Opinion
A166164
05-05-2023
BERKELEY CITIZENS FOR A BETTER PLAN, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents; RESOURCES FOR COMMUNITY DEVELOPMENT et al., Real Parties in Interest and Respondents. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES LOCAL 3299, Plaintiff, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents; THE HELEN DILLER FOUNDATION et al., Real Parties in Interest and Respondents; BERKELEY CITIZENS FOR A BETTER PLAN, Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. Nos. RG21109910, 21CIV000995, RG21110157)
BURNS, J.
Once again, we must consider a challenge to an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) for development proposals at UC Berkeley. This is the second of two appeals from a judgment rejecting challenges to an EIR for the university's 2021 long range development plan and two student housing projects, Anchor House and People's Park. Recently, in Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656 (Good Neighbor), we upheld the EIR on most issues but found it inadequate in two limited respects that concern the development plan and People's Park, but not Anchor House. (Id. at p. 695.) We reversed the judgment and remanded the case for further proceedings. (Ibid.)
All references to "CEQA" are to the California Environmental Quality Act. (Pub. Resources Code, § 21000 et seq.) All references to "Guidelines" are to the state CEQA Guidelines, which implement the provisions of CEQA. (Cal. Code Regs., tit. 14, § 15000 et seq.)
In this appeal, Berkeley Citizens For A Better Plan (Citizens) challenge the EIR on different grounds. They contend it (1) should have analyzed the impacts of shadows from the People's Park housing project on two historical buildings; (2) inadequately addressed mitigation for impacts of construction-related vibrations; (3) inadequately addressed impacts relating to wildfire; and (4) did not properly describe baseline environmental conditions.
As explained below, we find these contentions are meritless and thus warrant no change from the disposition ordered in Good Neighbor.
In light of this result and the remand in Good Neighbor, we should clarify the situation for Anchor House. Anchor House is a $300 million housing project for about 772 transfer students. The Hellen Diller Foundation is building the project and plans to donate it to the university. Construction has been underway during this litigation, and the project is scheduled to be ready for the Fall 2024 semester. (See Kriebel v. City Council (1980) 112 Cal.App.3d 693, 707 [unless enjoined, a developer may proceed with a project while CEQA litigation is pending, but does so at its own risk]; Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888-890 [same].)
Although the litigation is not over, it has reached a stage where Anchor House should be given the all-clear signal. (Cf. Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 422-424 (Laurel Heights) [allowing University to proceed with "salutary" project while fixing EIR on remand]; CEQA, § 21168.9, subd. (b).) The lead agency approved Anchor House as a standalone project, separate from the approvals for the long range development plan and the People's Park project. The appellants in Good Neighbor do not oppose the completion of Anchor House or seek to void its approval. Citizens make no such concession, but we have rejected all their claims. Accordingly, notwithstanding the remand in Good Neighbor, there are no unresolved CEQA issues that concern Anchor House. Nothing remains in this case to impede its completion.
BACKGROUND
A.
CEQA requires an EIR when a public agency proposes to undertake or approve a project that may have a significant environmental effect. (Laurel Heights, supra, 47 Cal.3d at p. 390.) Its purpose is to provide public agencies and the general public with detailed information about the project's likely environmental impacts; identify potential mitigation; and identify alternatives to the project. (CEQA, § 21061.) The EIR protects the environment and enables informed public debate by bringing to light the proposed project's environmental consequences before the project is approved. (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944.) Courts must interpret CEQA liberally to protect the environment. (Laurel Heights, supra, at p. 390.)
Two types of EIR are at issue here. The most common type, a project EIR, examines the environmental impacts of all phases of a site-specific development project. (Guidelines, § 15161; In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1169 (Bay-Delta).) A program EIR, on the other hand, is typically used to examine a broad program at a relatively early stage of the planning process, before specific components of the program are ready for approval. (Guidelines, § 15168, subds. (a)-(c).) Because the level of specificity in an EIR corresponds to the specificity of the underlying project (see Guidelines, § 15146, subd. (a)), a program EIR is usually less detailed than a project EIR. Under CEQA's tiering process, a lead agency will often develop project-level EIRs or negative declarations that tier from the program EIR, focusing on details that the program EIR did not cover. (Guidelines, § 15152, subds. (a)-(d), (f), (g).) The EIR here is a hybrid: a program EIR that addresses the broadly defined policies and concepts in the long range development plan, as well as more detailed, project-level analyses of the Anchor House and People's Park housing projects.
B.
Respondents Regents of the University of California certified the EIR and approved the development plan and two housing projects in July and September 2021. Citizens petitioned for a writ of mandate, naming the Regents, University of California President Michael V. Drake, and UC Berkeley Chancellor Carol T. Christ (collectively, Regents). They alleged various deficiencies in the EIR and asked the trial court to vacate the certification and project approvals.
The court consolidated Citizens' action with the petition for writ of mandate filed by Make UC a Good Neighbor and The People's Park Historic District Advocacy Group (jointly, Good Neighbor) and another filed by the American Federation of State, County, and Municipal Employees Local 3299. On August 2, 2022, the court denied the petitions.
From that point on, Good Neighbor and Citizens took different procedural paths. Good Neighbor immediately filed an appeal and petitioned this court to stay any demolition and construction activities at People's Park pending its resolution. We granted a temporary stay and set an expedited briefing schedule. Briefing (except for subsequently-ordered supplemental briefs) was completed by early October 2022, and we filed Good Neighbor, supra, 88 Cal.App.5th 656, on February 24, 2023. Citizens, in contrast, pursued neither interim writ relief nor an expedited appeal; as a result, their appeal was not fully briefed until January 11, 2023.
The union petitioners did not appeal.
The Hellen Diller Foundation subsequently asked this court to judicially notice two photographs showing the status of construction of Anchor House. The photographs are irrelevant to our resolution of the issues on appeal, so we deny the request. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276 [only relevant material is subject to judicial notice].)
We now turn to their distinct challenges to the EIR.
DISCUSSION
A.
Shade
Citizens contend the EIR should have analyzed the impacts of shade and shadows from the People's Park project on two neighboring historical buildings. We conclude there is no substantial evidence that shade and shadows from the project may have a significant effect on the historical resources.
1.
The historical buildings are the Anna Head School complex and the First Church of Christ, Science. The school is located on Haste Street opposite the northern boundary of People's Park. The church is across Bowditch Street from the park's eastern boundary. The school was built in the late 19th and early 20thcenturies. One of the school buildings, Channing Hall, was the first brown-shingled building in Berkeley and helped launch the Arts and Crafts movement. The church, designed by Bernard R. Maybeck and completed in 1910, is regarded as an Arts and Crafts masterpiece. Among other things, it features a window wall of hammered Belgian glass that, in the spring and early summer, is infused with purple light from wisteria that blooms on the west fagade. These beautiful buildings are City of Berkeley landmarks. The school is listed in the National Register of Historic Places; the church is a National Historic Landmark.
The People's Park project consists of two buildings, the larger of which will be built along Haste Street, across from the school, and will have 17 stories. The EIR concedes that the building will dwarf the one- and two-story historical buildings. Because the size and scale of the project are incompatible with the nearby historical resources, the EIR finds that the project will have a significant and unavoidable impact on them.
The draft EIR did not consider whether shadow from the housing project would also negatively affect the school and the church. The Regents took the position, in the final EIR, that shade and shadow are policy concerns, not cognizable environmental effects under CEQA. They also concluded that a CEQA exemption for urban infill projects bars them from considering aesthetic impacts of the People's Park project.
In response to public comments on the draft EIR, however, the Regents commissioned a shade and shadow study. The study shows the People's Park project will partially shade the church for about three and one-half hours in the late afternoon and evening at the summer solstice, and from 4:00 p.m. to 4:50 p.m. at the winter solstice. The project will shade much of the school at the winter solstice. As for the wisteria at the church, the final EIR concludes that, according to a licensed landscape architect, the wisteria will receive ample sunlight-four to six hours per day.
2.
There are two threshold issues to discuss. First, the Regents argue that shade and shadows are not cognizable impacts on the environment under CEQA. Among the resources that CEQA protects are "objects of historic or aesthetic significance." (CEQA, § 21060.5; see also, id., § 21001, subd. (b).) We assume, without deciding, that shadows can have negative effects on objects of historic or aesthetic significance within the scope of CEQA. (See South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 349-350 [determining EIR adequately considered shade and shadow impacts on recreational facilities].)
Second, although Citizens do not dispute that People's Park qualifies for an urban infill exemption from certain parts of CEQA under section 21099, the parties dispute how the exemption applies here. Section 21099 exempts aesthetic impacts of urban infill projects from CEQA review: "Aesthetic and parking impacts of [an urban infill project] shall not be considered significant impacts on the environment." (CEQA, § 21099, subd. (d)(1).) But it adds a caveat: aesthetic impacts "do not include impacts on historical or cultural resources" for purposes of this exemption. (CEQA, § 21099, subd. (d)(2)(B).) Here, CEQA potentially protects the church and school as resources of both historical and aesthetic significance. (CEQA, § 21060.5.) Under the exemption's plain language, however, we must consider the potential impact of shade on their historical significance, not on their aesthetic significance.
We apply the fair argument standard. Because the Regents made no finding on whether shade and shadows may have a significant environmental effect on the church or school, we examine whether there is a fair argument, based on substantial evidence, that they might. (Good Neighbor, supra, 88 Cal.App.5th at pp. 685-686; Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, 1072 [applying fair argument standard to whether project may have significant effect on historical resource].) If not, there was no need to consider the question in the EIR. (See Good Neighbor, supra, at pp. 685-686; Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, 14.)
CEQA carefully limits the scope of relevant impacts to historical resources. A project may have a significant environmental impact if it "may cause a substantial adverse change in the significance of an historical resource." (CEQA, § 21084.1; Guidelines, § 15064.5, subd. (b).) A "[s]ubstantial adverse change" means the "physical demolition, destruction, relocation, or alteration of the resource or its immediate surroundings such that the significance of an historical resource would be materially impaired." (Guidelines, § 15064.5, subd. (b)(1), italics added.) The significance of a historical resource is "materially impaired" when the project "[d]emolishes or materially alters in an adverse manner those physical characteristics . . . that convey its historical significance" and justify its inclusion, or eligibility for inclusion, in specified state or local historical resources registers or surveys. (Guidelines, § 15064.5, subd. (b)(2), italics added.)
Taken together, these provisions circumscribe the impacts on historical resources that require consideration in an EIR. It is not enough to identify evidence in the record that shading from the People's Park project will have some sort of impact on the church or school. To warrant environmental review, Citizens must identify evidence supporting a fair argument that it would materially and adversely impair a specific physical characteristic of these buildings that conveys their historical significance. (Guidelines, § 15064.5, subd. (b)(2); cf. Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, 1144-1145, fn. 9 omitted [Guidelines "focus on direct physical changes to historical resources themselves that materially impair those resources' historical significance, not a project's aesthetic impact on its historical setting"].)
Citizens point to a historical resources report prepared for the draft EIR and public comments from former Berkeley Landmarks Commissioner Carrie Olson and the Berkeley Architectural Heritage Association. These do not suffice. As relevant here, the historical resources report states only that the project could adversely affect its neighbors because "its scale and proportion would likely not be compatible with those historical resources." It does not discuss shade at all, much less any aspect of the buildings' historical significance that would be diminished by shade.
Former commissioner Olson commented more specifically about shading and shadows on the church. "The First Church of Christ Scientist (1910, Bernard Maybeck) is flooded with light in the afternoon through a window wall of hammered Belgian glass that was designed to 'create a connection between the interior space and the adjacent landscape'. When in bloom, the light is infused with purple from the wisteria vines on the western fagade of the church. This is a very intentional design. And because of the design of this project, it will no longer receive light for a substantial part of the day." The Architectural Heritage Association raised similar concerns and opined that "[c]utting off daylight to the wisteria and the windows behind it would significantly impact [the] structure."
This supports an argument that shadows from the housing project will have an effect on the church-specifically, that the sun will illuminate its windows through the wisteria for fewer hours than at present-and that this light effect is an intended result of the church's design. That the effect is intentional, however, does not also establish that it conveys the church's historical significance. Nor do Citizens identify any evidence that it justifies the building's inclusion, or eligibility for inclusion, in a register or survey of historical resources. And, of course, people will still be able to enjoy the full effect of the light when the wisteria blooms in the spring and summer, albeit for fewer hours. This does not meet the fair argument standard. (See Guidelines, § 15064.5, subds. (b)(1), (b)(2); see also Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1042, 1045 (Taxpayers) [no evidence for fair argument that stadium lighting might materially impair neighborhood's historical significance].)
Moreover, the Regents responded to the public comments with evidence that the project would harm neither the wisteria nor the special windows behind it. A licensed landscape architect concluded that the limited hours of additional evening shade from the project would not prevent the wisteria from receiving "ample (about four to six hours) sunlight throughout the day for proper plant growth" or "destroy the wisteria plant or the special wavy industrial glass." Citizens offer concern and conjecture, but no evidence, to the contrary. (See Taxpayers, supra, 215 Cal.App.4th at p. 1035) [speculation and unsubstantiated opinion are not substantial evidence].)
With respect to the school, Citizens' support is slimmer yet. Citing generally to the Regents' architectural and shade studies and the public comments, they assert the project will block sunlight from windows that illuminate the school's alumnae hall - "the most significant part" of its campus - and will shade the entire campus between 11:00 a.m. and 2:30 p.m. during the winter. However, they neither explain how nor identify evidence that this shading might materially impair a characteristic of the school that conveys its historical significance.
Citizens are understandably concerned about shadows on these lovely historic buildings from the proposed highrise at People's Park. At the same time, the university has an acute need to build student housing on property it owns near the campus. These sorts of conflicts will only grow as cities add more tall buildings in an era of climate change and scarce housing.
But, as this case illustrates, there are some conflicts that CEQA simply does not address.
B.
Vibration
Citizens argue that the EIR does not adequately mitigate potential damage from construction-related vibrations, particularly from pile-driving, with respect to future projects under the long range development plan. We conclude the EIR complies with CEQA.
1.
The EIR disclosed that impacts from vibrations generated by construction equipment could exceed the EIR's threshold of significance for architectural damage, in part due to uncertainty about the future projects and their construction methods: "[c]onstruction details and specific equipment for future projects that implement the proposed LRDP Update . . . are not known at this time, but may cause vibration impacts if equipment is close enough to sensitive receptors. As such, this would be a potentially significant impact." The EIR therefore proposed NOI-2, a three-step mitigation measure for any project tiered off the long range development plan EIR anticipated to involve vibration-causing construction methods.
As a first step, before construction starts the university must screen such projects to determine whether the construction activity is within federally established "vibration screening distances" within which it could damage buildings, annoy humans, or disturb sensitive equipment. Second, if the project is within the screening distance, the university must consider whether alternative construction methods are available and, if so, verify that the construction plans incorporate an alternative method. Step 2 specifically provides a nonexclusive list of alternatives to pile driving that "shall be used, where feasible," including caisson drilling vibratory pile drivers, oscillating or rotating pile installation methods, and jetting or partial jetting of piles into place using water injection.
Step 3 comes into play only if there are no feasible alternatives. In that case, a qualified acoustical consultant or structural engineer (or, if historical resources might be affected, a historic preservation architect and a structural engineer with relevant experience) must prepare and implement a vibration monitoring program to document and report any changes or damage to potentially affected structures.
The EIR imposes extensive requirements for the vibration monitoring program. It must include a study documenting the existing baseline condition of any vibration-sensitive resource and regular monitoring and reporting before, during, and after construction. If vibrations approach pre-established limits, the university must suspend construction and take steps to lower vibration levels or secure the affected structure. If construction activities would imminently endanger historic resources, the Regents must halt construction, use different construction methods, or employ other corrective measures recommended by the monitoring team. Finally, they must repair any vibrationdamaged buildings to their pre-existing condition.
As mitigated, the EIR determined the potential impact from construction vibration would be less than significant.
2.
Citizens contend NOI-2 is illusory because Step 2 allows the Regents simply to list alternative construction methods (i.e., methods that would not cause vibration damage) on a project's building plans but does not actually require them to use those methods. We do not think that this is a fair reading of the EIR. Where alternatives to vibration-causing construction methods are feasible, Step 2 requires the Regents to incorporate them in the building plans. The point is to help ensure that the alternative methods will, in fact, be used. If alternative methods are not used, the Regents would have to operate under the burdensome requirements of step 3, which includes hiring a consultant, surveying nearby sensitive properties, installing sensors, monitoring the properties for damage, halting construction if damage occurs, and repairing the damage. We agree with the Regents that Citizens are misconstruing the EIR.
Next, Citizens assert the EIR should have prohibited pile driving for all future projects that will implement the development plan because there is no evidence it would be infeasible to use alternative construction methods for any such project. (See Guidelines, § 15096, subd. (g)(2) [responsible agency shall not approve project if environmental impacts could feasibly be mitigated].) Here, too, they are mistaken.
First, the Regents are not required to determine whether alternatives to pile driving are feasible. Having mitigated the potential impact, the Regents had no duty to consider the feasibility of additional mitigation measures. (CEQA, §§ 21002, 21002.1, subd. (b); Guidelines, § 15091, subd. (a).)
Second, Citizens fail to grasp the programmatic nature of the development plan EIR. As a program-level planning document, it provides only a general strategic framework for decisions on potential future projects that could, over time, be built to support a projected level of enrollment; with the exceptions of Anchor House and People's Park, it does not commit the university to any specific project and describes them only conceptually. (See Ed. Code, § 67504, subd. (a)(1); Guidelines, § 15168.) The EIR thus appropriately focuses on program-wide issues, leaving detailed consideration of issues specific to potential future projects (including construction methods) to subsequent, project-level EIRs prepared when the impacts of those projects can be predicted with greater accuracy. (See BayDelta, supra, 43 Cal.4th at pp. 1174-1175; Guidelines, §§ 15152, subd. (c), 15146, subd. (a).)
Citizens claim the university "does not intend to provide a new EIR for future individual projects." The EIR states, however, that subsequent projects "will be reviewed to determine whether they are within the scope of the Program EIR. If no new significant effects would occur, and no previously identified significant impacts are made substantially more severe, additional environmental analysis would not be required." But "[i]f a subsequent activity would have effects that are not within the scope of the program EIR, an additional CEQA document (e.g., addendum, subsequent or supplemental EIR, or mitigated negative declaration) would be prepared by tiering from the program EIR and focusing on addressing those significant effects." This is CEQA's standard process for tiering. (See Guidelines, § 15152, subds. (a)-(d), (f).)
It is true, as Citizens observe, that the Legislature has recently exempted certain qualifying student housing projects from CEQA review if they are consistent with the program EIR for the campus's current long range development plan. (CEQA, § 21080.58, subd. (b)(1)(A), added by Sen. Bill No. 886 (2021-2022 Reg. Sess.), Stats. 2022, ch. 663, § 1, eff. January 1, 2023.) Citizens argue future projects will thus escape environmental review. Perhaps so, perhaps not, but this court has no authority to rewrite CEQA to require project-level analyses of all potential housing projects that the program EIR describes only conceptually. (See Guidelines, § 15152, subd. (b) [level of detail in a first tier EIR need not be greater than the program being analyzed]; People v. Foreman (2005) 126 Cal.App.4th 338, 342 ["[w]e cannot and will not do what the Legislature could have but did not do"]; California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633.) The problem, if it is one, requires a legislative, not judicial, solution. In any event, the exemption may or may not apply to any particular future project due to many caveats and conditions in the statute, including a requirement that "[t]he project's construction impacts are fully mitigated consistent with applicable law." (CEQA, § 21080.58, subds. (b)(6), (c)(1)(B).) We express no opinion on how this language-or any other aspect of CEQA section 21080.58- may apply to future projects.
Finally, in their reply brief, Citizens assert that it is "very unlikely" modern materials and artisanship could adequately restore damaged historic resources to their current condition, and therefore Step 3 of the vibration mitigation measure is inadequate. Citizens have forfeited the issue by failing to raise it in their opening brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
C.
Wildfire
Citizens argue the EIR failed to properly analyze and mitigate wildfire-related impacts, specifically (1) the potential increased risk of wildfire ignitions; (2) the project's potential to interfere with wildfire evacuations; (3) the need for more fire protection resources to serve the project; and (4) additional mitigation measures for impacts deemed significant and unavoidable. We conclude the EIR is adequate.
1.
An EIR should consider significant environmental impacts caused or exacerbated by locating people and development in areas subject to wildfires. (League to Save Lake Tahoe v. County of Placer (2022) 75 Cal.App.5th 63, 136 (Save Lake Tahoe); Guidelines, § 15126.2, subd. (a).) This incudes impacts the project may have on residents' ability to evacuate the area according to an adopted evacuation plan. (Save Lake Tahoe, supra, at p. 136.) The Guidelines also advise considering whether aspects of a project, such as slope or prevailing winds, would expose people to pollutants from a wildfire; whether infrastructure such as power lines may exacerbate wildfire risks; and whether the project would expose people to downslope flooding or other risks that may follow a wildfire. (Guidelines, Appendix G, XX.)
The EIR analyzed each of these issues. Most of the development proposed in the long range plan would be urban infill in densely populated areas of Berkeley; the EIR found it is not expected to significantly exacerbate the wildfire-related risks. The EIR also concluded the development plan would not impair emergency access or interfere with adopted emergency response plans. It did find, however, that potential development in a currently undeveloped area (called Hill Campus East), which is in a high risk zone for wildfire and is characterized by rough terrain and heavy vegetation, may expose occupants to wildfire pollutants. Despite adopting mitigation measures, the Regents determined the impact was significant and unavoidable at this early stage of the planning process, given the uncertainty of any development in the Hill Campus East area. Similarly, the Regents found that potential new infrastructure may exacerbate fire risk and expose people to post-fire hazards, despite mitigation, again largely due to uncertainty about such development in the Hill Campus East area.
The two site-specific projects, Anchor House and People's Park, are urban infill projects that are near (but outside the borders of) areas zoned as high fire risks. The Regents found that neither project would cause significant impacts with respect to any of the fire risks discussed in the EIR.
Citizens contend that some aspects of the wildfire analysis violate CEQA's mandate to inform the public. An EIR must offer enough information for a reader to understand and consider the issues raised by the proposed project. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516 (Sierra Club).) This is generally a mixed question of fact and law that we review de novo. (Ibid.) With respect to the EIR's factual determinations, we defer to the Regents' conclusions if they are supported by substantial evidence. (Ibid.)
2.
Citizens claim the EIR did not adequately discuss the project's potential to increase wildfire risk "by bringing more people and development to an already high fire severity zone." In particular, Citizens point to evidence that most fires are caused by humans. They contend the EIR fails to explain how adding more people to a wildfire-prone area would increase the risk of ignitions.
First, we disagree with Citizens that CEQA required more details about the risk that people would ignite fires. The EIR notes a recent study that concluded humans cause 84 percent of wildfires. The point of the study is essentially that humans cause many more wildfires than lightning. Human-caused ignitions have therefore extended the fire season into wetter months, in which lightning is unlikely to cause fires. The EIR captures the relevant point-the presence of humans increases the risk of wildfires. Of course, most of the area at issue here is already densely populated. Citizens do not persuade us that more discussion is required.
Second, the EIR adequately discusses the risk that new development (as opposed to people) may increase fire risks. The EIR examines the increased risk of fire caused by development in the so-called wildland-urban interface-an area where development meets, or is comingled with, undeveloped wildland or vegetation. It identifies the specific areas of proposed development that would be located in these areas, as well as state and federal fire risk zones and the agencies responsible for responding to fires in each zone. It describes the conditions in each area, highlighting, in particular, Hill Campus East. As noted, other than this area, the development plan proposes infill development in urbanized areas with flat topography.
The EIR also discusses factors that would exacerbate wildfire risks, such as vegetation, and features of the project that are intended to limit the risks. The development plan includes possible infrastructure improvements, including potential solar arrays, water systems, and electrical lines; the EIR describes these potential projects, the associated fire risks, and mitigation. It concludes that some fire-related impacts must be deemed significant and unavoidable, largely due to the lack of specific development proposals at this early stage, which precludes a detailed analysis of development in hazardous areas such as Hill Campus East. Given the uncertainties and limited detail of the long term plan, the discussion is sufficient. (Guidelines, § 15152, subd. (b); see Bay-Delta, supra, 43 Cal.4th at pp. 1170-1171.)
3.
Next, Citizens challenge the EIR's discussion of how the projects would affect wildfire evacuations. Citizens want a more detailed analysis-the "specifics of a possible evacuation plan" - including "how many cars will likely be on the roads during a potential evacuation, the capacity of the roads to handle evacuation, and the [sic] how long it will take for evacuation to occur."
Save Lake Tahoe is instructive. Petitioners challenged an EIR for a specific plan that would allow 760 homes, as well as commercial development, to be built on forested land with high fire risks. (Save Lake Tahoe, supra, 75 Cal.App.5th at p. 79.) The EIR concluded that, although the project would add congestion and delay response times, the project would not significantly impair or physically interfere with the county's evacuation plan for the area. (Id. at pp. 133-136.) The project would not close or modify any evacuation routes. (Id. at p. 137.) It would ensure emergency access to the development. (Ibid.) It would comply with rules and regulations (such as vegetation management) to reduce fire risks and provide funding for fire equipment and staff. (Id. at pp. 137-138.) The court thus held that substantial evidence supported the EIR's conclusion. (Id. at pp. 136-143.)
In reaching its conclusion, the court rejected the petitioners' arguments that the EIR was required to provide more details, such as how much the project would increase evacuation times, why the increase would not create a safety risk, how a major evacuation route would be affected, and how a mass evacuation would change response times. (Save Lake Tahoe, supra, 75 Cal.App.5th at p. 138.) The court noted that wildfires and evacuations pose so many variables that it was unreasonable to expect the EIR to analyze the many possible scenarios. (Id. at pp. 138-140.) CEQA requires a good faith effort at full disclosure, not an exhaustive analysis, and an EIR is not defective simply because it omits further studies that may be helpful. (Id. at pp. 139-140; see Guidelines, § 15151.)
The same reasoning applies here. The EIR concluded that, although the additional people could add congestion during commute times, the project would not impair or physically interfere with the applicable evacuation plans or impede emergency access. The project includes features to reduce fire risks by managing vegetation, complying with street design criteria for access, identifying evacuation areas, and improving evacuation routes. It would not change circulation patterns or interfere with evacuation routes. Most of the development would be infill in an area that is already densely populated, and it proposes no changes to the existing roadway system. The two site-specific developments, Anchor House and People's Park, are designed to accommodate the relevant emergency response and evacuation plans, including protocols for access during construction activities.
Further detail is also unwarranted because of the long range plan's early stage of development. As explained, the level of detail in a first-tier EIR should correspond to that of the proposed project. (Guidelines, §§ 15152, subd. (b), 15146, subd. (b).) The long range plan is largely a set of general planning objectives and potential land use designations intended to guide future decisions on concrete development proposals; the Regents have not proposed or committed to any development other than the two housing projects, nor to any growth in enrollment. Future development proposals under the long range plan will be designed to accommodate the university's emergency response plans. Development will proceed gradually, allowing site-specific projects to be integrated with evacuation plans, including changes to the plans as the region grows and evolves. A more detailed analysis now would be of limited value. While it may be true that the EIR could have supplied more information, we are not persuaded CEQA requires it.
4.
Citizens argue the EIR failed to analyze the environmental impacts of additional fire protection equipment and facilities first responders may require in the future.
The Regents consulted with the Berkely Fire Department about what it would need to provide fire services to the projects. The department said it anticipated the need for more equipment, staff, and facilities, but it had no existing plans for any particular new or expanded stations. The EIR concluded that analyzing the impacts of new stations was speculative at this time given the unknown size and location of any future facilities.
This is sufficient. Substantial evidence supports the EIR's conclusion that the impacts are unknown at this time, and thus speculative. (City of Hayward v. Trustees of California State University (2015) 242 Cal.App.4th 833, 842 (City of Hayward); Guidelines, § 15145.) The EIR acknowledges that the Regents must mitigate impacts of any future stations that are required to serve the university's growth, and it has pledged to contribute its proportional share of funding for mitigation if and when the department proposes to build a new station. (See City of Hayward, supra, at pp. 842-845.)
To the extent Citizens challenge the EIR's analysis of staffing and equipment the department may need, such as a new Battalion Chief and an aerial ladder truck, CEQA does not apply. CEQA applies to environmental impacts. (See CEQA §§ 21002, 21002.1, subds. (a)-(b), 21060.5 [defining" 'environment' "].) It does not apply to new equipment and staffing or to firefighting services generally. (City of Hayward, supra, 242 Cal.App.4th at p. 843].)
5.
Citizens argue the EIR should have adopted mitigation measures (or explained why they are infeasible) for two wildfire impacts deemed significant and unavoidable. But Citizens identify no specific mitigation measures the Regents should have adopted; instead, they simply refer us to Alameda County's Community Wildfire Protection Plan. It is not our role to develop the parties' arguments for them. The issue is forfeited. (See Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266 (Defend the Bay).)
Baseline
We reject Citizens' arguments that the EIR did not sufficiently explain baseline conditions with respect to several impact analyses.
An EIR must describe the existing physical environmental conditions of the project area. (See Guidelines, § 15125, subd. (a).) Once these baseline conditions are established, the lead agency can determine whether the project will cause any significant changes to the environment. (Ibid.)
First, Citizens argue the Regents failed to describe the existing conditions necessary to measure the impact of shadows from the People's Park project on adjacent historical buildings. As we explain above, however, there is no fair argument that shadows may cause a significant impact on historical resources. The Regents are not required to discuss baseline conditions unrelated to an impact. (See Guidelines, § 15125, subds. (a), (c).)
Second, Citizens contend the EIR does not adequately describe existing geological conditions. The EIR describes the geological conditions in the area, including the People's Park site. Citizens' argument is unclear. In their opening brief, they do not explain what the EIR does say about the baseline conditions or what, precisely, is missing. Instead, they refer us to a comment letter from an expert and include quotes from the expert complaining about the lack of data in a technical appendix to the EIR. Appellants must make a proper, complete argument in the opening brief; the court will not piece it together for them. The issue is forfeited. (See Defend the Bay, supra, 119 Cal.App.4th at p. 1266.)
Third, Citizens dispute the baseline noise data for traffic and air conditioners at the Anchor House site. They cite an expert who argued, in comments on the draft EIR, that the Regents should have used current (measured) noise conditions for traffic rather than data from a model, which she opined may be too low by 6 dBA. The final EIR, however, explained that the modeled data better represents current noise levels because the pandemic had disrupted normal traffic in the area. Moreover, the final EIR calculated that the impact would still be insignificant even if the baseline noise levels were 6 dBA higher. Substantial evidence supports the Regents' methodology and conclusions.
Citizens' remaining contentions on baseline conditions are undeveloped and forfeited.
DISPOSITION
Because we find no merit to Citizens' arguments, we make no change to the disposition ordered in Good Neighbor, supra, 88 Cal.App.5th 656.
The Regents and the Helen Diller Foundation are entitled to costs on appeal. (Cal. Rules of Court, rule 8.278.)
We concur: JACKSON, P.J., SIMONS, J.