By David M. Greenwald
Executive Editor
Earlier this week, I noted the continued problems with CEQA and its ability to thwart housing projects—and then a California Appellate Court on cue provided a case study to illustrate exactly that.
While the appellate court rejected some of the more onerous arguments put forward by neighborhood groups attempting to stop a student housing plan at the People’s Park in Berkeley, it did block, at least for now, UC Berkeley from building student housing and opens a new avenue for future groups to block development using the increasingly controversial state environmental law.
This will not be the final say, as the university will appeal the ruling to the state Supreme Court—but for now, it’s a problem beyond the immediate concern of student housing in Berkeley.
Facing a mounting housing crisis and an acute shortage of affordable campus housing, along with rising homelessness and housing insecurity, the university put forth a plan to redesign the park to provide about 1,100 student beds, along with 125 beds for lower-income and formerly unhoused people.
The court ruled with “Good Neighbor” on two critical arguments. First that the “EIR failed to justify the decision not to consider alternative locations to the People’s Park project.” And second and more ominous, “it failed to assess potential noise impacts from loud student parties in residential neighborhoods near the campus, a longstanding problem that the EIR improperly dismissed as 
speculative.”
It could have been worse.
The court wrote, “We are unpersuaded by Good Neighbor’s contention that the EIR was required to analyze an alternative to the long range development plan that would limit student enrollment.”
They added, “We also reject Good Neighbor’s view that the EIR improperly restricted the geographic scope of the plan to the campus and nearby properties, excluding several more distant properties. Nor did the EIR fail to adequately assess and mitigate environmental impacts related to population growth and displacement of existing residents.”
Good Neighbor arguments were that “unplanned and unmitigated population growth would exacerbate the city’s existing homeless crisis” and would lead “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 calls this evidence for this kind of displacement theory “insufficient.” They write, “The theory may appeal to common sense, and it may ring true in a region with crazy housing costs and rampant homelessness.”
In short, the court said that opponents failed to present the type of evidence or expert opinion that their worst-case scenario would come true.
But where the court did rule—with regard to noise and other impacts—critics have denounced the ruling.
“The campus is dismayed by this unprecedented and dangerous decision to dramatically expand CEQA, and the campus will ask the California Supreme Court to overturn it,” the school said in a statement.
“Left in place, this decision will indefinitely delay all of UC Berkeley’s planned student housing, which is desperately needed by our students and fully supported by the City of Berkeley’s mayor and other elected representatives,” the statement said. “This decision has the potential to prevent colleges and universities across the State of California from providing students with the housing they need and deserve.”
As UC Davis Law Professor Chris Elmendorf explained, “To hold that CEQA requires analysis of behavioral tendencies of demographic groups brought into a neighborhood by a project is to invite invite all kinds of ugly challenges to affordable housing, shelters, group homes, rehab centers, etc.”
Elmendorf pointed out, “To establish that student noise is a genuine problem, not a fiction grounded in prejudice, the court relies on (1) City of Berkeley’s legislative finding that noise from student parties is ‘intolerable,’ and (2) ‘public comments based on personal observations’ and the University’s own efforts to mitigate student noise.”
But he said, “But the court’s distinction between ‘genuine’ behavioral issues and ‘prejudice[d]’ speculations about such issues won’t prevent the weaponization of its holding.”
The question is what happens next.
Governor Newsom in a statement on Saturday called the CEQA process “clearly broken,” noting that “a few wealthy Berkeley homeowners” have the ability through the law and litigation to “block desperately needed student housing for years and even decades.”
He said, “California cannot afford to be held hostage by NIMBYs who weaponize CEQA to block student and affordable housing.”
The governor continued, “This selfish mindset is driving up housing prices, and making our state less affordable.” He said, “The law needs to change, and I am committed to working with lawmakers this year to making more changes so our state can build the housing we desperately need.”
Thank you, @GavinNewsom, for understanding how badly broken CEQA is, how badly it harms our housing goals, & how badly it needs structural reforms. You have our commitment to work with you & your Administration to get this done. pic.twitter.com/g2r33OLgdj
— Senator Scott Wiener (@Scott_Wiener) February 26, 2023
Senator Wiener in response to the governor’s statement, thanked the governor “for understanding how badly broken CEQA is, how badly it harms our housing goals, & how badly it needs structural reforms.”
He tweeted, “You have our commitment to work with you & your Administration to get this done.”
From the perspective of Elmendorf, however, he tweeted, “This is a carefully written opinion. While I am not at all convinced by the court’s response to my pragmatic concerns about the ‘bad behavior & demographics’ holding, the court does a good job grounding its decision in statutory text & precedent.”
That could make it difficult for the court to overturn it.
Last year a similar problem in Berkeley saw the Supreme Court decline to hear the case, forcing the state legislature to act.
Tweeted Elmendof, “I wish Berkeley the best of luck with its appeal, but the CEQA problems highlighted by the new opinion are crying out for a legislative fix. Quite simply, the local effects of adding more people to an already urbanized area should not be CEQA impacts. Period.”
While the governor and Senator Wiener clearly signaled some support for the legislative route, as we noted earlier this week, in the past that has proven difficult.
Noah DeWitt, writing for the Pepperdine Law Review, argues that the legislature has repeatedly failed to pass major CEQA reforms—for a variety of reasons. And when it has, DeWitt has found that most have yielded minor if non-existent results.
The state has attempted to streamline some of those processes, and create exemptions to CEQA, but as we know, even those exemptions carry with them procedural hurdles and can form the basis for litigation.
What has passed—notable bills like SB 35, SB 540, and AB 73—have “fatal flaws,” particularly trading CEQA exemptions for costly prevailing wage obligations. These have pleased labor interests, but they have at the same time undermined the benefit of streamlining.
DeWitt argues that California should look toward three other states—Massachusetts, Minnesota, and New York—as each has “reformed their environmental statutes in ways that can provide California with solutions to its own CEQA barriers.”
This particular case might require a simpler fix—simply eliminate this kind of analysis from a CEQA review.
There is no doubt efforts will emerge to reform CEQA, but if history is a guide, I wouldn’t hold my breath on any sort of legislative fix that goes broader than the current situation in Berkeley.
I agree with Noah DeWitt that California desperately needs to look at other states on ways to reform the CEQA. In the final analysis, NIMBYs don’t have a valid and selfish leg to stand on.
So, how is it that a state which has 500,000 fewer residents than it did a few years ago (also) has UCs which continue to pursue enrollment growth?
Not to mention a declining birthrate?
https://www.ppic.org/blog/californias-plunging-birth-rates/#:~:text=California's%20birth%20rate%20(births%20per,to%20be%20similar%20to%202021).
https://www.universityofcalifornia.edu/press-room/record-breaking-number-students-apply-university-california-fall-2022
Ah, so they’re “recruiting” students who otherwise might have attended a community college for the first couple of years. Or, pursued other options.
Attempting to take a bigger piece of a shrinking pie. In other words, “poaching” students from community colleges. (Sound “familiar”?) And communities impacted by this unannounced decision be damned.
Left “unexplained” is the reason that Covid reportedly impacted community colleges, but not UCs.
The University of California is working to make the proven financial and professional benefits of a UC education available to demographic groups who had previously been underserved. Do you oppose that?
That’s one way to view it.
Another way might be that the UC system is primarily concerned about its own interests.
This sounds very familiar regarding what DJUSD (and other school districts) do, as well. Trying to cram everyone into limited locations (for their own interests), while increasingly abandoning the communities which actually need investment.
With a governor and other politicians “tarring and feathering” communities impacted by this unannounced decision (of which they have no say), while the governor himself lives on a multi-million, multi-acre compound. (The pre-existing governor’s mansion being “not good enough” for him, apparently.) That is, when he’s not meeting with lobbyist friends at places like The French Laundry during the Covid shutdown.
Oh, and let’s not forget to use the “diversity” claim, which supposedly makes criticism of this unannounced decision unassailable. Lest you be called a racist, to boot.
By the way, how well-represented are black people in the UC system? I understand that Asians are over-represented, but are nevertheless “used” to support diversity claims.
(While also pursuing non-resident students, for that matter.)
This is an interesting article regarding the declining California population. Unfortunately it is behind the LA Times paywall.
Opinion: No, California doesn’t have a population crisis
Recent population losses hit rural counties harder than L.A. or the Bay Area and highlight ways we can keep residents in the Golden State.
It’s accessible on another site: https://www.msn.com/en-us/money/markets/opinion-no-california-doesnt-have-a-population-crisis/ar-AA17WPbv
Ron O
Your argument about “right sizing” DJUSD has been refuted multiple times by several commentators here. You haven’t presented any countervailing evidence. Don is exactly right that either you need to present new evidence of the effectiveness and feasibility of your proposed solution or accept the fact that it’s wrong.
The main factor that Ron for some reason ignores is that effect of an ongoing decline of enrollment. If you were merely propping up a steady enrollment, then sure, you could shrink the size, bite the bullet once and stabilize. But if you are ongoing losing dozens of students each year, then you have to continually shrink costs and as I have demonstrated, that’s where you end up with the problem of chasing costs that you never catch up.
Obviously, they’re not going to “continually shrink costs”, and that’s not something I ever said.
But they will reach a point at which a school needs to be closed, at which point costs will suddenly drop. Costs for maintenance, staff, etc. (And they’ll then be able to sell the site, as well.)
All they’re doing (for now) is delaying the inevitable. Ultimately, they’re not going to have a “choice”.
I previously posted an article showing that enrollment is expected to continue dropping, despite the continued poaching of out-of-district students.
This is not an issue that’s unique to Davis. Even Woodland’s school district is experiencing declining enrollment in older schools on the West side of town. (And you guessed “right”, if you predicted that they’re also reluctant to close down those schools. In fact, they’re apparently pouring more money into those facilities.)
This is a situation that’s similar to prison and military base closures, as well. Turns out that there’s a vocal minority each time, fighting tooth-and-nail for their livelihoods. (And in the case of school closures, aided by parents who can’t bear the thought of “their” school shutting down. Despite the fact that their kids are only there for a few years, at most.)
A case of the “tail wagging the dog”, as it were. It’s unfortunate when city officials are (also) part of the tail, rather than the dog.
This is also the reason that Congress authorized an independent committee to analyze “which” military bases should be closed.
What I find interesting is that the folks who constantly harp on the “housing crisis” are the same ones who (somehow) view a declining population as a “crisis” – including the authors of the article you cite. Although they do grudgingly acknowledge the following:
As noted in other articles, San Francisco’s population dropped by more than 6%.
This internal conflict (in the arguments these type of people put forth) is also no different than those who advocate for developments like DISC, while simultaneously not accounting for the increased demand for housing that would result.
The only logical explanation for this internal conflict is that the people who claim to be concerned about “housing shortages” aren’t actually concerned about that issue at all. They’re simply the same interests that have always supported more development, more sprawl. They are not “progressives”, nor are they concerned about others.
You can also see this regarding their lack of support for minimal Affordable housing requirements, rent control, etc.
They’re also not concerned about local contributions to climate change, if such contributions result from a development (again, see “DISC”).
They do periodically trout-out fake concerns regarding “diversity” in an effort to shut down logical challenges.
In addition to this internal conflict regarding their own arguments, here’s the actual problem – from your cited article:
But the following quote from your article is indeed good news for anyone concerned about sustainability:
It is amazing that some folks are actually arguing for a continuing Ponzi scheme as a sustainable path forward. Old habits die hard, I guess.
These are also the same type of folks who refuse to “right-size” the Davis school district (when they find that poaching students from other districts still “isn’t enough”).
I suggest you stop with this line of argument.
If you believe it’s not true, you’re free to respond to this argument.
Your comment seems to imply a threat of some type, if I don’t stop. Am I misunderstanding your comment?
I agree with Don that Ron incessantly keeps harping on the Davis School District poaching students from other districts. It’s becoming mind numbing.
No Ron, Don is simply stating clear pattern, a simple fact. It’s in no way a threat. You whine constantly about housing. That’s represents another fact.
The “pattern” is that both DJUSD and UCD expect the community to adjust to their goals. (In the case of DJUSD, it’s more blatant.)
I’m not the one “whining” about housing.
First, this decision legitimizes explicit discrimination against a specific socioeconomic group, those under 25, because they are identified as an environmental hazard. At least sport stadiums have a range of people that differ little from the surrounding community. This like saying that a business that caters to Blacks shouldn’t be allowed to open because there are more shooting deaths in Black communities. The bias is incredibly blatant.
Asians are not counted in UC’s diversity accounting. They are included with whites among communities already well served by UC. UC has been struggling to get other minorities enrolled, but it’s not for trying. The state law against affirmative action is the most impactful factor-Black enrollment has dropped significantly since that ban was enacted.
UC has its warts, but “acting in its self interest” isn’t one of its exceptional ones. Anyone making that accusation needs to come forward with actual empirical data demonstrating that point. Otherwise those are just wild accusations that should be completely discounted. Anyone advocating for limiting UC enrollment is opposing expanding educational opportunities to those communities.
Instead the UC system is recognized repeatedly as the most progressive university system in the nation of serving students from disadvantaged communities. I have previously posted those studies several times here on the Vanguard. Anyone can go back and look them up.
They are not identified as an “environmental hazard”, nor are they a “protected group”.
No evidence for that claim (and it’s likely false).
Sure – trot out the “race card”, despite the fact that this has nothing to do with race.
But a business catering to blacks (whatever that means) is not going to be opening in a predominantly “white/Asian” community in the first place (whatever that means, as well).
How so? What “diversity accounting” are you referring to?
In other words, all of this talk about expansion of UCs leading to increased diversity is a bunch of hot air. That is, unless you count Asians (and women, for that matter) as “increased diversity”.
Yeah – turns out that folks don’t like racial quotas. (Which would negatively impact Asians, more than any other group.)
The “empirical data” is shown by their lack of concern for both their own students and surrounding communities in regarding heir continued growth plans in a state that’s losing population in the first place. It has also been demonstrated in regard to their pursuit of non-resident students.
What “communities”? The ones left-behind in declining community/state college districts?
You just acknowledged (above) that UC has been “struggling to get other minorities enrolled”.
Which is it?
And, when/where did you post studies which contradict what you’re now acknowledging? And how is that even a “study”? Wouldn’t that be a straight-out reporting of facts? (Assuming that students self-identify correctly in the first place.)
Ron O
Discrimination of any kind enables and justifies other discrimination. Are you really arguing that we should explicitly target and control young people? And since the basis of the CEQA claim is “noise” and the court decision explicitly notes the existence of parties by young people in the neighborhood, that means that those young people are considered an environmental hazard. (As for sports stadium attendance, you need to provide evidence that the composition of the audience differs significantly from the community. Repeated studies of stadium economics, e.g., see Roger Noll, show that stadiums draw almost entirely locally.)
Apparently you haven’t been to Berkeley along Telegraph. (I went there to school for a decade in two stretches.) The dorm is being built in a predominantly student neighborhood, who live in most of the rental housing in that area. The analogy I make is exactly on target.
You brought up diversity accounting by UC. I’m pointing out that Asians are counted with whites in every report I’ve seen for the last three decades. And you were criticizing the lack of Blacks at UC; I pointed out the reason why; that the public didn’t like that approach doesn’t make my explanation any less valid.
It’s your view that UC has a lack of concern. That’s not empirical data–that’s your perception which I equally refute with my perception. Again, come forward with empirical data, not your feelings.
Those community college students (of whom I was one) want to transfer to UC and if spaces are restricted, then those communities lose their opportunities.
Again, David and I have posted those studies multiple times on the effectiveness of UC assisting with social mobility. I can’t help it if you fail to read those or that you forgot what you read. I don’t keep a library for to read those at your leisure.
I’d have to review exactly what the judge said regarding this, rather than what you’re claiming. Certainly, on “average”, there is more noise associated with college students, in general. Hence the reason for some of the concerns regarding mini-dorms.
But I actually do agree with your point, that one should not be basing decisions in this manner. Even though students are not a protected class.
I have more of a concern that the judge did not agree that the city has a legal interest in limiting enrollment, both for the sake of the city and students, themselves. (If I’m not mistaken, UC Santa Cruz is already limiting enrollment due to these same type of concerns.)
Drawing “locally” does not ensure that it’s “representative” of the local population.
Are there lots of 80-year olds attending sporting events, for example?
I don’t know what analogy you’re putting forth, but I’ve avoided Berkeley for years. Too hectic for my taste, and I have no reason to visit.
Again, I ask – “what” reports?
The “manner” in which this occurred does not negate the fact that UC is not a bastion of diversity. So maybe it’s time to stop using that excuse as a “reason” that communities have to bend to the will of UCs.
Again, this isn’t based upon “feelings”. It’s based upon the housing shortage that UCs are creating by continuously pursuing more enrollments. Are you denying that a housing shortage is the direct result of this pursuit?
If students (who don’t need to be at a UC for their first couple of years) attended a local college instead (as you did), there’d be a lot less of a “housing shortage” surrounding UCs.
Perhaps the solution is for UCs to guarantee housing availability on campus, for any student transferring there after completing coursework at a local college.
“Social mobility” – not even defined, let alone “reported upon”.
Actually, it hasn’t been “refuted” – not even once.
The evidence consists of continuously-declining enrollment, even after poaching students from other districts. As a “professional economist”, does this really need to be explained to you?
Don did not say that, though he seems (for whatever reason) to take my comments “personally” regarding this.
I am not an opponent of school districts (or adequate spending to support them). I’m an opponent of pursuing growth to accommodate any school district’s desire to avoid adjusting to the declining needs of a community.
DJUSD’s current path is already not “feasible” or “sustainable”. They’ll eventually be forced into acknowledgement, but not by me. Reality is what they’ll ultimately be facing.
.
I tend to agree with you David. Ron by his own choice focuses only on the part(s) of the conundrum that resonate with him. However, he is not the only person who chooses to only look a portion of the whole when it comes to this topic. The part of the whole declining enrollment picture that rarely gets any ink is the possible solutions that may exist. “More housing” is thrown about as a broad-brush solution, but the history of the impact on DJUSD enrollment produced by recent housing additions is never illuminated. How many additional DJUSD students did all the added housing units at The Cannery produce?
According to Dave Taormino in his July 2022 Vanguard article “Where have all the babies gone?” the 546 residences of the Cannery have only produced only 26 new DJUSD students. That begs a second question, “Is one additional DJUSD student per 20 residences a workable solution to the declining enrollment problem?”
For the second time (within the past few weeks), I’m failing to see where you and I “disagree” (in regard to most of your comment).
Matt
Calculating added students is problematic. For example, Bretton Woods will not by definition bring in new students, but the added supply that reduces housing prices will allow families to buy or rent other houses. What’s happened on our street in the last 5 years is illustrative. Until 2015 many of the houses were occupied by original homeowners. Then they passed away opening up those houses for sale. In response most of those houses were filled with families with school age children. That’s because the housing supply for sale became larger. The Cannery probably created the same effect in the housing market. We have to look at the ceteris paribus (holding all else constant) conditions to derive the actual impact. We can’t do that without a more complex statistical analysis.
Ron O
Again, if I post various studies and reports that refute your assertions and then you fail to read and digest those reports and studies, why would I bother to post them yet again? That you attempt to pretend that they don’t exist by claiming ignorance is not a particularly fruitful line of argument. Instead it highlights your unwillingness to engage in actual dialogue where you might have to admit that your position is in error. That you refuse to acknowledge that Don, David, myself and others have refuted directly with studies and even basic math your claims that somehow DJUSD can continually “right size” just supports your unwillingness to acknowledge the arguments and evidence put forward by others. That you assert your point hasn’t been refuted is solely your viewpoint, which doesn’t make it correct. That’s the definition of an Internet troll.
If you don’t know what social mobility means, I suggest just simply searching on the web for a discussion. It’s defined in the New York Times articles that we’ve posted before that you apparently haven’t bothered to read.
BTW, UC does guarantee housing to community college transfers in their first year, just as it does for frosh students.
The housing shortage is due directly to local communities trying to control the supply of housing. Rather than letting local communities assert their parochial interests, we need to be thinking about how we fit into the larger community.
If you disagreed with my point about students being discriminated against, why did you disagree with it when you first responded?
Richard: Even your description of whatever you put forth is not accurate. And at this point, it’s not even clear what you’re responding to.
“Historically”, I have also found that sources you (yourself) put forth don’t support what you claim in the first place.
Also, I never said that DJUSD should “continually” right-size. That’s a straw-man comment that David first put forth. Go back and read what I said in response to that. I posted it yesterday (above), so I suspect that you’re willfully ignoring it. In response to what you’re claiming about me, one might describe your behavior on here as meeting the definition of an “Internet troll”.
Again, how does this relate to whatever point you’re trying to make? As a side note, the NY Times is behind a paywall.
Terrific, for both transfer students and “frosh” students.
The cause of it is vested interests attempting to force their economic/financial goals upon a community, with the assistance of those whom they helped get elected.
I disagreed with your description of the decision, as an “environmental hazard”. Though now that I think about it again, excessive noise may actually fit that description.
I don’t like singling-out students as unique sources of noise, however. At least, not “legally”.
This article summary for CP&DR summarizes this well:
Drunken, Noisy Students Are Environmentally Harmful But Homeless People Are Not
In the final ruling off the People’s Park case from Berkeley, an appellate court found that noise created by student parties is an environmental impact that must be analyzed under the California Environmental Quality Act. But — reversing its tentative ruling — the court said displacement and additional homeless people are not. https://www.cp-dr.com/articles/noisy-students-are-environmental-impact-homeless-people