Tuesday brought the latest setback for what has been a controversial proposal to build 260 housing units over what is now the Spenger’s parking lot on Fourth Street.

Tuesday brought the latest setback for what has been a controversial proposal to build 260 housing units over what is now the Spenger’s parking lot on Fourth Street in West Berkeley.

City planning staff told developer West Berkeley Investments, in a letter also posted on the city website, that its project at 1900 Fourth St. does not qualify for fast-tracked approval under SB 35, a new state law aimed to speed up the permitting process for projects that make half their units available as affordable housing.

In March, project representatives announced that the complex at 1900 Fourth would be the first in the state to apply for the streamlined process. SB 35 is designed to allow projects to get built faster: If it qualified, 1900 Fourth would bypass reviews by the city’s Zoning Board as well as appeals to the City Council.

The city said it would analyze the application, and promised a response by Tuesday, June 5. (SB 35 sets a 90-day limit on how long jurisdictions can take for their analyses.)

Meanwhile, a growing movement composed of Ohlone Indians and their allies has been pushing city officials to quash the project and respect their heritage and history in the area and on the project site, which is within the boundaries of what the city landmarked in 2000 as the West Berkeley Shellmound. Last week, the group filled City Council chambers, chanting and holding up large banners asking for support for their cause. Mayor Jesse Arreguín and other city officials ultimately gave the group and its attorneys 45 minutes early in the evening to state their case, though the item was not on the published agenda.

There has been much debate about the history of the site, and developers have argued that they have done extensive testing and research, and found little evidence of shellmound beneath the parking lot. They say the boundaries for the Berkeley landmark may, in fact be inaccurate, according to old maps and other findings. But that has not stopped a groundswell of support for Ohlone voices and the movement to stop the project.

Project opponents are likely to be heartened by the city’s position on the project application.

In its 10-page letter, the city says, first and foremost, that “SB 35 does not apply” to the site because it is a designated city landmark. Staff said it would provide an analysis anyway, however, and that the developer can try again. According to staff, the project also would not qualify for SB 35 “because several components of the application are either inconsistent” with the bill, “or more information is needed” to show consistency.

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The biggest sticking point listed in the letter is that the site is both a designated city landmark and a state archeological site.

“If the West Berkeley Shellmound or another historic structure is underneath the project site,” staff wrote, “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.

There were some other problems too. According to staff, the application conflicts with the city’s Affordable Housing Mitigation Fee requirements and, potentially, the Urban Design and Preservation Element in its General Plan. “Additional objective standards” may also be an issue, city staff wrote. “Objective standards” are defined as those that don’t involve subjective judgment by a public official.

Regarding mitigation fees, developers have said the project does not need to pay them, according to city staff, because it provides 50% affordable units, well above the city’s required threshold of 20%. Staff said that’s an incorrect interpretation of the law for several reasons. One issue is that SB 35 requires the units to be affordable for only 55 years, while the city code says they must be affordable “for the life of the project.”

Staff said the project team also did not provide enough information about possible alcohol sales, commercial uses, roof and floor plans, and traffic impacts, among other open questions.

The city’s 10-page letter is followed by 73 more pages related to its review of 1900 Fourth. There’s a lengthy chart explaining the variety of potential conflicts with city code. There’s also a November 2016 assessment of environmental impacts related to the project, as well as site maps and other information.

The developer may now submit a revised application, the city wrote, and staff will then have another 90 days to review it.

Berkeleyside will continue to follow the story. See project documents for 1900 Fourth St. on the city website.

[Note: Due to a mis-reading of the June 5 letter, an earlier version of this story mistakenly characterized the city’s landmark designation. That has been fixed.]