Ruegg & Ellsworth v. City of Berkeley

Opinion

KLINE, P. J.—Ruegg & Ellsworth and Frank Spenger Company applied to the City of Berkeley (City) for approval of a mixed-use development pursuant to Government Code section 65913.4, which provides for streamlined, ministerial [**2]  approval of affordable housing projects meeting specified requirements and conditions. The City denied the application for failure to meet several statutory requirements. Appellants now appeal the trial court's denial of the petition for writ of mandate by which they sought to require the City to grant their application. For the reasons explained herein, we will reverse the judgment and remand with directions for the trial court to grant the writ petition.

BACKGROUND

In 2015, appellants submitted an application for a mixed-use development at 1900 4th Street (Spenger's parking lot) in Berkeley with 135 apartments [*287]  over approximately 33,000 square feet of retail space and parking. The project site is the block bordered by Hearst Avenue on the north, University Avenue on the south, Fourth Street on the east, and the Union Pacific Railroad tracks (Third Street) on the west.

The development site is part of a three-block area the Berkeley Landmarks Preservation Commission (Commission) designated a City of Berkeley landmark in 2000, as the location of the West Berkeley Shellmound (CA-ALA-307) (Shellmound).¹ The Shellmound is listed in the California Register of Historical Resources.

As described [**3]  in the City's landmark application, the Shellmound “is believed to have been one of the first of its kind at the Bay's edge, built ca 3,700 B.C.,” 1,000 years before the first pyramid.² Shellmounds were “sacred burial sites for the average deceased mound-dweller,” slowly constructed over thousands of years from daily debris and artifacts left by the tribelet communities that lived on the site. “The importance of the shellmounds should not be underestimated.” Shellmounds contained “ritual burials exhibiting a variety of deliberate, traditional positioning and use of burial goods” and “[e]ven to this day, native descendants value these mounds as sacred resting sites of their early ancestors.” In 1950, a University of California, Berkeley archeologist removed “numerous artifacts and 95 human burials” from the Shellmound. Other findings from the Shellmound include a section of the floor of a “large, presumably ceremonial house,” firepits, burials revealing ceremonial red paint and “mortuary goods,” animal burials, food debris, and artifacts providing information about diet and means of food collection, shell beads, and stone and bone tools.

The decision approving the West Berkeley Shellmound [**4]  as a City landmark states that the Shellmound “is most highly significant to native descendants as a sacred burial ground,” its “cultural resource lies in its age, the fact that it is the oldest and one of the largest mounds established around the bay, that it represents ancient culture, that it was built by the earliest humans in the area,” that “it is recognized that this historical resource has yielded and is likely to yield information ‘important in prehistory or history,’” and that “the Shellmound plays an important role in the history of the changing shoreline and the change in attitude towards the use of natural resources.” The [*288]  landmark designation does not include any above ground buildings or structures; it included “the site itself and all items found subsurface including artifacts from the earliest native habitation, such as but not limited to native tools, ornaments, and human burials.”

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