The First Appellate District Court of Appeal released a tentative decision Dec. 22 regarding the lawsuit filed by Make UC a Good Neighbor against the UC Board of Regents’ Environmental Impact Report, or EIR, for long range developments and student housing on People’s Park.

The court’s opinion is still open to revision, and oral arguments will be heard Jan. 12. 

“It’s a positive development,” said Harvey Smith, president of People’s Park Historic District Advocacy Group. “The part on the alternative sites for People’s Park to us is a central issue, and it’s what we claimed all along, that the university has alternative sites.”

According to the draft decision, Make UC a Good Neighbor alleged that the EIR compiled by the university contained several California Environmental Quality Act, or CEQA, violations and requested the court to void approvals for the development plan and suspend all related activities to comply with CEQA.

“I think the opinion will be the focus of the argument at this point,” said Thomas Lippe, an attorney representing Make UC a Good Neighbor, about the upcoming oral arguments in January. “The court’s order that precedes the tentative opinion refers to the fact that after argument they would revise it.”

The decision stated that Make UC a Good Neighbor alleged that the university failed to analyze an alternative plan to limit student enrollment and piecemealed the EIR by not considering more distant campus properties. The opinion stated that the court “disagrees” with both of these claims.

However, the court did agree with Make UC a Good Neighbor’s allegations that the university failed to justify why the EIR did not adequately analyze other sites to build on. The decision stated that the EIR found that three other locations identified as sites for student housing could provide more beds than the 1,113 proposed on People’s Park.

The UC Office of the President was not available for comment, and UC Berkeley declined to comment until the final ruling.

The draft added that the environmental impact of heightened noise levels, the unplanned population growth that comes with building more housing and public health and safety issues caused by homelessness due to the displacement of current residents by incoming students were not adequately taken into account by the EIR.

However, criticism was raised regarding the tentative decision’s use of CEQA, which was enacted after an era of big infrastructure projects like dams and highways, according to Chris Elmendorf, a law professor at UC Davis. An environmental movement took hold when people expressed concerns about major infrastructure decisions that paid little attention to environmental consequences, Elmendorf said.

CEQA refers to the environment as having to do with physical conditions.

Elmendorf stated that the decision’s argument that an increased demand for housing causes an increase in houselessness regards houselessness as an environmental effect. He noted that in practice, it suggests that any decision of the state or a local agency to increase the demand for housing will have to be analyzed by CEQA.

“This decision blows up that line between physical effects and social effects,” Elmendorf said.

He added that the criticism of excessive noise from students rather than criticism of the project itself as noisy is a “potentially troublesome” opinion as it criticizes the behaviors of a certain group of people.

However, Lippe argued that the problem is not that students are noisier than others, but rather the addition of noise to an existing environment where it is not currently being made.

Sarah Jones, acting director of the Community Development Agency for Marin County, noted that despite its flaws, CEQA has become a proxy for “good” planning and governance.

CEQA serves to create procedural accountability and disclosure to the public, according to Jones, and requires a full explanation for environmental impacts and possible mitigation efforts. Even if mitigation is determined to not be possible, projects can still be approved regardless.

“The CEQA lawsuit is only about the quality of information in the environmental impact report,” Lippe said. “It doesn’t determine if it can proceed, just if people affected will be aware. Curtailing the environmental impact report just deprives people of info they need to understand their community.”

According to the decision, UC Berkeley provides housing for 23% of students, the lowest percentage universitywide, creating a demand for new student housing.

Elmendorf stated that there are people who do not want new housing developments in the neighborhood, characterized as “not-in-my-backyard,” or NIMBYs, due to the “unique” concern about local effects in the immediate environment versus elsewhere.

“They’re certainly organized to defend their own neighborhood,” Elmendorf said regarding Make UC a Good Neighbor. “They’re not really paying much heed to the consequences for UC or people elsewhere who would like to be able to attend or live in Berkeley.”

With total enrollment outpacing new housing, according to the decision, both campus and the city of Berkeley have cited the need for more student housing.

For the proponents behind stopping campus from building on People’s Park, the problem is not as simple as whether they want housing or not, according to Smith. He noted the use of the term NIMBY to be “simplistic.”

“I am not in favor of building any housing anywhere, particularly when it’s not guaranteed it’s going to be affordable housing,” Smith said. “But I’m not on the other side, because our group (People’s Park Historic District Advocacy Group) strongly believes we need more housing, particularly student housing because it’s creating a lot of pressure. All we say is build it in an appropriate way and you don’t need to destroy a park to get more student housing.”

Smith believes that building new student housing and preserving green space on Southside are not “mutually exclusive.”

Citing the designation of People’s Park as a national historic site and the need for green space, he stated that building on the park instead of alternative sites is “controversial and inappropriate.”

“The initial mistake was choosing People’s Park as a second project,” Smith said.