1900 Fourth St. rendering. Photo: West Berkeley Investments

The five-year battle on what to build on the old Spenger’s Parking lot at 1900 Fourth St. took a new twist Thursday when the developer invoked a new California law which allows it to bypass local control in exchange for making 50% of the units affordable.

West Berkeley Investments, a subsidiary of the Danville-based Blake Griggs, cited SB 35 when filing its application in Berkeley. The state law, which went into effect in January, says that any municipality that is not meeting its regional housing requirements must allow over-the-counter approval for a project that meets zoning requirements and other criteria.

Berkeley fits into that definition, according to a press release put out by the company. Berkeley has only permitted 17 low-income units in recent years “which is a mere 4% of the City’s Low Income housing production requirement,” according to the release.

The new project would include 260 units, with 130 of them affordable to people who earn 80% of AMI, or area median income, or $80,400 for a family of four. The low-income apartments would rent for approximately $1,100 to $1,450 for studios, $1,250 to $1,700 for one bedrooms and $1,400 to $1,900 for two- bedroom units.

The complex, located on the edge of Hearst in the heart of the Fourth Street shopping district, will include 27,500-square-feet of retail and restaurant space, a 7,000-square-foot park, and a 1,300-square-foot community center “set aside for potential use as a cultural education center.” The developer has also pledged to pay a prevailing wage to construction workers, one of the law’s requirements.

There will be 190 stalls parking spaces provided for residents, 100 spaces for shoppers (more than the 56 required) and 140 bike parking stalls.

SB 35 requires that the project be approved in 180 days. Berkeley planning department staff will decide whether it goes forward or not. The project will not have to be vetted by the Zoning Adjustments Board.

“This is about the dire need for housing in California, Lauren Seaver of WBI said in the press release.“It’s time to move from the emotional era of California’s development process to a common sense era of creating much‐needed housing for teachers, firefighters, service workers and others priced out of their own community.”

State Senator Scott Weiner, who proposed SB 35, immediately tweeted about the project after the application was filed.

Berkeleyside reached out to Mayor Jesse Arreguín late in the afternoon Thursday for a comment but did not reach him. Previously, Arreguín has expressed concern about how some of the new state laws and bills being adopted because of the housing crisis would strip away local controls.

WBI decided to invoke SB 35 because its previously proposed project had become mired down in the Berkeley approval process and by objections from some Ohlone people. The company submitted its draft Environmental Impact Report in Nov. 2016, but it still has not been approved.

“It has been sitting in processing purgatory for a while,” said Seaver.

One of the main points of contention centered around the fact that 1900 Fourth St. is located in the West Berkeley Shellmound, a city landmark that includes a two-block area that was Ohlone land centuries ago.

The Chochenyo-speaking Ohlone Indians inhabited West Berkeley for thousands of years prior to European contact. Their diet included clams, oysters and abalone, and they discarded the shells and other materials into mounds. Occasionally, the Natives buried their dead in the mounds. Historians believe there were more than 400 shellmounds around the Bay Area. The Ohlone abandoned West Berkeley 600 to 800 years ago.

As a consequence, some natives — but not all— objected to building on land they considered sacred.

The developers have long contended that the Spenger’s parking lot should not be considered sacred land. Ruegg & Ellsworth, the company that owns the lot, did extensive archeological diggings on the property in 2014 but did not find any human remains or objects of significance. Another review, included in the DEIR, said a stream once covered that land, which would explain why no bones or other objects were found.

A number of sets of “pre-contact” Indian remains were found across the street near Spenger’s Fish Grotto in 2016, when the restaurant was being renovated and a new retail complex was constructed on a vacant lot next door. Those two sites, at 1901 and 1919 Fourth St., actually sit outside the designated shellmound area.

While no natives protested that construction project, groups showed up regularly to protest the 1900 Fourth St. project. Members of the public testified in front of ZAB in 2016 and suggested that the city buy the lot and turn it into a memorial of sorts for the Ohlone people. A coalition of Ohlone representatives, which included Ruth Orta, Vincent Medina Jr. and Corrina Gould, has continued to hold vigils near the lot.

The developer tried to reach a compromise with the Ohlone activists, even offering to give them a significant portion of the lot and constructing a park and education center at no cost to the Ohlones, according to a press release. Those offers were rejected.

“We couldn’t see an end in sight.” — Lauren Seaver, West Berkeley Investments

Another Ohlone, Andrew Galvan, whom the state appointed as “the most likely descendant,” of the Ohlones, and who approved of the project, acted as a consultant for the developer.

Berkeleyside connected with Medina late Friday afternoon. He said that his extended clan considers the landmarked shellmound area and the blocks around it, including the current site of Spenger’s Fish Restaurant, to be the ancestral lands of the Ohlones. When UC Berkeley came in during the early part of the 20th Century and removed shellmounds, when developers started erecting buildings nearby, and when more buildings were constructed in the 1950s and 1960s, the natives were not in a position to speak out and protest. Many lived on a rancheria in Sunol and were subject to institutional racism. Medina and other natives can now speak out, and can now protest the desecration of what they consider sacred lands, places where their ancestors worshipped and were buried. That includes 1900 Fourth Street, he said.

“Besides being surprised and taken aback by the news, it is deeply unsettling because it goes to the heart of the matter, which is that our burial spaces, our sacred sites are not protected or respected by people who want to make a profit on these places,” said Medina “It’s unnerving. It’s depressing. It’s sad.”

The newly submitted project does not contain any acknowledgment of the Ohlones.

“We went through that process of trying to arrive at a conclusion and frankly, and it was a waste of time, unfortunately,” said Lauren Seaver of WBI.

WBI’s decision to use SB 35 was so controversial that the public relations firm hired by them only sent out a press release announcing a press conference 20 minutes before it was supposed to begin. The press release did not mention that it was a Berkeley project. It was held in Emeryville.

Even though the developer will make 50% of the units affordable, it makes sense for WBI to go in that direction, said Seaver. The developer thought the project would take a long time to get approved, costing money, and that lawsuits would follow once it was approved.

“We couldn’t see an end in sight,” said Seaver.

Correction: This article has been updated to state that Ruegg & Ellsworth own the lot, rather than co-owned the lot.

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman Created California, published in November...