Berkeley's War on CEQA
Heats Up

Becky O'Malley
Monday January 16, 2023 - 09:32:00 PM

Almost all my life I’ve lived in walking distance of a major urban university. For most of the last 60 years or so I’ve been in Berkeley. As a Cal (that’s what we called it in the olden days) undergraduate I started out in a rooming house (aka “ a single family home”, i.e. a house with many more bedrooms than bathrooms or kitchens). It was a classic Berkeley brown shingle, vintage turn of the 20th century, on Channing near Telegraph, owned and inhabited by a classic hard-working immigrant, the proprietor of Anna’s Donut House next door, open as I recall from 6 a.m. until two a.m. Anna didn’t get much sleep.

My room was on the third floor. I shared it with a girl from a ranch in Walnut Creek (yes, it was still ranches in those days.) The one bathroom was on the second floor, so we took turns. The other tenants were girls from Taiwan, all science whizzes except one classical pianist. From them in the common kitchen I learned a bunch of nifty cooking tips, including how to cut up a chicken and fixing steamed eggs in a cup. Their first language was Mandarin, but they were eager to practice their English on me.

Anna played it close to the vest. Her first language was Eastern European of some Slavic variety. I didn’t understand it though I was studying Russian, and she had little interest in learning English, so we rarely talked. Her goal was making and saving the maximum amount of money to send home to the old country.

She was a penny-pincher. When we weren’t home she’d come into our room and unplug the radio and lamps because she thought they were burning electricity, even when turned off.

The house had no central heating, but our attic room had (horrifying in retrospect) a gas-fired wall heater with an open flame on which my roommate and I roasted hot dogs. But it didn’t burn down—it’s still there, now transmogrified into a Thai restaurant with a deck and a colorful paint job.

In those days, such houses were part of a neighborhood of similar establishments: older homes with several bedrooms built for families, some turned into woman-owner-occupied rooming houses by the 1950s, many run by faculty widows. In my senior year I moved to an apartment in the living room and dining room of a converted house—my next-door neighbor from that time is still my good friend.

I was in the class of ’61. We were just starting to exercise some political muscle, and UCB was fighting back. Back then, Cal was in Berkeley, though it was already starting to fancy that it was Berkeley.

Governor Pat Brown was our commencement speaker. We boycotted and picketed the event in our caps and gowns because he had allowed the execution of author Caryl Chessman.

Not so long afterwards I moved to Ann Arbor so my husband could go to graduate school, so we missed the 60s uproar here. The administration at the University of Michigan was much better than Cal at staying out of fights, even though there was plenty of political activity.

In 1973 we moved back so he could teach at Berkeley (the school) and looked for a house in Berkeley (the town) so our three daughters could go to the city’s excellent and diverse public schools. School bussing for racial integration had just started.

We benefited greatly from White flight. The old rooming house we had bought cheaply in Ann Arbor was seedy and small, on a busy street. We traded it almost even for an enormous house in Berkeley in excellent condition, also on a busy street. Undesirable elements (conservative White people terrified of school integration) were moving out to Lamorinda and points east, so real estate prices here were sliding downhill.

The busy street was a plus for us, because public transit was still excellent back then. The 65 bus stopped right at our front door; the TransBay E bus was at the corner, with frequent stops day and night. My husband could ride his bike to campus, I could take the E bus to The City for work, and the kids could take the 51 to Berkeley High—a perfect trifecta.

The big cheap houses on our busy street, including ours, provided homes for a great diversity of interesting people: communes of famous radicals, artists, musicians, journalists of various stripes, lots of students, novelists and even Eldridge Cleaver. Sadly, the neighborhood has re-gentrified in the last few years, adding dull novelties like investment bankers and even one rogue crooked convicted techie who ended up pardoned by the departing Donald Trump.

Why am I telling you all this? Because last week I watched the oral arguments about the appeal by a couple of neighborhood groups of a lower court decision which would have allowed UCB to evade California Environmental Qualiy Act (CEQA) requirements that noise impacts and alternative sites be studied before building an 1100 bed student dorm on a historic site at People’s Park.

That’s studied, not eliminated.

The plaintiffs’ attorney, Tom Lippe, in his oral presentation pointed to language in California law that clearly included noise as one of the categories that an environment impact report needs to review. UCB had simply chosen to skip that step when it did the CEQA-mandated Environmental Impact Report. The university’s hired counsel suggested that human social noise, which students could be expected to make, shouldn’t count. The underlying premise of UC’s argument seemed to be that they could do as they please, Berkeley citizenry be damned.

As I review my lengthy history in and with Berkeley, that’s a claim that’s tough to challenge. But questions from the three appeals justices at the hearing I saw streamed indicated that the judges might not buy it this time. Though UC’s lawyer condemned the idea that students make a lot of noise as a baseless stereotype, both Lippe and the justices stressed the need for actual data on the topic, the kind of data that competent EIRs provide but UC’s didn’t this time,.

Some history: The university used eminent domain to take the land which is now People’s Park, which was then a big square block of houses southeast of my old rooming house on Channing Way, away from resident owners and their student tenants in the 1960s. There were rumors that UC bureaucrats disliked the tenants’ bohemian lifestyle.

The Big U tore those homes down, but failed to build anything to replace them. After some years students and citizens, without permission, took back the unused open space and turned it into a park. After a big fight, which park advocates hoped they’d won, the site was neglected for more than a half-century more despite occasional UC efforts to enhance it with amenities like a beach volleyball court and a primitive bathroom. 

The site was, however, recognized first as a landmark by the city of Berkeley and then placed on the National Register of Historic Places. But despite its historic status, the University of California administration allowed the park to deteriorate unnecessarily: destruction by neglect. 

It didn’t have to be that way. In the 1980s, when my family started a bootstrapped tech company in the low rent second floor space of a Telegraph avenue retail building, the park was still a pleasant place to have a picnic lunch. The kids came by every day after school. 

The adjacent parcel, today the site of a new dorm, was a parking lot much appreciated by the Telly merchants. Some cheery African American veterans not otherwise housed slept there in sleeping bags at night. They swept it up every morning, kept out the riffraff, and saved parking places for friends like us. A prospective customer who visited our office wearing a suit and tie told us they’d greeted him with shouts of “businessman, businessman” as he walked past the park to our door, but he was a good sport and enjoyed it as part of the authentic Berkeley experience. Volunteers maintained landscaping, gardens and a stage. 

This kind of peaceful co-existence, which lasted for many years, was ignored by UCB in their latest plan. 

UC in this EIR ultimately failed to consider the many alternative sites which are available in the area, several of which the university already owns. In the intervening years, the history of how the University of California has been devouring Berkeley has produced an impressive accumulation of property in the south of campus area, downtown Berkeley, Richmond and elsewhere. That’s why the justices in their draft opinion could criticize the EIR’s failure to consider feasible alternatives to the People’s Park site as required by CEQA. 

The vultures are gathering now. In the Sunday Chronicle, there’s an op-ed by Chris Elmendorf, who lives in San Francisco and commutes to his UC Davis law school job on AMTRAK. He’s a great favorite of the YIMBY claque, the neo-liberal true believers who want to let the market decide what our urban built environment should be. They’re kin to the U.S. congressional gang who’ve just taken over the House Rules Committee on a platform of repealing most regulations. 

Twitter (reports of its death are exaggerated) provides a window into California YIMBY tendencies. Elmendorf is very active among the Twitterati. Last week he said this there: 

“I am not a fan of litmus test for judicial appointments, but I do wonder whether we'll soon see real ideological divisions among state court judges in blue states on land use, admin procedure, and maybe policing/criminal justice issues?” 

Responding, one acolyte, who identifies himself, though not by name, as an attorney and UC grad, applauded, suggesting that “There needs to be a litmus test for all new judges (federal or state) on housing. Democratic governors should never be nominating NIMBYs to the bench, just as they don't nominate anti-abortion judges.” 

That’s swell, isn’t it? Especially the implication that we should require judge appointees to disclose future rulings on any topic, even including abortion. 

More Elmendorf: “CEQA is about to get much, much worse unless the Leg or the AG steps in.” If you don’t like the law, dump it. 

His Chron op-ed is an impassioned call for doing away with environmental review because—OMG—some projects might not get built. In replies to his twitterant on this topic, some naysayers did point out that the number of projects actually stopped by CEQA is vanishingly small—take a look at the data if you don’t believe this. 

And finally, embarrassingly, he claims that the draft decision " should make anyone who knows the racist history of land-use regulation shudder." Why? Because “The court said that students are, statistically, more likely to make noise than non-students, so UC Berkeley had to analyze the ‘noise impacts’ of students whom the university’s housing and enrollment plan would bring into the area. This is a recipe for affluent homeowners to hold up — using stereotypes or statistics — any housing project that would bring a different kind of person into the neighborhood." 

Yup, no tired old statistics about noise for me. My mind is made up, don’t confuse me with facts. 

It’s ironic that this middle-aged upper-income White guy, like similar others before him, saw fit to admonish a Black justice on racism. Justice Terri Jackson, who is Black herself, employed a hypothetical about a church using tambourines to probe the concept of including noise as a required category for CEQA study. When Elmendorf repeated on Twitter what he thought he’d heard her say, he said that Justice Jackson had worried that Black churches were the ones that could be targeted by neighbors who say they don't like the sound of tambourines. 

"Really, this isn't what CEQA is about, " he opined. 

Actually, the justice didn’t say “Black” churches—she just said “churches”. Lots of non-Black churches have tambourines too, which Judge Jackson surely knows. Is there a bit of racial stereotyping in play here? 

Following the various Elmendorf-spawned threads on Twitter, I learned that some of his acolytes were appalled that new L.A. Mayor Karen Bass (another Black woman) might not adhere to a core tenet of the YIMBY dogma. 

A podcaster asked her to rate some assertions as true or false. In the print summary, this one emerged: 

Newsie: “The construction of market rate homes in disadvantaged areas does not cause gentrification or displacement, but instead prevents it.” True or False?  

Mayor Bass: ”That’s false. That’s completely false. I’m sorry.”  

TwitterYIMBYs were shocked, shocked by this quote, though few had bothered to listen to the whole chit-chatty episode on the Cal Matters website. For Mayor Bass’s sensible exposition of why building expensive developments has led to gentrification in her own neighborhood, listen here: 


All this adds up to my long-winded response to an op-ed in Sunday’s Chronicle by Professor Elmendorf. It appears to be part of an on-going campaign to get rid of the Environmental Quality Act, orchestrated by what is called, sometimes without sarcasm, the development “community”. These are the folks who believe that there’s big money in big buildings, and that if your profit margin doesn’t perform up to expectations it must be the government’s fault. You can read his Sunday issue treatise here: 

California legislators refuse to fix CEQA. Here’s how Newsom and the courts can take charge.  

What was cut from the Chron piece, he says on Twitter, is a lengthy discussion of whether the real effect of CEQA can be reliably measured. The author admits honestly that “ CEQA critics have no way of quantifying the true severity of the CEQA problem. That's why, in my first draft of the Chronicle piece, I wrote that I am only ‘weakly of the view that CEQA is a big problem.’ “ 

He should have told the headline writer that. Here’s some of what he left out, as tweeted: 

“My first draft tried to make an epistemic point about difficulty of knowing how big a problem CEQA is. It didn't make the final cut, so this 🧵 explains it. The fundamental epistemic problem is that we have no reasonable way of approximating the counterfactual development patterns that would have been observed in California w/o CEQA." 

In ordinary English, he says we have no way of knowing what would have happened here if there were no CEQA. Too true. 

There’s a lot of talk in cities these days about what is called “quality of life”. What I might modestly suggest is that the good professor(51 years old and like many in the news lately a graduate of Yale Law) and his legislative patrons Scott Wiener, Nancy Skinner and Buffy Wicks, are the wrong people to be deciding what’s good for us in Berkeley’s South of Campus area or in Mayor Bass’s home neighborhood in L.A. Those of us who have had our boots on the ground in our neighborhoods for many years have a much better idea than Sacramento in all its incarnations about what affects the quality of our life, and yes, even about what’s best for the University of California at Berkeley. 

A story which I won’t tell today is the history of the benighted expansion of perfectly fine Memorial Stadium to become a huge, costly and ultimately debt-swamped Mussolini-esque monument. And talk about noise impact on neighbors… You can read all about how it happened it in the Planet archive, notably bylined by Richard Brenneman. 

I’m sorry to say this, but we told you so. 

Hey, UCB! CEQA helped to get your attention on the stadium, but you still got it wrong. And without CEQA you would surely do it again. Unfortunately, since CEQA has been sadly weakened in the years since it was passed, you could do it again anyhow.