Public concerns have been running amuck on the internet regarding the recent tentative decision by the California Court of Appeal for the First Appellate District in Make UC a Good Neighbor v. Regents of the University of California, et.al., Case No. A165451 (Trial Court Case No. RG21110142). The case involves a challenge under the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq. (“CEQA”) to the adequacy of the Environmental Impact Report (“EIR”) for the Long Range Development Plan for the former “Peoples’ Park” in Berkeley, an historical icon to the student war  protests of the 1960s. A portion of the Long Range Plan involves construction of more than a thousand units of residential housing for university students, and acknowledges potential increases in population ancillary to the student body such as faculty and staff who will not receive access to the housing, but will be forced to compete with local residents for existing housing supplies.

The public’s concern appears to arise not merely from the project itself, but the Court’s purported expansion of the scope of CEQA to incorporate not merely the physical impacts of the project itself (e.g., traffic, emissions, etc.), but also impacts caused later by the users and/or occupants of the development, in this case the students, including “social noise” from late night parties and pedestrians.

The specific genesis of public concern lies in the Court’s agreement with Petitioner that the EIR was inadequate because if fails to analyze existing and cumulative impacts from “social noise” generated from off-campus parties.  The Regents disagreed, contending that “social noise” is not an impact subject to CEQA. The Court found the Regents arguments meritless.  The Court found that “noise impacts are expressly included among the environmental effects subject to CEQA.  Cal. Pub. Res. Code §§ 21060.5, 21068.  Nothing in the statutes or Guidelines carves out noise from human socialization as an exception to this, and the case law suggests the opposite is true.”  Keep Our Mountains Quiet v. County of Santa Clara (2015), 236 Cal.App.4^th 714, 734 [substantial evidence that crowd noise might have significant noise impacts on surrounding residents]; cf. Jensen v. City of Santa Rosa (2018) 23 Cal.App.5^th 877, 898 [no substantial evidence that noise from basketball court, community garden and pottery-making required an EIR].  Until the legislature says otherwise, noise is noise.”  This analysis does not markedly diverge from existing CEQA noise analysis such as that performed for an airport expansion, In that instance, as in this, it is not merely the increased size of the airport footprint that is evaluated, but also the increased number of noise-producing aircraft it allows.

The case was scheduled for oral argument on January 12, 2023. While the Court’s original decision was only tentative, it does open the door to the express acknowledgement of the effects of “social noise” in CEQA analysis. Stay tuned for the final decision which is expected any day now.