The city of Berkeley and the Confederated Villages of Lisjan (Ohlone) filed an appeal May 28 to the California Supreme Court against a housing development on the West Berkeley Shellmound.
The appeal would force Ruegg & Ellsworth and the Frank Spenger company, the developers building a project on the shellmound, to adhere to the city’s usual zoning approval process, according to a petition filed by lawyers for the city and Lisjan Ohlone people. The petition notes that construction on the site would result in the destruction of a “sacred local Ohlone landmark” without any mitigation measures in place.
“While I appreciate that the Court of Appeal’s recognition of the importance of the West Berkeley Shellmound, which the Court acknowledged was first occupied nearly 5,000 years ago, I am disappointed the Court did not preserve the City’s ability to protect the below-ground elements of the shellmound,” said Berkeley Mayor Jesse Arreguín in an email.
The current property, a parking lot located at 1900 Fourth St., will become a housing complex with about half of the apartments designated for affordable housing, the petition adds. The Shellmound site is a designated historic landmark that has served as an Ohlone burial ground for thousands of years, according to Berkeley City Councilmember Sophie Hahn.
Jeffrey Anhalt, risk manager for Rue-Ell enterprises, said the development site would not require the demolition of a historic structure, however, as there is “no evidence” of human remains or artifacts at the site.
“The Ohlone abandoned the shellmounds in medieval times and today the development site is a parking lot,” Anhalt said in an email. “It has been surveyed, drilled, trenched, cored, and studied by teams of archaeologists and other experts for decades.”
The Court of Appeal’s decision raised questions as to how far the state legislature can override requirements in local jurisdictions, according to city attorney Farimah Brown. Brown added that SB 35, which would allow developers to evade local zoning laws in areas not meeting affordable housing requirements, was modified to correct the oversight of tribal resources, and she expressed hope that the state Supreme Court will review the decision.
In 2018, the city halted initial development efforts, and in 2019, that decision was upheld by an Alameda County Superior Court judge. On April 20, the California Court of Appeal for the First District approved the development on the Shellmound site, allowing the developers to bypass the city’s usual zoning process under SB 35.
“Berkeley is built on Ohlone land. The Shellmound is sacred. Our community wants to protect the Shellmound, and the Legislature agrees,” Hahn said in an email. “We owe it to the Ohlone and our children to keep fighting to protect this sacred place.”
