San Francisco Chronicle
Project OKd on shellmound
State court won’t review plan to build apartments on ancient site
The state Supreme Court cleared the way Wednesday for construction of a housing and retail complex in West Berkeley on the site of an ancient shellmound burial ground of the Ohlone tribe.
The project, challenged by Berkeley and the tribe, would build 260 apartments, half of them priced for lowerincome households, on what is now the parking lot of the former Spenger’s restaurant, which closed in 2018, at 1900 Fourth St.
The land was first occupied 4,900 years ago, according to a UC Berkeley anthropologist, and was in use as a sacred burial ground for at least 3,700 years. Human remains were unearthed from the site in 1950.
Berkeley officials, supported by the Ohlone tribe Confederated Villages of Lisjan, rejected the plan in 2018 and said the site was a landmark. An Alameda County judge ruled in their favor in 2019 but was overruled this April by the First District Court of Appeal in San Francisco, which said the development would serve the urgent public need for housing and
would not harm the historic underground site.
The state’s intrusion into local government authority over land use is justified in this case “in light of the Legislature’s long history of attempting to address the state’s housing crisis and frustration with local governments’ interference with that goal,” Presiding Justice J. Anthony Kline said in the 30 ruling.
Berkeley and the Ohlone tribe appealed to the state’s high court, but the court denied review Wednesday. Four votes are needed for review by the sevenmember court, but only Justice Leondra Kruger voted to grant review. Justice Carol Corrigan was absent.
Raymond Cardozo, a lawyer for the property manager, said the court’s action reaffirms the developer’s “right to proceed with construction and deliver badly needed affordable housing to Berkeley.”
Tom Lippe, lawyer for the tribe, said the tribe was disappointed and would “review its remaining legal options to protect this sacred Ohlone shellmound from destruction.”
In the appeals court decision, Kline said Berkeley’s own report had found that the heart of the West Berkeley shellmound was west of the project site. He said remnants beneath the development site, most likely deposited there by creeks or other projects, consisted of “a thin layer of crushed shell” rather than any actual structures that would be destroyed by further development.
Under a 2018 state law, Kline said, a local government that has failed to provide its share of “regional housing needs” must approve multifamily residential projects in properly zoned urban areas — unless the development “would require the demolition of a historic structure.”
The case is Ruegg & Ellsworth vs. Berkeley, S269012.