A photo simulation of a 260-unit housing and commercial project proposed at what is now the Spenger’s parking lot at 1900 Fourth St. Image: TCA Architects

The developers hoping to transform Spenger’s parking lot at 1900 Fourth St. into a 260-unit complex with half the apartments deemed affordable blasted the city of Berkeley on Thursday and charged that it is trying to undermine a new state law that fast-tracks certain kinds of construction.

West Berkeley Investments, a subsidiary of the developer Blake Griggs Properties, sent a 400-page rebuttal to Berkeley’s June 5 letter denying its ability to be approved under SB 35, which mandates approval of projects that make half of its units affordable. The document, and an accompanying press release, challenged the reasons Berkeley said the project must still go through Berkeley’s planning process. If Berkeley does not approve the project by Sept. 4 — 180 days after West Berkeley Investments filed under SB 35 and the timetable set out by the state law — there may be legal consequences, the developer warned.

“The city’s June 6 (sic) response is exactly what SB 35 was designed to stop: A continuation of a years-long process marked by delays and roadblocks to this much-needed housing,” the developer stated in its press release.

“We plan to enforce our rights, if necessary, to bring market rate and affordable housing to Fourth Street,” said Lauren Seaver, the vice-president of Blake Griggs.

Berkeley denied WBI’s to use SB 35 for a number of reasons, but there are two main ones: the city  argues that 1900 Fourth St. sits in the middle of the West Berkeley Shellmound and would involve the destruction of a historic structure; and it says the project does not comply with the city’s Affordable Housing Mitigation Fee.

“If the West Berkeley Shellmound or another historic structure is underneath the project site,” city staff wrote in the June 5 letter, “the project’s extensive excavation of the site could require the demolition of a historic structure” on a historic register. “Accordingly, the application does not satisfy this section and does not qualify for streamlined, ministerial approval unless it establishes that there are no such subsurface historic structures at the site or that the project will not require the demolition of those historic structures.”

The city also said its Landmarks Preservation Commission is required by law to be able to review the application due to the site’s status as a designated landmark.

WBI acknowledges the project sits inside the shellmound boundary, an area that was landmarked in 2000, although extensive archeological testing has not turned up any evidence that that parcel was ever part of the shellmound, the developer contends. Instead, old maps show that marshlands next to Strawberry Creek covered the property, according to the developers, and the shellmounds were nearby.

WBI said there aren’t any historic buildings on the site, so that argument is specious. In addition, when Berkeley had to defend the boundaries of the shellmound in court in 2001, it made a court filing saying that there was no intent to stop building in the landmarked shellmound area, but only to require “additional review” to ensure care was taken with any development.

That “additional review” has already happened with the extensive archeological studies done by the lot’s owners, said WBI.

“WBI has reiterated its commitment to provide both archaeological and tribal monitoring during all ground‐disturbing activities, and in the unlikely event any human remains are found, to rigorously observe state legal requirements for handling them and coordinating with tribal authorities,” according to the press release.

Berkeley also rejected the application because the project “does not meet the technical aspects” of the affordable housing mitigation fee. The city said the developer would have to pay into the fund for the 130 market rate units it plans to build on the site. Berkeley law requires a developer make 20% of its units affordable or pay $37,000 for each unit into the affordable housing fund.

The project will have 50% of its units be affordable, so it’s absurd for Berkeley to demand it pay into the fund, said Jennifer Hernandez, an attorney with Holland & Knight, the firm representing WBI.

“You can’t have a 20% requirement that was designed for 100% market-rate project apply to a project that is 50% affordable,” said Hernandez. “That is a particularly weak argument.”

The city pointed out that the law requires those affordable units to be affordable in perpetuity and the project has only promised to make them affordable for 55 years.

Berkeley Mayor Jesse Arreguín said he could not talk about WBI’s rebuttal.

“I cannot comment on the project as it is a pending land use application, which may end up before the Berkeley City Council,” he said via email.

Blake Griggs first proposed building a complex with apartments and ground-floor retail about five years ago. It was going through the city’s development process when SB 35 was passed in 2017. The developer submitted a revised plan in March under SB 35 that included a larger complex. The new iteration had 130 market-rate units and 130 units affordable to people making 80% of the median income. For a family of four, that is about $80,000 a year.

The project has been controversial from the start since it sits in the middle of the area designated both as the historic remnants of a shellmound and a state archeological site. Numerous members of the Ohlone tribe have protested the plan to build housing in an area they consider sacred. They also dispute the developer’s contention that it matters that no human remains or remnants of the shellmound sit under 1900 Fourth St. They say that the parcel cannot be taken out of its larger context. It was once part of an area special to the Ohlone people and thus should be preserved.

Not every Ohlone has this view. Andrew Galvez, whom the state has designated a representative of the Ohlone tribe, is in support of the project and has been working with the developer to get it approved.

Hernandez said WBI hopes that Berkeley reverses course and agrees that SB 35 applies to 1900 Fourth St. by the Sept. 4 deadline. But these days Berkeley only seems to comply with state housing law if it is sued, she said. She was referring to a proposed development on Haskell Street, which the city turned down even though it complied with the law. That developer sued Berkeley and won.

“It’s particularly inexplicable and getting shocking that the city needs to be taken to court to comply with state law,” said Hernandez.

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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...