“It ain’t over ‘til it’s over.” Yogi Berra and Lenny Kravitz

In a unanimous opinion filed on June 6, 2024, the California Supreme Court reversed the judgment of the First District Court of Appeal in the controversial “People’s Park” case, thus upholding the Regents’ 2021 Long-Range Development Plan (LRDP) EIR and clearing the legal path for UC Berkeley’s residential development at the People’s Park site.  Make UC A Good Neighbor v. Regents of University of California (2024) ____ Cal.5th ____.  (My prior posts on the Court of Appeal’s decision and the Supreme Court’s grant of review in this case can be found here (3/3/23 post) and here (5/21/23 post).)

Case Background and Legal Issues

As brief background, the Court of Appeal’s decision had reversed a trial court judgment denying a writ of mandate; it held that the Regents’ program/project EIR for UC Berkeley’s 2021 LRDP and the site-specific People’s Park housing project violated CEQA by failing to analyze (1) loud student party noise (“social noise”) impacts on nearby residential neighborhoods, and (2) alternative locations for the housing project.  (See, Make UC A Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, 665.)  The Supreme Court granted the Regents’ petition for review on these issues, and denied plaintiffs and appellants’ (“Good Neighbor’) petition challenging the Court of Appeal’s conclusions that enrollment-driven population increases were not part of the 2021 LRDP project and that the 2021 EIR therefore did not need to analyze an enrollment-limiting alternative. 

The Legislature Enters the Fray

Following the Supreme Court’s grant of review, and during the pendency of the case in the high Court, the Legislature, on September 7, 2023, passed AB 1307 as immediately effective urgency legislation.  The new law amended CEQA by adding two relevant new statutory sections intended to abrogate the Court of Appeal’s CEQA holdings.  Public Resources Code section 21085 provides:  “For purposes of [CEQA], for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”  Section 21085.2(b) provides:

Notwithstanding any other law or regulation, institutions of public higher education shall not be required, in an environmental impact report prepared for a residential or mixed-use housing project, to consider alternatives to the location of the residential or mixed-use housing project if both of the following requirements are met: [¶] (1) The residential or mixed-use housing project is located on a site that is no more than five acres and is substantially surrounded by qualified urban uses. [¶] (2) The residential or mixed-use housing project has already been evaluated in the environmental impact report for the most recent long-range, development plan for the applicable campus.” 

The New CEQA Amendments Dispose of the Case in the Supreme Court

Good Neighbor conceded that section 21085 resolved against it the claim that the 2021 EIR failed to analyze the People’s Park housing project’s social noise impacts, and that section 21085.2 resolved against it the claim that the EIR failed to sufficiently analyze alternative locations for the housing project.  The Supreme Court accepted these dispositive concessions as consistent with the statutes’ plain language and the principle that “[i]n mandamus proceedings, a reviewing court applies the law that is current at the time of judgment in the reviewing court.”  (Citing Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 626 (my 12/23/19 post on which can be found here), and Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 19.)

In its analysis of CEQA’s general purposes and applicability, the Court also pertinently observed that “no matter how important its original purpose, CEQA remains a legislative act, subject to legislative limitation and legislative amendment.”  (Quoting Napa Valley Wine Train, Inc. v. Public Utilities Comm. (1990) 50 Cal.3d 370, 376, internal quotations omitted.)

Not conceded by Good Neighbor, and thus left for the Supreme Court to analyze in greater depth and resolve, was the argument “that the 2021 EIR is nonetheless deficient for failing to adequately consider the environmental impacts of social noise resulting more broadly from the 2021 LRDP[.]”  This argument depended primarily on Good Neighbor’s contention that the LRDP is not a “residential project” within the meaning of Public Resources Code section 21085.  Noting that, unlike the term “project,” CEQA does not define the term “residential,” the Court employed its “ordinary meaning” from an online dictionary to conclude that “the Legislature’s use of the collective term “residential projects” in section 21085 suggests that the statute applies to public agency activities that relate to residence or residences that may have a significant effect on the environment.”  The Court found the term was ambiguous because it could be narrowly interpreted to apply only to “plans to add residential units to a specific location” or more broadly interpreted to “refer to land use planning to the extent it concerns residential development.”  After considering the statute’s purpose, legislative history, and public policy, the Court resolved the ambiguity in favor of the broader definition under which “residential projects” encompassed the residential portions of the 2021 LRDP.  

Among the numerous factors enumerated by the Court as supporting its holding in this regard were:  (1) AB 1307’s legislative history – including author statements that are part of committee materials – showing its “clear legislative intent” was to abrogate the Court of Appeal’s Make UC decision and reject its “central underlying conclusion that social noise from residential users may constitute a significant effect on the environment”; (2) the absence of any legislative history showing an intent to limit section 21085’s application so as not to apply to the 2021 EIR’s evaluation of the residential aspects of the 2021 LRDP; (3) the reasonableness of the Legislature’s consideration of the LRDP’s residential aspects as a “residential project,” given its descriptions in the EIR, the Court of Appeal’s decision, and the legislative history, and its “design[] to plan for an increase in the number of housing units and residents to the UC Berkeley campus area”; and (4) the untenability of the Legislature intending to preclude consideration of social noise impacts only for site specific housing projects while potentially requiring such analysis for broader land use planning decisions (like the 2021 LRDP) that encompass the specific projects. 

Court to Plaintiffs: “The Case Isn’t Moot; You Just Lost”

The Court also rejected Good Neighbor’s contention that while section 21085.2 “mooted” its alternative sites argument, the Court should nonetheless decide that claim under an exception to mootness as involving issues of broad public interest that are likely to recur.

To the contrary, the Court rejected the very premise of this contention and held “[t]he mootness doctrine has no application here.”  It explained that a case becomes moot when events render it impossible, should the Court decide to rule in favor of the plaintiff, for it to grant plaintiff any effective relief.  (Citing In re D.P. (2023) 14 Cal.5th 266, 276.)  That scenario did not apply in this case because “Section 21085.2 does not make it impossible for a court to provide Good Neighbor relief if it were to decide the case in Good Neighbor’s favor.  Instead, section 21085.2 makes clear that Good Neighbor is not entitled to relief.  Stated differently, the recent legislation does not moot the case; it determines who prevails.” 

The Court concluded its opinion by declining Good Neighbor’s invitation to consider the new statute’s application to future projects as that question was not before it and it “do[es] not render advisory opinions on such issues.”

Conclusion and Implications

The resolution of this case was rendered straightforward by the Legislature’s swift enactment of urgency legislation amending CEQA to abrogate the Court of Appeal’s Make UC decision.  Under Public Resources Code section 21085, social noise generated by project occupants and their guests is no longer a significant environmental impact of residential projects on humans for CEQA purposes, and colleges and universities need not consider alternative locations of residential or mixed use housing projects, as statutorily defined, in their related EIRs where the project is essentially urban infill on a site of five or fewer acres and has been analyzed in the school’s most recent LRDP. 

The case serves as a good reminder that, no matter how important its original purpose, CEQA is subject to amendment by the Legislature for policy reasons of its choosing.  It also serves as a good illustration of the legal “Yogi-ism” that a mandate case “ain’t over ‘til its over” in that if the applicable law changes during the litigation, as it did here, a reviewing court will apply the law that is current at the time of its judgment.

Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.