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Opinion: How California came to treat UC Berkeley students’ ‘noise’ as a dire environmental threat

In a time of unrest and protest in People’s Park and across the country, UC Berkeley admitted in 1969 that the first wave of Chicano students was significant in response to student pressure. Even then, the university had a housing shortage, leading to a successful attempt to build a home near campus for the Chicano student community in the early 1970s. Half a century later, Casa Joaquin Murrieta still provides affordable student housing to approximately 40 Berkeley students.

The California Environmental Quality Act, which took effect shortly after the home’s creation, would have destroyed the project before it even got underway, providing thousands of students with affordable, stable housing near campus. We know because that’s what it’s doing today, most recently in the form of a court ruling blocking the university’s efforts to build much-needed housing in People’s Park.

Then and now, the ‘environmental impact’ of more student housing is actually positive: more students living close to the campus means less traffic. It caused no harm to the environment to increase occupancy and improve the interior of an existing structure.

But Casa Joaquin’s neighboring predominantly white homeowners could have used CEQA to demand costly studies and multiple hearings for Berkeley officials. City officials would likely have sided with their eligible voters and used CEQA to reject our building permit applications, just as Berkeley enthusiastically deployed police to block our peaceful anti-Vietnam War demonstrations.

More recently, a series of court rulings that culminated last year nearly forced Berkeley to deny admission to thousands of high school students because the state’s judges agreed with NIMBY neighborhood groups that population growth is an inherent environmental impact under CEQA. Only a quick resolution by the legislature led to an enrollment freeze.

Now a state court has given the Berkeley NIMBYs another gift. More than 50 years after CEQA went into effect, and in defiance of a 1993 amendment directing courts not to expand the law beyond what is expressly required, the appeals court invented an entirely new CEQA “impact”: noise of undergraduate parties. This arose from the NIMBYs’ demand to be protected from the “social noisecaused by adding students to their neighborhood. After all, students could shout or sing or play music at a volume that was audible to their delicate neighbors (who are already surrounded by students).

This newly discovered impact is dangerously attributable to the future occupants of undeveloped homes. NIMBYs can now argue that the noise that could be caused by an additional student or the general population should be adequately analyzed and mitigated before housing is allowed to be built.

Excessive noise is annoying, of course, and it’s also illegal if it happens outside office hours or with amplified equipment. City and campus police enforce nuisance ordinances, and earlier in this lawsuit, the university agreed to a demand from the city that it pay for increased enforcement against sometimes rowdy students — most of whom worked hard to get into Berkeley, but nevertheless young are people who leave home for the first time in their lives.

The concept of “social noise” is perfectly designed to block housing in existing neighborhoods. If this ruling holds, other demographic and individual behaviors may become adverse “environmental” effects under CEQA. Because apartment dwellers are likely to be younger than their single-family neighbors, their “social noise” may come from a baby with colic, bickering siblings, or outbursts of rebellious teen music.

Students without housing, especially students who are the first in their families to attend a four-year college, are dropping out at an alarming rate, leaving with debt and broken dreams instead of a college degree from one of the world’s top public universities. Housing, in other words, is important. No wonder CEQA is called the “law that swallowed California.”

Jennifer Hernandez is a partner at the law firm Holland & Knight, specializing in land use and environmental law. Robert Apodaca is the executive director of the Two Hundred for Homeownership, a coalition dedicated to alleviating poverty through homeownership, and co-founder of Casa Joaquin Murrieta.