This is a recording of the oral argument for Make UC a Good Neighbor et al. v. The Regents of the University of California et al. (Resources for Community Development et al., Real Parties in Interest), S279242. Heard by the Supreme Court of California on April 3, 2024 in Los Angeles, CA.
Make UC A Good Neighbor v. Regents of University of California, S279242. (A165451; 88 Cal.App.5th 656, mod. 88 Cal.App.5th 1293a; Alameda County Superior Court; RG21110142.)
Petition for review after the Court of Appeal reversed the judgment in a civil action.
This case presents the following issues:
Does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) require public agencies to consider as an environmental impact the increased social noise generated by student parties that a student housing project might bring to a community?
Under CEQA, when a lead agency has identified potential sites for future development and redevelopment in a programmatic planning document, is the agency required to revisit alternative locations for a proposed site-specific project within the program?
Supreme Court Oral Argument April 3, 2024 NEWS RELEASE: Video/Photos: Make UC a Good Neighbor v. The Regents of the University of California
The California Supreme Court today heard the case during oral argument in Los Angeles. By Merrill Balassone, April 03, 2024
Of the five points that were appealed to the Court of Appeals NOISE and ALTERNATIVE SITES were reversed in our favor and on April 3, 2024 the Supreme Court will be reviewing those two points as requested by UC.
Documents 1-6 are the different requests to the Supreme Court for review of the Court of Appeals (COA) Opinion.
In UC Opening Merits brief (Document 7) they claim that noise generated by occupants of a residential project should not be considered in CEQA as an environmental impact. UC asserts that such noise would open the flood gates for discriminating against residents. UC further claims that noise complaints have existing city laws governing such complaints. On the alternative sites claim UC states that the Long Range Development Plan (LRDP) provides adequate analysis of alternative sites for Housing Project #2 and no more specific site specific analysis is required. As stated UC asserts their right to prioritize People’s Park as their choice on which to build student and supportive housing.
Make UC a Good Neighbor and People’s Park Historic Advocacy Group’s (OUR) answer to UC Merits brief (Document 8) argues that it is an abuse of discretion by UC to not consider sites that are potentially feasible locations for Housing Project #2; that UC’s feasibility criteria have been changed during the appeals process for their legal convenience; and that UC administration had considered alternatives and rejected them without treating them in the Environmental Impact Report (EIR). OUR argument to the noise issue is that noise is already recognized as an environmental impact in CEQA; and that both UCB and the City of Berkeley have been dealing with serious undergraduate noise problems for years.
Next in UC’s reply to OUR answer (Document 9) UC cites case law (Goleta) in which alternative sites for a project that are analyzed in a programmatic document, such as an LRDP, need not be re-analyzed in site specific project analysis. In the current case that would mean no EIR was necessary for the People’s Park project regarding alternative sites.
Then on September 7, 2023 Governor Newsom signed AB 1307 (Document 10) thereby creating the new CEQA statutes 21085 and 21085.2. 21085 struck noise made by human beings as occupants of a residential project from consideration as a significant environmental impact. 21085.2 changed CEQA so that a housing, or mixed use, project of an institution of higher education need not consider alternative sites in a project EIR if alternative sites were treated in a higher level programmatic EIR.
As stated by UC attorney Jeremy Rosen (Document 11) “The Legislature passed this urgency legislation to overrule the Court of Appeals opinion in this matter with respect to People’s Park.
In Documents 12 OUR attorney objects to UC’s request that the Supreme Court examine the legislative history of AB 1307 to determine aspects of its intention.
In Document 13 OUR attorney requests that supplemental briefs, requested by the Court for argument regarding the effect of AB 1307 on the COA’s Opinion are not submitted simultaneously.
In UC’s Opening Supplemental brief (Document 14) UC asserts that AB 1307 confirms the merits (correctness) of their briefs. Without much argument or referral to case law they state that CEQA should not be expanded to allow noise of residential projects occupants to be considered an environmental impact (21085), and that Housing Project #2’s EIR need not consider alternative locations for that residential project since is student housing for an institution of higher education, and since alternative locations were discussed in the LRDP (21085.2).
Document 15 is another request for the Court to examine the legislative history of AB 1307.
In what may turn out to be the most critical filing for the preservation of People’s Park, Document 16 is OUR answer to UC’s supplemental brief. In that answer brief we concede that, being a residential project, both the noise (21085) and the alternative site (21085.2) changes in CEQA legally apply to Housing Project #2 at People’s Park. With those two new CEQA statutes in effect both claims on which we had prevailed in the COA are moot, i.e. no law exists under which the Supreme Court can rule for relief on OUR claims.
In that same answer brief (Document 16) OUR attorney builds a detailed case supporting OUR noise claim as an environmental impact in CEQA law. OUR assertions stem from the fact that 21085, as written, applies to residential projects. OUR noise claim arises from an LRDP project of increased enrollment for UCB. As explained, it is the increased number of students partying on the streets, and other locations in the Southside (not in student residences), that creates a negative environmental impact.
Should the Supreme Court concur with OUR argument on the noise issue the EIR could be returned to the Superior Court for modification.
The Justices of the Supreme Court may question the attorneys on issues dealing with background and structure of AB 1307 or how the new statutes effect previous court rulings.
Documents 18 thru 24 are amicus briefs from various government institutions and one other request for consideration of legislative history which I will not cover.
As this summary of 1/3 (Supreme Court only) of our attorney’s efforts indicates this has been a costly law suit. We are indebted to them for excellent representation of People’s Park, but also simply indebt to them for a large sum of money. Please donate whatever you can using this QR link below to our Venmo account or go to peoplesparkhxdist.org for our GoFundMe donation link. THANK YOU from PEOPLE’S PARK HISTORIC DISTRICT ADVOCACY GROUP
Viewing the Oral Arguments at April 3, 2024 Supreme Court session opens at 8:30 am here:
The Supreme Court of California will hear the Oral Arguments in our People’s Park CEQA case in Los Angeles on April 3, 2024 at 9 am. The attorneys will make points and respond to questions posed by the justices.
An important area of discussion is how the new CEQA regulations (21085 and 21085.2) created by AB 1307 affect the decision of the Court of Appeals (COA) that the Supreme Court is reviewing. For one example, 21085.2 can be seen as making the return of the EIR for Housing Project #2 at People’s Park back to the trial court, as the COA has ruled, a moot point. On another point it could be argued that the criteria for enactment of 20185.2 was not met and the COA decision is still enforceable. The issues in the case are quite complex due to AB 1307.
See the People’s Park Documents archive for information on the case.
Harvey Smith People’s Park Historic District Advocacy Group P.O. Box 1234 Berkeley, CA 74701-1234
Re: People’s Park, Berkeley, CA, and Make UC a Good Neighbor v. Regents of the University of California, No. S279242
Dear Mr. Smith,
The National Trust for Historic Preservation (“National Trust”) wishes to express our support for the preservation of historic People’s Park in Berkeley, California. People’s Park is listed on the National Register of Historic Places as nationally significant for its association with student protests and countercultural activities during the 1960s. The National Register of Historic Places is fundamentally a land-use planning tool that is intended to help prevent the loss of and harm to historic resources, and People’s Park’s inclusion on it should encourage just such a positive outcome. The National Trust is committed to advocating for significant historic places like People’s Park, and we hope that our support helps emphasize the national significance of People’s Park and the importance of exploring all possible opportunities for its preservation.
The National Trust was chartered by Congress in 1949 as a private charitable, educational, and nonprofit organization to “facilitate public participation” in historic preservation, and to further the purposes of federal historic preservation laws. See 54 U.S.C. § 312102(a). With over one million members and supporters, the National Trust works to protect significant historic places and to advocate for historic preservation as a fundamental value in programs and policies at all levels of government. In addition, the Chairman of the National Trust has been designated by Congress as a member of the Advisory Council on Historic Preservation (“ACHP”), which is responsible for overseeing federal agency compliance with Section 106 of the National Historic Preservation Act, id. §§ 304101(8), 304108(a).
One of the National Trust’s core areas of advocacy is the defense of local, state, and federal historic preservation laws. We understand that the People’s Park Historic Advocacy Group is currently involved in a lawsuit challenging, among other things, the inadequate analysis of alternatives under the California Environmental Quality Act (CEQA). The National Trust wishes to express our support for the full exploration of all potential alternatives that result in the preservation of People’s Park. The exploration of alternatives is a core protection provided to historic places by CEQA. For projects that are not dependent on a single location, such as the proposed construction of student housing, a robust alternatives analysis can often identify superior win-win solutions that allow both preservation and new construction. We hope that just such a solution can be identified that enables both the construction of new student housing in Berkeley and the preservation of People’s Park.
The National Trust would be happy to work with the People’s Park Historic Advocacy Group to help envision historic preservation opportunities at People’s Park and to advocate for its preservation. People’s Park is a unique historic place that is integral to the story of both Berkeley and the nation, and the National Trust supports the work that the Advocacy Group is doing to prevent its destruction. Please feel free to share this expression of our support in any way that may be helpful, and we look forward to continuing to work with your organization.
Sincerely,
Rob Nieweg Senior Vice-President Preservation Services & Outreach
Elizabeth S. Merritt Deputy General Counsel
Chris Cody Associate General Counsel
600 14th Street NW, Suite 500, Washington, DC 20005 E law@savingplaces.org P 202.588.6035 F 202.588.6038 SavingPlaces.org
The People’s Park Council sent out a text alert today, December 30, at 1:30 pm. It is a “heads up” for imminent attack on People’s Park. (Background info: Several sources have warned the call is out for a large number of police to be at the Park, 5 am, Tuesday January 2.) The People’s Park community refers people to the www.peoplespark.org web site, and also announces a December 31 Noon meeting at People’s Park for all to organize for park defense. Note: Please keep your phone ringer on especially on the night of January 1, 2024.
Text SAVETHEPARK to 41372 — and share this number! If possible, disable your phone’s “Do Not Disturb” for the first week of January to ensure you get nighttime alerts.
Media outlets are reporting that UC Berkeley intends to attack People’s Park in the first week of January 2024. Yes, 16 months after UC’s failed attempt in August of 2022 to fence and destroy the park, they have regrouped and now they are ready to go back on the offensive.
We won’t let them destroy it!
Park defenders are preparing to protect People’s Park once again, as we have successfully done for the past 54 years. While there are still some issues winding their way through the courts, the situation has changed since 2022. State politicians such as Buffy Wicks, Nancy Skinner and Gov. Gavin Newsom have worked to change the law to enable UC Berkeley to ignore environmental law and finish their conquest of People’s Park.
The university will rely on hordes of riot police to do their dirty work. Do not be afraid! Come join us! When it comes to the park, the people have always prevailed — but we can’t do it without you.
Now is the time to prepare and get ready to mobilize. Get supplies together in preparation for a late-night, or early morning, resistance. Tell your friends about the Park and encourage them to join you.
Get connected in the following ways:
Text SAVETHEPARK to 41372 — and share this number! If possible, disable your phone’s “Do Not Disturb” for the first week of January to ensure you get nighttime alerts.
For further updates, text “@pplspark6” to 81010
Come out to the park to meet people and get prepared.
Form Affinity Groups so that you and your friends can engage in creative resistance to help save the park. Diversity of tactics is encouraged!
Protecting People’s Park affirms Berkeley’s radical tradition and the park’s place in our hearts and social fabric. It is listed on the U.S. National Register of Historic Places as a place of major historic and cultural significance and value, and is home to free daily food servings, basketball, and companionship of plants, animals, and humans.
Michael Delacour visioning the future of People’s Park — photo: Nacio Jan BrownMichael Delacour circa 1970 — photo: Nacio Jan BrownMichael Delacour speaks at a student organization gathering at People’s Park – photo: Harold AdlerMichael Delacour and friends at People’s Park – photo: Harold AdlerMichael Delacour speaking to students at People’s ParkMichael Delacour talking with police officer in People’s ParkGina and Dusk DelacourGina dancing with cat in arms in the sunshine at a People’s Park eventMichael Delacour and Gina at People’s Park eventPeople’s Park gathering on the sunny lawn for music and speakersWave Gravy clowning around at People’s Park eventMichael Delacour and Matt at Free Box construction in People’s ParkMichael Delacour and Charles Gary at Free Box construction in People’s ParkMichael Delacour at Free Box construction at People’s Park
It is with great sadness that we’re sharing the news that Michael Delacour, one of the founders of People’s Park, died Thursday, March 9, 2023.
From Odile Hugonot Haber, who lived with Michael for 6-1/2 years in the 1980s, and who shared some pre-People’s Park history:
Michael Delacour was born in San Diego. His mother I think was born in England.
Maybe her father, Michael’s grandfather lived on the cliff of San Diego in a big house.
He was a Professor of art, maybe had been involved in prints. He had been brought from England by the University of San Diego.
His mother Jean maybe, married his father, maybe a student then. He had bought a fishing boat. He He loved fishing in the sea, and they lived on money inherited from the grandfather. Michael remembered going on his boat with him. His father died of a heart attack and his mother was a widow, with 4 children, 2 boys and 2 girls.
Michael was recruited or sent to the national guard as a youth. Then he told me that he worked in a giant Naval factory in San Diego that built missiles. He thought it was amazing how many people worked there together in this giant workplace. He learned working there with other people. He got married very young to Leslie and they had 3 children Kathy, Vanessa and David.
When his work sent him to work elsewhere, his wife left him, and met a German man.
Michael was heartbroken and got very depressed and took care of his 3 children.
He was depressed and they gave him shock treatment therapy. It was very hard for him.
Then he went to Berkeley just when the anti-war movement got started. He became a boiler maker and was very active in the boilermaker union. He got active in the antiwar Vietnam peace movement and when the Free Speech movement started moving to People’s Park. He got involved with the Park. He had an important role in the creation of the People’s Park.
For most of his life he watched People’s Park and was very active in it. He was generally very active politically and once he ran to be mayor of Berkeley. He had a different slogan posted high on telephone polls, they were silk screen or painted.
He was part of the Rank and File coalition and wrote articles in the Rank and File’s news,
Michael always regretted his lack of education and felt slighted by it. Michael believed in direct action and was good at it.
From Max Ventura:
Michael and I met as part of Campaign Against Apartheid, which intersected a lot with the park and the larger movement, and Odile and Michael and I were part of the Homeless Direct Action Collective (HDAC, pronounced headache), a true headache for the politicians in town. Based in the park, we did two occupations of Provo Park, what now is referred to as Civic Center Park: Loniville, and Loniville 2 to demand the City help those on the streets. Yup.. back in the mid-80’s. Getting no action via the city, we took to squatting houses which had been vacant for years, some 10-15. Many privately owned.. land speculation… but many city-owned. Michael, with all his skills, got water and electricity going. We used to joke that we had luxury squats. He also brokered an arrangement with one of our large squats, 2 units, so that it was able to be a squat fairly longterm. While many of our squats were very public to press the political choices politicians were making, we all and Michael also supported quiet squats, to simply allow people indoor shelter. Michael always related not only to the working class, but the most vulnerable in our society, and always was ready to go, chomping at the bit, to take direct action to make a society for all.
Michael was struck by how all those workers in the missile factory worked together as a team, in that case to help facilitate death, but he took that knowledge of the power of working together and recast it as part of the anti-war movement, and the building of People’s Park. If he’s looking down now, he’d probably be yelling at us all as we write about him, calling us elitists because we can write. How many times he yelled that at me when he wasn’t asking me to write something and then when I reminded him I have exactly zero plumbing or electrical or mechanical skills which he used all the time in the movement, he’d nod. Often, the next moment he’d be chuckling, glad to be recognized for his invaluable skills and work. Only a couple years ago when there was water backing up in pipes to the park, he was out there leading a few of us in trying to pinpoint the source of the issue. Always hands-on. “Everyone Gets a Blister!”
Michael was about DOing, not just talking, and that is, perhaps, his most important legacy. People’s Park is his legacy. People around the world are inspired by it. We look forward to our celebrating him further April 23rd at our 54th anniversary!
From Isis Feral:
I met Michael when I was a teenager in the Campaign Against Apartheid in the mid-1980s. Another example of Michael fighting on behalf of the oppressed was more recently when, together with his late wife Gina, he joined my dad and me in court to advocate for the release of one of our family members, who had been incarcerated in a psychiatric institution, where she was being forcibly drugged, and threatened with conservatorship. Thanks to their determined solidarity, we were able to bring her home that day.
From Lisa Teague:
This 2018 article by Tom Dalzell has a lot of old photos and information about Delacour family history, as well as Park history:
We dedicate this year’s People’s Park 54th Anniversary to Michael Delacour as a celebration of his life and work.
Michael Delacour Presente!
Help Dusk Delacour, Michael Delacour’s son with a contribution
A GoFundMe account has been created to help pay for the costs of Michael Delacour’s cremation, memorial and to help his son, Dusk, to get set up in a new location. Please give what you can and help spread the word. In this way, may we honor our comrades and each other. https://gofund.me/dfff700c
This 2018 article by Tom Dalzell has a lot of old photos and information about Delacour family history, as well as Park history.
The Future of People’s Park panel discussion was presented online by the People’s Park Historic Advocacy Group with Berkeley community members on February 26, 2021. Here’s a video of the discussion, archived on the People’s Park YouTube channel.
Presenters:
Harvey Smith – author of “Berkeley and the New Deal”, People’s Park Historic District Advocacy Group (event host)
Tom Dalzell – author of “The Battle for People’s Park Berkeley 1969”, “Quirky Berkeley” series, union leader, lawyer
Steve Wasserman – Participant and Activist during 1969, publisher of Heyday Books, career in publishing, editing and writing
Maxina Ventura – member of People’s Park Council (formerly Committee), Homeopath, environmental activist
Aidan Hill – Former Berkeley Mayoral Candidate, UCB Student/Graduate, candidate for District 7
Joe Liesner – long-time People’s Park activist, Food Not Bombs volunteer
Participants:
Joseph Copeland – raised near People’s Park, son of “People‘s Park” author Alan Copeland
Chuck Wollenberg – People’s Park Historic District Advocacy Group, Berkeley historian
David L. Axelrod – attorney at law, Sierra Law Office
UC Berkeley plans to build a high rise on People’s Park, which would destroy the historic and cultural legacy and an irreplaceable natural environment, has brought together writers, historians, students and park activists to oppose this ill-considered project.
Presenters share the historic background of the park, give details on the effort to recognize its national landmark status (**formally received this status May 2022), and share plans for revitalizing this invaluable public green, open space.
We suggest UC Berkeley commence construction of the student and supportive housing planned for the park on an alternate site as soon as possible.
By Shirley Dean and Gus Newport Jan. 10, 2023, 8:01 a.m.
Although UC Berkeley has stated it wants to build 8,000 student housing beds as soon as possible, the university has picked a site, knowing it would be vigorously opposed, and now has caused months of delay. We suggest it commence construction of the student and supportive housing planned for People’s Park on an alternate site as soon as possible. Indeed, UCB has identified up to 15 alternative sites.
The National Register of Historic Places has recognized the value of People’s Park. The park has an over half-century legacy of cultural events; town, gown and political events; a biosystem of flora and fauna; a surround of highly significant architecture; and a role as an everyday community recreation site.
UC has been defeated in the courts in many of the California Environmental Quality Act challenges to its campus development plans. These court decisions have made it clear that UCB is not doing an adequate job of identifying and mitigating the impacts of its development in Berkeley.
Additionally, UC’s reckless demolition of most of the historic trees in People’s Park on Aug. 3 has threatened a key element of the HUD funding for the supportive housing portion of the project due to the lack of agreement to do the required federal environmental review, thus putting that project in jeopardy.
UCB’s almost 50% increase in enrollment (almost 15,000 students) means that the Southside of Berkeley desperately needs the open space of People’s Park. Based on the city’s recent population growth, concentrated in the areas nearest the campus, and the city’s standard of 2 acres of park and open space per 1,000 residents, the Southside neighborhoods need approximately 18 acres of new, accessible open space.
City planners agree increasingly dense urban areas need more parks, not fewer. Furthermore, the park is needed as a shelter during earthquakes, fires and pandemics – Berkeley will face them all again.
Now is the time to develop a feasible plan of action based on cooperation between the state, the University of California and Berkeley residents who host its flagship campus.
The park’s future should include proper maintenance, user development, and interpretation to provide Berkeley residents and visitors with information on all aspects of People’s Park — Berkeley’s incredible architectural legacy and the political and cultural history of activism on the Southside. Like other parks, it should become a welcoming recreation resource for anyone in the community – housed or unhoused city residents, students, and visitors of all backgrounds and income levels.
Both the city of Berkeley and UC Berkeley celebrate the Free Speech and Sixties history of the Telegraph Avenue corridor. It is an asset to the city and the university and draws visitors from around the globe to Berkeley. Preserving and enhancing the park can only add to its value as a treasured Berkeley attraction.
With the park’s permanence assured, its future could evolve in collaboration with the People’s Park Council, the long-standing consensus-based group of stewards and advocates for the park, with California Indian tribes, and with a land trust or conservancy. Financing for this vision could be through federal or state funds for parks.
Whatever future model is adopted for People’s Park, it is clear that the plan to destroy the park and the possibility of continuing conflict between park users and the university are neither desirable nor inevitable. Community members can develop a partnership with an enlightened public agency to preserve and enhance People’s Park in a way that honors its culture and heritage and provides valuable open space for the Southside neighborhood. With goodwill and hard work, this future is possible.
Shirley Dean and Gus Newport are former mayors of the city of Berkeley.
