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Appeals court rules apartment complex can go up at site Ohlone consider sacred site

By Frances Dinkelspiel, Berkeleyside, April 21, 2021

“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 Lisjon, 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.

“[Frank Spenger Co.] have tried to get a project approved on the land for years, first through Berkeley’s normal development channels, and then in an expedited process through SB 35, which allows some projects with 50 percent affordable housing to be almost automatically approved.

“Even though the Spenger’s parking lot project met those criteria, the city rejected the application because the site was a designated city landmark. A city staff analysis also said the application conflicted with the city’s Affordable Housing Mitigation Fee requirements. Berkeley also raised the question of whether the project fit into SB 35’s definition since it incorporates 27,500 square feet of retail and parking.

“ ‘We are disappointed the court did not preserve the city’s ability to protect the below-ground elements of the shellmound,’ said [Berkeley] Mayor Jesse Arreguín.

“The Chochenyo-speaking Ohlone Indians inhabited West Berkeley for thousands of years prior to European contact. Their diet included clams, oysters and abalone, and they discarded the shells and other materials into mounds. Occasionally, the Natives buried their dead in the mounds. Historians believe there were more than 400 shellmounds around the Bay Area. The Ohlone abandoned West Berkeley 600 to 800 years ago.”

Read the full article here. (~4 min.)

[Ed. note: Alan Murphy, an attorney at Perkins Coie LLP, writes that the court found Berkeley’s historical preservation decision is the kind of barrier to affordable housing development that the Legislature sought to restrict through SB 35. Read his analysis in Northern News here. Separately, AB 168, in effect since September 25, 2020, added a tribal consultation requirement to SB 35 projects, closing a potential loophole allegedly used by the developers.]

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