California Supreme Court denies review in Berkeley Shellmound case

By Wendel Rosen LLP, August 2, 2021

“In an exciting development regarding the validity of SB 35, the California Supreme Court on July 28, 2021, denied review of a recent First District Court of Appeal decision, Reugg & Ellsworth v. City of Berkeley that found that the City violated the law and wrongfully denied a mixed-use project on a site with possible tribal cultural resources.

“In 2019, an Alameda County trial court judge ruled in favor of the City and concluded that SB 35 does not permit ministerial processing for mixed-use projects unless a local agency’s zoning mandates that all projects in that zone be at least 2/3 residential by square footage.

“In April 2021, the Court of Appeal overturned the trial courts decision and issued the first published opinion interpreting SB 35. The Court of Appeal found that the project met all objective standards and acknowledged there was a ‘crisis of insufficient housing in the state by eliminating local discretion to deny approval where specified objective planning criteria are met’…

The court found no evidence that the Spengers’ parking lot was an ‘historic structure’ and specifically stated that the SB 35 carve-out for historic structures was not intended to apply to structures that may, potentially, have once existed but, rather, only to existing historic structures.

“Justice Kline boldly stated that the state’s intrusion into local government authority over land use is warranted 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.’ ”

Read the full article here(~3 min.)

Previously in Northern News: Alan Murphy, a Land Use, Development, and Environmental Attorney with Perkins Coie LLP, San Francisco, provided background and analysis on the Court of Appeal’s April 2021 decision to rule against Berkeley.

[Ed. Note: Read amicus letters filed in support of the Confederated Villages of Lisjan and City of Berkeley’s now-denied appeal 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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