(CN) — The University of California, Berkeley's plans to demolish the city's historical People Park, a landmark of the 1960s antiwar and free speech movements, to build much-needed student housing came before a First Appellate District panel that appeared reluctant to greenlight the project.
At a hearing Thursday in San Francisco, the three-judge panel expressed several reservations as to whether the university had done enough in its environmental impact report for the construction of two new buildings at the site that will house about 1,100 students and an additional 125 low income or formerly homeless people.
In December, the panel issued a tentative decision indicating that it would overturn a trial judge's refusal to temporary block the development. The appellate court had already halted any demolition of the park until the appeal is resolved.
Although the panel wasn't too impressed with the argument by opponents of the project that the UC regents' environmental impact report should have considered limiting enrollment at the flagship UC campus, the judges were more persuaded by arguments that the report didn't consider in any detail alternatives to People's Park and that it didn't adequately consider the impact of "social noise" from off-campus student parties and late-night pedestrians.
"While an EIR need not exhaustively explain its reason for excluding an alternative from analysis, unsupported conclusory statements do not suffice," the panel said in its tentative decision. "The regents' explanation, premised as it is on ambiguous generalizations rather than analysis and evidence, failed to serve the purpose of enabling informed decision-making and public discussion."
Associate Justice Gordon Burns reiterated this problem at Thursday's hearing, repeatedly challenging the attorney for the UC regents to point to where in the environmental impact report there is an explanation why there are no alternatives to People's Park.
The university acquired the site in the 1960s and had planned to use it for student housing, offices and parking. But when development was stalled because of lack of funding, residents, students, and community organizers transformed it into an unofficial community gathering space that became known as People's Park. It was a hub of demonstrations against the Vietnam War and the site of violent confrontations between protesters and police in 1969.
The university's plans to redevelop the park has run into animated opposition by activists that want to preserve the historic site. Make UC A Good Neighbor and The People’s Park Historic District Advocacy Group sued in 2021 to block the student housing project and brought the appeal last year when a judge denied their petition.
The appellate panel also sided with the community groups' concern that the university hadn't considered the impact of social noise from housing more than 1,000 student in the neighborhood. This prompted the attorney for the UC regents, Nicole Gordon, to question whether under the California Environmental Quality Act, student noise is an issue that should be part of an environmental impact report.
"That type of noise is a behavioral issue, not an environmental issue," Gordon said. "It's not the kind of noise CEQA asks us to analyze."
Alicia Guerra, an attorney representing Resources for Community Development, which seeks to house homeless and low income people at the university's project, argued the court was attempting to redefine what California law requires and opening the door to environmental review based on who resides at a development rather than on the type of development.
"You're now looking at who the people are that are moving in and and what their characteristics are," Guerra said. "That's discriminatory and prejudicial."
However, Tom Lippe, the lawyer for the two community groups that want to halt the development, argued residents' concern over noise from student parties was based on evidentiary facts such as police reports, and wasn't a question of stereotyping that should be excluded from environmental review.
Presiding Justice Teri Jackson observed that, even if it might not be feasible to eliminate social noise from student housing, the university may still have to analyze it as part of its environmental impact report.
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