On May 17, 2023, the California Supreme Court granted review of Make UC a Good Neighbor v. Regents of Univ. California (2023) 88 Cal.App.5th 656, a highly-publicized decision in which the Court of Appeal held that an Environmental Impact Report (EIR) for a UC Berkeley housing project failed to assess potential noise impacts from loud student parties in residential neighborhoods near the campus and did not justify its decision to not consider alternative project locations. Relatedly, on May 22, 2023 AB 1307 , which responds to Make UC a Good Neighbor by providing that noise from residential developments is not a significant effect on the environment under the California Environmental Quality Act (CEQA), was passed in the Assembly, and was heard at and passed the Senate’s Committee on Environmental Quality on June 21. A Supreme Court decision affirming the appellate court’s decision could expand the scope of CEQA’s required noise analysis, potentially delaying approvals for housing projects and leading the legislature to adopt AB 1307.

THE COURT OF APPEAL EMPHASIZED THE EIR’S CONCLUSORY ANALYSIS OF POTENTIAL NOISE IMPACTS AND ALTERNATIVE PROJECT LOCATIONS

In Make UC a Good Neighbor, the Court of Appeal examined the adequacy of UC Berkeley’s EIR for its long range development plan and proposal to build a residential project on People’s Park, a historic landmark, hub of political activism, and more recently, the site of homeless encampments. The residential project examined in the EIR included housing for 1,113 undergraduate students, eight faculty and staff, and 125 lower-income and formerly homeless persons. As the court explained, the residential project was proposed in the midst of a decades-long regional housing crisis and shortage of student, faculty, and staff housing.

In holding that UC Berkeley’s EIR insufficiently analyzed potential noise impacts, the court explained that the EIR established that ambient noise exceeding the City of Berkeley’s noise ordinance thresholds would be a significant impact, but then failed to analyze noise conditions in neighborhoods affected by loud parties, the effects of increasing student population in those neighborhoods, or the efficacy of the noise reduction efforts identified in the EIR. The EIR thus failed to analyze whether “adding thousands more students to the area would cause a significant noise increase.” The court rejected UC Berkeley’s contention that potential noise impacts were speculative and premised on stereotypes about students. Instead, the court emphasized substantial evidence in the record documenting persistent, loud student parties since at least 2007 when the City of Berkeley made findings that these parties “constitute[d] a public nuisance, and [] added a set of warnings and fines to its municipal code.” The court concluded that the EIR was required to analyze these potential noise impacts and the “decision to skip the issue, based on the unfounded notion that the impacts are speculative, was a prejudicial abuse of discretion…”

With regard to the EIR’s alternative project location analysis, the court held that “absent a viable explanation for declining to consider alternative locations, the range of alternatives in the EIR was unreasonable.” The court explained that UC Berkeley’s long range development plan identified several nearby, university-owned properties designated for student housing, suggesting “some obvious candidates” for alternative feasible student housing sites that would avoid impacts to People’s Park. The court also emphasized that the EIR both declined to analyze these alternative locations and “failed to provide a valid reason for that decision,” and instead provided “ambiguous generalizations rather than analysis and evidence” resulting in an incomplete and inaccurate alternatives analysis that precluded informed public participation and decision-making in violation of CEQA. The court accordingly held that “[u]nder these circumstances we are constrained to find the EIR failed to consider and analyze a reasonable range of alternatives.”

PETITION FOR SUPREME COURT REVIEW

The Regents of the University of California filed the petition with the Supreme Court to review the Court of Appeal’s decision. In granting review, the Supreme Court will review whether CEQA requires: (1) public agencies to consider as an environmental impact the increased social noise generated by student parties that a student housing project might bring to a community; and (2) lead agencies to revisit alternative locations for a proposed site-specific project when the agency has identified potential sites for future development and redevelopment in a programmatic planning document. (Online Docket, Case No. S279242.)

AB 1307 INTRODUCED IN DIRECT RESPONSE TO MAKE UC A GOOD NEIGHBOR

Introduced in February 2023, AB 1307 (Wicks/Hoover/Rivas/Ting) would establish that noise generated by occupants of residential projects is not a significant effect on the environment under CEQA. Assemblymember Hoover introduced a similar bill—AB 1700—in February 2023, which provided 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.” AB 1700 was referred to the Committee on Natural Resources in March 2023, but has not since progressed. In March 2023, Wicks amended AB 1307 with language based on AB 1700, and Hoover joined Wicks as a co-sponsor of AB 1307. (“Calif. Bill Targeting UC-Berkeley Noise Ruling Advances” by Quinn Wilson, May 22, 2023, Law360.)

On May 22, 2023, the Assembly passed AB 1307 in a 77-0 vote, which was then referred to the Senate committees on Environmental Quality and Housing. On June 21, 2023, AB 1307 passed out of the Committee on Environmental Quality with a 7-0 vote and was re-referred to the Committee on Housing with a recommendation to be placed on the committee’s consent calendar. AB 1307 is currently scheduled to go on the Committee on Housing’s consent calendar for the committee’s July 10 hearing. If ultimately adopted, AB 1307 would take immediate effect as an urgency statute to address California’s “substantial housing crisis” and “ensure that housing projects are not subject to further uncertainty, delay, or risk of lawsuit…”

SUPREME COURT REVIEW AMID CALIFORNIA’S HOUSING CRISIS

The Supreme Court’s review and AB 1307 are part of a larger discussion on California’s housing crisis and the role of CEQA. For instance, in April 2023 Attorney General Rob Bonta submitted an amicus letter on behalf of Governor Newsom to the Supreme Court in support of the Regents’ petition for Supreme Court review, explaining that “the Court of Appeal’s application of [CEQA] to the asserted noise impacts of residential infill development…open[s] a door for opponents of housing development to delay or block essential new projects in ways that CEQA’s drafters could not have intended. This case provides an opportunity for the Court to reaffirm that CEQA is…not an instrument to block necessary progress or deny to others safe, healthy, and affordable housing.”

The City of Berkeley voiced similar concerns in its letter to the Supreme Court supporting the Regents’ petition for review, explaining that “this holding could set [a] new and dangerous precedent that public agencies must analyze and mitigate not just environmental impacts of projects, but also perceived social impacts that may be caused by their intended occupants as well. This added layer of analysis, coupled with the potential for stereotypes and biases to affect it, finds no basis in CEQA…and could significantly disrupt and delay much-needed housing development across the state.”

Consequently, the range of public, private, and non-profit actors involved in building housing in California should keep abreast of the Supreme Court’s review of Make UC a Good Neighbor and AB 1307, which if adopted, could supersede portions of a Supreme Court decision affirming Make UC a Good Neighbor.

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