Is the noise made by drunken students late at night a “significant impact” under the California Environmental Quality Act? How about displacement of residents who become homeless?

For decades, judges in California have declined to go down this path, limiting CEQA’s scope to environmental impacts only. But in the latest development from the Berkeley People’s Park case, a tentative ruling from the First District Court of Appeal opens the door to such social issues.

The People’s Park case involves a community challenge to UC Berkeley’s plan to build both student housing and a new park on the storied location, which was the site of highly publicized protests in the 1960s. In a tentative ruling overturning the trial judge, the court ruled that potential noise from drunken students late at night must be analyzed under CEQA because it’s statistically likely that they will be noisy and also that the potential environmental impacts of additional homeless people must also be analyzed.

The ruling could still be changed by the court. Oral argument is scheduled for January 12.

Critics suggest it could provide NIMBYs and other community groups with cover to use CEQA to keep undesirable groups of people out of their community. “This use of demographic statistical associations as the basis for a conclusion about CEQA impacts is, as best I can tell, unprecedented,” tweeted UC Davis law professor Chris Elmendorf. “The court’s reasoning is devastating ammunition for racist white homeowners who would leverage CEQA to keep poor people and minorities out of their neighborhoods – e.g., using the court’s statistical-associations logic, white homeowners could argue that CEQA requires affordable housing developers to analyze & mitigate putative ‘gun violence impacts’ from any lower-income housing project in an affluent neighborhood.”

The ruling was signed on behalf of the court by Justice Teri L. Jackson, an African-American judge who grew up in Berkeley. The court seemed to anticipate that the tentative ruling would draw a lot of criticism. In unusually defensive terms, the appellate court justices said: “We do not take sides on policy issues. Our task is modest. We must apply the laws that the Legislature has written to the facts in the record.”

Last summer, Alameda County Superior Court Judge Frank Loesch ruled in favor of the University of California and UC began clearing People’s Park, leading to a series of protests. But Justice Jackson, writing for a three-judge panel, almost immediately stayed the Loesch’s ruling.

The case involves many of the same players as the recent Berkeley enrollment case – including the same plaintiffs’ lawyer, Thomas N. Lippe – and made many similar arguments, arguing that UC’s environmental documents do not consider capping or reducing enrollment as an alternative and that the university should have considered alternative sites.

People’s Park is a 2.8-acre off Telegraph Avenue along Dwight Way that UC originally purchased via eminent domain in 1967. The site was originally slated for student housing and other purposes, including a sports field, but in 1969 local residents essentially appropriated the site as a park. In May 1969, a protest on campus moved to the park and protesters argued vocally to keep the park from further development. Law enforcement officials responded by seeking to disperse the crowd but at least one person was killed in the melee.

Recently, People’s Park has been occupied by a large number of homeless people living there. UC’s plan for the park calls for 1,100 student housing units, more than 100 supportive living units, and the retention of 1.7 acres of the site’s 2.8 acres as a park. Earlier this year, UC officials began relocating homeless residents to nearby apartments and clearing the site.

The controversial part of the ruling, came when the justices began to deal with noise impacts. In particular, the court bought the argument of the plantiffs’ noise expert, Derek Watry, which led to the criticism about the use of statistical associations.

The tentative opinion quoted Watry at length as saying, “While it would be speculative to assume that a particular student would generate substantial noise, it is not speculative to assume that some in a large population of students will generate substantial noise. The latter, quite frankly, is the basis of actuarial tables that serve as the foundation of the entire insurance industry. Will a particular driver have an accident? Hard to say. Will some in a large population of drivers have accidents? Absolutely, without question. Will a particular student get drunk and make a lot of noise? Hard to say. Will some in a large population of students get drunk and make a lot of noise? Absolutely, without question."

The court cited complaints from community members (including complaints about late-night beer pong) and the City of Berkeley’s longstanding efforts to combat noise from students as sufficient to require a noise impact analysis. The court said: “Noise impacts are expressly included among the environmental effects subject to CEQA. Nothing in the statutes or Guidelines carves out noise from human socialization as an exception to this, and the case law suggests the contrary is true.”

Justice Jackson concluded: “Until the Legislature says otherwise, noise is noise.

On the question of displacement and homelessness, the court’s bottom-line conclusion was that while homelessness in and of itself is not an environmental impact, it can lead to environmental impacts. First the court paraphrased Berkeley’s planning director as saying that displacement from “unplanned and unmitigated population growth” would increase hoelessness – which, in turn, "leads to physical impacts on parks, streets and other public spaces, public safety issues related to homeless encampments locating in unsafe locations, and an increase in public health problems.”

The court concluded: “These potential impacts on public spaces are no less physical than the urban decay held to trigger CEQA review in Bishop.” The case being referenced is Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, which concluded that the construction of a suburban shopping center could lead to business closures in a nearby downtown, thus leading to physical decay.

Most of the 48-page tentative appellate ruling actually deals not with noise or the homeless but with alternatives. The court rejected some of the arguments made by the plaintiff, an entity called Make UC A Good Neighbor, saying that UC did not have to consider alternatives that reduced Berkeley enrollment because such alternatives do not meet the project’s goal of accommodating additional students.

“A lead agency begins by determining the project's purpose and objectives,” Jackson wrote. “It then uses the purpose and objectives to develop a reasonable range of alternatives to analyze in the EIR. This exercise would be meaningless if, long after the EIR is certified, a court tells the agency that it was also required to consider alternatives that serve different purposes and objectives.”

The court came down on the plaintiff’s side, however, on the question of alternative sites. “[T[he Regents not only declined to analyze any alternative locations; they failed to provide a valid reason for that decision. There is plenty of evidence that alternative sites exist-the development plan identifies several other university­ owned properties as potential student housing sites,” Justice Jackson wrote.

She added: “It can be risky to adopt an EIR that analyzes no potentially feasible alternatives. It is especially risky here given that the university owns several other nearby properties that it has designated, in its [long range] development plan, as sites for student housing.”

The Case: 

Make UC A Good Neighbor v. Regents of UC, No. A165451 (tentative ruling filed December 22, 2022).

The Lawyers:

For Make UC A Good Neighbor and People’s Park Historic District Advocacy Group: Thomas N. Lippe, the Lippe Group, lippelaw@sonic.net

For UC: Charles R. Olson, colson@lubinolson.com 

For Resources for Community Development (developer of housing): Whitman Manley, wmanley@rmmenvirolaw.com