West Berkeley Investors, a subsidiary of Blake Griggs Properties, submitted a detailed response Thursday to the city of Berkeley’s rejection of streamlined review for a project under SB 35. The controversial 260-unit housing project at 1900 Fourth St. has been under debate for five years and has faced significant opposition from a local Native American tribe, the Ohlone.

In its June 6 letter, the city argued that the site, currently a parking lot, is a city landmark and an archeological site as part of the West Berkeley Shellmound, an Ohlone burial ground.

Berkeley also said the developer’s application doesn’t follow the city’s affordable housing mitigation fees since the developer said it would not pay a fee because its project includes 50% on-site affordable housing. The city also contended that the project may not follow the urban design and preservation element within the city’s general plan.

The developer was the first to submit a project in the Bay Area that invokes SB 35, a new state law that allows for streamlined review of projects in cities that have not met their housing requirements. SB 35 also requires prevailing construction wages, that the project comply with local zoning and that it include affordable housing.

Sand Hill Property Co. also invoked SB 35 in Cupertino for its redevelopment of Vallco Mall that will build over 2,000 homes, and recently received the thumbs-up from the city to undergo a streamlined approvals process.

In response to the landmark designation for the Berkeley project, the developer said the project does not propose to demolish any structures listed on the federal, state or local register and there are no structures at the site with historical designation.

WBI also has long-argued that the area isn’t a part of the shellmound and extensive testing and research revealed little evidence of shellmound at the site. The letter stated a previous brief filed in Alameda Superior Court said the boundaries of the landmark are only approximate. A draft environmental impact report for the site revealed no significant impacts on cultural resources.

In response to the affordable housing regulations, the developer said the project would create 130 units of affordable housing in a city that has only built 17 units, or 4% of its regional housing need allocation goals for low-income housing.

The developer has said it does not need to pay an affordable housing mitigation fee because the project will have 50% affordable units and would provide $14M in additional affordable housing benefits beyond what would have been paid through a fee.

Under SB 35, the project is entitled to an approval within 180 days of initial application and the developer said it expects a ministerial permit by September. If the city denies the application again, the developer may choose to sue the city, according to the San Francisco Business Times.