The California Court of Appeals ruled in April that this 260-unit project at 1900 Fourth St. can be built, but the city is asking the Supreme Court to review that decision. Credit: TCA Architects

The city of Berkeley is appealing an April court ruling that green-lighted a large apartment complex at 1900 Fourth Street, continuing a nearly decade-long battle over development on a property considered sacred to the Ohlone tribe.

In its petition for review, filed with the state Supreme Court on May 28, the city cites four technical conflicts with the law in the appeals court’s April decision, which said there were no remnants of historic Ohlone structure on the property slated for a 260-unit apartment complex.

The old Spenger’s parking lot is part of the city’s designated Shellmound landmark along Fourth Street between University Avenue and Hearst Street. Leaders with the Confederated Villages of Lisjan say the site belongs to an area with a shell midden deposit that is nearly 5,000 years old, along with countless historic artifacts, burial spaces and an Ohlone village site with archeological significance.

“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 in April, saying the city should allow ministerial (or automatic) approval of the project.

But the city is once again arguing that the project should go through its regular planning process, which would assess various impacts of the development.

Activists wrapped ribbons and left an altar outside a fence during a protest in March 2021 after property owners set up around the Spenger’s parking lot. Credit: Toby McLeod

“Systemic murder, disenfranchisement, and appropriation of the property of Native peoples was official California policy at statehood, and the City of Berkeley now wishes to protect what little is left of its Ohlone heritage,” the city states in its petition. “But the published decision of the Court of Appeal, reversing the trial court, would compel Berkeley to grant ministerial approval of the destruction of a sacred local Ohlone landmark for the benefit of the ‘constitutionally protected’ rights of developers to build a mixed use project there.”

Building owners Ruegg & Ellsworth and the Frank Spenger Co. couldn’t be reached for comment on the most recent development in the lawsuit, which has been ongoing since the city rejected their project proposal in 2018. They had applied to an expedited process through SB 35 in 2018, which grants automatic approval to some projects with at least 50% affordable housing.

The owners’ representatives have said previously that the parking lot slated for redevelopment never contained historic shellmounds, and that Berkeley’s opposition to the project is a roadblock in mitigating the Bay Area housing crisis, and reaching affordable housing targets in the city.

Should the state Supreme Court take up the case and rule in favor of the city, the project could potentially return to the the city’s regular planning process. Otherwise, the appellate court decision to allow the Fourth Street apartment complex will be final and the project will proceed. The court has an initial 60 days to consider the city’s petition for review, which can then be extended by 30 days for a total 90-day period.

Avatar photo

Supriya Yelimeli is a housing and homelessness reporter for Berkeleyside and joined the staff in May 2020 after contributing reporting since 2018 as a freelance writer. Yelimeli grew up in Fremont and...