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State Supreme Court allows retail housing development to go ahead in Berkeley Shells

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The state Supreme Court on Wednesday cleared the way for the construction of an apartment complicated and retail complicated in West Berkeley at an ancient Ohlon Tribe burial site.

The project, contested by Berkeley and the tribe, will build 260 apartments, half priced for low-income families, on what is now the car park of the previous Spinger Restaurant, which closed in 2018, at 1900 Fourth Street.


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The land was first occupied 4,900 years ago, according to an anthropologist at the University of California, Berkeley, and has been in use as a sacred burial for at fewest 3,700 years. Human remains were exhumed from the site in 1950.

Berkeley officials, with support from the Ahlon tribe of the Confederate villages in Lisjan, rejected the plan in 2018 and said the site was a landmark. An Alameda County judge ruled in their favor in 2019, but was overturned in April by San Francisco’s First District Court of Appeals, which said the development would serve an crucial public need for housing and not harm the historic underground site.

State interference in local government authority over land use is justified in this case “in light of the legislature’s lengthy history of trying to address the state’s housing crisis and frustration with local government interference in this goal,” Justice J. In the 3-0 rule.

Berkeley and the Ohlon tribe appealed to the state Supreme Court, but the court refused to reconsider on Wednesday. Four votes are needed for a review by the seven-member court, but only Justice Leondra Krueger voted to grant the review. Judge Carol Corrigan was absent.

Raymond Cardoso, the estate manager’s attorney, said the court action reaffirmed “the developer’s right to move forward with construction and to deliver much-needed affordable housing to Berkeley.”

Tom Libby, the tribe’s attorney, said he was disappointed and would “review the remaining legal options to protect the sacred Ohlone shells from destruction.”

In the Court of Appeals decision, Klein said the Berkeley Report itself found that the core of West Berkeley Shellmound lay west of the project site. The remains below the development site, likely deposited there by streams or other projects, are made up of a “thin layer of shattered crust” rather than any actual structures that could be destroyed through further development, he said.

Under a 2018 state law, Klein said, a local government that fails to provide its share of “regional housing needs” must approve multifamily housing projects in properly designated urban areas — unless the development “requires the demolition of a historic structure.”

The case is Ruegg & Ellsworth vs. Berkeley, S269012.

Bob Eagleko is a writer for the San Francisco Chronicle. Email: Twitter: Tweet embed

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