Second District Court of Appeal Holds Environmental Review under the California Environmental Quality Act (CEQA) is Required for Discretionary Approvals to Increase State University Enrollment Levels.

Save Berkeley’s Neighborhoods v. The Regents of The University of California, Case No. A157551 (June 25, 2020)

Environmental/Land Use Alert (July 9, 2020)

In 2005, the Regents for the University of California (Regents) certified a program-level environmental impact report (EIR) and approved the corresponding Berkeley campus development plan for the years 2005 through 2020. The development plan projected enrollment at Berkeley would increase by 1,650 students by 2020. However, starting at least in 2017, the Regents approved enrollment increases for the Berkeley campus such that Berkeley’s enrollment increased by 8,300 students by 2018. In 2018, Save Berkeley’s Neighborhoods (Save Berkeley) filed a petition for writ of mandate challenging Regents’ decision to increase enrollment without further environmental review under CEQA.

Regents responded by filing a demurrer, arguing: (1) Save Berkeley failed to state a cause of action because the decisions to increase enrollment are not a “project” requiring environmental review under CEQA; and (2) the petition was time barred by the statute of limitations. The trial court sustained the demurrer, concluding the petition was barred by the statute of limitations and that the informal decisions to increase student enrollment did not constitute “project changes” under CEQA. Save Berkeley appealed.

On appeal, the Second District Court of Appeal held Save Berkeley did not fail to state a cause of action because petitioners adequately plead that the decisions to increase enrollment were changes to the original project – the campus development plan – and those decisions caused significant environmental effects that were not analyzed in the development plan’s 2005 EIR.

In response, Regents argued that Public Resources Code section 21080.09 effectively exempts the University from analyzing the decisions to increase enrollment under CEQA. Public Resources Code section 21080.09 requires an EIR be prepared for any long-range development plan made for a university or college. Section 21080.09 further defines a “long range development plan” as a “physical development and land use plan.” Regents argued this definition precludes a finding that decisions to increase enrollment are part of the development plan project because the definition does not include any “enrollment plan.”

The Second District disagreed. The Court found section 21080.09 specifically requires an EIR for a development plan to consider enrollment changes and that including changes in enrollment as part of the project is consistent with CEQA’s broad definition of a project. Thus, the Court held the plain language of section 21080.09 did not exempt Regents from subsequent environmental review when making enrollment decisions. The Court recognized that its holding might require Regents to undergo annual environmental review (i.e. every year when it approved an increase in enrollment on campus) but stated Regents could avoid this by choosing to analyze a range of enrollment increases in the EIR for the original development plan.

Finally, the Court also rejected the statute of limitations argument, because “at the demurrer stage, [the Court] cannot resolve the factual issues underlying respondent’s statute of limitations defense.”

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