EIR Inadequate for Failing to Properly Analyze Noise Impacts of University Housing on Surrounding Neighborhoods

Make UC a Good Neighbor v. Regents of University of California
(2023) (Case No. A165451)

The California Court of Appeal for the First Appellate District has granted a writ of mandate in response to a lawsuit challenging an environmental impact report (“EIR”) prepared under the California Environmental Quality Act (“CEQA”) for the University of California, Berkeley’s long-range development plan (“LRDP”) and its immediate plan to construct student housing at People’s Park. In its decision, Make UC a Good Neighbor v. Regents of University of California, 2023 WL 2205638 (February 24, 2023), the Court rejected three of Petitioners’ arguments but found merit with two, holding: (1) the EIR failed to consider alternative locations for the student housing project; and (2) the EIR failed to assess potential noise impacts associated with loud student parties in residential neighborhoods.

Petitioners first argued the EIR failed to analyze an alternative to the University’s LRDP that incorporated limited student enrollment. The Court disagreed. Lead agencies are required under CEQA to consider a reasonable range of project alternatives. Generally, courts will defer to the agency’s choice and analysis of project alternatives. The University explained it did not consider an alternative that would limit student enrolment because student enrollment involves an entirely different and complex annual process; and this LRDP would not set, increase, decrease, or otherwise determine student enrollment whatsoever.

Despite finding no issue with the University’s alternatives analysis with respect to its LRDP, the Court did find the EIR’s alternatives analysis for the student housing project was inadequate. Specifically, Petitioners argued the EIR’s alternatives analysis for the student housing project was inadequate because it failed to consider an alternative location for the housing project. The student housing project was proposed to be located at People’s Park – a “historic landmark and the well-known locus of political activity and protest” at the University. At least in part for that reason, the Court agreed with Petitioners, holding the EIR failed to provide a sufficient explanation for its refusal to consider alternative project locations. Notably, the Court did not hold the EIR was required to consider alternative locations for the project; but, the EIR did need to at least provide a better reason for not considering other locations for the project.

Petitioners then argued the LRDP was improperly piecemealed because it limited its scope to the immediate campus, excluding certain properties located farther away. Piecemealing addresses the agency’s duty to examine an entire project, not smaller parts of one larger project. The Court rejected Petitioners’ argument on this point, finding it reasonable for the University to use one plan to analyze the current geographic portion of the University and another for the offsite properties.

Next, in what is the most controversial portion of the Court’s ruling, the Court agreed with Petitioners’ argument the EIR failed to analyze the potential noise impacts from student parties in residential areas near the campus. The University conceded that CEQA noise evaluations include noise related to crowds of people that may disturb neighboring residents. That concession aside, the EIR did not analyze whether parties associated with increased student enrollment would create a significant impact on the environment. The University declined to analyze the issue stating it would be “speculative to assume the addition of students would generate substantial late night noise impacts simply because they are students.”

When considering this issue, and because the EIR did not analyze whether noisy parties would be a significant environmental effect of the project, the Court utilized the fair argument standard, which asks whether there is a fair argument, based on substantial evidence in the record as a whole, that there may be a significant noise impact from student parties. This standard is a very low threshold and usually results in favor of conducting environmental review. In this case, the record contained “quite a bit of proper evidence” that noise in residential areas from student parties represents a “longstanding” and “excessive” issue, including evidence in the record that the City had declared noise from student parties to be a public nuisance. Under the fair argument standard, the Court concluded, “[g]iven the long track record of loud student parties that violate the city’s noise ordinances (the threshold for significance), there is a reasonable possibility that adding thousands more students to these same residential neighborhoods would make the problem worse.”

Finally, Petitioners challenged the EIR’s population growth analysis on two fronts. First, they argued the EIR’s mitigation for population growth was unenforceable. The mitigation measure at issue requires the University to provide the City and regional planning agency with summaries of enrollment projections to ensure local and regional planning projections account for the University’s growth. Rejecting Petitioners’ argument, the Court held this measure is enforceable, noting the Court would not presume the City would fail to do the planning and thus violate its own statutorily-required duties. Petitioners also claimed the EIR failed to address displacement of existing residents but the Court rejected this argument as well, explaining social displacement is not considered an environmental impact requiring analysis under CEQA.

As noted above, the Court’s ruling relative to the analysis of noise impacts on the surrounding neighborhoods is controversial and has been met with disapproval by certain constituencies. Looking forward, it appears that a request by the University to the California Supreme Court to review the appellate ruling  is inevitable.[1] The University has 60 days to file its petition to the Supreme Court. If the Supreme Court does grant the petition, the University will seek a decision that overturns the Court of Appeal’s decision, especially its holding establishing a potentially new requirement to analyze noise impacts from student parties when considering student housing projects.

Another interesting development in response to this decision is Assembly Bill (“AB”) 1700, which was introduced by Assembly Member Hoover in February 2023 and proposes to amend CEQA to specify that “population growth, in and of itself, resulting from a housing project and noise impacts of a housing project are not an effect on the environment” for purposes of CEQA analyses. If enacted into law, AB 1700 could limit the practical impacts of the Court of Appeal’s decision.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

[1] See Teresa Watanabe, Court Blocks housing Project At People’s Park, available at https://enewspaper.latimes.com/infinity/article_share.aspx?guid=53495049-ef29-4da0-a221-0c4aa9476d47 [stating the University has declared it will ask the Supreme Court to overturn the Court of Appeal decision].