Monday Morning Thoughts: Another Abuse of CEQA, Students As Noise

(Photo by Smith Collection/Gado/Getty Images)

By David M. Greenwald
Executive Editor

Last week, the LA Times came out with yet another editorial on the housing crisis, this time, arguing, “CEQA is too easily weaponized to block housing and slow environmental progress.”

On the one hand, they acknowledge, “the landmark law that has improved countless construction projects” but on the other hand, “CEQA lawsuits have also too often been used to thwart progress on the state’s most pressing needs by stalling or blocking important projects.”

The current case in point once again is the Berkeley student housing in which an appellate court is now considering “whether noisy college students are an environmental impact, akin to pollution or habitat loss, that should be addressed before UC Berkeley can build a new dormitory to ease its student housing shortage.”

This is of course an issue that those of us in Davis ought to pay close attention to.  These same arguments often come up with respect to student housing here in Davis – and based on what we heard at last week’s council meeting, the student housing issue in Davis has not been addressed either.

Making this all the more interesting is that this is a project where the university is planning to develop the People’s Park, which is actually “a swath of open space owned by the university and claimed by protesters in 1969.”

The university, which unlike in Davis lacks a lot of land on campus, is attempting to building housing for about 1100 students but also, remarkably supportive housing for 125 homeless people, “along with a clinic, public market and landscaped open space.”

While you can kind of see both sides of this issue – it was neighborhood groups who sued to block the project, using CEQA as their rationale.

The controversy emerges in the court’s ruling.

In a tentative ruling issued in December, “the 1st District Court of Appeal in San Francisco agreed the university failed to adequately study certain impacts, including noise. The ruling said that because college kids can be loud when talking, drinking and partying, the university should have studied and sought to reduce the “social noise” from future student residents.”

Attorneys for the city argued “noise from humans socializing shouldn’t be considered an environmental impact, and it’s a dangerous precedent to require additional environmental analysis based on who is going to live in a housing development.”

Furthermore, “Some CEQA experts warned the decision, if finalized, could give Not-in-My-Backyard litigants a powerful new tool to block housing and other development projects.”

There is another aspect to this.  “The tentative decision also takes aim at UC Berkeley’s plan to expand enrollment and build more dorms nearby over the next 15 years, saying the university failed to study whether the long-term growth plan could have environmental impacts by increasing gentrification and homelessness.”

As the Times points out, “While these are real issues in the Bay Area, they haven’t been considered environmental impacts under CEQA.”

This is exactly the problem.  Housing is a real issue in the Bay Area.  But so too is the notion of preservation of open space and parks.  You can argue this point either way, but using CEQA and the courts rather than the legislative process is a movement in the wrong direction.

Moreover, by using CEQA in this way, you give added ammunition to those who want to reform or even eliminate the seminal environmental law from the early 1970s.

The Times raises another point that I have had with respect to CEQA.

The Times notes, “If the ruling becomes final, UC Berkeley could be penalized for not analyzing its impact on the local housing shortage and blocked from building dormitories to help address that shortage in the same decision.”

They argue: “That’s one of the pitfalls of CEQA — the law only considers the possible negative effects from a project, without giving equal weight to its benefits or the consequences if the project isn’t built.”

This is a problem we had a times in Davis.  The impact of a said project is that it will increase VMT and traffic impacts.  But what happens if it is not built?

We made this argument with respect to DISC.  Opponents argued that the project would increase VMT and thus GHG in Davis, but now that DISC will not be built, all of those people who were going to work at DISC, now have to work somewhere else, where they have to drive to work, perhaps closer, perhaps further.  Moreover, the replacement might not have had the environmental protections and safeguards.

While that is all debatable, the problem as the Times points out is that CEQA never analyzes this.

So, as they put it, “Yes, a dorm for 1,100 college students might generate noise in the neighborhood but it will create much-needed housing in a walkable, bikeable urban area with quality public transit, which is exactly where we should be building.”

This is the second such issue in the last few years.  You will recall last year, a Court ordered Berkeley to freeze enrollment because it hadn’t properly analyzed the environmental impacts of admitting more students.

Fortunately, the state legislature and Governor acted quickly to pass a narrow CEQA exemption that lifted the enrollment cap.

So here we go again with round two and now, “Lawmakers are considering another CEQA exemption bill for UC Berkeley if the courts halt the People’s Park dorm development.”

As the Times puts it: “And that’s been the story of CEQA reform over the years. A CEQA case gums up a political priority and lawmakers rush to create an exemption or a fast track.”

Now we are seeing a series of CEQA carve-outs: “Legislators have increasingly passed exemptions for homeless and affordable developments, certain student housing projects, mixed-income housing in commercial areas and for bike, bus and transit projects.”

The Times concludes: “But the exemptions can be narrow, piecemeal and not always enough to insulate important projects from being waylaid by CEQA challenges. That’s why broader CEQA reform is so desperately needed.”

But of course that would be a holy war, whereas these narrow exemptions seem to relatively benign and non-controversial.

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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9 Comments

  1. Richard_McCann

    Having worked on a number of CEQA reports as an economist, I’ve been told repeatedly that socio-economic impacts are outside the scope of the law. Economics plays indirectly through the cumulative impacts on how a project can create wider environmental impacts. But changes in human social activity have never been part of these reports. This court decision would burst open a much broader scope that could basically freeze the status quo social matrix.

  2. Ron Oertel

    They argue: “That’s one of the pitfalls of CEQA — the law only considers the possible negative effects from a project, without giving equal weight to its benefits or the consequences if the project isn’t built.”

    Reminds me of asking what the impact is of a butterfly flapping its wings.

    You will recall last year, a Court ordered Berkeley to freeze enrollment because it hadn’t properly analyzed the environmental impacts of admitting more students.

    So, the impact of that may be that students attend other universities where housing costs are cheaper (and they don’t experience as much student loan debt), there’s less disputes with neighbors (with government entities and business interests on one side, vs. existing residents on the other side), and overall quality of life itself is improved for both students and pre-existing residents.  Perhaps also raising the status of other universities, thereby providing future students even more options.  Or, perhaps encourages International students to stay in their own countries, thereby increasing pressure to improve universities there.

    Reducing this type of subsidy (e.g., housing, tuition) might also help to unveil the true cost of a college education, only a portion of which is actually borne by students.

    Might case some students to seek options which don’t necessarily include college, but offer better employment options (much sooner, to boot).  Including paid apprenticeship positions.

    Difficult to say what the impact is, of a butterfly flapping its wings.

    This is a problem we had a times in Davis.  The impact of a said project is that it will increase VMT and traffic impacts.  But what happens if it is not built?

    Then it’s not built.

    We made this argument with respect to DISC.  Opponents argued that the project would increase VMT and thus GHG in Davis, but now that DISC will not be built, all of those people who were going to work at DISC, now have to work somewhere else, where they have to drive to work, perhaps closer, perhaps further.  Moreover, the replacement might not have had the environmental protections and safeguards.

    Speculation regarding what would happen.  But first, there’d have to be a demonstrated demand for it in the first place.  All evidence shows that what they really wanted to build was housing, as now openly-acknowledged by the “100% Housing DISC” proposal.  This was entirely-predictable, though I’m surprised that they have the chutzpah to acknowledge it so soon after the last failure.

    But getting back to your thesis, what if the U.S. stops burning coal?  Do the coal producers simply close up shop, or do they then sell their coal to China, where there are fewer “environmental protections and safeguards”?

    If the U.S. and NATO stop buying oil from Russia, does that mean that Russia has no place to sell its oil?

    And if the world is (eventually) going to use up all of the oil/gas in the world, pave-over farmland, cut down rainforests, eliminate habitat and drive species to extinction, why not just get yourself a Hummer (and feel good about it, to boot)?

    While that is all debatable, the problem as the Times points out is that CEQA never analyzes this.

    Again, you can try to analyze the impacts of a butterfly flapping its wings, but it’s not likely that any useful analysis will arise from it.

    Ultimately, you can only control what’s within your authority to do so.  And even then, there’s a determined minority fighting you every step of the way – to continue “business as usual”.  Money is indeed a powerful and never-ending incentive.

    There is a reason for the old saying, “Act Locally, Think Globally”.

    Interestingly-enough, there is some evidence that limitations (of various types, not just limited to land use) have an impact on population growth itself.  It seems that millennials have realized this, and are restricting the size of subsequent generations by having fewer children.  (They’re nowhere near even replacing themselves.)

    Other examples:

    Does poaching students from Woodland or other locales improve the quality of schools in those locales?
    Does building Affordable housing in Davis (using limited government funds) result in not having funds to build it elsewhere?

  3. Alan Pryor

    This article demonstrates a fairly major misunderstanding of the role of CEQA. CEQA is not an all-or-nothing means to stop projects.

    At its roots, CEQA simply requires full and complete disclosure of all potential adverse environmental impacts (noise included) in an EIR and requires discussion of what potential mitigations might be available or desireable to lessen those impacts. Had the EIR in question fully analyzed the impacts of noise and found them to be significant (even with mitigation), the lead agency could have simply issued a “Statement of Overriding Consideration” as fully allowed by CEQA. This would have recognized the project had significant environmental impacts (in this case, noise) but that the public benefits exceeded the adverse impacts on the environment. In doing so the EIR would have fully complied with the simple disclosure requirements of CEQA and any resultant challenge would probably end up in the court’s dustbin.

    So the perceived failure of CEQA in this case and the implication by the LA Times and the Vanguard that it “stopped” the project was erroneous and misleading. The real failure was on the part of the environmental consultant who prepared the CEQA document and the lead agency that certified it without the full disclosures required by CEQA. Had they otherwise 1) properly analyzed the impacts of noise, etc of the project, 2) fully disclosed it in the EIR along with the effects of different mitigations, and 3) issued a Statement of Overriding Consideration if the impacts were not fully mitigated, no court in the state would have questioned the validity of the certification of the EIR and this project would still be rolling along.

    Even as it is, the adverse ruling by the court did not “kill” the project as is intimated by the authors. It simply requires the proponents to go back and redo those deficient sections of CEQA to bring the document up to par.

    Perhaps the authors of these articles could do a little boning up on the requirements of CEQA in the future before espousing for its demise or clamoring for blanket exceptions for housing projects when the causes of CEQA delaying a project are almost always completely self-inflcited by the EIR consultant and the certifying agency. Their failures are the cause of this brouhaha and not some perceived over-bearing requirements of CEQA as otherwise claimed by the authors.

    1. Ron Oertel

      Excellent, fact-based analysis Alan.  Though I would disagree with this one conclusion:

      Their failures are the cause of this brouhaha and not some perceived over-bearing requirements of CEQA as otherwise claimed by the authors.

      The real cause of this brouhaha is political in nature, in much the same way that Republicans criticize Biden over a balloon.  Both are intended to be divisive in nature, in the same manner as the term “NIMBY”.

      (With a side note that if Trump was still president and the balloon was from Russia, Democrats would be doing the same thing. Perhaps with the only “difference” that Trump might “deny” it was from Russia.)

      Some people thrive with this type of political posturing, but most normal people hate it.

    2. Don Shor

      So the perceived failure of CEQA in this case and the implication by the LA Times and the Vanguard that it “stopped” the project was erroneous and misleading. 

      Inasmuch as construction was underway and the appeals court literally halted that, “stopped the project” is completely accurate. My guess is that was the intent of the neighborhood groups who oppose this housing project.

       

  4. Sharla Cheney

    I can imagine design that considers the location of entrances and exits away from existing residences, placement of balconies, courtyards/patios, placement of utilities, etc.  However, I would hate to see CEQA used to stop other projects – schools or active parks or dense family housing, transitional housing – as a result of it being used to stop one project next to existing high-rise student dorms in the busy inner city of Berkeley.  This is a planning and design issue, not CEQA issue.  I would hazard that the present use of Peoples Park has had a greater negative environmental impact on the South Berkeley neighborhood than this project will ever have.  I lived in the Elmwood neighborhood, south of UC Berkeley, for some years and I can tell you it wasn’t good.

    I am not aware that apartment complexes in Davis that house primarily students are the source of noise problems or generate many noise ordinance calls to the police.  It is mainly houses in residential neighborhoods that create a noise impact.

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