In a "draft tentative ruling," a California appellate court is siding with NIMBY activists in Berkeley who have been squabbling with the University of California over its growth plans, and a plan to build student housing at People's Park.

The latest development in the ongoing battle between UC Berkeley and a citizens' group called Make UC a Good Neighbor comes from California's First District Court of Appeal. As the SF Business Times reports, in a draft ruling, the court finds that the University of California may be in violation of the California Environmental Quality Act in its plans to expand enrollment at UC Berkeley. The judges are siding with the citizens' group, which has claimed for several years that the university is indirectly displacing Berkeley residents by expanding enrollment without providing enough housing for its students — thus forcing students to seek housing in the city of Berkeley, and driving up rents in the process.

Make UC a Good Neighbor filed an appeal earlier this year, arguing that the approval of UC's environmental impact report (EIR) for the 16-story, 1,113-bed dorm project at People's Park should be voided because it violated CEQA. Their argument hinges on the idea that CEQA, which was intended to address only physical effects on the environment by big development projects, more broadly covers all the impacts a development may have, including on nearby housing prices and homelessness.

And while the opinion, as written, is still a "tentative draft" ahead of oral arguments to be heard in two weeks, it would have enormous impacts on development statewide if it stands as is.

"This decision blows up that line between physical effects and social effects," says Chris Elmendorf, a law professor at UC Davis, speaking to the Daily Californian.

And as Elmendorf told the Business Times, this opinion would essentially make gentrification an impact under the purview of CEQA.

"If you build a nice park or improve the bus service in a disadvantaged neighborhood, that neighborhood becomes more attractive, and that increases demand for housing," Elmendorf tells the Business Times. "Under the logic of this opinion, any time you do that in an area where there is some risk of displacement, which is all of California, you’ll have to mitigate the potential displacement effects of your program."

Make UC a Good Neighbor and another citizens' group called Save Berkeley's Neighborhoods have been on a mission to stymie the University of California's long-range plans to both build more housing and grow the UC Berkeley student population. Save Berkeley Neighborhoods won a court battle earlier this year in the California Supreme Court, and that ruling would have forced the university to cap its enrollment at 2020 levels — but Gavin Newsom and the legislature stepped in, quickly passing a small revision to CEQA that exempts public universities and their growth plans. That allowed the university not to have to hold back 5,000 acceptance letters this past spring — and Save Berkeley's Neighborhood's website has gone quiet ever since.

The draft ruling by the First District Court of Appeal pertains to both the People's Park project and UC Berkeley’s 2021 long-range development plan — and apparently the exemption the legislature passed doesn't pertain here?

As Berkeleyside earlier explained, the roots of the current fight between the neighbor groups and the university go back to the Great Recession, when the UC system lost a bunch of state funding due to budget cuts. UC responded by bumping up the number of out-of-state students it enrolls — with out-of-state tuition being three times higher than in-state — and a 2016 audit suggested that the ever-popular UC Berkeley even lowered its admission standards for out-of-state applicants.

Fast-forward to 2022, and the student body continues to grow far faster than the university's ability to house them. UC Berkeley has about 10,000 student housing beds, but its undergraduate student body alone is well over 30,000 these days.

The university has argued that halting its growth and capping admissions at 2020 levels would have "a catastrophic impact on UC Berkeley’s ability to admit low-income, underrepresented students."

But Phil Bokovoy, a longtime resident of the Elmwood neighborhood, the president of Save Berkeley's Neighborhoods, and the subject of an Atlantic piece earlier this year titled "NIMBYism Reaches Its Apotheosis," argues that Berkeley the city shouldn't bear the brunt of UC Berkeley's need for growth. His suggestion: build student housing outside Berkeley, maybe near BART in El Cerrito or Richmond.

As the Atlantic surmised, this has been a battle not just between the school and some neighbors, but a battle of "antidevelopment lefties against density lefties," and "an object lesson in how impossible the housing crisis will be to solve if everyone is able to say no to building in their own backyard."

People like state Senator Scott Wiener say the solution is to gut or do away with CEQA and rewrite California's environmental protection law so as not to equate density, and more people, with pollution.

"These 'people are pollution' CEQA expansions make CEQA even *more* anti-growth than it already is," Wiener writes in a Twitter thread in response to the appellate court draft opinion. "They also make CEQA even *more* hostile to climate action — by making new infill housing inherently suspect & thus making sprawl housing even more the path of least resistance."

Wiener adds, "The draft ruling says that in evaluating new housing, you must generalize the type of residents the housing will bring & the noise, etc the type of resident will create. You can imagine the doors this’ll open for people to demonize new residents based on racist, etc stereotypes."

Oral arguments in the case will be heard on January 12, and the ruling may still be revised after that.

Related: Battle Between Berkeley Group and UC Berkeley Over Student Population Size Heads to State Supreme Court

Top image: People's Park housing development rendering via LMS Architects