A lawsuit brought by West Berkeley landowners against the city may force the City Council to review the landmark status of one disputed corner of the West Berkeley Shellmound.
The suit was filed last December by the 620 Hearst Group, White West Properties and Richard and Charlene deVecchi, all of whom own land on the west side of Second Street between University and Hearst avenues. They charge that their properties do not, in fact, lie on top of the subterranean mound.
The plaintiffs, represented by Walnut Creek attorney Christian Carrigan, hold that the various city agencies that have studied the Shellmound, an ancient Native American site that today lies buried, have never had proof that the Shellmound was on their property. In fact, they say, many of the studies performed by the city show the contrary.
Furthermore, they charge, their appeal of the Landmarks Preservation Commission’s designation of the Shellmound as a landmark was never properly heard by the City Council. Their suit against the city asks Judge James A. Richman of the Alameda Superior Court to issue them a “writ of mandamus,” a court order that would exclude their properties from the boundaries of the shellmound.
City Attorney Zack Cowan appeared in Judge Richman’s courtroom Wednesday to defend the Shellmound boundaries as defined by the Landmarks Preservation Commission and the City Council.
After Cowan and Carrigan presented their cases, Judge Richman, who repeatedly interrogated Cowan about the city’s evidence, asked Cowan what the city would wish for him to rule.
Cowan requested that in place of issuing the writ of mandamus, Richman should ask the City Council to return to the issue, so that the plaintiffs’ arguments could be heard.
Carrigan objected, saying that to send the issue back to the council would be “extremely prejudicial to (his clients).” The civic process in Berkeley, he noted, is often more time-consuming and expensive than it is in other cities.
“The legal expenses incurred during these proceedings would be substantial,” he said.
Cowan said that the issue would go back to the council only – not back to the Landmarks Preservation Commission – and that the council would only concern itself with the properties in question, not the landmark status of the whole Shellmound.
Stephanie Manning, a Berkeley resident who was among the first to push for the Shellmound’s landmark status, said that she was “extremely unpleased” by Cowan’s offer.
“I felt like he was arguing for the plaintiffs,” she said. “This would remove the Landmarks Commission from the process entirely. I think a deal has been cut.”
The plaintiffs in the case charge that the city only has, at best, “inferential” evidence that the shellmound ever extended to their property lines. At the beginning of the hearing Wednesday, Judge Richman indicated that he agreed with this assessment, and asked Cowan for clarification.
Cowan relied principally on the so-called “Dore map,” which was drawn in 1999 by Christopher Dore of Archaeological Mapping Specialists based on sketches done by early Berkeley archaeologist Nels Nelson in 1910.
The map shows that the shellmound does not, in fact, reach the plaintiffs’ properties, but Cowan argued that Dore had insufficient data when he drew the map, and later recanted.
“Mr. Dore agreed that the original boundary may have been incorrect” at a meeting of an ad hoc committee of the Landmarks Preservation Commission set up to study the Shellmound boundaries, Cowan said.
Judge Richman, though, said that this was not noted in the minutes of the ad hoc committee meeting.
In an interview Wednesday, Dore said that his map might not indicate the entire area of the Shellmound because the original archaeological sketches it is based on are themselves incomplete.
The 1910 sketches by Nelson were necessarily incomplete, Dore said, because there was a large factory located on the disputed property at the time. Dore said that in his notes, Nelson wrote that the survey was incomplete.
“So there’s no direct data to say anything about the presence or absence of archaeological material west of Second,” said Dore. “On the other hand, there is plenty of reasonable evidence that suggests it did (exist).”
The Dore map shows the Shellmound as a large oval, abruptly blunted at one end by the east side of Second Street.
If the issue does go back to the City Council, Dore said, new archaeological evidence would show that the Shellmound very likely did extend west of Second Street and the council would be able to affirm the current boundaries based on that data.
Judge Richman is expected to rule on the case within the next few weeks.