In the lawsuit between Berkeley neighborhoods and UC Berkeley about the validity of suing over UC enrollment with environmental law, a tentative ruling has raised eyebrows and threatens to transform California as we know it. For starters, the court rightly threw out a key argument against the UC that it should have studied reducing or limiting enrollment as unconvincing. Unfortunately, not for the important reason: that student neighborhoods per-capita have lower emissions contrary to the plaintiff’s claims. Rather, it is out of scope for the UC’s Environmental Impact Report (EIR) as established by precedent.
The court also rightly dings the UC for its justification to not study an alternative site for the People’s Park project. The Regents didn’t provide alternative sites saying, without evidence, that it would cause a reduction in beds and that other sites are vaguely historic too. It’s not clear why a project the size of People’s Park can’t occur on, for example, Clark Kerr Campus or any other large parcel, and the UC provides no evidence or study explaining it. The Regents’ primary justification for the site has always been to “revitalize” People’s Park, which does not prove it would cause a reduction in the positive impacts of a large housing project but instead furthers the UC’s political opposition to the existence of the park.
But the court has sided with the plaintiffs, arguing that the additional enrollment of UC students without housing allocation would displace existing residents and further exacerbate homelessness. The court argues that homelessness, in the form of encampments, cause pollution, which subjects UC enrollment to CEQA lawsuits.
Comments and studies submitted in response to the draft EIR observed that the university's expanding population has displaced long-term residents and increased homelessness. Berkeley's planning director focused on the issue. In the context of an already critical housing shortage, he explained, displacement of residents resulting from unplanned and unmitigated population growth would exacerbate the city's existing homeless crisis. Homelessness, in turn, whether resulting from students unable to afford housing or residents displaced by students, '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.' These potential impacts on public spaces are no less physical than the urban decay held to trigger CEQA review . . .
This may be profound for a few reasons. If the court believes that homelessness, and by extension homeless people, are a form of pollution due to the blight caused by encampments on parks, then any and every homeless person and every encampment could be cited and demolished under CEQA. Homeless activists should be highly disturbed by the obvious future implications of this tentative ruling.
Second, any and every development project that induces population without housing could be flagged under CEQA. Anything from an ice cream shop, to a school, to a store. Some of the ramifications are not as bad as they sound since the Bay Area has a profound housing shortage relative to employees. Compelling the UC to build more student housing is a clear positive if that’s the end of this legal battle — which seems probable with the exclusion of “no further enrollment” as a convincing environmental issue by the court.
The court should’ve examined why Berkeley has a well-documented 50 year long severe housing shortage rather than treating it as an immutable characteristic of the city. But existing uses and issues are not within scope of CEQA, only proposed projects and uses. Now environmental law is being used to focus on population growth — with some uncomfortable Malthusian ramifications — rather than why the city’s housing supply had little positive growth.
It is true that adding students to UC without housing allocated would increase displacement in the city. Population growth in general has already done that to Berkeley. But due to CEQA’s flawed issue of solely examining proposed projects and not existing uses — something the legislature needs to amend — Berkeley’s bad housing practices which has resulted in a homeless population not substantially higher than what it was in the 1980s, basically goes unexamined.
In most other college cities across the world, it is common place for student and population growth to be accommodated with dorm construction and privately-financed housing. Berkeley, and UC towns in general as evidence by the recent strike, are treated as some environmental anomaly incapable of doing so when their housing woes are political decisions by property owners and incumbent residents.
Next, it’s no secret that young people can be rowdier than retirees and the elderly. Berkeley is a town of old retirees with a core of young undergraduates in its center. It is true that living in the undergraduate district would probably mean living beside more parties and noise. Property owners irritated with student noise should probably not live in Southside district. The student-heavy district has been around since Berkeley’s founding; it’s a bit difficult to have been tricked to live there expecting peace and quiet at all times.
The court has ruled with the plaintiffs that the UC’s EIR should’ve taken into account the noise students generate when constructing student housing, particular the decibel levels of male voices. This could have major ramification for any dormatory, youth hostel or foster home proposed in California that could be subjected to CEQA lawsuits over decibel levels.
However, this is less significant since CEQA lawsuits targeting human socialization has legal precedent, as the court notes. It’s obviously ridiculous and yet another thing the legislature should strip out of CEQA. I’m not sure if it’s legally sound since discrimination based on age is a protected class under California Fair Housing Law, but the court is focusing on educational attainment and status rather than age which, realistically, would inform likeliness of unruly behavior. If judicial precedent states that it’s okay to essentially stereotype behaviors based on a status like educational attainment that correlates with age, it could be weaponized against protected classes indirectly.
Well, that’s the latest tentative court ruling and it could be changed. None of this is concrete yet, but it shows the absurdity of California housing politics on national display with two parties that aren’t very likable.
On one side you have a group of homeowners who live in Southside and Elmwood near student districts in housing averaging $2 million who are frustrated there are students in, gasp, Berkeley. The general group of people arguing UC Berkeley should build dorms to accommodate student growth, after failing to cap enrollment of course, are the same people who fight downtown housing projects and student dormitory projects where students live. It’s all pro-housing rhetoric, supply economics from the plaintiffs when the national media is in town on this case, and when any actual housing proposals in the city occur it’s back to the “trickle down economics” and “we can’t build our way out” slogans.
On the other hand, the UC has long been a goldbricking institution on building housing. For decades, the Regents dragged their feet on developing sufficient dorms. When the UC was first established, there were no dorms since private real estate developers built the dense apartments of Southside and Northside for students to live in. But the need for dorms grew as the growing non-white UC students were discriminated against by private landlords.
To make matters worse, when Berkeley passed the Neighborhood Preservation Ordinance and downzoned Southside and Northside, apartment development around the campus ceased in the early 1970s. By the late 1970s, UC students began suffering a tremendous homelessness crisis ignored by both the Regents and the legislature desperate to pace UC Berkeley’s enrollment with population growth.
Since then, the UC has slowly developed housing while wasting valuable land on low density classrooms and sports complexes until the 21st century when it got more serious. The Regents for years expanded UCs in low density suburban areas around California that quickly failed to accommodate population growth in defense of neighborhood character. UC made no aggressive attempts to change these land uses and often obeyed anti-development opposition forcing their students to live further away. Moreover the UC has been caught profiting off these housing shortages around their campuses by investing in real estate through shell companies.
In light of the recent graduate student strike showing the willingness of organized faculty and students to strike over cost of living, the UC should probably be more aggressively lobbying local towns and the state to change land use around its campuses and become more aggressive in dorm development.
More rulings of these kind will probably lead to major legislative tweaks of the long antiquated CEQA law whose fundamental flaw is favoring existing uses over new uses. Failure to examine how existing uses further emissions and degrade the environment merely solidifies the status quo. It’s still a tentative ruling and it could go the Supreme Court. It can be overturned or changed in the legislature if it becomes final. But the whole battle is an embarrassing indictment on the state of laws and public institutions in California.
Older version of this article mistakenly said Superior Court instead of Supreme Court.
Superior court is the lowest court; the levels go superior court, then appellate court, then the state Supreme Court. This is an appellate court tentative ruling. The next stop would be the state Supreme Court.
That is the elegantly human result of mistakes. We learn from them! (hopefully) Vivendo Discimus