Judge rules for Berkeley in developer’s lawsuit over Spenger’s parking lot

A photo simulation of a 260-unit housing and commercial project proposed on the Berkeley Shellmound landmark on the Spenger’s parking lot. Image: TCA Architects

An Alameda County Superior Court judge ruled in favor of the city of Berkeley on Monday in a case about whether a developer should have been given streamlined approval to build a mixed-use housing complex on land protected by the city as a landmark due to its historic significance to the Ohlone people.

The owners of 1900 Fourth St., known locally as both the West Berkeley Shellmound landmark and the Spenger’s parking lot, had attempted to get permission from the city to develop the parcel quickly, with minimal public process, under Senate Bill 35 (SB35). The city had denied the application, which was the first in the state, in part because the property is a city landmark. Native American community members of the Ohlone tribe, along with their supporters, have pushed hard to stop development on the Fourth Street parcel, saying the sacred site was home to their ancestors.

After the developers filed a lawsuit in November 2018, the city argued it had been allowed to deny the SB35 application because of the parcel’s landmark status. Judge Frank Roesch ultimately agreed. Roesch heard arguments in the case in September and issued his ruling Monday, as first reported by the Daily Californian. The student newspaper reported late Tuesday night that a decision had been made in the city’s favor, but provided no further detail about it.

In his ruling, obtained by Berkeleyside, Roesch said the city could legitimately deny Ruegg & Ellsworth’s SB35 application even though there are no significant structures on the property and a 2014 archeological analysis, among other research, found little of historic value on the site. That lack of “strong evidence” did not undermine the city’s position under the law, according to Roesch, because the city managed to provide some documentation backing up the claims of historical significance at 1900 Fourth.


“Even in the face of the strong evidence from the 2014 archeological research, the Court cannot conclude that the City abused its discretion when it found that remnants of the Shellmound exist on the site because that decision is not entirely lacking in evidentiary support,” he wrote. “Nor did the City abuse its discretion in finding that the project would require destructive excavation at least 10 feet underground.”

The developer has excavated parts of the site already but the city — along with The Confederated Villages of Lisjan, an Ohlone group that joined the city in the lawsuit — had said more work must be done before rejecting the assertions of historical and spiritual merit on the property. Human remains and other items of significance have been found near the 1900 parcel, but the site itself has revealed little of note.

The judge said in his Oct. 21 ruling that the mixed-use nature of the project proposed at 1900 Fourth also essentially eliminated it from consideration as an SB35 project because the law — under his interpretation — says any project with “non-residential uses for which a discretionary permit is otherwise required” is ineligible.

City attorney Farimah Faiz Brown said by email that the judge’s ruling was a win for local control.

“The Court’s decision affirms the City’s right to exercise local control over development proposals that impact landmarked structures, as well as its right to exercise discretion over the approval of commercial development projects,” she wrote. “The City has approved other SB 35 applications for projects that do not impact landmarked structures, and the City will continue to review and approve affordable housing projects that meet SB 35’s requirements for streamlined review.”

Corrina Gould, of The Confederated Villages of Lisjan, said by email that the group was pleased with the judge’s ruling because it “recognizes our sacred site, the West Berkeley Shellmound as a historic structure alongside other historic structures.” She said the group had received “abundant and generous support” from “multiple and diverse communities,” including the city and attorneys Tom Lippe, Michelle La Pena and Darcie Houck.

“In addition, we are especially grateful to our Indigenous ancestors. At this time, we are hopeful and continue to be in prayer that this sacred site remain protected for the future generations of the Lisjan Tribe as well as those that now call the Bay Area home,” she wrote.

Berkeleyside has asked Ruegg & Ellsworth to comment on the ruling, including whether an appeal might be filed in the case. Berkeleyside will update this story if that information becomes available.

The 1900 Fourth project was set to include 260 units of housing, including 130 units for tenants making up to 80% of the area median income. The project had also proposed about 28,000 square feet of commercial space.

Update, Oct. 23, 4 p.m. Jennifer Hernandez of law firm Holland & Knight, which represented Ruegg & Ellsworth in the lawsuit, said her clients are still weighing their options about possible next steps.

“The bottom line is we’re very disappointed. This was an opportunity to bring 130 affordable units to Berkeley on a quintessentially underutilized site,” she said Wednesday afternoon. “This is a privately-owned site. It’s not going away.”

This story was updated just after publication to include a comment from the city attorney.