Courts have decided that this 260-unit project at 1900 Fourth St. can be built. Half of the units will be affordable. Credit: TCA Architects

The California Supreme Court declined on Wednesday to hear an appeal on a proposed housing complex at 1900 Fourth St., clearing the way for the construction of the complex on contested Ohlone land.

The decision means that the owners of the property, Ruegg and Ellsworth and the Frank Spenger Company, can start construction of a 260-unit apartment building with 50% affordable housing and 27,500 feet of retail and parking space. The owners have been trying to build something on the lot, which forms a major part of the Fourth Street shopping district, for more than a decade.

“This is a very disappointing result,” said Tom Lippe, an attorney for the Confederated Villages of Lisjan, a party in the lawsuit. “We’re trying to digest it.”

The empty lot sits in the last open section of the West Berkeley shellmound, a three-block area the city of Berkeley declared a landmark in 2000. Members of the Ohlone community and the Confederated Villages of Lisjan had joined with the city of Berkeley to argue that construction would destroy the landmarked structure. While an Alameda County Superior Court judge found that argument compelling in October 2019, higher courts did not and have voted to allow the development to proceed.

This lawsuit stems from 2018, when the land’s owners applied for quick approval of the project under a new state law, SB 35, which allows for ministerial approval if 50% or more of a project’s units are affordable, as this one’s are.

Berkeley turned down the SB 35 request and said the project needed to go through its normal design review. A city staff analysis said the application conflicted with the city’s Affordable Housing Mitigation Fee requirements. Another concern, the city stated, was that the plan would segregate the affordable units from the other units, and this is discouraged under Berkeley law.

Ruegg and Ellsworth and the Frank Spenger Company sued to overturn the city’s ruling.

Contested land

As the case made its way through the courts, the vacant lot grew in symbolic importance for the Ohlone community. While the developers insisted extensive archeological and historical investigations revealed no intact cultural resources, members of the Ohlone community said that argument missed the point. It was important to look at the entirety of the shellmound area, not just one spot, to understand its importance, some Ohlones argued. And since this was the only remaining open area, it should be preserved. In September, the National Trust for Historic Preservation included the parking lot on its list of the 11 most endangered historic places in the U.S.

An earlier proposal for the space, done by another developer, would have included an area set aside for the Ohlones to construct a community center or other space, but Ohlone community members turned down that offer in order to try to save the entire parking lot.

mural on ground
Mural of the West Berkeley shellmound on Fourth Street on March 20, 2021. Credit: Staci Prado.

In March, hundreds of people gathered and danced on Fourth Street to protest against the development and support indigenous rights. They painted “Sacred Site” and “Berkeley Shellmound” in bright red on the street in front of the parking lot, which at that time was surrounded by a 6-foot-high fence topped by barbed wire. Supporters of the shellmound complained that the fence prevented them from spending time on the sacred site. The fence and barbed wire have now been taken down.

Ceremonies declaring the parking lot a sacred site are continuing. On Saturday, Urban Adamah, a Berkeley-based urban farm with a Jewish focus, and Jews on Ohlone Land, which encourages non-indigenous people to donate to a native land trust to rematriate Ohlone remains, are planning an evening ceremony.

Many individuals have made their way to 1900 Fourth St. to hang signs and lay down flowers and feathers in support of the shellmound.

Update: Corrina Gould sent this statement after publication: “The Confederated Villages of Lisjan are disappointed with the recent court ruling, but we continue to have faith,” Gould wrote in an email. “We have been here in our traditional territories since the beginning of time.  We have an unbroken tie to our lands and sacred sites and have continued to survive through the multiple waves of genocide here on our homelands since first contact.  We thank the city of Berkeley, our legal team, faith leaders,  organizing committees, our donors, our friends, relatives and all of the amazing communities that continue to stand with us as we move towards a better world for ALL that now live in our homelands.  Our ancestors have brought us all together for a purpose higher than ourselves and I have faith in them.”

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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...