Ohlone tribe members are trying to stop a development on Fourth Street. They say the site was home to their ancestors. The developer says no evidence of that has been found.

An innocuous block-sized parking lot on the southwestern edge of the Fourth Street shopping district has become the site of one of the biggest development battles in Berkeley today, one that pits those wanting to address the region’s affordable-housing crisis — as well as the lure of high-end retail — against history and societal obligation to mark those who have come before.

The stakes in this fight could not be more unequal. On one side sits Blake/Griggs Properties and Ruegg & Ellsworth, two developers who routinely raise millions of dollars of capital for their projects. On the other side sit a handful of Native Americans whose tribe isn’t even officially recognized by the federal government. Nor does the state of California consider any of them official representatives for the Ohlone people because none has been designated a “most likely descendant,” of those who lived in the Bay Area 5,000 years ago.

But the underdogs in this David versus Goliath battle have not given up hope. Nor are they fighting only with conventional methods.

While the city of Berkeley is determining whether West Berkeley Investments, a subsidiary of Blake/Griggs, can build a 260-unit complex by invoking a recently enacted state law that allows it to bypass local control in exchange for making 50% of the units affordable, a number of Native Americans, assisted by former Heyday Books publisher Malcolm Margolin and others, have launched a cultural battle for the land, which is one of the the last undeveloped sections of the West Berkeley shellmound. They are also pursuing more conventional means. Whether the Native Americans can win is unclear — the chances seem slim — but their arguments are attracting a lot of attention.

In early April, in three separate gatherings — one at the Phoebe A. Hearst Museum at UC Berkeley, one at the David Brower Center, and one at BAMPFA — hundreds of people came together to hear some Native leaders talk about their art, the crafts of their ancestors, and how Native Americans regard the land, the sky, and the water in ways that are different from the white settlers who came to the Bay Area in the 18th and 19th centuries, as well as their descendants. Those attending the meetings got to look at old artifacts from the Ohlone and other tribes, such as a large ceremonial stone bowl, arrowheads —some made by Ishi — beads made from clamshells, needles, tools, and other objects that are kept in the Hearst Museum. They heard Vincent Medina speak Chochenyo, the language of his Muwekma Ohlone tribe, and Ron Goode, the tribal chair of the North Fork Mono Indians, tell stories he learned from his ancestors.

While developers, state and local officials, and lawyers talk density, affordability, zoning and the like, the Native Americans have been talking about the lessons humanity can draw from the earth. It is the message the land delivers, rather than what is allowed under the law, that people should pay attention to, they said. And that lesson says that a vacant lot is something sacred, a link back to their ancestors, and it should be cherished, not destroyed.

“The land is the identity of the native people,” said Fred Velasquez, a master craftsman and participant in, and supporter of, Miwok cultural life.

“If the world has things to teach us, how do we learn it? Natives believe that power lives not in people; the power lies in the world, and we must be open to that,” he said.

What sits under the parking lot at 1900 Fourth St.?

The central question at the heart of this battle is what lies below the concrete of the parking lot at 1900 Fourth St., although the Native Americans think the question should be put in broader terms. Officially the lot is located within the boundaries of the West Berkeley shellmound, a two-block area that stretches from Hearst Avenue to University Avenue and Fourth Street to Second Street. Berkeley landmarked the shellmound in 2000. A larger area, extending west toward the Bay and east to Fifth Street, is listed in the California Register of Historical Resources because archeologists found cultural and natural deposits there indicating an Ohlone settlement.

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“The land is the identity of the native people.”

— Fred Velasquez

The West Berkeley shellmound was one of more than 425 shellmounds that dotted San Francisco Bay before the arrival of Spaniards in the 1770s, a time known as “pre-contact.” The Ohlone people who inhabited the region built up these artificial hills over thousands of years by discarding clam and mussel shells, fish bones, animal bones, tools, charm stones and pendants, according to Kent Lightfoot, a professor of archaeology at UC Berkeley. Some people have been buried there, too. The West Berkeley shellmound was about 30 feet high and covered the area of about two or three football fields. The shellmounds are older than the pyramids of Egypt, according to Stephanie Manning, who spearheaded the landmark designation.

“They are a history of what life was like here over thousands of years,” said Lightfoot at a talk at BAMPFA. [The shellmound] “was a sacred place. It had burials. It had condor burials, people danced there, had feasts, there. It was a village site.”

By 1954, all evidence of the West Berkeley shellmound had been destroyed, lost to industrial development.

The lot at 1900 Fourth St. is the only part of the West Berkeley shellmound that does not have a building covering it. The land was paved over between 1946 and 1958 and served as the parking lot of Spenger’s Restaurant for years. (Frank Spenger Company co-owns the lot with Ruegg & Ellsworth.) Because what lies under the ground is relatively undisturbed, many Ohlones and their supporters believe that the lot should not be developed. Instead, it should be turned into a park/monument that both honors the Ohlones’ past and celebrates their present.

“If we lose this one we’ll lose our sense of 5,000 years of history,” Margolin told a standing-room-only crowd at the Brower Center at a benefit for the shellmound fight. The event was arranged by Margolin’s new organization, the California Institute of Community, Art and Nature. “It’s essential that we stop it. [The shellmound] is the heart of Berkeley.”

But there is a glaring issue with the Ohlone characterization of 1900 Fourth St. as a sacred place, and Blake/Griggs and the other developers have zeroed in on it as a way to get permits to build on the land. No original shellmound objects have been uncovered on the lot, according to three separate archeological excavations done by the firm Archeo-Tec at the behest of the developers. The borings only uncovered objects that appear to have been carried there by water or grading activities, according to the archeological reports. Old maps placed the shellmounds elsewhere, according to the developer. No human remains have been found either, while just across the street at 1919 Fourth St., outside the West Berkeley shellmound boundary, construction workers uncovered four burial sites with human remains while building a new complex in 2016. (The bones were moved to the Ohlone Cemetery in Fremont.)

The reason no shellmound objects have been found, the developers believe, is that Strawberry Creek and a willow grove marshland covered most of the lot. The developers base their findings on an 1856 U.S. Coast Survey map they presented as part of the draft environmental impact report done for the housing project. That suggests that the Ohlones did not use that exact area as part of the shellmound, the developers contend.

“It should be noted that although the project was designated a city landmark due to the belief that the West Berkeley Shellmound is located on the site, extensive testing and undisputed expert analysis have shown that the shellmound does not actually exist on the project site and never did,” the developer stated recently as part of its application to build a complex under SB 35, the new state law. “The site was substantially a wet marshland until it was filled and paved over the last 100+ years…. the project site contains no shellmound.”

For some Ohlones, Berkeley historians and preservationists, and archeologists who have studied the West Berkeley shellmound, the way the developer describes 1900 Fourth St. is incorrect. They have challenged the findings of the various archaeology experts and have suggested that if borings had been done in other areas of the lot, the results may have turned out differently.

Richard Schwartz, a local historian and author, said at a 2016 Zoning Adjustments Board hearing that the developer neglected to include historical research in the DEIR that detailed what had been found in the area in the past. He referred to an 1876 article from the Oakland Tribune that references the fact Alphonse Pinart, a French scientist, said 300 skeletons had been found at the shellmound. Schwartz told city officials that he had given the article to the developers, along with other materials, but that the information had been ignored.

More importantly, critics believe the developer’s scope is too narrow. The developer should be seeing the lot as part of a larger village settlement area used by the Ohlone people for thousands of years. The lot should not be seen in isolation, with the developer declaring it is not part of the shellmound because no objects were uncovered. If looked at as part of a larger whole, it is clear 1900 Fourth St. should not be built upon, critics insist.

Christopher Dore, an archeologist who worked on numerous studies of the West Berkeley shellmound area commissioned by the city from 1999 to 2002, said it was not an archeological best practice to just look at 1900 Fourth St. in isolation from what is around it. The fact that no shellmound deposits were found is “irrelevant,” he wrote in a letter to Berkeley in March 2017. The vacant lot is part of a large historical site, and the importance of the entire site must be taken into consideration, not just the lot itself, particularly since there are “significant, undisturbed, cultural and natural deposits” in that area that are not directly related to the shellmound. One indication of the area’s importance is that the larger area, stretching through parts of eight blocks, has been listed on California’s Register of Historical Resources and is eligible for the National Register of Historic Places, he noted.

New maps show development site is part of important archeological site

To show that 1900 Fourth St. was part of a larger Ohlone settlement area, a group of people have been working for two months to draw up new maps that better delineate the location of the shellmound and Strawberry Creek and their relation to 1900 Fourth St., as well as show the larger Ohlone settlement area. The maps, one of which is being shown publicly on Berkeleyside for the first time, indicates that the development site is in the middle of that important archeological site, according to Toby McLeod, a filmmaker who has worked with indigenous communities for 40 years and is the project director of Sacred Land Film Project. McLeod and Chris Walker, who works at PWP Landscape Architecture, a noted firm that that done international designs, drew up the maps.

But the developer has a different point of view. Citing the lack of shellmound objects, the developer has been trying to develop housing and retail on the site for five years. It went through most of Berkeley’s approval process, including doing a draft EIR and appearing before the Landmarks Preservation Commission, Design Review Commission and the Zoning Adjustments Board.

The developer even worked with Medina, Corrina Gould and Ruth Orta, who had formed Indian People Organizing for Change, to come up with a way to acknowledge Ohlone settlement of the area, according to Lauren Seaver of West Berkeley Investments. The developer offered to cede a significant portion of the lot and to build a memorial or gathering space that honored Native Americans. The negotiations were not fruitful, she said.

Then on March 8, in a surprise move, the developer stepped outside Berkeley’s approval process and filed an application that draws on a new state law, Senate Bill 35. That 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 wants to make 50% of the units affordable. 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.

Blake/Griggs decided to propose an even larger complex than it had originally wanted, with 260 units, half of them to be rented to people who earn 80% of AMI, or area median income, or $80,400 for a family of four. The original plan had called for 155 apartments. State law requires that the application be approved over the counter within 180 days if it complies with a city’s zoning and other requirements.

The developer, in addition to wanting more units, wants to build the affordable ones in a separate structure with lesser finishings, a practice that Berkeley generally frowns upon. The developer wants to segregate the units to make it easier to get separate financing, it said in a filing. In addition, Blake/Griggs is asking for an exemption to the height limit on Fourth Street north of University Avenue. Zoning regulations limit building heights to 50’. Blake Griggs will be getting a density bonus from the state and needs to construct a building that is 60’8” high, according to a filing.

Currently, Berkeley staff is examining the application and will be getting back to the City Council soon with its analysis of the project, said Mayor Jesse Arreguín. (Update: See the city manager’s April 26 memo here.)

Since Blake/Griggs filed to build the complex under state rather than city law, Gould, Medina, Margolin, and others have had to broaden their strategy on how to oppose the project. The three gatherings on April 7 were intended to communicate to the larger community the historical and culture importance of the lot and the shellmound, and to build resistance.

Opponents are also eyeing an exemption in state law that allows cities to deny an application if a project would “require the demolition of a historic structure that was placed on a national, state, or local historic register.”

While Blake/Griggs contends the project is not historic because no shellmound artifacts were uncovered there, the Ohlones and their supporters disagree.

More than 50 people testified before the Landmarks Preservation Commission on April 5 about the development and the historic importance of the shellmound, according to Becky O’Malley, one of the commissioners. Gould also testified before the Planning Commission on April 18.

“Structures are not [just] buildings,” said McLeod. “They are human-related things or entities that can include a landscape, pathways, so we are hoping the planning department will rule this project is exempt from SB 35 because it’s a historic structure.”

“Even though the developers are saying it’s about the shellmound, it’s about the landscape in its entirety,” said Gould. “It’s about a sacred site. Just because you have dug around and created little potholes and things inside of this one area doesn’t make it less sacred and does not give the developer the right to tell us where sacred places are.”