BERKELEY — The latest legal roadblock thwarting UC Berkeley’s push to house more than 1,000 students at People’s Park may boil down to an elementary school lesson: Don’t forget to show your work.
The University of California failed to explain valid reasons why it did not analyze alternative locations, well-documented noise impacts and unintended population growth while developing a plan to build desperately needed homes on the historic 2.8-acre site, according to a tentative opinion filed by a state appeals court last week.
The First District Court of Appeal in San Francisco wrote that UC Regents improperly framed the opportunity to revitalize People’s Park — the development of which has slipped through UC’s fingers for more than half a century — as a primary objective, without adequately studying if the university could meet its self-prescribed, nonbinding housing goals without the controversial demolishing of the park.
A lower court previously ruled that UC’s development plans followed state environmental laws. But the appellate court’s 48-page Dec. 22 filing found flaws with the university’s decision-making during the project’s exhaustive planning process.
After oral arguments regarding the project conclude Jan. 12, UC Berkeley, which only houses 23% of its enrolled population, may soon have to find another place to construct beds for 1,100 students and 100 unhoused residents in the area.
Located just off Telegraph Avenue three blocks south of campus, People’s Park first burst onto the national scene as a hotbed of social dissent punctuated by sometimes violent Vietnam War protests. But the UC Regents triggered the site’s first uprising when they acquired the property in 1967 with plans to build student housing.
The University of California’s plan for the empty lot features two 12- and six-story dorm buildings. More than half of the site would be preserved as open space, complete with newly planted trees and plaques memorializing the historic landmark’s past.
The controversial development slated for People’s Park was approved as part of UC’s long-range development plan, which was adopted in 2021 to help the university expand its infrastructure and housing stock for an additional 11,730 students through 2037.
Community groups first sued to stop the project in August 2021. The lawsuit’s plaintiffs — Make UC a Good Neighbor and The People’s Park Historic District Advocacy Group — argued that the project would, in part, displace longtime residents and destroy the character of the Southside neighborhood.
Broadly, they asserted that the UC’s regents used flimsy evidence to back up their claims that the project did not violate the California Environmental Quality Act, commonly known as CEQA, and that planners failed to properly acknowledge or offset concerns about noise, displacement and destruction of open space that could significantly impact the neighborhood.
Harvey Smith, president of the People’s Park Historic District Advocacy Group, was pleased that one of the chief complaints he’s pushed — that the university overlooked considering any alternative sites within its adopted environmental impact report that would have helped preserve the controversial land as open space — was finally recognized by the courts.
He specifically pointed to the fact that the university’s own environmental report identified three alternative sites nearby that each could accommodate more housing than the total 1,113 units proposed for People’s Park; 1,439 beds could be provided at Clark Kerr—Central, 2,980 at Channing Ellsworth and 1,200 beds at the Fulton-Bancroft location.
“(CEQA) is the only toehold we have — we’re the Davids fighting Goliath — so thank God it’s there so we have an opportunity to raise these issues,” Smith, a longtime Berkeley resident and two-time UC Berkeley graduate, said by phone Wednesday night. “The fact that we don’t have the student housing that Berkeley should have built decades ago puts a lot of pressure on the city, so we want student housing, we just want it built in a spot that makes sense.”
The court did not agree with the lawsuit’s assertions that UC should consider capping student enrollment or pursue developments far beyond the campus’s footprint.
Presiding Justice Teri Jackson, who makes up one-third of the court alongside Justices Mark Simons and Gordon Burns, signed the tentative ruling.
UC Berkeley spokesperson Dan Mogulof said Wednesday the university will wait to comment on the issue until there is a final ruling from the court.
Nothing is set in stone — yet.
Both parties may respond to the tentative decision in a seven-page position letter by Jan. 3, and their respective legal teams will have 25 minutes to make final oral arguments in court Jan. 12.
If the tentative ruling stands, the Alameda County Superior Court’s judgment that gave UC Berkeley the green light to start construction in August will be reversed — effectively trashing all current approvals and certifications until the UC regents can conduct new environmental studies on its long-term development plan.
The court must make a final ruling within 90 days of the hearing, after which subsequent appeals may be sent to the state Supreme Court.
While oral arguments rarely change the outcome of pre-drafted tentative decisions, attorney Benjamin Shatz, an appellate law specialist, said drafted opinions can help both parties better defend or clarify their arguments on the issues the court cares about most.
“Justices sometimes say that oral argument is useful to ‘kick the tires’ on a tentative decision,” Shatz wrote in 2019. “Counsel can kick back better when they know where to aim their feet.”
Join the Conversation
We invite you to use our commenting platform to engage in insightful conversations about issues in our community. We reserve the right at all times to remove any information or materials that are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane, indecent or otherwise objectionable to us, and to disclose any information necessary to satisfy the law, regulation, or government request. We might permanently block any user who abuses these conditions.