Make UC a Good Neighbor v. Regents of University of Cal. - A165451 – 02/24/2023

 

Make UC a Good Neighbor v. Regents of University of California is a CEQA case filed to stop UC Berkeley from building student housing at the “People’s Park” location.  

In California, a “project” that can have a “significant” effect on the “environment” requires an “environmental impact report” under the California Environmental Quality Act (CEQA) that lists impacts and identifies way to minimize the impacts.  

 People looking to stop or delay a project can complain that the report was inadequate in some way and use courts to delay the project; a lawsuit or the prospect of a lawsuit can be used to make the project too costly to pursue, extract concessions, or just delay.

In this case, UC created an EIR in 9/2021 for building housing on People's Park and a lawsuit was filed 10/2021.  The trial court denied the petition 8/2022, but everything was put on hold for the appeal.

The petitioners asserted, among many arguments, UC needed to analyze an alternative development plan that limited student enrollment.  The court held the petitioners did not demonstrate that it was “manifestly unreasonable” to not include this alternative in the EIR because an agency does not need to consider alternatives that would change the nature of the project or go beyond the scope of the project.  Considering limits to enrollment would involve other policy considerations and tradeoffs beyond land use.

Petitioners asserted that UC needed to consider alternatives site locations to building at People’s Park.  The appellate court agreed.  UC needed to consider building on other locations or “provide a valid reason" for not doing so.

The court concluded UC's reasons for not considering alternative locations were not good enough, blaming UC for its “risky” strategy of not considering alternative sites. 

On this issue, the court demands UC to “point to evidence in the record” or complains UC “cites no evidence” on various points.  But CEQA does not require the extended explanation and does not require all reasoning and evidence be placed in the record.    The CEQA Guidelines provide that the EIR should “identify any alternatives that were considered by the lead agency but were rejected as infeasible during the scoping process and briefly explain the reasons underlying the lead agency's determination. Additional information explaining the choice of alternatives may be included in the administrative record.” (Cal. Code Regs. tit. 14 § 15126.6.)   

Further, it is the petitioners with the burden to demonstrate error.  (“Courts presume an EIR complies with this rule; it is a petitioner’s burden to demonstrate it does not”; the court must “defer” to unless the petitioner “(1) demonstrates the alternatives selected” are “manifestly unreasonable and . . . do not contribute to a reasonable range of alternatives” and “(2) identifies evidence of a potentially feasible alternative that meets most of the basic project objectives”; and the court applies the “substantial evidence standard.”)  

Strangely, the appellate court's opinion does not identify a single alternative site that the Petitioners have demonstrated was unreasonably excluded.  The Petitioner must identify a “potentially feasible alternative” that meets “most of the basic project objectives” that it was “manifestly unreasonable” to exclude. Where is this alternative?  Not clearly articulated in the opinion.

UC argued that it appropriately screened out use of alternative locations because it “could reduce the total projected number of beds within the proposed LRDP Update development program; could require UC Berkeley to identify additional housing sites that are not currently UC Berkeley properties for housing; would be constrained by site access and parcel size, as many of the eligible sites are smaller than the proposed development sites, and could therefore require multiple sites; and has 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.”  Even so, “[i]n 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.” 

UC also analyzed a “No project” alternative and rejected it.  This is functionally the same as a “different site” alternative—given that UC would be considering housing on these alternative sites under the overall plan in any case. 

If, as the court of appeal says, the “point of an EIR is to inform decisionmakers and the public about the environmental consequences of a project before approving it,” it is unreasonable to conclude that the decisionmakers and the public did not consider the  environmental consequences of the project and the concept of alternative locations.  That was clearly discussed and considered even if the UC came to different conclusion than the appellate court and the Petitioners.

The court concluded that not discussing alternative sites “failed to serve the purpose of enabling informed decision-making and public discussion.”  Do they actually believe that the decision-making and discussion was limited?  Did they review the comments and lengthy meetings on the project?  They know there were comments about building at alternative sites and that UC responded to those comments.  The comments and responses are incorporated in the EIR.

UC argued that no other site would meet the goal of revitalizing the site at issue.  The court rejected this because this reason was not in the EIR, and decided to construe the goal to apply to all of the UC sites.  Again, the court appears to put the burden on UC and not the Petitioner.  The Petitioner needed to show that the goal of revitalizing the land was not a primary goal and it was manifestly unreasonable for UC to interpret its own statement of purpose in this way.

The court of appeal also held that the EIR was insufficient because it did not consider that students have a history of noisy parties and the extra students might cause extra noise.  It reached this conclusion by asserting it was a reasonable inference that adding 1,113 students should be studied as a potential increase to noise in the neighborhood by going to parties nearby because noise from students has been a long-term problem and seemingly incapable of being mitigated.

Although less than clear, the court’s reasoning focuses on the idea that there will be noise, not from students inside the housing, but from students going to events in the neighborhood.  The project does not cause the student noise; the students in the area cause the noise. 

 It may not be pure speculation that students will party, but it is absurd to claim that the project would have any significant reduction in noise around campus.  UC Berkeley has 45,307 students.  This project involves possibly housing 2% of that population.  

And these prospective 1000 students who would live at the project, must live somewhere.  They will seek to live close to campus.  They will either live in the UC built student housing, or they will live at another property.  The students will go to parties, either from the project site, or from another residence.  There is no reasonable argument that having these students live somewhere else in the same neighborhood would result in any significant change in the environment.  Further, in the absence of the project, students will move into quieter, more residential neighborhoods; live in properties that can easily host parties; or they will travel further from their residences to events. 

The opinion describes how Berkeley took action to prevent private homes from being converted to student housing, which would host parties.  The court does not realize this undermines their conclusion.  Guess where students might live if they are not in UC build housing?  Private homes. 

The court ignores its own legal standard to place the burden on the Petitioner and to uphold reasonable decisions by the UC in evaluating the project.  The court makes a truly speculative and absurd jump from “students will party and make noise ” to “this project will increase the noise from students who party.” 

They can only do this by severing this project from the real world—a world in which students have to live in their cars while they require more irrelevant reports. 

 CEQA defines “Feasible” as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.”  Ironically, CEQA and the court has made this project infeasible—the CEQA process has prevented any project from being done in a successful manner in a reasonable period of time. 

The decision confirms that no matter the supposedly deferential standards to be applied, courts have great flexibility to kill projects they disagree with by calling reasons or explanations they do not like “conclusory.”  When the court likes a project, it is the objections that are conclusory, speculative, or or insufficient.