Posted by: Patricia Salkin | April 20, 2021

CA Appeal Court Holds Native American Tribal Cultural Resource Protections Did Not Apply Retroactively

This post was authored by Matthew Loescher, Esq.

Ruegg & Ellsworth and Frank Spenger Company applied to the City of Berkeley for approval of a mixed-use development pursuant to Government Code section 65913.4, which provided for streamlined, ministerial approval of affordable housing projects meeting specified requirements and conditions. The City denied the application for failure to meet several statutory requirements. In this case, Ruegg & Ellsworth and Frank Spenger Company appealed the trial court’s denial of the petition for writ of mandate by which they sought to require the City to grant their application.

At the outset, the court noted the City’s determinations that remnants of the Shellmound existed on the site and that the project would require destructive excavation at least 10 feet underground were not “entirely lacking in evidentiary support.” As such, the court held the City did not abuse its discretion in determining the project would require demolition of a historical structure. The question of whether the Shellmound was a “structure” within the meaning of section 65913.4, subdivision (a)(7)(C), was a question of statutory interpretation, which was a legal issue to be reviewed de novo. Here, there was no evidence in the record that the Shellmound was present on the project site in a state that could reasonably be viewed as an existing structure, or remnants recognizable as part of a structure. As to tribal cultural resources, the court noted the DEIR for the 2015 project concluded impacts on the Shellmound would be reduced to “a less-than-significant level” by the mitigation measures appellants had agreed to, and appellants confirmed in connection with the 2018 application that they intended to provide “archeological and tribal monitoring during all ground-disturbing activities” despite there being no requirement for CEQA compliance under section 65913.4. Consequently, Respondents’ determination that appellants’ project would require demolition of a historic structure that was placed on a historic register could not be upheld on the record.

CVL next claimed that if the court reversed the decision denying ministerial approval, Assembly Bill 831’s tribal cultural resource protections should be applied to the project despite the fact that they were not enacted until after appellants’ application, respondents’ denial and the trial court proceedings. Additionally, CVL contended that denying retroactive application of Assembly Bill 831 required attributing to the Legislature an intent to “deprive California tribes of the consultation procedures provided in CEQA for projects submitted for SB 35 processing during the roughly three-year time period between the effective date of SB 35 on January 1, 2018, and that of AB 831 on September 28, 2020.” The court rejected this argument, finding the fact that the Legislature allowed for some projects to proceed despite not having been subjected to tribal consultation with respect to potentially threatened cultural resources did not mean the Legislature intended to “deprive” tribes of protections, only that it was accounting for the interests of those who relied upon section 65913.4 prior to Assembly Bill 831’s effective date.

Respondents lastly argued that applying section 65913.4 to mixed-use developments interfered with the City’s home rule authority to regulate commercial uses. Here, the Berkeley Municipal Code required a use permit, with public hearing, where the retail space in a mixed-use development comprised 20,000 square feet or more. While the overall “multifamily housing development” eligible for ministerial approval was not subject to a conditional use permit, nothing in section 65913.4 required or allowed ministerial approval of a development that included commercial uses conflicting with local zoning. To be eligible for ministerial approval, the proposed development was required to be “consistent with objective zoning standards, objective subdivision standards, and objective design review standards” established by the locality the statute, reasonably related to resolving the statewide interest in alleviating delays and obstacles to development of affordable housing projects, did not unduly interfere with the City’s land use authority.

Ruegg & Ellsworth v City of Berkeley, 63 Cal. App. 5th 277 (4/20/2021)

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