A 260-unit mixed-use apartment complex proposed on a 2.2-acre surface parking lot (the former Spenger's Fish Grotto parking lot) in West Berkeley, two blocks from an Amtrak Capitol Corridor station. The SB 35 application, filed March 2018, proposed 130 market-rate apartments, 130 affordable apartments (80% AMI), and ground-floor retail. After Berkeley denied it twice in 2018, property owners Ruegg & Ellsworth sued. Berkeley won at trial court (November 2019) but the First District Court of Appeal reversed in April 2021, in the first published California appellate opinion interpreting SB 35, and the California Supreme Court declined to review that decision on July 28, 2021, after which Berkeley issued the SB 35 permit. In February 2022 Judge Frank Roesch found that the city had violated the Housing Accountability Act; in February 2024 he fined it $2.6 million, and the city paid $1.4 million of the developer's attorney fees under a settlement. Before any housing was built, the Berkeley City Council unanimously voted on March 12, 2024 to buy the site for $27 million and transfer it to the Sogorea Te' Land Trust, which paid $25.5 million of the price with help from a $20 million Kataly Foundation contribution; the city paid $1.5 million from its general fund. 260 apartments were never built. On April 28, 2026 the land trust announced that removal of the pavement was beginning.
Court · California First District Court of Appeal · Judge Frank Roesch · California Supreme Court
| Date | Event | What the record shows |
|---|---|---|
| January 1, 2013 | First Development Proposal | Blake Griggs Properties first proposes an apartment complex at 1900 Fourth Street through Berkeley's normal development process. The proposal is controversial from the start due to the site's association with the West Berkeley Shellmound. No permit is issued over the following years. Berkeleyside: https://www.berkeleyside.org/2018/06/29/developer-of-1900-fourth-st-says-it-will-sue-unless-berkeley-fast-tracks-development |
| January 1, 2018 | SB 35 Takes Effect | California SB 35 (Wiener, 2017) takes effect, requiring cities not meeting regional housing goals to provide ministerial approval for projects with at least 50% affordable units. Berkeley has not met its regional housing obligations. Blake Griggs begins restructuring its proposal to qualify. Berkeleyside: https://www.berkeleyside.org/2018/06/29/developer-of-1900-fourth-st-says-it-will-sue-unless-berkeley-fast-tracks-development |
| March 1, 2018 | SB 35 Application Filed (260 Units) | West Berkeley Investors (Blake Griggs subsidiary) submits an SB 35 application for 260 units: 130 market-rate apartments and 130 affordable (80% AMI), plus ground-floor retail. The project is redesigned larger than the earlier proposal specifically to meet SB 35's 50% affordable threshold. Architect: TCA Architects. Berkeleyside: https://www.berkeleyside.org/2018/06/29/developer-of-1900-fourth-st-says-it-will-sue-unless-berkeley-fast-tracks-development |
| June 5, 2018 | Berkeley's First SB 35 Denial | Berkeley denies the SB 35 application, asserting the site is within the West Berkeley Shellmound historic landmark, that mixed-use projects don't qualify for SB 35, and that Berkeley's very low-income unit requirements aren't met. Berkeleyside: https://www.berkeleyside.org/2018/06/29/developer-of-1900-fourth-st-says-it-will-sue-unless-berkeley-fast-tracks-development |
| June 29, 2018 | Developer Threatens Lawsuit with 400-Page Rebuttal | West Berkeley Investments sends a 400-page rebuttal to Berkeley's denial letter, charging the city is "trying to undermine a new state law." Developer threatens to sue unless Berkeley approves the project under SB 35. Berkeleyside: https://www.berkeleyside.org/2018/06/29/developer-of-1900-fourth-st-says-it-will-sue-unless-berkeley-fast-tracks-development |
| August 23, 2018 | Blake Griggs Drops the Project | West Berkeley Investors and Blake Griggs Properties notify Ruegg & Ellsworth that they are withdrawing from the project and returning all development rights. Spokesperson Ron Heckmann confirms the withdrawal but declines to give a reason. Berkeleyside: https://www.berkeleyside.org/2018/09/04/developers-drop-controversial-fourth-street-project-hand-it-over-to-owners |
| September 4, 2018 | Berkeley's Second and Final Denial | On the same day Blake Griggs drops the project, Berkeley sends a letter to property owner Dana Ellsworth issuing a final denial of the SB 35 application, stating SB 35 "cannot be applied to the property without violating the state constitution" because the site is a city-designated historical landmark. Shellmound.org: https://shellmound.org/2018/09/berkeley-rejects-sb-35-application-again/ |
| November 28, 2018 | Property Owners File Lawsuit | Ruegg & Ellsworth and Frank Spenger Company file a petition for writ of mandate against the City of Berkeley, represented by Holland & Knight (Jennifer Hernandez and Daniel Golub). The lawsuit argues Berkeley's SB 35 denial violates state law and the HAA. Daily Californian: https://www.dailycal.org/archives/developers-of-1900-fourth-st-sue-city-of-berkeley-over-alleged-state-law-violation/article_a7ed57c5-6e97-5c1e-8f7e-cda4c22d3145.html |
| November 1, 2019 | Trial Court Rules for Berkeley | Alameda County Superior Court Judge Frank Roesch rules in favor of Berkeley, finding the city was within its rights to deny the SB 35 application. Roesch: "Whatever the case is, I don't make decisions about whether projects are approved, ever." Developers appeal to the First District Court of Appeal. Berkeleyside: https://www.berkeleyside.org/2019/09/17/judge-to-rule-on-whether-berkeley-illegally-nixed-a-housing-complex-on-spengers-parking-lot |
| March 20, 2021 | Ohlone Protest at Site | The Campaign to Save the West Berkeley Ohlone Shellmound holds a gathering on Fourth Street to protest a fence erected around the parking lot — a signal the developer was preparing to move forward following the pending appellate ruling. Berkeleyside: https://www.berkeleyside.org/2024/03/12/berkeley-shellmound-spengers-lot-sogorea-te-settlement |
| April 20, 2021 | Court of Appeal Issues First Published SB 35 Opinion (Developer Wins) | The California First District Court of Appeal issues Ruegg & Ellsworth v. City of Berkeley — the first published California appellate opinion interpreting SB 35. The court reverses the trial court. Key holdings: mixed-use projects with ground-floor retail qualify for SB 35; historic landmark designations cannot override SB 35 ministerial review. The ruling establishes binding statewide precedent. Berkeleyside: https://www.berkeleyside.org/2021/04/21/court-rules-a-260-unit-apartment-complex-can-go-up-at-1900-fourth-st-a-site-the-ohlone-consider-sacred |
| July 28, 2021 | State Supreme Court Declines To Hear City's Appeal | The California Supreme Court declines to hear Berkeley's appeal of the Court of Appeal decision, clearing the way for construction under SB 35. Berkeleyside: https://www.berkeleyside.org/2021/07/29/development-spengers-parking-lot-can-proceed-ohlone-shellmound-ruling |
| October 8, 2021 | City Issues SB 35 Permit | The Campaign to Save the West Berkeley Ohlone Shellmound reports that the city has issued the SB 35 zoning permit. Berkeley renews the permit for three years in September 2022. Shellmound.org: https://shellmound.org/2021/10/city-of-berkeley-forced-to-issue-permit/ |
| March 1, 2022 | Berkeley Appeals; Supreme Court Also Rules for Developer | After Judge Frank Roesch rules in February 2022 that Berkeley violated the Housing Accountability Act, the city appeals in March 2022, and Berkeleyside later reports that the Court of Appeal and the state Supreme Court both found the violation. Roesch also orders the city and the Confederated Villages of Lisjan to post a $15 million bond against the developer's damages; the appeal courts find the order is not appealable, and the city still has not posted it in February 2024. Berkeleyside: https://www.berkeleyside.org/2024/02/16/court-ruling-1900-fourth-street |
| February 16, 2024 | Judge Fines Berkeley $2.6M, Orders $1.4M Attorney Fees | Judge Roesch imposes a $2.6 million HAA fine on Berkeley (developer had sought $39 million); the fine is directed into Berkeley's Housing Trust Fund for affordable housing construction. Berkeley also pays $1.4 million to reimburse the developer's attorney fees under a settlement. Total city cost: $4 million. Housing was never built. Berkeleyside: https://www.berkeleyside.org/2024/02/16/court-ruling-1900-fourth-street |
| March 8, 2024 | Settlement Reached: $27M Site Purchase by Sogorea Te' Land Trust | The Sogorea Te' Land Trust — funded primarily by a $20M donation from the Kataly Foundation (Regan Pritzker, Hyatt family) — offers $25.5M to purchase 1900 Fourth Street. Combined with $1.5M from Berkeley and $5.5M from two other donors, the $27M total settles all outstanding litigation. Ruegg & Ellsworth agrees. Sacred Land Film Project: https://sacredland.org/the-west-berkeley-shellmound-is-free/ |
| March 12, 2024 | Berkeley City Council Unanimously Approves Purchase and Land Transfer | Berkeley City Council votes unanimously to purchase 1900 Fourth Street for $27M and immediately transfer title to the Sogorea Te' Land Trust. Berkeley becomes among the first cities in the US to formally return land to Indigenous people. The vote ends eight years of legal disputes. 260 apartments were never built. Berkeleyside: https://www.berkeleyside.org/2024/03/12/berkeley-shellmound-spengers-lot-sogorea-te-settlement |
| April 30, 2024 | Escrow Closes; Title Transferred to Sogorea Te' Land Trust | Escrow closes on the $27M purchase. Title transfers immediately to the Sogorea Te' Land Trust — the largest known urban Indigenous land return in US history. All legal claims settled. The site remains a surface parking lot, with Sogorea Te' conducting cultural assessments and planning a commemorative park and cultural center. Sacred Land Film Project: https://sacredland.org/the-west-berkeley-shellmound-is-free/ |
| April 28, 2026 | Land Trust Begins Removing Pavement | The Sogorea Te' Land Trust announces that "the removal of the pavement at West Berkeley Shellmound is beginning." Sogorea Te' Land Trust: https://sogoreate-landtrust.org/let-the-land-breathe/ |
| Date | Body | Action | Vote | Staff rec. | Source |
|---|---|---|---|---|---|
| July 28, 2021 | Court | ruling issued | — | Unknown | Berkeleyside: https://www.berkeleyside.org/2021/07/29/development-spengers-parking-lot-can-proceed-ohlone-shellmound-ruling |
Rating 3 of 5. Multiple sources, including at least one primary record. Corrections: https://whokilledthebuilding.com/corrections.