The California Court of Appeals ruled this week that this 260-unit project at 1900 Fourth St. can be built. Credit: TCA Architects

The owners of the old Spenger’s parking lot at 1900 Fourth St. have the right to build a 260-unit complex there despite the opposition of the city of Berkeley and the Confederated Tribes of Lisjon, the California Court of Appeal ruled Tuesday.

While members of the Ohlone community and the city contend the construction would destroy a historic structure, a shellmound that has existed for 4,900 years, the court disagreed. It pointed out that any remnants of the shellmound disappeared long ago and any remaining remnants are now underground. So there is no historic structure that will be destroyed, the court ruled.

“There is no evidence in the record that the Shellmound is now present on the project site in a state that could reasonably be viewed as an existing structure, nor even remnants recognizable as part of a structure,” the judges wrote.

The ruling is a victory for Ruegg & Ellsworth and the Frank Spenger Co., which have owned the property for decades. The companies have tried to get a project approved on the land for years, first through Berkeley’s normal development channels, and then in an expedited process through SB 35, which allows some projects with 50% affordable housing to be almost automatically approved.

Berkeley rejected the project in September 2018. The developers sued, but an Alameda County Superior Court judge ruled in November 2019 that Berkeley was within its rights to reject the project.

Ruegg & Ellsworth and the Frank Spenger Co. appealed that ruling. The judgment handed down this week affirmed the property owners’ rights and rejected Berkeley’s actions.

The Campaign to Save the West Berkeley Ohlone Shellmound held a gathering on Fourth Street on March 20 to protest a fence put up around the old Spenger’s parking lot. Credit: Pete Rosos

For members of the Confederated Tribes of Lisjan and their supporters, the ruling is crushing. It means that a large housing project can be built on the last open section of the West Berkeley Shellmound, a three-block area the city of Berkeley declared a landmark in 2000. Just last month, Native Americans and community members held a protest against the development at the site and painted “Sacred Site” on the street.

Corinna Gould, the chair of the Confederated Villages of Lisjan, issued a statement today about the court’s decision.

“The Confederated Villages of Lisjan is extremely disappointed in the court’s ruling and strongly disagrees with the court’s view that the West Berkeley Shellmound and Village Site is not a historic structure,” Gould said. “This 5,000-year-old sacred site is not an appropriate place for a housing and commercial development. The tribe is consulting with our counsel whether to ask the California Supreme Court to reverse this decision.”

“There has been a significant amount of misinformation about the parking lot site for many years,” Jeffrey Anhalt, the risk manager for Rue-Ell Enterprises, Inc., which manages property for Ruegg and Ellsworth, wrote in an email. “The decision should help clarify that the site is just part of a three-block area that Berkeley landmarked and that extensive archeological and historical investigations at the parking lot site revealed no evidence of any intact cultural resources, nor even remnants recognizable as part of a structure. While there were shellmounds in the area, the overwhelming evidence is that no shellmound was ever present at the parking lot/development site.”

The ruling also took issue with Berkeley’s rejection of the proposed complex under SB 35. That law, which went into effect in January 2018, required cities that had not met their regional housing requirements to allow over-the-counter approval for projects with 50% affordable housing.

Even though the Spenger’s parking lot project met those criteria, the city rejected the application because the site was a designated city landmark. A city staff analysis also said the application conflicted with the city’s Affordable Housing Mitigation Fee requirements. Berkeley also raised the question of whether the project fit into SB 35’s definition since it incorporates 27,500 square feet of retail and parking.

Berkeley had argued in court that since it is a charter city it had the right to protect projects it had deemed local landmarks. The court disagreed.

“We are disappointed the court did not preserve the city’s ability to protect the below-ground elements of the shellmound,” said Mayor Jesse Arreguín.

The City Council will discuss the matter in the coming weeks to decide if Berkeley wants to appeal the ruling, he said.

The owners of the property said the court’s recognition that Berkeley was wrong to reject the application means there will soon be more affordable housing in Berkeley.

“The decision recognizes that Berkeley violated state law and wrongfully denied a property owner its statutory and constitutional right to proceed with an affordable housing development that is badly needed to help alleviate the state’s and indeed Berkeley’s own affordable housing crisis,” said Anhalt. “The long-stalled development project should now be cleared to proceed, so it is important that Berkeley mitigate any ongoing damages by eliminating any further roadblocks.”

The Chochenyo-speaking Ohlone Indians inhabited West Berkeley for thousands of years prior to European contact. Their diet included clams, oysters and abalone, and they discarded the shells and other materials into mounds. Occasionally, the Natives buried their dead in the mounds. Historians believe there were more than 400 shellmounds around the Bay Area. The Ohlone abandoned West Berkeley 600 to 800 years ago.

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman Created California, published in November...