity—consisting of a single sentence—provides limited contextual clues as to the breadth the Legislature intended to ascribe to the term.”
Concluding that “the term is ambiguous,” she opined:
“It is unnecessary for us to conclusively define the scope of the meaning of ‘residential projects’ in section 21085. Even assuming the 2021 LRDP is not a plan to add residential units to a specific location, the statute’s purpose, as revealed in its legislative history, makes clear that the term should be interpreted broadly enough to encompass those portions of the 2021 LRDP at issue in this case.”
Legislative History
Examining the history of the bill, Guerrero wrote:
“The legislative history of Assembly Bill 1307 overwhelmingly establishes that the Legislature enacted the new law to abrogate the Make UC decision. This critical fact guides our interpretation of the term ‘residential projects’ in section 21085. The legislative history is replete with references to the Make UC decision. And it is quite clear that, in enacting section 21085, the Legislature was focused on rejecting the Make UC court’s central underlying conclusion that social noise from residential users may constitute a significant effect on the environment.”
She continued:
“This clear legislative intent to abrogate the Make UC court’s interpretation…as mandating a consideration of social noise in this manner strongly supports the conclusion that the Legislature intended for section 21085 to apply to the 2021 EIR’s evaluation of the residential aspects of the 2021 LRDP.”
Noting that the legislative history describes the 2021 LRDP and its residential housing plans, she declared:
“All these descriptions of the 2021 LRDP as a document designed to plan for an increase in the number of housing units and residents to the UC Berkeley campus area support the conclusion that the Legislature intended the term ‘residential projects’ to apply to those portions of the 2021 LRDP at issue here.”
Public Policy
Remarking that “[w]e need not wade into the contentious public debate surrounding the implementation of” the redevelopment plan of People’s Park, she nevertheless said:
“[W]e find it untenable that the Legislature would preclude the consideration of social noise impacts under [the California Environmental Quality Act] only for projects designed to add residential units to a specific location (such as Housing Project No. 2) while potentially requiring the same analysis of social noise when an agency makes broader land use planning decisions (such as the 2021 LRDP) that encompass the specific projects.”
Guerrero reasoned:
“If anything, an agency’s broader land use planning decisions have less direct connection to the production of social noise than an agency’s specific project adding residential units to a specific location. We see nothing in section 21085’s purpose, legislative history, or public policy that would support such an anomalous result by limiting the statute’s application to Housing Project No. 2 only.”
Alternative Sites
Good Neighbor contended that §21085.2 made its objection to the EIR based on a failure to consider alternatives to Housing Project No. 2 “moot,” but asserted that the court should still hear the challenge because it raises issues of broad public interest. Rejecting the characterization of the issue as “moot,” she wrote:
“The mootness doctrine has no application here…. Instead, section 21085.2 makes clear that Good Neighbor is not entitled to relief. Stated differently, the recent legislation does not moot the case; it determines who prevails….
“The question of how section 21085.2 might apply to future housing projects—other than the People’s Park project—is simply not before us and we do not render advisory opinions on such issues.”
The case is Make UC a Good Neighbor v. The Regents of the University of California (Resources for Community Development), 2024 S.O.S. 1807.
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