We are thrilled to announce that an Alameda County Superior Court judge has ruled in favor of preserving the West Berkeley Shellmound, by dismissing the lawsuit filed against the City of Berkeley by property owners Ruegg & Ellsworth and the Frank Spenger Company. The property owners had filed suit claiming that the City had wrongfully denied their request for permits for fast-tracked development at the West Berkeley Shellound site, under the terms of Senate Bill 35.
“I’m extremely happy with the way that the judge ruled in favor of protecting the sacred sites of our ancestors,” wrote Corrina Gould, traditional tribal spokesperson for the Confederated Villages of Lisjan. Earlier this year, the Confederated Villages of Lisjan joined the lawsuit on the City’s side as an intervenor, submitting arguments to support the City’s position.
Judge Frank Roesch’s ruling affirms that the proposed development project at the West Berkeley Shellmound site does not meet the requirements for approval under SB 35. Importantly, Judge Roesch set precedent by agreeing with the Confederated Villages of Lisjan and the City of Berkeley that the West Berkeley Shellmound constitutes a historic structure, even though it has been demolished above ground. Under the terms of SB 35, a project is disqualified if the project site contains a historic structure. In his ruling, Judge Roesch stated unequivocally:
“A historic structure does not cease to be a historic structure or capable of demolition because it is ruined or buried. That proviso is without basis in the text of the statute and would exclude many of the world’s most beloved archeological treasures, such as Hezekiah’s tunnel in Jerusalem, the Roman ruins in Pompeii, the mausoleum of Qin Shi Huang, the cave cities of Cappacdocia, and the tombs in the Valley of the Kings. Any reading of a statute protecting historic structures that would exclude such features from protection must be rejected.”
“I am happy that Judge Roesch recognized the right of local communities to designate and protect our historic sites and that SB 35 does not apply to mixed use projects,” said Berkeley Mayor Jesse Arreguín in an email. “The power of local governments to landmark culturally significant buildings and sites is essential to the vibrancy and quality of life of our cities and must be protected.”
Property owners Ruegg & Ellsworth and the Frank Spenger Company can still make efforts to pursue development at the West Berkeley Shellmound site, either by appealing the ruling to a higher court, or by returning to one of their two previous applications submitted to the City of Berkeley. Moving forward with either of those earlier applications would require the lengthy process of developing an environmental impact report as outlined by the California Environmental Quality Act.
Meanwhile, for Ohlone people and all supporters of the preservation of Ohlone heritage, this is a time to celebrate a significant, precedent-setting victory! We extend our profound gratitude to all who contributed to making this possible in so many ways, by volunteering your time and expertise, donating to the legal defense fund, writing letters and showing up for many gatherings and meetings.
Lastly, a reminder that the Confederated Villages of Lisjan is still in the red, owing tens of thousands of dollars in legal fees related to protecting the West Berkeley Shellmound. Please consider donating to the Shellmound Defense Fund if you have the means to do so!
Press coverage and legal documents
- 10/22/2019 Berkeleyside: Judge rules for Berkeley in developer’s lawsuit over Spenger’s parking lot
- 10/23/2019 Daily Cal: Judge rules against developers in West Berkeley Shellmound lawsuit
- 10/22/2019 Daily Cal: Alameda County judge rules in favor of city of Berkeley in lawsuit against 1900 Fourth Street developers
- 9/13/2019 Opposition brief submitted by Confederated Villages of Lisjan to the Alameda County Superior Court (PDF, 29 pages)