Berkeley 4th Street developer plans to use new housing law to bypass review

A rusty anchor lies in the back of a parking lot slated for development across from Spenger's restaurant on Fourth Street in Berkeley, Calif. on Thursday, March 8, 2018. Opponents of the project say the site is a sacred Ohlone Indian shellmound burial site. less A rusty anchor lies in the back of a parking lot slated for development across from Spenger's restaurant on Fourth Street in Berkeley, Calif. on Thursday, March 8, 2018. Opponents of the project say the site is ... more Photo: Paul Chinn / The Chronicle 2018 Buy photo Photo: Paul Chinn / The Chronicle 2018 Image 1 of / 8 Caption Close Berkeley 4th Street developer plans to use new housing law to bypass review 1 / 8 Back to Gallery

The battle over a proposed housing project on a parking lot across the street from Spenger’s Fresh Fish Grotto restaurant in West Berkeley escalated Thursday when the builder became the first in California to invoke a new state law that allows residential developers to bypass local environmental review processes in exchange for providing more affordable units.

On Thursday, developer Blake Griggs Properties of Danville, after five years of contentious debate and political squabbling, said it would invoke SB35 at 1900 Fourth St.. American Indian groups, as well as North Berkeley antidevelopment forces, have long opposed building on the 2.2-acre parcel, contending it is the site of an Ohlone burial ground.

The new state law, authored by state Sen. Scott Wiener of San Francisco, allows an over-the-counter approval process for zoning-compliant projects that provide certain levels of affordable housing. In Berkeley — as well as in San Francisco and Oakland — a development must be at least 50 percent affordable to take advantage of the law.

Blake Griggs plans to construct a 260-unit apartment complex, half of which would be affordable to households earning 80 percent of area median income, which is $80,400 for a family of four. The development will also have 27,000 square feet of retail, a 7,000-square-foot park and a small community center.

Passed in January, SB35 “establishes a streamlined, ministerial review process for certain multifamily affordable housing projects that are proposed in local jurisdictions that have not met regional housing needs,” according to the legislative summary.

Projects that comply with the law’s requirements are guaranteed approval within 180 days, unheard of in a region where even straightforward housing developments can take three or four years.

Blake Griggs Vice President Lauren Seaver said using the legislation to move the project forward is “a monumental step toward solving California’s housing crisis.” She called SB35 “a legislative tool” to “cut through the logjam and allow housing projects like 1900 Fourth to move forward.”

Opponents to the project say the property is part of the West Berkeley Shellmound, a city landmark since 2000. Representatives of three autonomous Ohlone family bands — Confederated Villages of Lisjan, Himre-n-Ohlone, and Medina Family — spent years negotiating with the developer over the size and configuration of the development. Most recently Blake Griggs offered to give the American Indian family bands a quarter of the property in exchange for the Ohlone’s endorsement.

The Ohlone bands rejected the offer, stating that the bands “unanimously stand together to oppose the development of the West Berkeley Shellmound located at 1900 Fourth Street in Berkeley.”

“Our sacred sites were never given up by our families — not legally, nor in theory,” said Vincent Medina, spokesman for the groups. “They are not properties or parcel numbers that can be bought and sold. We did not stand in opposition when you developed other parts of our land. We do not get in the way when you put up apartment buildings or shopping malls. But where we draw the line is when you propose to dig up and desecrate the most sacred places where our ancestors are buried.”

But an environmental study released as part of the project review found that 1900 Fourth St. was actually tidal marshland for most of its history and was not part of the shellmound burial site.

Principal Brad Griggs said his company promised that “we would not move forward if we found any evidence whatsoever of the West Berkeley Shellmound.”

Wiener said that the West Berkeley development is exactly the sort of project he had in mind in drafting SB35.

“This is fantastic,” he said. “The whole point of SB35 was to accelerate the process and allow the project to move forward that would otherwise by stymied. The fact that this is a large project and is 50 percent affordable is amazing.”

Corrina Gould, an Ohlone who is co-founder of Indian People Organizing for Change, said she and other project opponents were blindsided by the news.

“We’re still trying to figure out how this all happened,” she said. “We agree that housing should be streamlined, but when it comes to sacred sites, we as a society should think about things in a different way. This was the very first place inhabited on the entire bay — that is something that should be worth saving.”

Attorney Jennifer Hernandez, who is representing the developer, said that “every infill location in Berkeley that is suitable for housing has passionate opponents, which is why Berkeley and the vast majority of other jurisdictions in the Bay Area have fallen far behind in approving enough housing that’s actually affordable to people who work here.

“The city of Berkeley established its rules — including general plan and zoning requirements — that designated this site for housing,” she said.

She said the investigation of potential American Indian resources was completed “as required under the supervision of expert academics from UC Berkeley and Native American representatives.”

“It was confirmed that this former marshland did not have any cultural resources or other evidence of artifacts,” she said.

Wiener said that while West Berkeley is the first project under SB35, others will soon follow. Developers with projects in Los Angeles, San Francisco and Daly City are preparing applications.

“The biggest beneficiary of SB35 will be affordable housing,” he said. “That will be streamlined almost anywhere in California.”