As one more housing project stalls on noise concerns, another head sprouts from ‘CEQA Hydra’

Students move into the University of California, Berkeley dorms in Berkeley on Aug. 16, 2023. Photo by Semantha Norris, CalMatters

In case you forgot, your new noisy neighbors are still considered a source of harmful pollution in California.

Earlier this year, a state appellate court blocked a proposed housing development for some 1,100 UC Berkeley students, partly on the grounds that the state’s marquee environmental protection law requires the university to study and mitigate the potential “noise impacts from loud student parties.”

That was a new interpretation, and an expansion, of the California Environmental Quality Act, also known as CEQA.

Now, that logic is being applied to a second housing development, this one in Los Angeles, creating a fresh clash between defenders of the environmental law and housing advocates who see it as an impediment in battling California’s severe housing shortage

The Los Angeles case may also put new pressure on state lawmakers, who are considering a bill to override the UC Berkeley “people as pollution” ruling.

“It’s infuriating,” the bill’s author Assemblymember Buffy Wicks, an Oakland Democrat, said of the latest court opinion out of Los Angeles, in a phone interview.

“We have so many hurdles to building housing in California. We don’t need yet another one in the form of ‘human noises.’”

Gov. Gavin Newson in February lambasted the UC Berkeley ruling, saying it allowed affordable student housing to be “held hostage” by groups opposed to more housing near them and called for sweeping changes to CEQA. His administration filed a legal brief in April arguing that the court ruling would limit housing development in California.

Meanwhile, the California Supreme Court agreed in May to take up UC Berkeley’s appeal of the February decision, though judges on the high court haven’t heard oral arguments yet. But whether Wicks’ bill, if signed into law, would allow UC Berkeley to build its planned dorms is still an open question. That’s because the State supreme Court could declare that UC Berkeley’s case must proceed anyway, said Dan Mogulof, a senior spokesperson for UC Berkeley, in a phone interview Wednesday.

In the recent ruling, California’s Second District Court of Appeal swatted down a City of Los Angeles decision to fast-track the construction of a private developer’s housing project with 100 5-bedroom units near the University of Southern California; the project is unaffiliated with the school. The court sided with neighborhood groups who argued that the student tenants they expect to occupy the project would likely party on the rooftop decks, creating  “significant noise impacts” and thus required careful study under the state’s signature environmental law.

Both Kyndra Joy Casper, a partner at DLA Piper, the firm representing the developer in the case, Champion Real Estate Company, and a spokesperson for the City Attorney’s office refused to comment on the ruling when asked.

Student housing at the University of California, Berkeley in Berkeley on Aug. 16, 2023. Photo by Semantha Norris, CalMatters

The Los Angeles court decision cited the earlier UC Berkeley ruling, noting that state environmental regulations must take into account “crowds of people talking, laughing, shouting, and playing music that disturbs neighboring residents.”

The California environmental law has long considered “noise” a potentially significant environmental impact. Amy Minteer, a partner at Carstens, Black & Minteer and one of the lawyers challenging the Los Angeles development, noted that a 2015 court held that human noise and music generated by a wedding venue “may have significant noise impacts on surrounding residents” that require environmental review, as the judges wrote then. 

The February UC Berkeley ruling cited that wedding venue case in its argument that human noise of future tenants is a kind of pollution that campuses and cities must remedy. 

“The noise generated during a wedding is human-generated noise as well,” Minteer said. Noise has been “an impact under CEQA for as long as CEQA has been around.”

But though state environmental law has long applied to the booms, thwacks, and rumbles emitted from industrial machinery, large air conditioning units or concert-grade sound systems, the UC Berkeley ruling went a step further, said Chris Elmendorf, a UC Davis law professor and one of the law’s sharpest critics.

“The normal noises that human beings make when going about their lives had not been considered potentially significant effects that required analysis or mitigation,” he said. “Then the UC Berkeley decision comes down in which it says, ‘You know, the sound of students as they carouse around the residential neighborhood, that’s an annoying sound, so it better be analyzed in that environmental review document.”

The UC Berkeley and Los Angeles court opinions differ in a few significant ways. In Berkeley, the university had already conducted an environmental review and was told to re-do it, in part to take noise into account. In Los Angeles, the city was hoping to evoke a state regulation that exempts dense urban apartment developments from environmental review altogether — and was told that it can’t because the noise from the project’s occupants merits closer study.

And whereas the ruling against UC Berkeley raised a general concern that college students, by their very nature, might be noxiously noisy, the Los Angeles case was more narrowly focused on the project’s proposed roof decks, from which so much noise might emanate.

Another complicating wrinkle: In making the decision to exempt the Los Angeles project, the city simultaneously decreed that the project would have no significant environmental impact, warranting an exemption from the law, while also demanding that the developer relocate its potentially noisy rooftop decks. The court found that the city can’t have it both ways.

People’s Park in Berkeley on Aug. 16, 2023. Photo by Semantha Norris, CalMatters

But for those who worry about the role that the state’s environmental law plays in slowing development, those technical details are less important than the general outcome: The ruling from February, that potentially rowdy college kids might be considered an environmental harm, is already having consequences far from Berkeley.

Elmendorf warned that if that precedent remains, more and more courts will delay or halt housing developments because of social noise.

“It just becomes one more part of the CEQA Hydra,” he said. “Once you find a judge who accepts an argument on one occasion, if they’re a judge on the Court of Appeal, well, then you get a published decision making new law.”

But other legal minds said UC Berkeley lost its appellate case largely because it “didn’t do its homework.” The campus itself previously conceded that its students make a lot of noise, yet didn’t address that point in its environmental review.

The Legislature appears intent on making sure that the UC Berkeley precedent does not remain on the books. 

Wicks’ bill would simply remove potential noise made by human occupants and their guests from the list of potential environmental harms that need to be weighed and minimized under state law. Her Assembly Bill 1307 was recently amended to further help UC Berkeley by limiting the instances in which a campus must consider an alternative location for its housing development. Beyond the noise issue, the appellate court ruled that UC Berkeley should have considered a different site for its dorms.  

Echoing the arguments lawyers for UC made in the UC Berkeley case, Wicks said that allowing neighbors to delay projects based on the presumed noisiness of its future residents could provide cover for more nefarious forms of discrimination.

“This could be used as a tool to keep communities of color out, to keep multifamily housing out, to keep young people locked out of housing,” she told CalMatters. “Those that fight it will just say, ‘Oh, they’re going to be too loud, can’t have them in our neighborhood!’”

As it’s currently written, Wicks’ bill would become law immediately upon being signed by the governor — as opposed to pending until the beginning of next year, as is generally the case — and so requires the support of two-thirds of the Legislature to pass. 

It appears likely to get that.

Though bills that tinker with the California Environmental Quality Act are almost always deeply contentious in the Legislature, Wicks’ bill has traced an uncharacteristically smooth path so far. Through the Assembly and two Senate committees, it hasn’t received a single “no” vote.  

If signed into law, the bill would undo the UC Berkeley precedent and, as Elmendorf put it in describing the Los Angeles ruling, “make this case go away.” 

Still, the fate of UC Berkeley’s original bid to build affordable housing for 1,100 students is less clear. “Our hope is that we will be able to proceed with our urgently needed student housing program if the bill becomes law, but the Supreme Court case will remain to be resolved,” said Mogulof.

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