Judge rules against developers in West Berkeley Shellmound lawsuit

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An Alameda County Superior Court judge denied a streamlined approval process for the construction of a mixed-use housing complex on the historical West Berkeley Shellmound on Monday, putting an end to a nearly year-long legal battle between developers, the city of Berkeley and community members of the Ohlone tribe.

Development on the West Berkeley Shellmound has been a point of contention since 2015, when developers Ruegg & Ellsworth and the Frank Spenger Company first filed for a permit with the city of Berkeley to construct a mixed-use building on the site. Community members and members of the Ohlone tribe have since pushed to halt development on the site, citing the West Berkeley Shellmound’s status as a historical structure.

“The Ohlone heritage has been demolished, ignored, disregarded and belittled,” said Tom Lippe, counsel for the Confederated Villages of Lisjan, an Ohlone tribe of the East Bay. “It’s time to honor the heritage and the spiritual benefit that the Ohlone people derived from being able to honor their ancestors where they lay.”

After the city of Berkeley rejected an application to streamline the development process on the West Berkeley Shellmound site in 2018, developers filed a lawsuit against Berkeley to compel the city to approve the project under SB 35. Under this bill, housing projects that designate a specified minimum percentage of units as affordable housing may undergo an expedited approval process.

In his Monday ruling, Judge Frank Roesch declared that the proposed project does not meet the requirements for the expedition process under SB 35, which went into effect in January 2018, marking a win for the city and community members of the Ohlone tribe.

“I’m extremely happy with the way that the judge ruled in favor of protecting the sacred sites of our ancestors,” said Corrina Gould, traditional tribal spokesperson for the Confederated Villages of Lisjan.

Jennifer Hernandez, partner at the law firm Holland & Knight — which is representing Ruegg & Ellsworth and the Frank Spenger Company — said developers are “deeply disappointed” with the ruling and are evaluating their next steps.

Dana Ellsworth, Ruegg & Ellsworth director of acquisition, declined to comment.

In his ruling, Roesch said the development project in consideration does not meet the requirements for a streamlined review process under SB 35 for several reasons.

The bill disqualifies projects that require the demolition of a historic structure placed on a local, state or national register. Although developers claimed in their petition that the remnants of the West Berkeley Shellmound, which are located entirely underground, do not constitute a historical “structure” and thus cannot be protected as such, Roesch ultimately ruled otherwise.

Furthermore, the proposed project designates the first floor for commercial use. As SB 35 does not support mixed-use developments, the project is ineligible for streamlining, according to Roesch.

“I am happy that Judge Roesch recognized the right of local communities to designate and protect our historic sites and that SB 35 does not apply to mixed use projects,” said Berkeley Mayor Jesse Arreguín in an email. “The power of local governments to landmark culturally significant buildings and sites is essential to the vibrancy and quality of life of our cities and must be protected.”

City attorney Farimah Brown added that the city has previously approved other SB 35 applications for projects that “do not impact landmarked structures,” and will continue to evaluate and approve affordable housing projects that comply with SB 35’s requirements for streamlined review.

According to Lippe, developers have a number of options moving forward. They can choose to continue the discretionary review process for either their first or second application to the city of Berkeley, both of which would require them to create an environmental impact report under the California Environmental Quality Act.

Alternatively, developers can choose to appeal Monday’s ruling, taking the case to a higher court.

“This ruling is important because it recognizes SB 35’s recognition of the importance of cultural heritage in development,” Lippe said. “California and the city of Berkeley have done the right thing, and so has this judge.”

Contact Amber Tang at [email protected] and follow her on Twitter at @ambertang_dc.