In
Ruegg & Ellsworth v. City of Berkeley, Cal.App.5th (2021) (Case No. A159218), the first published appellate decision addressing Senate Bill 35, the First District Court of Appeal reversed a trial court decision in favor of the City of Berkeley regarding a project with apartments over retail filed under the provisions of Senate Bill 35. The Court of Appeal rejected all of the City’s arguments, reversed the trial court in all respects, including its use of a deferential standard of review, and required the City to issue the requested ministerial permit approving the project.
Codified in Government Code section 65913.4 after its enactment in 2017, SB 35 is one of numerous measures the California Legislature has adopted to address the crisis of insufficient housing in the state. SB 35 requires a “ministerial approval process” for certain affordable housing projects when a city has failed to provide its share of “regional housing needs, by income category.” In
Court rules development can proceed on West Berkeley Shellmound
Vanessa Lim/Staff
A ruling by California Court of Appeal for the First District allows for a housing complex to be built on the parking lot on a sacred Ohlone shellmound and historic village in West Berkeley.
A state appellate court ruled April 20 that a proposed housing and retail complex can be built in the parking lot on a sacred Ohlone shellmound and historic village in West Berkeley.
The West Berkeley Shellmound at 1900 Fourth St. has been a site of contention over the past four years. The development was initially halted by the city of Berkeley in 2018, and its decision was upheld by an Alameda County judge in 2019.
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 Lusjon, 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.
Court OKs housing development at site of Ohlone shellmound in Berkeley
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A state appeals court has ruled that a proposed apartment and retail complex can be built on the Spenger’s restaurant parking lot. There is a dispute over whether the site overlaps an ancient shellmound burial site of the Ohlone tribe.Paul Chinn / The Chronicle 2018
A proposed housing and retail complex in West Berkeley can be built in a parking lot at the site of an ancient shellmound burial ground of the Ohlone tribe, a state appeals court says, because it would not destroy any structures in the underground site.
Preserve and restore West Berkeley Shellmound and Village Site
CITY AFFAIRS: Immeasurable cultural, religious significance of shellmound to Ohlone people should be reason enough to halt plans for development
Rachel Lee/Staff
Crossing the city limit into Berkeley, drivers pass a sign that reads, “Welcome to the City of Berkeley: Ohlone Territory.” Berkeley City Council added this land acknowledgment in 2019 to remind residents and make it known to new and returning visitors that Berkeley rests on the ancestral land of the Ohlone people.
It’s clear, however, that many still do not respect the Ohlone claim to this ground.
Since 2018, a private developer has been vying to construct housing and retail on the West Berkeley Shellmound and Village Site. After the City Council denied the developer’s request to build, the developer sued. Just recently, the developer enclosed the site with fencing a move that rightfully upset Ohlone activists.