In Make UC A Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, the First Appellate District grappled with a university EIR that served two purposes: a long range development plan (“LRDP”) and a specific campus housing project. The LRDP serves as a master plan document for higher education facilities in the UC campus system. The Regents, which is the governing body for the UC campus system, approved the UC Berkeley LRDP (through the 2036-2037 academic year), along with a housing project on the site of People’s Park. The LRDP provided for facility needs in anticipation of anticipated increases in student enrollment. Neighborhood groups opposed the project and sued. The trial court upheld the EIR. The appellate court reversed in part.
Range of Alternatives – LRDP
A continuing debate concerning the Berkeley campus has been ongoing growth in campus enrollment. The opponents argued that the Regents were required to include an alternative of limiting enrollment. The appellate court disagreed, saying the relevant legal question was: did the EIR include a reasonable range alternatives. The challenged EIR identified eight potential alternatives, only four of which were fully analyzed. In responding to a comment on the draft EIR which called for capping enrollment, the final EIR response stated that enrollment was not part of the master plan/project approval. Rather, enrollment targets were set through an independent process, as acknowledged by the appellate court. (As to a potentially related argument, the appellate court observed that the project opponents were not arguing that the project objectives had been drawn too narrowly. (See, e.g. We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683, 691-693).)
Range of Alternatives to the Housing Project
The EIR also included alternatives to the housing project proposed to be located in People’s Park. All of the alternatives were located on the same site. The opponents argued that the Regents were required to evaluate an offsite alternative. The EIR lacked any explanation as to why offsite alternatives were not evaluated. The appellate court agreed in part with the opponents criticism. The appellate court explained that there was no mandatory requirement to consider offsite alternatives. However, there was “plenty of evidence” that alternative sites exist as reflected in the long range development plan, development of which would avoid the impacts associated with the People’s Park project. While the EIR included three reasons for why offsite alternatives were not considered, the appellate court determined that the evidence did not support any of the given rationales (development of alternative site might lead to reduced number of beds or require the University to acquire additional property; potential impacts to other historic resources; potentially greater ground disturbance.) The appellate court concluded that, even if the evidence supported rejection of specific alternative sites, that was not evidence that there were no alternative sites worth considering.
Opponents argued that the Regents has piecemealed its CEQA analysis by limiting the EIR to campus and nearby property. The appellate court rejected this argument, holding that were projects have independent utility, they need not be considered together in the same EIR.
The appellate court agreed with the project opponents that the lack of a noise analysis for the LRDP and the specific housing project failed to meet CEQA requirement. The administrative record reflected a history of ongoing issues of noise impacts stemming from campus housing. This evidence more than satisfied the fair argument test as to a potentially significant effect.
The opponents additionally argued that the EIR was required to address the impacts of population growth and the consequential displacement of existing residents. As mitigation, the Regents would provide the City and ABAG with anticipated enrollment numbers thereby facilitating those agencies in discharging their respective housing related duties. As to displacement, the Regents concluded that impact would be mitigated through the administrative of the Regents Relocation Assistance Act Policy. The opponents argued that information coordination with the City of Berkeley and ABAG was unenforceable. The appellate court assumed that the City and ABAG would discharge their housing planning obligations as required by law.
As to displacement from population growth, the appellate court concluded that the linkage was too tenuous to constitute evidence of a physical impact, even under the fair argument test. EIRs are required to look at growth inducement at a general level, a requirement that the Regents’ EIR satisfied. (See Cal. Code Regs. tit. § 15126.2(e).)
William W. Abbott is Of Counsel with Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.