AB1307: Student party noise is not a CEQA impact

Although noise from a neighbor’s party may be a nuisance, it is no longer a significant project impact in an environmental assessment under the California Environmental Quality Act (CEQA). On Sept. 7, 2023, Gov. Gavin Newsom signed Assembly Bill 1307 (AB 1307), which will support much-needed student housing construction by removing two potential environmental issues. First, AB 1307 states that the effects of social noise generated by residential project occupants is not a significant effect on the environment under CEQA. Second, the bill specifies that higher education institutions are not required to consider alternative locations in the environmental review for a mixed use or residential project, where the site is no more than five acres, surrounded by urban uses, and has already been evaluated in the environmental impact report (EIR) for the university’s long-range development plan. The State legislature unanimously passed the bill as an urgency measure, and it took effect immediately.

AB 1307 was a direct response to the recent First District Court of Appeal decision in Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, which is currently under review by the California Supreme Court. The case involves UC Berkeley’s plan to construct housing for more than 1,100 undergraduate students, permanent housing for 160 unhoused people, and green space on the 2.8 acre People’s Park. Currently, UC Berkeley only has enough university owned housing to support 27% of its students, and the City of Berkeley has high rental rates often unaffordable to students. But, there is still significant neighbor, student and activist opposition to the housing development in order to preserve the park’s history, green space, unhoused population and community assistance services.

UC Berkely approved a Long Range Development Plan (LRDP) in 2021 that estimated construction of 11,731 new beds in student/faculty housing to accommodate an increased population of 13,902 residents, which still left 8,173 students/faculty without housing by 2036. In Make UC a Good Neighbor, the petitioner challenged UC Berkeley’s adoption of the 2021 LRDP and their certification of the related program/project EIR, which also included two specific student housing projects at Helen Diller Anchor House and People’s Park. The trial court denied the writ, and the petitioner obtained a stay of the demolition of People’s Park during the appeal. The Court of Appeal reversed, and held, in part, that the EIR was inadequate because (i) it did not analyze any feasible alternative sites that could attain basic project objectives that could avoid or lessen impacts of developing the People’s Park site, and (ii) because a “fair argument” could be made that the project’s “noisy student party” impacts were potentially significant, and the EIR failed to evaluate it. This holding would support opposition of virtually any student housing project under CEQA, because students often have social gatherings as a necessary part of their educational experience.

In response, Assemblymember Buffy Wicks (D-Oakland) authored AB 1307 to remove the potential for litigants to challenge residential development based on the speculation that the new residents will create unwanted noises. It also reestablished existing precedent that minor and intermittent noise nuisances, such as from unamplified human voices, be addressed through local nuisance ordinances and not via CEQA. As such, no longer could CEQA consider ‘people as pollution.’” In the bill’s legislative analysis, it states that Make UC A Good Neighbor establishes a new precedent that noise from residents in projects should be an environmental factor considered under CEQA. But, more importantly, the analysis emphasizes that “the ruling specifically notes that noise impacts should be considered because students are noisy and more likely to party than other people. Assuming the behavior of residents, and the resultant impact of their behaviors on the environment, based on their identity sets a precedent to introduce identity-based discrimination into CEQA review.” It also notes that the additional noise analysis could significantly slow CEQA review for student housing projects by requiring an EIR. Assemblymember Wicks noted that the bill “reestablishes over 50 years of CEQA precedent” and will help campuses move forward with their housing construction goals. Despite the adoption of AB1307, the California Supreme Court still has jurisdiction to resolve the pending appellate court appeal of the People’s Park project.