Why New UC Berkeley Housing Law, if Approved, Won’t Clear the Way to Build Dorms Yet

Yes, a bill meant to help UC Berkeley build dorms for 1,100 students passed the Legislature this week, but the campus said it cannot begin construction until the state’s judicial system gives the green light.

The Legislature’s goal with AB 1307 is to reverse a state court decision that in effect blocked UC Berkeley from building dorms on the grounds of the storied People’s Park in Berkeley. A key part of that decision was that human noise caused by housing development is a kind of pollution in California, a new legal standard that the bill seeks to refute. But for UC Berkeley, the bill’s impact will take time, as the issue must still play out in courts, even if Gov. Gavin Newsom signs the bill as many expect.

“The (state) Supreme Court still has jurisdiction to resolve our pending appeal of the appellate court ruling, even if the statute is adopted,” wrote Dan Mogulof, a senior spokesperson for UC Berkeley, in an email to CalMatters. “The campus will resume construction of the People’s Park project when the lawsuit is resolved and hopes that the new law will substantially hasten the resolution of the lawsuit.”

A spokesperson for Assemblymember Buffy Wicks, a Democrat from Oakland who is the lead author of the bill, echoed that sentiment. “The bill would let the court process run its course, but give (it) direction,” wrote Erin Ivie, in an email.

When the courts will make a conclusive ruling on the case is unclear. “It depends on the specific issue before the court and the effect of the legislation,” said Cathal Conneely, a spokesperson for the California Supreme Court.

Nor will the bill stymie one of the groups suing UC Berkeley. Harvey Smith, president of the People’s Park Historic District Advocacy Group, said in an interview they’ll “absolutely” proceed with their legal complaint against the campus. How they’ll respond to the bill is to be determined, he added. “Our legal team has been focused on the Supreme Court case, and so, it’s kind of like for us one step at a time.”

UC Berkeley’s project has been stalled since last summer and has incurred higher projected costs of “many millions of dollars,” Mogulof said, though he declined to give a precise figure.

Construction costs in the Bay Area and Los Angeles have increased by 21% in the past two years. The project cost was $312 million in 2021 (PDF), a third of that backed by a state student housing program to support at least 300 beds for lower-income students who’ll pay cheaper rents.

How did we get here?

The February appellate court decision overturned a lower court’s ruling that sided with UC Berkeley. The appellate court wrote that the university ran afoul of the California Environmental Quality Act on two fronts: that UC Berkeley needs to study and mitigate the potential “noise impacts from loud student parties (PDF)” and that UC Berkeley should have considered a different site for its proposed dorms — arguments made by two neighborhood groups that sued UC Berkeley. The University of California appealed and now the case is before the state Supreme Court.

UC Berkeley for years has struggled to build enough housing for its growing student population — a legacy that came to a head last year when a court nearly forced the campus to enroll fewer new students before lawmakers and the governor intervened.

UCLA legal scholar Jonathan Zasloff wrote that UC Berkeley lost its February appellate case largely because it “didn’t do its homework.” The campus itself previously conceded to the court (PDF) that its students make a lot of noise, yet didn’t address that point in its environmental review.

Smith’s group wants UC Berkeley to instead build the dorms one block over, on the site of what they say is a 60-year-old parking structure that needs to be demolished soon anyway.

“We don’t see students as pollution, but noise can be an issue, and we certainly are not NIMBY neighbors,” Smith said in an interview. “We want UC to build housing. We want them to do what they neglected to do for nearly a half century. But we see it’s a big problem if you destroy an open space.”

Since the February ruling, another state court cited it in a decision that pumped the brakes on a residential development in Los Angeles, reanimating worries that the February decision will encourage other neighborhood groups to sue developers from creating much-needed housing in California. Environmentalists argue the February decision was the right one, in large part because noise of any kind was always viewed as a potentially significant environmental impact under the state environmental law.

Lawmakers showed no love for that appellate court ruling, never once voting against the bill during any of its hearings.

Wicks said in May her proposed law “will reverse the bizarre ‘people is pollution’ decision that was created by the recent appellate court decision (in) the UC Berkeley People’s Park case.” She made the comments during an Assembly hearing.

The bill was introduced in March and along the way had input from the University of California Office of the President, a spokesperson for Wicks wrote in an email. For its part, UC Berkeley “did not ask for or initiate the legislation,” Mogulof wrote.

Just before lawmakers sent the bill to Newsom’s desk Monday, Wicks underscored that the proposed law “has been done in response to the court case (at) UC Berkeley; folks are trying to fight student housing there.”

Unlike most bills, if Newsom signs the bill, it will take effect immediately because it secured two-thirds of the votes in both chambers of the Legislature. Bills that pass with less than two-thirds in each chamber take effect at the start of the next year.

Still, a signature from Newsom isn’t enough to give UC Berkeley the green light to start building.

Why won’t this law guarantee student housing at UC Berkeley?

In short, the Legislature cannot tell the courts how to handle a case, even with a new law, so a parallel process in the judicial branch of government must proceed.

What that process looks like, no one can say with certainty. Legal experts CalMatters spoke with said that what’ll likely happen first is that lawyers representing the University of California and UC Berkeley will write a letter or brief to the Supreme Court noting that Wicks’ bill is now law.

That’ll probably prompt the court to determine whether it should continue reviewing the case or kick it back to the appellate court to redo its ruling given the new law. It’s doubtful that the Supreme Court will want to hear the case because there’ll be no thorny legal issue at hand if Newsom signs Wicks’ bill — assuming the bill fully neutralized what the appellate court ruled in February, said Brandon Stracener, a senior research fellow at the California Constitution Center, in an interview.

In the event the case goes back to the appellate court, then both the UC and the neighborhood groups can file more legal briefs within a 30-day window.

If the appellate court sees nothing wrong with the new law, it’ll probably de-publish its original ruling so that other courts cannot cite it as precedent, Stracener added.

But even if the old ruling is de-published, UC Berkeley still needs to complete required paperwork, though it’ll likely have the legal upper hand if Newsom signs the bill, said Zasloff, who focuses on environmental, housing and land-use issues, in an interview.

He said if he were legal counsel for UC Berkeley, he’d tell administrators that they will probably need to submit an environmental impact report — the same document that the appellate court ruled was in violation of state environmental law. But in this scenario, because Wicks’ bill would be law, UC Berkeley can use the same draft it submitted the first time and “the neighbors won’t be able to sue you over the things that they sued you” for the last time, Zasloff said.

The draft report would require another round of public comment, which takes at least 30 days, according to state guidance (PDF). After that, the UC regents will probably have to approve the environmental report to make it final, which will allow UC Berkeley to start building the dorms.

Whether neighborhood groups can mount another round of legal maneuvers over the same draft environmental report is unclear, Zasloff said. Regardless, he said they may choose to sue again and basically say, “we’re just going to keep delaying you unless you make a deal with us.”