An aerial photo of People’s Park in September 2021 before the UC removed trees through the park in August 2022. Credit: Dronegenuity

A state appellate court Thursday heard arguments from People’s Park advocates, who are trying to stop UC Berkeley from building student and supportive housing on the park, and the university’s lawyers, but did not make a decision.

Construction of the 1,100-bed student housing and supportive housing project at People’s Park remains in limbo. The court halted the project in August while considering whether UC Berkeley violated rules under the California Environmental Quality Act (CEQA). In late December, the court issued a tentative opinion siding with the plaintiffs

A final ruling from the court is expected soon, but the decision will likely be appealed. 

The tentative ruling has already drawn widespread criticism from Berkeley city leaders, pro-housing advocates and progressive attorneys. If upheld, the ruling could have far-reaching impacts on the use of CEQA to curb development projects. 

The preliminary opinion claimed UC Berkeley failed to sufficiently assess alternatives to People’s Park for student housing, evaluate impacts of “social noise” caused by loud partying and consider slowing enrollment to curb housing impacts in their Environmental Impact Report.

The court also said the University of California did not assess the impact of rising enrollment on the displacement of local residents.

Make UC a Good Neighbor and the People’s Park Historic Advocacy Group sued Cal in August after the university attempted to begin construction at the park in a gap after another set of CEQA lawsuits was dissolved. 

Judge: CEQA ‘doesn’t make any sort of distinctions for noise made by people’

In court Thursday, Cal argued that supporting the plaintiff’s argument could set a harmful precedent and expand CEQA’s power in the state to block development. Resources for Community Development, an affordable housing firm overseeing the project’s planned supportive housing, said it could use prejudice against people living in affordable and supportive housing to block development.

“You are redefining what CEQA calls an environmental impact to make it about the people,” Alicia Guerra, an attorney for Resources for Community Development, said in court, arguing that the preliminary decision would put affordable housing and density in general under attack in California. 

Attorneys defending the project argued that the tentative decision constitutes a new interpretation of CEQA that would require development projects to assess the characteristics of the people moving into the housing project and make assumptions about their impact on the neighborhood.

Thomas Lippe, attorney for the two nonprofit groups that brought the lawsuit against UC Berkeley, said arguments about the implications of the ruling were exaggerated. 

“There’s an entire CEQA process that hasn’t been engaged here, because the very first step, which is gathering the information, wasn’t done,” Lippe said. Gathering the right information under a CEQA review would not necessarily shut down the project or others like it, he said.

The hearing was presided over by Justice Terri Jackson, Justice Gordon Burns and Justice Mark Simons, whose questioning focused on whether student noise constitutes an environmental impact under CEQA and on UC Berkeley’s responsibility to evaluate other properties for development.

The justices questioned UC attorney Nicole Gordon about why UC Berkeley did not assess other sites. Gordon responded that the university did not need to examine other sites because the purpose of the project was to address homelessness at People’s Park. The argument was met with skepticism.

The justices also prodded the attorneys on the details of CEQA rules regarding noise. “We have to implement the laws that are written,” Justice Burns said during the hearing. CEQA “doesn’t make any sort of distinctions for noise made by people.” 

The university partnered with the city to lease Rodeway Inn and offered temporary housing alternatives to homeless residents at the park, which had become an encampment during shelter-in-place pandemic rules. They also opened a daytime drop-in center in Southside, under settlement terms.

Nearly all residents had moved out of the park by the time construction began last summer, but it’s now occupied again by both homeless residents and advocates who intend to defend the park.

The Berkeley City Council has also backed the UC’s student housing project following an $80 million settlement over the university’s expansion and use of city resources. 

Ally Markovich, who covers the school beat for Berkeleyside, is a former high school English teacher. Her work has appeared in The Oaklandside, The New York Times, Huffington Post and Washington Post,...