Division 3 — CITYWIDE PROVISIONS

23.302.010– Purpose 23.302.020– General Use Regulations 23.302.030– Temporary Uses and Structures 23.302.040– Home Occupations 23.302.050– Bed and Breakfast Establishments in Residential Districts 23.302.060– Sidewalk Cafe Seating

23.302.070– Use-Specific Regulations

23.304.010– Purpose 23.304.020– Lot Requirements 23.304.030– Setbacks 23.304.040– Building Separation in Residential Districts 23.304.050– Building Height 23.304.060– Accessory Buildings and Enclosed Accessory Structures 23.304.070– Unenclosed Accessory Structures in Residential Districts 23.304.080– Fences 23.304.090– Usable Open Space 23.304.100– Site Features in Residential Districts 23.304.110– Dormers 23.304.120– Lot Coverage 23.304.130– Non-Residential Districts Abutting a Residential District 23.304.140– Area Plans

23.306.010– Purposes 23.306.020– Applicability 23.306.030– Permit Procedures

23.308.010– Chapter Purpose 23.308.020– Applicability and Nonconformities 0– Required Permits 23.308.030– Standards for Emergency Shelters

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23.310.010– Chapter Purpose 23.310.020– General Requirements Excluding Incidental Beer and Wine Service 23.310.030– Alcoholic Beverage Service When Incidental to Food Service

23.312.010– Chapter Purpose 23.312.020– Applicability 23.312.030– Required Permits 23.312.040– Standards for Live/Work 23.312.050– Findings

23.314.010– Chapter Purpose 23.314.020– Definitions 23.314.030– Applicability 23.314.040– General Regulations 23.314.050– Operating Standards and Requirements 23.314.060– Violations and Remedies

23.316.010– Chapter Purpose 23.316.020– Applicability 23.316.030– Definitions 23.316.040– General Requirements 23.316.050– Required Permits 23.316.060– In-Lieu Fees 23.316.070– Administrative Regulations (Guidelines)

23.318.010– Chapter Purpose 23.318.020– Applicability 23.318.030– Urban Agriculture Uses and Levels of Discretion 23.318.040– Thresholds 23.318.050– Operation Standards 23.318.060– Complaints

23.320.010– Chapter Purpose 23.320.020– Cannabis Retail 23.320.030– Commercial Cannabis Cultivation 23.320.040– Cannabis Manufacturers, Testing Labs, and Distributors

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23.322.010– Chapter Purpose 23.322.020– Applicability 23.322.030– Required Parking Spaces 23.322.040– General Requirements 23.322.050– Parking Reductions 23.322.060– C-DMU Parking and Transportation Demand Management 23.322.070– Off-Street Parking Maximums for Residential Development 23.322.080– Parking Layout and Design 23.322.090– Bicycle Parking 23.322.100– On-site Loading Spaces 23.322.110– Parking Lots in Residential Districts 23.322.120– Transportation Services Fee

23.324.010– Chapter Purpose 23.324.020– General 23.324.030– Nonconforming Lots 23.324.040– Nonconforming Uses 23.324.050– Nonconforming Structures and Buildings 23.324.060– Exemptions

23.326.010– Chapter Purpose 23.326.020– General Requirements 23.326.030– Eliminating Dwelling Units through Demolition 23.326.040– Eliminating Dwelling Units through Conversion and Change of Use 23.326.050– Private Right of Action 23.326.060– Elimination of Residential Hotel Rooms 23.326.070– Demolitions of Non-Residential Buildings 23.326.080– Building Relocations 23.326.090– Limitations

23.328.010– Chapter Purpose and Applicability 23.328.020– General Requirements 23.328.030– Payment of In-Lieu Fees as an Alternative to Providing Inclusionary Units 23.328.040– Requirements Applicable to All Inclusionary Units

23.328.050– Inclusionary Unit Requirements for Rental Housing Projects 23.328.060– Inclusionary Unit Requirements for Ownership Projects

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23.328.070– Special Requirements for Avenues Plan Area 23.328.080– Administrative Regulations 23.328.090– Fees

23.330.010– Chapter Purpose 23.330.020– Definitions 23.330.030– Application Requirements 23.330.040– Density Bonus Calculations and Procedures 23.330.050– Incentives and Concessions 23.330.060– Waivers and Reductions 23.330.070– Qualifying Units 23.330.080– Regulatory Agreements

23.332.010– Chapter Purpose and Applicability 23.332.020– Definitions 23.332.030– General Requirements 23.332.040– Minimum Application Requirements 23.332.050– Location Requirements 23.332.060– Height Requirements 23.332.070– Design Requirements 23.332.080– Operation and Maintenance Standards 23.332.090– Public Information Requirements 23.332.100– Certification Requirements 23.332.110– Permits and Findings Required for Approval 23.332.120– Cessation of Operations

23.334.010– Chapter Purpose 23.334.020– Applicability 23.334.030– Transportation Demand Management Program Requirements 23.334.040– Monitoring, Reporting and Compliance

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Sections:

23.302.010– Purpose 23.302.020– General Use Regulations 23.302.030– Temporary Uses and Structures 23.302.040– Home Occupations 23.302.050– Bed and Breakfast Establishments in Residential Districts 23.302.060– Sidewalk Cafe Seating 23.302.070– Use-Specific Regulations

This chapter establishes land use regulations that apply in addition to regulations in Chapter 23.202—23.210 Zoning Districts.

A. Accessory Uses.

1. Long-Term Rental of Rooms in a Dwelling Unit. Renting rooms and/or providing board in a dwelling unit to persons not living as a household is permitted by right as an accessory use in all Residential Districts. The room rental/boarding must comply with the following requirements:

   • a. Minimum time period for rental: 14 days.

   • b. Maximum number of renters: four persons.

   • c. A rented room:

     • i. Must be fully integrated within the dwelling unit such that it has interior access to the rest of the dwelling unit;

     • ii. May not have a separate kitchen; and

iii. May not have separate assigned street addresses.

• d. All requirements for off-street parking must be met.

2. Non-Processed Edibles. The sale or donation of non-processed edibles grown or raised on the premises is permitted by right as an accessory use in all residential districts. All sale and donation activities must comply with the following requirements:

   • a. Sales and donations must be directly to the end consumer of the nonprocessed edibles.

   • b. Sales and donation-related activities must occur between the hours of 8am and 8pm.

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• c. Sales and donation-related activities must be located either indoors or in an area generally shielded from view from the public right-of-way to the extent practical based on the accessibility of the subject lot.

• d. The sale or donation of non-processed edibles may not involve hazardous materials or processes or create offensive or objectionable noise, vibration, odors, heat, dirt, or electrical disturbance perceptible by the average person beyond the lot line of the subject lot.

• e. The sale or donation of non-processed edibles may not involve more than ten customer visits to the premises in one day.

3. Chair Massage.

• a. Chair massage is permitted by right as an accessory use when incidental to a retail use in the commercial districts and the MU-R district.

• b. No additional parking is required.

4. Commercial Uses in Residential Districts. A commercial use is allowed in a Residential District as an accessory use only if the use is specifically allowed by the Zoning Ordinance.

B. Hours of Operation.

1. Allowed Hours. Table 23.302-1: Allowed Hours of Operation shows allowed hours of operation for commercial uses in the commercial districts and the MU-R district.

Exceptions. The City may allow extended hours of operations with the approval of a permit as shown in Table 23.302-1.

2. Alcohol Sales in C-T District. A Use Permit is required in the C-T district for a business selling alcohol for off-site consumption to remain open past midnight. The Use Permit may be approved only if the business’s ABC license does not require sales of alcohol for off-site consumption to cease by midnight. The Zoning Adjustments Board (ZAB) may approve the Use Permit only upon finding that the extended hours will not generate excessive noise, traffic or parking problems affecting the well-being of the residents of the district.

remain open past midnight. The Use Permit may be approved only if the business’s ABC license does not require sales of alcohol for off-site consumption to cease by midnight. The Zoning Adjustments Board (ZAB) may approve the Use Permit only upon finding that the extended hours will not generate excessive noise, traffic or parking problems affecting the well-being of the residents of the district.

TABLE 23.302-1: ALLOWED HOURS OF OPERATION

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3. C-T District Findings. The Zoning Officer may approve an AUP to extend hours of operation in the C-T district upon finding that the extended hours will not generate excessive noise, traffic, or parking problems affecting the well-being of the residents of the district.

4. Hours of Operation Defined.

• a. For retail or customer-serving office commercial uses, hours of operation are those times that the business is open to customer access.

• b. For food service establishments, hours of operation include the time that the business is open for customer access to the departure of the last patron. These limitations do not apply to:

  • i. The delivery, maintenance, security, product preparation and other preopening activities, and

  • ii. Cleanup, shutdown, and other post-closure activities which do not involve presence of customers.

• c. For other commercial and manufacturing uses which do not involve customer access, hours of operation are those times that employees are present who are engaged in non-maintenance or security activities.

• C. Indoor Storage of Goods. In the Commercial Districts, an AUP is required for the indoor storage of goods as an incidental use occupying over 25 percent of the gross floor area.

D. Live Entertainment.

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Permits Required. Live entertainment incidental to a permitted use is allowed as shown in

Table 23.302-2.

TABLE 23.302-2: PERMIT REQUIREMENTS FOR LIVE ENTERTAINMENT

1. Allowed Activities.

• a. In the S-O district, food service establishments may have no live entertainment other than unamplified music, poetry reading, comedy or other quiet activities.

• b. In the C-NS district, food service establishments may have no live entertainment other than unamplified background music, unless a Use Permit is obtained.

E. Outdoor Uses.

1. Applicability. This subsection applies to outdoor uses including but not limited to exterior service windows, outside automatic teller machines, and the outside storage of goods, containers and/or materials.

2. General. Commercial and manufacturing uses shall be conducted solely within an interior of a building unless:

   • a. The permit as required by Paragraph 3 (Permits Required) is obtained; or

   • b. the outdoor use is specifically allowed by the Zoning Ordinance.

3. Permits Required.

4. Table 23.302-3: Permit Requirements for Outdoor Uses shows permits required for uses outside of a building in the Commercial and Manufacturing Districts.

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TABLE 23.302-3: PERMIT REQUIREMENTS FOR OUTDOOR USES

5. C-W District. In the C-W district, uses outside of a building must be permitted or incidental to permitted use in the district.

6. M, MM, MU-LI Districts. Outside uses in the M, MM, and MU-LI districts may not abut a residential district.

• A. Permitted By Right.

  1. Temporary Uses. The following temporary uses are permitted by right:

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• a. Using a dwelling, school, church, community center, or other facility as a polling or voting place for an election conducted by the City or other government agency.

• b. Conducting a garage, yard, or rummage sale on a residential property or a block sale of several properties. A sale may not exceed two days and is limited to one sale in any month’s period of time.

• c. Temporary sidewalk sales conducted adjacent to, and in conjunction with, an approved commercial retail lease space, when all other City regulations are met.

• d. The use of a property as temporary parking during football games in the University of California Memorial Stadium under the provisions of Ordinance # 2435-N.S.

• e. A temporary retail use where:

  • i. The temporary sales are on the same property with an established commercial business holding a valid City business license; and

  • ii. The temporary sales conform with the approved permit for the commercial business.

2. Temporary Structures. The following accessory and temporary structures are permitted by right as long as they do not change the character of, and are in keeping with the purposes of the district in which they are located:

   • a. Lines, wires, poles and devices to transmit electricity, telephone/telecommunications or cable television, including pipelines, conduits and appurtenances to containing such wires and devices. Allowed activities include installing, maintaining, undergrounding, and repairing such facilities. A Use Permit or AUP is required for wireless telecommunication antennas other than those located within the public right-of-way.

   • b. Pipelines or conduits and appurtenances to transport oil, gas, sewage or water.

   • c. Temporary construction offices, scaffolding, utility connections, on-site construction material yards and/or debris containers for not more than the time period authorized in a valid building permit.

B. AUP Required.

1. When Required. An AUP is required to establish, maintain, or operate a temporary use or structure not identified in Subsection A (Permitted By Right) above.

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2. Scope of Approval. An AUP for a temporary use or structure applies only to the circumstances of the temporary use or structure existing at the time the application is granted.

3. Seasonal Product Sales. Temporary seasonal product sales activity may not exceed a 45-day period and may not be established in any Residential district.

4. Time Period.

• a. The AUP shall specify the time period for the temporary use or structure, including a required ending date.

• b. A time extension is not allowed unless approved by the Zoning Officer.

5. Findings. To approve the AUP, the Zoning Officer must make the findings in Section 23.406.030.F– Administrative Use Permits (Findings for Approval). When making this finding, the Zoning Officer shall consider whether the temporary nature of the use or structure will make it not detrimental.

6. Appeals.

• a. An AUP decision for seasonal product sales of pumpkins and Christmas trees, including the temporary use of a structure for an office, may not be appealed.

• b. All other AUP decisions for a temporary uses and structures may be appealed as provided in Chapter 23.410—Appeals and Certifications.

• C. Violations. Permits for temporary uses may be revoked for non-compliance with any conditions of approval and the Zoning Officer may issue an immediate cease and desist order.

D. Temporary Outdoor Uses on Private Property -- COVID-19 Local Emergency.

1. Applicability .

• a. This subsection is valid during and up to 90 days after a locally-declared state of emergency related to COVID 19.

• b. An eligible business must:

  • i. Have a valid City of Berkeley Business License;

  • ii. Be located on private property in one of the following districts:

    1. Any commercial zoning district; or

    2. The Manufacturing (M) District, the Mixed Manufacturing (MM) district, or the Mixed-Use Light Industrial (MU-LI) district; and

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  - _iii._ Be authorized by the Governor’s Executive Orders and Public Health Orders and the Public Health Orders of the City Health Officer, include appendices, to conduct outdoor business 

• c. The following businesses are not covered by this subsection:

  • i. Delivery-Only (Cannabis) Retailers.

  • ii. Liquor Stores/Wine Shops.

  • iii. Adult-Oriented Businesses.

  • iv. Smoke Shops.

  • v. Firearm/Munitions Businesses

2. Definitions . The definitions below shall govern the meaning of the terms as used in this subsection.

   • a. Temporary Outdoor Use: An allowable temporary use on private property conducted by a legally-established business in the same zoning district as it currently operates. A Temporary Outdoor Use may be conducted:

     • i. On private property at the address listed on a business’s City of Berkeley Business License;

     • ii. On private property at an address other than that listed on a business’s City of Berkeley Business License if the property is used solely for commercial purposes, is a vacant lot, or it a vacant building; or

     • iii. As a new stand-alone outdoor business, subject to obtaining a City of Berkeley Business License for the temporary location.

   • b. Temporary Fixtures and Structures: Physical equipment necessary to safely conduct business outdoors.

3. Zoning Certificate .

• a. An eligible business may conduct business outdoors as a Temporary Outdoor Use with a Zoning Certificate and compliance with 23.302.303.D.4 (Operating Standards).

• b. An application for a Zoning Certificate must be accompanied by a site plan, business description and operational plan that certifies compliance with 23.302.303.D.4 (Operating Standards). The site plan must include any proposed Temporary Fixtures and Structures.

• c. The operator of a Temporary Outdoor Use must have the written permission of the property owner.

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• d. Permits issued pursuant to this subsection must be posted in plan view within the commercial establishment for which the permit has been issued.

4. Operating Standards .

• a. A business must comply with State and local regulations for normal business operations, including previously-imposed conditions of approval related to hours of operation and other conditions of approval not in conflict with the allowances in this subsection, in addition to State regulations for outdoor operations.

• b. A business must follow the Governor’s Executive Orders, Public Health Orders, and the City of Berkeley Public Health Orders, including Appendices.

• c. A business must comply with American with Disabilities Act (ADA) requirements and the Berkeley Building Code.

• d. A Temporary Outdoor Use must maintain a 10-foot setback adjacent to any property in a residential district.

• e. A Food Service Establishment with incidental beverage service must comply with all applicable regulations of the California Department of Alcohol Beverage Control and obtain a COVID-19 temporary catering authorization.

• f. Operating Hours for a Temporary Outdoor Use are limited to 9 a.m. to 9 p.m. Operating Hours include the time that the business is open for customer access to the departure of the last patron.

  • i. Operating Hours limitations do not apply to delivery, maintenance, security, product preparation and other pre-opening activities, and cleanup, shutdown and other post-closure activities which do not involve the presence of customers.

• g. Temporary Outdoor Uses must be conducted in a manner that protects the residential character of surrounding neighborhoods from adverse impacts, including, but not limited to, commercial noise and offensive odors.

• h. Smoking is prohibited in areas designated for Temporary Outdoor Uses (BMC Section 12.70.030).

• i. Temporary outdoor lighting fixtures must be oriented in a manner to direct light away from adjacent parcels.

5. Sanitation .

• a. A business must provide garbage, recycling and compost services in accordance with the Alameda County Mandatory Recycling Ordinance.

• b. A Food Service Establishment must provide restrooms and sanitation during hours of operation.

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• c. A Food Service Establishment must comply with BMC Ch. 11.64 (Single Use Foodware and Litter Reduction).

6. Existing Parking and Loading . Non-residential parking and loading requirements on private property are temporarily suspended if a Temporary Outdoor Use displaces areas designated for these purposes.

7. Temporary Fixtures and Structures .

• a. Movable fixtures such as tables and chairs, umbrellas, heaters, generators, trucks or trailers must be stored in a secure place on private property when not in use.

• b. Fixed structures, such as semi-permanent tents, shipping containers, portable sinks and toilets, must occupy no more than 50% of the outdoor space dedicated to a Temporary Outdoor Use, in order to allow for social distancing.

• c. The location, type and operation of Temporary Fixtures and Structures must comply with requirement of, and be inspected by, the Building and Safety Division, Health Department, Fire Department, Police Department and/or Public Works Department, as applicable.

8. Safety .

• a. If a Temporary Outdoor Use is located within an active parking lot, a business must provide temporary barriers to separate vehicle traffic from pedestrians and commercial activity.

• b. If a Temporary Outdoor Use fully occupies a parking lot, a business must provide temporary barriers to prevent vehicle traffic from entering the parking lot.

9. Remedies .

• a. A Zoning Certificate for a Temporary Outdoor Use may be revoked for noncompliance with any conditions in this subsection, and the Zoning Officer may issue a cease and desist order immediately.

• b. A Temporary Outdoor Use that meets the nuisance criteria set forth in 23.414.404.B (Nuisances Prohibited) is subject to abatement, a set forth in 23.414 (Nuisance Abatement).

A. Definitions.

1. Home Occupation. A home occupation is a business use conducted on property developed with Residential use, which is incidental and secondary to the residential use, does not change the residential character of the residential use, is limited so as not to substantially reduce the residential use of the legally

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established dwelling, accessory dwelling unit, accessory building, or group living accommodation room and is operated only by the residents of the subject residence. There are three classifications of Home Occupations. For the purposes of this section, a “customer” is considered a single paying customer, but may include more than one person receiving the services at the same time:

• a. Class I Home Occupations . A Class I home occupation involves no more than five customer visits per day, with no more than four persons receiving services at a time. This class does not allow shipping of goods directly from the subject residence.

• b. Class II Home Occupations . A Class II home occupation involves no more than ten customer visits per day, with no more than four persons receiving services at a time and no more than one non-resident engaging in businessrelated activities on-site. This class does not allow shipping of goods directly from the subject residence.

• c. Class II Home Occupation . A Class III home occupation involves one or both of the following:

  • i. More than ten customer visits per day, with no more than four persons receiving services at a time and no more than one non-resident engaging in business-related activities on-site.

  • ii. Shipping of goods directly from the subject residence regardless of the number of customer visits per day.

2. Permits Required. Table 23.302-4 shows permits required for home occupations.

TABLE 23.302-4: PERMIT REQUIREMENTS FOR HOME OCCUPATIONS

3. Additional Findings -- Class II and Class III Home Occupations. To approve an AUP for a Class II home occupation or a Use Permit for a Class III home

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occupation, the Zoning Officer or the ZAB must make the permit findings in Section 23.406 (Specific Permit Requirements) and find that, based on the circumstances of the specific use and property:

• a. The degree of customer visits will not cause a significant detrimental impact on the availability of parking spaces in the immediate vicinity of the home occupation; and

• b. The degree of shipping and delivery activity to and from the subject residence will be compatible with surrounding residential uses and will not cause a significant detrimental impact on pedestrian and bicyclist safety or the availability of parking spaces in the immediate vicinity of the home occupation; and

• c. If the proposed home occupation will require a loading space on a regular basis, such loading space will be available on the subject property or the use of an on-street loading space will not cause a significant detrimental impact on pedestrian and bicyclist safety or the availability of parking spaces in the immediate vicinity of the home occupation; and

• d. The degree of customer visits and shipping and delivery activities shall not cause a detrimental impact to public safety, as determined by the Fire Marshall.

B. General Provisions.

1. Where Allowed. A home occupation is allowed in any dwelling unit, accessory dwelling unit, accessory building, or group living accommodation room.

2. Incidental Use. A home occupation in compliance with this section is considered a lawful incidental use of a primary residence and is not considered a change of use thereof.

• C. Standards for All Home Occupations. The following standard apply to all home occupations.

1. A home occupation is allowed as an incidental use within a dwelling unit, accessory dwelling units, accessory building, or group living accommodation room.

2. No firearm/munitions business may operate as a home occupation

3. Customer visits are not allowed in the ES-R district.

4. A Home Occupation may occupy no more than the greater of: 400 square feet or 20 percent of the gross floor area of the dwelling unit, accessory dwelling units, accessory building, or group living accommodation room from which it operates.

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5. Only residents of the subject dwelling unit, accessory dwelling units, accessory building, or group living accommodation room, who live in the unit or room fulltime, may operate a home occupation business.

6. Customer visits may occur only between the hours of 10am and 8pm.

7. Storage, services, repairs and other business activities, other than permitted arrival and departure of customers and goods in transit, may not be conducted outdoors.

8. A home occupation shall not involve hazardous materials or waste as defined by Municipal Code Section 15.08.060 (Hazardous Materials or Waste), or any other materials or waste that is deemed by the Hazardous Material Manager (or their designee or successor) to be inappropriate or unsafe in a residential setting.

9. A home occupation shall not create offensive or objectionable noise, vibration, odors, smoke, heat, dirt, electrical or other disturbance perceptible by the average person beyond the unit in which the home occupation is permitted.

• 10.No on-site signs identifying or advertising the home occupation are allowed.

• 11.The operator of a Home Occupation shall pay gross receipts tax pursuant to the City’s business license tax ordinance in Municipal Code Chapter 9.04 (Business Licenses).

• 12.A lessee in possession of a property may apply for a permit without the property owner’s signature; however, home occupations are not exempt from conditions in rental and lease agreements which may limit or prohibit home occupations.

• D. Complaints and Imposition of Conditions.

1. General. Home occupations are subject to review, the imposition of conditions, or revocation. Violations may be addressed by issuing an administrative citation pursuant to Chapter 1.28.

2. Class I and Class II Home Occupations. The Zoning Officer shall review documented complaints, business operations, and other factors when reviewing Class I and Class II home occupations, and may impose conditions as may be necessary to prevent detrimental effects, or may revoke the permit if adequate conditions of approval are not available.

3. Class III Home Occupations . The ZAB shall review documented complaints, business operations, and other factors when reviewing Class III home occupations and may impose conditions as may be necessary to prevent detrimental effects, or may revoke the permit if adequate conditions of approval are not available.

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A. Section Purpose.

1. The purpose of this section is to sanction the time-limited continued operation of bed and breakfast establishments (B&Bs) in residential districts that meet the requirements in this section.

2. This section is intended solely to alleviate the hardship that might occur if the owners of B&Bs were required to cease operation immediately, as would otherwise be required by the Zoning Ordinance.

3. The purpose of this section is not to permanently legalize such B&Bs.

B. Continued Operation

1. Eligibility. B&Bs in operation in Berkeley as of December 13, 2003 are eligible for continued operation subject to this section if, and only so long as, they satisfy the following conditions:

   • a. The B&B has been in consistent operation since January 1, 2003.

   • b. The building or buildings of which the B&B consists are legally constructed and comply with all applicable building, fire and housing code requirements, or are brought into compliance with those requirements within a reasonable time, as determined by the City.

   • c. The B&B complies with all laws related to food service and food handling.

   • d. There is no City record of complaints about the B&B within the three years before January 1, 2003.

2. Application. To be granted continued operation under this section, owners of eligible B&Bs must:

   • a. Apply for continued operation no later than 90 days after November 13, 2003;

   • b. Identify all owners and operators of the B&B; and

   • c. Pay all transient occupancy and business license taxes, penalties and interest due and owing, as determined by the City Council.

• C. Regulations. B&Bs that are allowed to continue in operation under Subsection B (Continued Operation) above shall comply with the following requirements.

1. The owner of the property on which the B&B is located must live there as their primary residence and must be the primary operator of the B&B.

2. No part of a B&B may be rented for social events or functions.

3. A B&B may not be expanded beyond the number of rooms or units in existence as of January 1, 2003.

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4. Food service, if provided by the operator, may be provided only to paying guests.

5. A B&B shall comply with all applicable laws, ordinance and regulations concerning the preparation and service of food.

6. A B&B shall comply with all applicable disability access requirements.

7. A B&B shall pay all transient occupancy and business license taxes as they become due.

D. Determinations by City Manager.

1. The City Manager or his/her designee shall make the determinations required by this section, and their decision shall be final.

2. The City Manager may give applicants under this section a reasonable period, but not to exceed six months, in which to bring the B&B into compliance with the requirements of Subsections B (Continued Operation) and C (Regulations).

E. Status of B&B Uses Under This Section.

1. Any continued operation allowed under this section does not constitute a permit and shall not run with the land, but is limited to the owner(s)/operator(s) thereof identified under Subsection B.2 (Application) and is subject to the requirements in this section.

2. A B&B sanctioned by this section shall be treated as a lawful nonconforming use, subject to automatic termination of the B&B use as provided in this section.

3. The owner shall file a deed restriction with the County Recorder, in a form approved by the City’s Zoning Officer, notifying purchasers of the effect of this section.

• F. Future Regulations Applicable. By seeking and accepting continued operation under this section, and thereafter operating a B&B, owners of B&Bs expressly agree that they will be subject to any and all additional regulations that may be adopted by the City to permit and regulate new B&Bs, to the extent the City so requires.

• G. Automatic Repeal. If the limitation of Subsection E (Status of B&B Uses Under This Section) above is declared unlawful or invalidated by any court of competent jurisdiction, this section shall be deemed automatically repealed, and all B&B uses sanctioned by it shall immediately terminate.

A. Section Purpose and Intent.

1. This section establishes a process to terminate an AUP previously issued for sidewalk cafe seating and identifies new permits required for this use.

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2. It is the intent of the City to discontinue issuance of new and terminate existing AUPs for sidewalk cafe seating because the City did not intend to create a land use entitlement which ran with the land for this use, which occurs on the public right-of-way. The City also intends to eliminate the discretionary aspect of permit issuance for sidewalk cafe seating and to simplify the permit process by incorporating specific, identifiable standards for issuance of permits.

B. Termination of AUPs for Sidewalk Cafe Seating.

1. Automatic Termination. Without any action required by the City, an AUP for sidewalk cafe seating terminates upon:

   • a. The abandonment, revocation, or termination of the food service establishment which the sidewalk cafe seating serves;

   • b. The replacement of the food service establishment with another use; or

   • c. The transfer of ownership of the food service establishment.

2. Termination by Zoning Officer.

• a. After providing reasonable notice and an opportunity to be heard, the Zoning Officer may terminate an AUP for sidewalk cafe seating upon determining that the permit holder has not complied with the terms of the AUP or any applicable requirement of the Zoning Ordinance.

• b. A decision by the Zoning Officer to terminate an AUP for sidewalk cafe seating may be appealed in accordance with Chapter 23.410 (Appeals and Certification).

C. New Permit Required.

1. After an AUP for sidewalk cafe seating is terminated, the sidewalk cafe seating may continue or resume only after the food service establishment obtains a permit under Municipal Code Chapter 14.48 (Miscellaneous Use of Streets and Sidewalks).

2. Any sidewalk cafe seating that does not obtain required permits is a prohibited encroachment under Municipal Code Chapter 16.18 (Right-Of-Way Encroachments and Encroachment Permits).

A. Adult-Oriented Businesses.

1. General Limitations. An adult-oriented business may not be established:

   • a. Within 300 feet of the boundary of a Residential District, as measured along the public right-of-way;

   • b. Within a radius of 1,000 feet from any other adult-oriented business; or

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• c. Within a radius of 600 feet of any public park, public health clinic, public library, school or religious assembly use.

2. District Limitations. Adult-oriented businesses are not permitted:

   • a. On lots with frontage on San Pablo Avenue in the C-W district; and

   • b. On public-serving frontages in the C-DMU district.

B. Amusement Devices Arcade.

1. Distance from Schools. An amusement device arcade may not be established within a radius of 600 feet of a primary or secondary school.

2. Incidental Use. Table 23.302-5 shows permits required and maximum number of amusement devices allowed as an incidental use in the non-residential districts.

TABLE 23.302-5: PERMIT REQUIREMENTS FOR AMUSEMENT DEVICES AS INCIDENTAL USES

• C. Columbaria . Columbaria require the permits shown in Table 23.302-6.

TABLE 23.302-6: COLUMBARIA PERMIT REQUIREMENTS

• D. Firearms/Munitions Business. In all districts, a firearms/munition business is not permitted on a property containing a residential use.

E. Food Service Establishments.

1. Maximum Size in R-SMU. Food service establishments in the R-SMU district may not exceed 1,200 square feet.

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2. Permits Required in Commercial Districts. Table 23.302-7 shows permits required for food service establishments in the commercial districts.

TABLE 23.302-7: PERMIT REQUIREMENTS FOR FOOD SERVICE ESTABLISHMENTS

3. Notification of Decision. Food service establishments requiring an AUP in the C-N, C-E, C-NS, C-SA, C-SO districts must provide public notification of decision (NOD) within a 300-foot radius of the subject property.

4. Carry Out Limitations in C-U District. Food service establishments in the C-U district that exclusively sell food for offsite consumption are not permitted at any location on University Avenue between Oxford Street and Martin Luther King Jr. Way until a Downtown Retail Plan is adopted by the City Council.

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5. Outdoor Cafe Seating.

• a. Outdoor cafe seating on private property outside of the public right-of-way is allowed in the commercial districts with the following permits:

  • i. Zoning Certificate when seating does not abut a residential district.

  • ii. AUP when seating abuts a residential district.

• b. Outdoor seating is not permitted for food service establishments in the MU-LI District.

• c. Sidewalk cafe seating within the public right-of-way is subject to 23.302.060 (Sidewalk Cafe Seating).

6. Building Openings – C-E and C-NS Districts. Food service establishments in the C-E and C-NS districts may have no openings, other than fixed windows and required fire exits, within 50 feet of a residential district.

7. C-W District Requirements.

• a. Food service drive-through is not permitted on properties fronting San Pablo Avenue.

• b. To approve a Use Permit for a food service establishment on a lot with frontage on San Pablo Avenue, the ZAB must find that:

  • i. The project does not conflict with the goals and policies of the C-W district; ii. The location, size, appearance and signage of the project will not adversely affect the San Pablo Avenue corridor;

  • iii. The project supports pedestrian-oriented development;

  • iv. The project is designed to protect the residential character of surrounding neighborhoods from the adverse impacts of fast food development, including, but not limited to increased traffic, litter, and noise; and

  • v. For projects which include construction of new buildings, the project design:

    1. Provides intensity of development which does not underutilize the property; especially at or near intersections of major streets;

    2. Provides pedestrian scale and siting; and

    3. Incorporates continuity in street facades.

8. Permits Required in Manufacturing Districts. Table 23.302-8 shows permits required for food service establishments in the manufacturing districts.

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TABLE 23.302-8: PERMIT REQUIREMENTS FOR FOOD SERVICE ESTABLISHMENTS IN MANUFACTURING DISTRICTS

9. MU-LI and MU-R District – Findings.

• a. To approve an AUP or Use Permit to establish or expand a food service establishment in the MU-LI or MU-R district, the review authority must find that the establishment of the use, given its size, location, physical appearance and other relevant characteristics, will not have a significant detrimental impact on the industrial character of the area.

• b. To approve an AUP for a food service establishment less than 5,000 square feet, the Zoning Officer must find that a substantial portion of the food consists of goods manufactured on site.

F. Non-Chartered Financial Institutions.

1. No more than four non-chartered financial institutions are permitted in the city.

2. Non-chartered financial institutions may not be located within a radius of 1,320 feet of another non-chartered financial institutions.

G. Parking Lot/Structure.

1. Permits Required.

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2. Table 23.302-9 shows required permits for the exclusive or primary use of a lot for off-street parking spaces.

TABLE 23.302-9: PERMIT REQUIREMENTS FOR PARKING LOTS/STRUCTURES

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Plan area

3. Residential District Standards. See 23.322.110– Parking Lots in Residential Districts for standards that apply to the exclusive or primary use of a lot for offstreet parking spaces in a residential district.

• H. Senior Congregate Housing. Table 23.302-10 shows permits required for senior congregate housing.

TABLE 23.302-10: PERMIT REQUIREMENTS FOR SENIOR CONGREGATE HOUSING

• I. Smoke Shops. In all districts, smoke shops are not permitted within 1,400 feet of a school or public park.

J. Warehouse Storage for Retail Use.

1. In all districts where retail uses are allowed, on-site storage of goods is allowed as an accessory use to a primary retail use on the lot.

2. The storage of goods for a contiguous and directly accessible retail space is allowed in the MU-LI and MU-R districts subject to the following:

• a. An AUP is required for storage 3,000 square feet or less; a Use Permit is required for storage more than 3,000 square feet.

  • b. Except for food product stores in the MU-LI district, the storage is permitted only for uses within the district. Storage for retail uses wholly or partially outside the district is not permitted.

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Sections: 23.304.010– Purpose 23.304.020– Lot Requirements 23.304.030– Setbacks 23.304.040– Building Separation in Residential Districts 23.304.050– Building Height 23.304.060– Accessory Buildings and Enclosed Accessory Structures 23.304.070– Unenclosed Accessory Structures in Residential Districts 23.304.080– Fences 23.304.090– Usable Open Space 23.304.100– Site Features in Residential Districts 23.304.110– Dormers 23.304.120– Lot Coverage 23.304.130– Non-Residential Districts Abutting a Residential District 23.304.140– Area Plans

This chapter contains development standards that apply generally in Berkeley.

A. All Districts.

1. Lot Changes. A lot may not be subdivided or reduced in size and a lot line may not be adjusted or redrawn in a manner that conflicts with the Zoning Ordinance or:

   • a. Reduces the lot area, lot width, or lot depth below the district minimum requirement;

   • b. Reduces the area per dwelling unit, area for off-street parking spaces, or usable open space area below the district minimum requirement;

   • c. Reduces the setback or driveway dimension below minimum district requirements for any existing building; or

   • d. Creates a building site where setbacks or driveways for a new building would require a Use Permit or Variance.

2. Transactions Contrary to Minimum Lot Size Requirements. Any deed of conveyance, sale or contract to sell made contrary to the minimum lot size requirements of the Zoning Ordinance is voidable at the sole option of the grantee, buyer or person contracting to buy, their heirs, personal representative or trustee in insolvency or bankruptcy within one year after the date of execution of the deed of conveyance, sale, or contract.

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3. Front Lot Line Determination for Corner Lots. For the purpose of determining lot frontage and setback requirements, the shorter of the two intersecting lot lines along the rights-of-way of a corner lot is considered the front of the lot. For lots with equal frontage, or for irregularly shaped corner lots, the Zoning Officer shall designate the front lot line in a manner to best promote the orderly development of the immediate area.

4. Condominium Lots. For condominium projects with a common area, all buildings and the common area together are treated as a single lot for the purpose of calculating minimum lot size, setback, density, FAR, coverage, usable open space and off-street parking requirements.

5. Projections Over Lot Lines. A building or structure may not project over a lot line except that:

   • a. Awnings and other architectural features may project over a lot line into the public right-of-way, and

   • b. Fences may be erected on shared lot lines.

B. Residential Districts.

1. Lot Line Designations for Flag and Irregular Lots. The Zoning Officer shall designate the front, side, and rear lot line for flag lots and irregular interior lots in a manner to best protect light, air, and privacy.

• A. All Districts. A building or structure may not project into a required setback area except as specifically permitted by the Zoning Ordinance.

B. Residential Districts.

1. Corner Lots with a Rear Lot Line Abutting a Key Lot. For corner lots in the R- 1, R-1A, R-2 and R-2A districts with a rear lot line abutting a key lot, the minimum street side setback is either:

   • a. One-half the front setback required or existing on the key lot, whichever is less; or

   • b. Four feet if the corner lot maintains 50 feet or more rear setback.

2. Setback Reductions. Lot line setback reductions are only permitted as shown in Table 23.304-1. Otherwise, they are not permitted.

.

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TABLE 23.304-1: ALLOWED SETBACK REDUCTIONS IN RESIDENTIAL DISTRICTS

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3. Allowed Building Projections. Table 23.304-2 shows building features which may project into a required setback. All projecting features must maintain a minimum 3-foot distance from an interior side lot line.

TABLE 23.304-2: ALLOWED BUILDING PROJECTIONS

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Notes:

• [1] Projecting bay windows and balconies may not exceed 25% of the length of building wall to which its attached.

• [2] Uncovered decks, porches, landings and stairs less than 30 inches in height are not subject to minimum setback requirements.

  4. Accessibility for Persons with Disabilities. Wheelchair ramps, lifts, and other structures to accommodate persons with disabilities may project into a required setback area with approval of a reasonable accommodation request. See Section 23.406.090 (Reasonable Accommodation). Preferred designs would comply with the following:

     • a. One side yard with a pedestrian pathway of at least 3 feet in width that provides access to the rear yard shall be maintained on the lot.

     • b. The projection may not block access to or encroach into any required offstreet parking space or driveway leading to such space.

  5. Building Groups. Where two or more main buildings are constructed as part of a single project, the Zoning Officer may approve an AUP to reduce the minimum side setback requirement if:

     • a. Each building is constructed on a separate contiguous lot; and

     • b. Each building satisfies the requirements of the Berkeley Fire Code and Berkeley Building Code.

6. Subterranean Structures.

• a. A subterranean structure may project into required front, side, and rear setbacks if:

• b. The structure has a roof;

• c. The roof elevation does not exceed 3 feet above finished grade; and

• d. The roof is landscaped and developed so as to qualify as usable open space in conformance with 23.304.090 (Usable Open Space).

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• e. A subterranean structure that projects into a required setback must be setback at least 6 feet from the front, side, and rear lot lines.

7. Solar Energy Equipment. The Zoning Officer may approve an AUP for solar energy equipment to project into a required setback upon finding that:

   • a. The projection is necessary to install the solar energy equipment;

• b. The proposed structures and equipment are installed with the primary purpose to collect, store, and use solar energy; and

  • c. The building served by the solar energy equipment complies with the Residential Energy Conservation Ordinance (RECO).

C. Non-Residential Districts.

1. Single-Use Residential Development. Allowed setback reductions and projections in 23.304.030.B (Residential Districts) also apply to single-use residential development in a Non-Residential District.

2. Lots Adjacent to Residential Districts.

• a. Standards. Table 23.304-3 shows minimum setbacks on lots in a NonResidential District that abut or confront one or more lots in a Residential District. Required setbacks apply to structures occupied by any use, including residential-only buildings.

TABLE 23.304-3: SETBACKS ADJACENT TO RESIDENTIAL DISTRICTS

b. Modifications in Commercial Districts. For lots in a Commercial District

that abut or confront one or more lots in a Residential District, the Zoning

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Adjustments Board (ZAB) may approve a Use Permit to allow setbacks smaller than required in Table 23.304-2 upon finding that the reduced setback would provide greater privacy or improved amenities to a lot in the Residential District.

• A. Table 23.304-4 shows permits required to reduce to minimum building separation standards in Residential Districts, and when these reductions are allowed.

TABLE 23.304-4: PERMITS REQUIRED FOR BUILDING SEPARATION REDUCTIONS IN RESIDENTIAL DISTRICTS

• A. Projections Above Height Limits. Table 23.304-5 shows features that may project above allowed height limits. For rules that apply to wireless telecommunication facilities, see Chapter 23.332 (Wireless Telecommunication Facilities).

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TABLE 23.304-5: ALLOWED PROJECTIONS ABOVE HEIGHT LIMIT

Notes:

[1] May exceed allowed height and width with an AUP.

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• B. Rooftop Structures in Residential Districts. Decks, railings, trellises, pergolas, and other similar structures may be built above a roof but less than the residential addition height limit of the district. These structures may exceed the residential addition height limit with an AUP.

• A. Applicability. This section applies to accessory buildings and enclosed accessory structures as defined in 23.502 (Glossary). See Section 23.304.070 (Unenclosed Accessory Structures in Residential Districts) and Section 23.304.080 (Fences) and for requirements that apply to other unenclosed accessory structures and fences.

B. All Districts.

1. Attached or Close to Main Building. An accessory building or enclosed accessory structure, other than a subterranean structure, that is attached to or within 3 feet of a wall of a main building, is considered a part of the main building for the purposes of setback requirements.

2. Demolition. See 23.326.030.C (Accessory Buildings) and 23.326.070.B (Accessory Buildings) for permits required to demolish accessory buildings.

C. Residential Districts .

1. Permits Required. Table 23.304-6 shows permits required for accessory buildings and accessory structures in Residential Districts.

TABLE 23.304-6: PERMIT REQUIREMENTS FOR ACCESSORY BUILDINGS AND ENCLOSED ACCESSORY STRUCTURES

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[1] Horse stables are not permitted in the R-S and R-SMU districts

2. Development and Use Standards.

• a. Development Standards. Table 23.304-7 shows development standards for accessory buildings and enclosed accessory structures in Residential Districts.

TABLE 23.304-7: ACCESSORY BUILDING AND ENCLOSED ACCESSORY STRUCTURE STANDARDS IN RESIDENTIAL DISTRICTS

b. Deviation from Standards.

• i. In all Residential Districts except for the ES-R district, the Zoning Officer

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may approve an AUP to allow an accessory building or enclosed accessory structure to deviate from the standards in Table 23.304-7. In the ES-R district, deviations require ZAB approval of a Use Permit.

• ii. To approve the deviation, the review authority must find that the proposed building or structure will not be detrimental to the light, air, privacy, and view of adjacent properties.

• c. Bathroom and Kitchen Facilities. An accessory building may contain a full bathroom, including handwashing sink, toilet, and tub or shower, as well as cooking facilities, as long as the cooking facilities do not constitute a kitchen.

• d. Rentals. An accessory building may be rented only as a short-term rental as allowed in Section 23.314—Short-Term Rentals.

2. Rebuilding and Replacement.

• a. Notwithstanding the setback standards in this section and the coverage area standards in Chapter 23.202—Residential Districts, an accessory building or enclosed accessory structure may be constructed to replace a pre-existing lawful accessory building or enclosed accessory structure, if the replacement building or structure is in the same location and has the same or smaller footprint as the previous structure. However, any such replacement structure may not exceed the average height as the previous building or structure; otherwise an AUP is required.

• b. Such replacement buildings and structures are permitted as of right only if an application for a building permit for their construction is submitted at the same time as an application for a building permit for the demolition of the preexisting building or structure.

• c. The demolition of any accessory building proposed for replacement under this section is subject to Municipal Code Chapter 3.24 (Landmark Preservation Commission).

• D. Non-Residential Districts. The following requirements apply to accessory buildings and enclosed accessory structures in Non-Residential Districts.

1. Permits Required .

• a. Accessory buildings and enclosed accessory structures in a Non-Residential District require the same permits as a main building in the district, except as provided in paragraphs (b) and (c) below.

• b. Accessory buildings and structures with urban agriculture are allowed with a Zoning Certificate.

• c. In a Commercial District, an accessory building or enclosed accessory structure associated with a residential-only project requires the same permits

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as in all Residential Districts except ES-R as shown in Table 23.304-7: Accessory Building and Enclosed Accessory Structure Standards in Residential Districts.

2. Development Standards .

• a. Accessory buildings and enclosed accessory structures must comply with the same development standards that apply to main buildings in the district.

• b. A detached accessory building or enclosed accessory structure may not be erected or expanded within 5 feet of an alley.

• A. Applicability. This section applies to unenclosed accessory structures as defined in 23.502Glossary in a Residential District, excluding fences which are addressed in 23.304.080– Fences.

• B. Placement on Lot. Unenclosed accessory structures require an AUP if placed on the ground within a required setback.

C. Height.

1. For unenclosed accessory structure within a required setback, allowed height shall be specified in the AUP.

2. No height limitations apply to unenclosed accessory structures outside of required setbacks.

3. The height of an unenclosed accessory structure is measured as the vertical distance from the lowest existing grade point within a 3-foot radius of any point of the structure to the highest point of the structure.

D. Hot Tubs, Jacuzzis, and Spas.

1. An unenclosed outdoor hot tub, jacuzzi, or spa located anywhere on a lot requires:

   • a. An AUP in all Residential Districts except for the ES-R district; and

b. A Use Permit in the ES-R district.

2. Any pump associated with an unenclosed outdoor hot tub, jacuzzi, or spa shall be mounted and enclosed so that its sound is not audible on an adjacent lot.

• A. Permits Required. Table 23.304-8 shows permits required for fences in all districts.

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TABLE 23.304-8: PERMITS REQUIRED FOR FENCES

• B. Height Measurement. The height of a fence is measured as the vertical distance from the lowest existing grade point within a 3-foot radius of any point of the structure to the highest point of the structure.

C. Prohibited Materials in Residential Districts .

1. A fence in a Residential District may not contain strands of barbed or razor wire, sharp or jagged glass, sharp or jagged metal components (e.g., razor-spikes), or similar materials.

2. Prohibited fence materials on an existing fence may not be expanded or repaired. Table 23.304-9 shows the date by which existing non-conforming prohibited fence materials must be removed.

TABLE 23.304-9: REMOVAL OF PROHIBITED FENCE MATERIALS

ADJUSTED MARKET VALUE OF REQUIRED REMOVAL DATE PROHIBITED FENCE MATERIAL October 16, 2004 or within one year from the date such feature $1,500 or less became non-conforming, whichever date is earlier October 16, 2005 or within one year from the date such feature More than $1,500 became non-conforming, whichever date is earlier

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3. For purposes of this section, the adjusted market value of the existing nonconforming prohibited fence feature is calculated as follows:

   • a. The "original cost" of the fence feature is the likely cost of substantially similar fence features at the time the fence feature was initially installed plus the likely costs of installation at that time.

   • b. The "original cost" is reduced by 10 percent for each year since the fence feature was installed, until the year that this section became effective. This reduced is considered the "adjusted market value."

4. If a property owner shows that the period of time in Table 23.304-9 is unreasonable as applied to a particular fence feature, the City may extend the period within which removal of such feature is required, after weighing the harm to the public interest from continued maintenance of the fence and other relevant factors. Any such determination will be made in the course of the proceedings to abate pursuant to Municipal Code Chapter 1.24 (Abatement of Nuisances).

D. Barbed or Razor Wire in Non-Residential Districts.

1. A fence adjacent to a street, sidewalk, path, or other public right-of-way in a NonResidential District may have strands of barbed or razor wire if:

   • a. The lowest strand is more than 5 feet above the ground; and

• b. The strands are at least 6 inches inside the property line of a privately-owned lot.

2. A fence on a lot line that abuts a Residential District must comply with 23.304.080.D– Fences (Prohibited Materials in Residential Districts).

E. MU-R District.

1. Abutting Residential Uses.

• a. If the side or rear of a lot in the MU-R district with a residential use abuts another lot with a residential use, a fence over six feet in height must be setback at least either:

  • i. Eight feet from any main residential building on the abutting lot; or

  • ii. Four feet from the property line if the main residential building on the abutting lot is less than 4 feet from the abutting lot line.

• b. This requirement does not apply when two lots sharing the lot line are under the same ownership.

2. Manufacturing/Residential Buffers.

• a. If a development project in the MU-R district results in a lot with a manufacturing use abutting the side or rear of a lot with a residential use, an

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8-foot minimum fence with sound absorbent material is required between the manufacturing and residential uses.

• b. The Zoning Officer may approve an AUP to allow for an alternative method to provide a buffer between the manufacturing and residential uses.

• A. Applicability. The standards in this section apply to areas used to satisfy minimum usable open space requirements as shown in Chapters 23.202–23.202.110 (Zoning Districts).

B. Standards.

1. Accessibility and Use. Usable open space shall be accessible to the occupants of the building for active or passive recreation use.

2. Assignment to Unit. An area which is accessible and/or usable only by the occupants of a particular dwelling unit may satisfy the usable open space area requirements only for that particular dwelling unit.

3. Minimum Dimensions. Except for balconies, a usable open space area must have a minimum width and length of 10 feet.

4. Balconies.

• a. A maximum of 50 percent of the total required usable open space area may be satisfied by balconies.

• b. A balcony must have a minimum width and length of 6 feet.

• c. At least one exterior side must be open and unobstructed except for required railings.

5. Uncovered. Except for balconies, usable open space shall be at least 75 percent open to the sky.

6. Slope. Usable open space must have a slope of 8 percent grade or less.

7. Landscaping.

• a. At least 40 percent of the total required usable open space area, exclusive of balconies above the ground floor, shall be landscaped.

• b. A landscaped area may not include off-street parking spaces, driveways, paved walkways and paths, patios and other surfaces covered by concrete or asphalt.

• c. For multiple dwelling uses, required landscaped areas shall incorporate automatic irrigation and drainage facilities adequate to assure healthy growing conditions for plants.

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8. Amenities. Usable open space which is not planted shall be developed to encourage outdoor active or passive recreational use and shall include such elements as decks, sports courts, outdoor seating, decorative paved areas and walkways which do not serve as entrance walkways.

9. Access Features Not Included. Usable open space may not contain area designated for off-street parking and loading, service areas, driveways, required walkways or other features used for access to dwelling units.

• C. Other Open Space Areas. Areas of the lot which do not qualify as usable open space and which are not designated as driveways, off-street parking spaces or required walkways, shall be retained as landscaped areas.

• A. Applicability. The standards in this section apply in all Residential Districts.

• B. Garbage Cans. All garbage cans shall be effectively screened from view from the public right-of-way and surrounding properties.

• C. Utility Meters. For buildings with two or more units, all utility meters shall be effectively screened from view from the public right-of-way and surrounding properties.

D. Pedestrian Walkway for Multiple Dwellings.

1. All multi-family dwellings shall have an unobstructed walkway for pedestrian access from the public right-of-way to the building.

2. The required walkway shall be separated and physically protected from a driveway or off-street parking spaces with a minimum 2-foot wide landscaped strip.

E. Exterior Lighting.

1. All exterior lighting shall be shielded and directed downward and away from lot lines to prevent excessive glare beyond the property on which the light is located.

2. Lights on motion sensors may not be triggered by movement or activity located off the property on which the light is located.

• A. Wall Setback. All features of a dormer shall be set back at least 3 feet from the exterior of the wall below, with the exception of the dormer’s eaves, which may project horizontally not more than two feet from the exterior face of the dormer.

• B. Placement Below Roof. A dormer must be below the ridge of the portion of the building’s roof where the dormer is located.

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• C. Horizontal Dimension . The total horizontal dimension of the dormer(s) facing the side of a building, as measured parallel to that side, may not exceed 25 percent of the length of the exterior wall, as shown in Figure 23.304-1: Dormers.

• D. Excluded from Average Height Calculation . Dormers complying with this section are not included in the average building height calculation.

==> picture [145 x 10] intentionally omitted <==

----- Start of picture text -----
FIGURE 23.304-1: DORMERS
----- End of picture text -----

==> picture [285 x 214] intentionally omitted <==

• A. Maximum Requirement . A lot may not exceed the maximum lot coverage required in a district except as specifically permitted by the Zoning Ordinance.

• B. Exception. Solar energy equipment and wheelchair ramps and lifts in compliance with the Zoning Ordinance may exceed the maximum allowed lot coverage.

• A. Applicability. The standards in this section apply to lots in a Non-Residential District that abut or confront a lot in a Residential District.

• B. Conflicting Provisions. If the standards in this section conflict with a standard in Chapters 23.202–23.210 (Zoning Districts), the Chapters 23.202–23.210 standard governs.

• C. Standards.

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1. Display Window Orientation. Display windows and customer entrances, other than required exits, shall not face abutting lots in a Residential District.

2. Exterior Lighting. Exterior lighting shall be shielded in a manner which avoids direct glare onto abutting lots in a Residential District.

3. Lot Line Screening. To provide screening, a solid wall or fence, measuring 6 feet in height from existing grade, shall be erected at the lot line of an abutting lot in a Residential District.

4. Exhaust Air Ducts.

• a. Exhaust air ducts shall be located or oriented to direct vented air flows away from a Residential District.

• b. Exhaust air ducts shall include equipment to mitigates odors.

• D. Modifications. The ZAB may approve a Use Permit to reduce or waive the requirements of this section upon finding that requirement is unnecessary to minimize the effects of commercial uses on a lot in the Residential District.

• E. Downtown Area Plan. Projects in the Downtown Area Plan boundaries are subject to the applicable mitigation measure in the adopted Mitigation Monitoring Program of the Downtown Area Plan Final EIR.

F. Southside Plan.

1. Mitigation Measures. Projects in the Southside Plan boundaries are subject to the applicable mitigation measures in the adopted Mitigation Monitoring Program the Southside Plan Final EIR.

2. Permit Findings. To approve an AUP or Use Permit for a project in the Southside Plan boundaries, the review authority must find that the project complies with the Southside Plan’s adopted Mitigation Monitoring Program (MMP).

• G. West Berkeley Plan. Projects in the West Berkeley Plan boundaries are subject to the applicable mitigation measure in the adopted Mitigation Monitoring Program of the West Berkeley Plan Final EIR.

• H. Adeline Corridor Plan. Projects in the Adeline Corridor Plan boundaries are subject to the applicable mitigation measure in the adopted Mitigation Monitoring Program of the Adeline Corridor Plan Final EIR.

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Sections:

23.306.010– Purposes 23.306.020– Applicability 23.306.030– Permit Procedures

The purposes of this chapter are to:

• A. Implement California Government Code Section 65852.2 and 65852.22.

• B. Increase overall supply and range of housing options in Berkeley.

• C. Expedite small-scale infill development.

• D. Support Housing Element goals of facilitating construction of accessory dwelling units and increasing the number of housing units that are more affordable to Berkeley residents.

• E. Encourage development of accessory dwelling units in zoning districts with compatible land uses and infrastructure.

• A. The provisions of this chapter apply to all lots with at least on existing or proposed dwelling unit.

Zoning Certificates will be issued for Accessory Dwelling Units and Junior Accessory Dwelling Units per California Government Code Section 65852.2 and 65852.22.

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Sections:

23.308.010– Chapter Purpose 23.308.020– Applicability and Nonconformities 0– Required Permits

• 23.308.030– Standards for Emergency Shelters

This chapter establishes standards for emergency shelters that ensure compatibility of shelter activities with surrounding uses and provide a safe place for individuals and families to obtain temporary shelter

• A. Applicability. This chapter applies to all emergency shelters established after January 1, 2014.

B. Nonconformities.

1. Emergency shelters established before January 1, 2014 may continue to operate consistent with:

   • a. The conditions in those approvals and permits;

   • b. All other applicable provisions of the Zoning Ordinance; and

   • c. Any limitations and requirements imposed as a condition of funding.

2. Except in the MU-LI district, such existing emergency shelters shall be treated as a lawful nonconforming use under Chapter 23.324(Nonconforming Uses, Structures, and Buildings). Existing shelters in the MU-LI district are not considered a nonconforming use and may add floor area with a Use Permit.

– Required PermitsTable 23.308-1 shows permits required for emergency shelters.

TABLE 23.308-1: PERMIT REQUIREMENTS FOR EMERGENCY SHELTERS

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• A. All Districts. The following standards apply to emergency shelters in all districts.

  1. No individual or household may be denied emergency shelter because of an inability to pay.

  2. No emergency shelter shall be located within 300 feet of another emergency shelter, except when a Use Permit is approved to allow less of a buffer distance.

  3. When abutting a Residential District, all areas for shelter activities and uses, including but not limited to waiting and intake, personal storage, facility storage, and recreation, shall be located indoors.

  4. The following emergency shelter facilities are required:

     • a. An area for onsite client intake equal to one-quarter of the area provided for client beds. This may be a multi-use area.

     • b. Showers and restroom facilities.

  5. The following emergency shelter facilities are optional:

     • a. Secure personal storage.

     • b. Daytime services.

     • c. Meal services.

     • d. Communal kitchen.

     • e. Laundry equipment for clients.

     • f. Child care.

     • g. Vehicle and/or bicycle parking.

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6. Lighting shall be provided in all exterior areas, including pathways, parking areas, courtyards, rear yard areas, and spaces between structures. Lighting shall be directed in a manner that does not cast light onto neighboring properties.

7. On-site management shall be provided at all times the facility is in operation and at least one hour before and after facility operation hours.

8. The shelter operator shall prepare and implement a Shelter Safety and Management Plan. The Plan shall be available to the public upon request and shall address the following:

   • a. Client congregation outside of the shelter facility to prevent queuing within the public right-of-way.

   • b. Eligibility criteria, enforcement rules, and procedures for disruptive clients.

   • c. Number and responsibilities of on-site support staff, training standards, other management procedures, and a primary and secondary contact person.

   • d. Bed bug prevention.

   • e. Refuse collection.

   • f. Security procedures.

   • g. Separation of sleeping areas and restrooms by gender and for families.

   • h. Consistency with the Alameda County-Wide Homeless Continuum of Care: Health, Safety and Accessibility Standards for Shelter Facilities in Alameda County.

9. The shelter provider shall conduct a community meeting after giving notice to all owners and occupants on record with the Alameda County Assessor within a 100-foot radius of the proposed shelter location. A community meeting shall not be required when the target population of the proposed shelter requires privacy due to safety concerns as determined by the Zoning Officer.

B. Seasonal Emergency Shelters.

1. Seasonal Emergency Shelter Defined . A seasonal emergency shelter is an emergency shelter that may operate only during the wet weather season from November 15 through April 15, unless the City Manager determines in any given year that the wet season has begun earlier or extended later than these dates.

2. Standards in Residential Districts. In addition to the standards in Subsection A (Standards for All Emergency Shelters) above, the following standards apply to seasonal emergency shelters in a residential district.

   • a. A seasonal emergency shelter must be incidental to a community and institutional use.

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• b. Table 23.308-2 shows permits required based on the percentage of the community and institutional use occupied by the seasonal emergency shelter.

TABLE 23.308-2: FLOOR AREA PERMIT REQUIREMENTS IN RESIDENTIAL DISTRICTS

• C. Findings. To approve a Use Permit for an emergency shelter under Section 23.304.030(Required Permits) or 23.308.030(Standards in Residential Districts), the Zoning Adjustments Board (ZAB) must find that:

  1. A larger shelter facility will help meet the City’s goals pertaining to emergency housing of the homeless;

  2. The circumstances of the subject property make the larger facility appropriate; and

  3. Design features will minimize impacts on the surrounding area.

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Sections:

23.310.010– Chapter Purpose 23.310.020– General Requirements Excluding Incidental Beer and Wine Service 23.310.030– Alcoholic Beverage Service When Incidental to Food Service

This chapter establishes general requirements for alcoholic beverage sales or service and permit requirements and standards for alcoholic beverage service when incidental to a food service establishment.

A. Applicability.

1. This section applies to any application to begin or increase alcoholic beverage sales or service, excluding beer and wine service incidental to a food service establishment in a Commercial District (see 23.310 (Alcoholic Beverage Service When Incidental to a Food Service)).

2. As used in this section, an increase in alcoholic beverage sales or service includes, but is not limited to:

   • a. Adding the sales or service of distilled spirits to any existing sales or service of beer and/or wine;

   • b. Extending the hours of operation of any establishment that sells or serves any alcoholic beverage; and

   • c. Adding to the capacity, floor area, or shelf space devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages.

3. An increase in alcoholic beverage sales or service does not include extending the hours of operation of any food service establishments with incidental beer and/or wine service.

• B. Permit Required. A Use Permit is required to begin or increase alcoholic beverage sales or service in any way.

• C. Application – List of Nearby Establishments. As part of an application to begin or increase alcoholic beverage sales or service, the applicant must provide a list of all establishments within a 1,000-foot radius which are in the same category of alcoholic beverage sales or service, as defined by the California Department of Alcoholic Beverage Control.

• D. Findings of Public Convenience or Necessity. If the proposed use is within a 1,000-foot radius of the site of a use that is in the same category of alcoholic beverage sales or service, excluding food service establishments with incidental

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service of beer and/or wine, the Zoning Adjustments Board (ZAB) may approve the application only if it makes all of the following findings:

1. The proposed establishment will promote the City’s economic health, contribute to General Plan or area plan policies, or further the district purpose.

2. The economic benefits associated with the establishment could not reasonably be achieved without the proposed alcohol sales or service.

3. If the applicant has operated a licensed establishment that has been the subject of violations regarding alcohol in the State of California, or violations of public safety or nuisance statutes or regulations in Berkeley as verified by the Police Department, such violations do not indicate a high likelihood of further violations and/or detrimental impacts from the proposed establishment. In making this finding, the ZAB may consider the number, frequency, and severity of prior violations, the time elapsed since the last violation, and other relevant factors.

4. If the proposed establishment is within 1,000 feet of any public park or public school, the ZAB has taken into consideration the effect of the proposed establishment upon such sensitive public uses.

5. The Police Department has reported that the proposed establishment would not be expected to add to crime in the area.

• A. Permits Required. Table 23.310-1 shows permits required for alcoholic beverage service when incidental to a food service establishment.

TABLE 23.310-1: PERMITS REQUIRED FOR ALCOHOLIC BEVERAGE SERVICE

B. Use Limitations.

1. R-SMU District. In the R-SMU district, alcoholic beverage service is allowed only for full-service restaurants. Alcoholic beverage service is not allowed for carry out food stores and quick-service restaurants.

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2. Commercial Districts. In Commercial Districts, beer and wine service is allowed by right when for on-site consumption with seated food service.

3. C-NS District. In the C-NS district, distilled spirit service is allowed only for fullservice restaurants. Distilled spirit service is not allowed for carry out food stores and quick-service restaurants.

4. C-T and C-SO Districts. In the C-T and C-SO districts, distilled spirit service is allowed only for on-site consumption with seated food service.

5. C-AC District. In the C-AC district, distilled spirit service is allowed along Adeline Street south of Ashby Avenue only for on-site consumption with seated food service.

• C. Incidental Beer and Wine Service Standards. The following standards apply to beer and wine service incidental to a food service establishment in a Commercial District.

1. Licensing.

• a. The food service establishment shall comply with all applicable regulations of the California Department of Alcoholic Beverage Control.

• b. An operator of the licensed establishment may not have a prior licensed establishment that was the subject of verified complaints or violations regarding alcohol, public safety, or nuisance statutes or regulations before issuance or transfer of a business license at this location.

2. Service.

• a. Beer and wine beverage service shall be incidental to the primary food service use.

• b. Beer and wine service incidental to seated food service shall only be allowed at a bona fide eating place making actual and substantial sales of meals as determined and required by the California Department of Alcohol Beverage Control.

• c. The sale of beer and wine for off-site consumption is not permitted.

• d. Employees may not serve beer or wine to patrons who appear to be inebriated or otherwise unable to behave in an orderly manner upon consuming alcohol.

• e. All beer and wine served to patrons must be served in durable restaurant tableware. Beer or wine may not be distributed in its original bottle or can, or in any other potentially disposable container.

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• f. There shall be no bar or lounge area upon the licensed premises maintained for the sole purpose of sales, service, or consumption of alcoholic beverages directly to patrons for consumption.

• g. Hours of operation are subject to review and amendment by the ZAB as necessary to avoid detriment to the neighborhood or to achieve conformance with revised City of Berkeley standards or policies.

3. Operation.

• a. The food service establishment must operate at least five days a week.

• b. The service of beer and wine shall be limited to normal meal hours (per California Department of Alcoholic Beverage Control) during the food service establishment’s hours of operation.

• c. During operating hours, 100 percent of the service area shall be designed and used for meal service and must possess the necessary utensils, and condiment dispensers with which to serve meals to the public.

• d. At no time shall the operator rent the restaurant space to a third-party.

• e. The owner or operator of the establishment shall take reasonable measures to prevent disturbances by patrons in the immediate vicinity. Such measures shall include:

  • i. Signs reminding patrons of nearby residences and requests not to congregate or loiter near such residences nor operate vehicles in a noisy manner on residential streets; and

  • ii. Surveillance to public areas near the establishment, keeping public areas free of trash and litter, providing lighting, and otherwise preventing conduct that might disturb the peace and quiet of residences in the vicinity.

• f. The operator shall assume reasonable responsibility for ensuring that patrons do not block the entrance or interfere with pedestrian activity on the adjacent public sidewalk.

• g. The applicant shall establish cash handling procedures to reduce the likelihood of robberies and theft.

4. Advertising.

• a. There shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior constitute a violation of this requirement.

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• b. Alcohol-dispensing facilities and signs advertising alcoholic beverages may not be visible from the public right-of-way.

5. Training.

• a. The operator shall finish a Crime Prevention through Environmental Design (CPTED) survey before beginning alcohol service.

• b. All employees selling and/or serving beer and wine, or directly supervising such sales and/or service, shall comply with Municipal Code Section 9.84.030 (Responsible Beverage Service Training) and finish the Licensee Education on Alcohol and Drugs (LEAD) program, or another equivalent program offered or certified by the California Department of Alcoholic Beverage Control within 90 days of employment at the establishment. Employees who have finished the course within the last 12 months are exempt from this requirement.

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Sections:

23.312.010– Chapter Purpose 23.312.020– Applicability 23.312.030– Required Permits 23.312.040– Standards for Live/Work 23.312.050– Findings

This chapter establishes live/work standards that:

• A. Provide for the appropriate development of units which incorporate both living and working space;

• B. Provide flexibility as needed for the development of live/work units, particularly within existing buildings;

• C. Provide locations where appropriate new businesses can start up;

• D. Provide opportunities for people to live in mixed-use industrial and commercial areas where compatible with existing uses;

• E. Protect existing and potential industrial uses from conflicts with nearby residential uses;

• F. Protect existing and potential residential uses from conflicts with nearby industrial uses;

• G. Permit live/work units that function predominantly as workspaces and secondarily as residences;

• H. Ensure that the division of space between living and working space within these units reflects the priority of workspace; and

• I. Ensure that the exterior design of live/work buildings is compatible with the exterior design of commercial, industrial, and residential buildings in their area, while remaining consistent with the predominantly workspace character of live/work buildings.

This chapter applies to all live/work units in any district in Berkeley.

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• A. General Requirement . A permit is required for a live/work unit and/or for a business that makes up the work portion of the unit.

• B. Residential Districts. Live/work units are not permitted in all residential districts.

C. Commercial Districts.

1. All Commercial Districts Except C-SA and C-W. In all commercial districts except the C-SA and C-W districts, live/work units are allowed with a Zoning Certificate. Special circumstances that require a Use Permit are identified in Section 23.312.040 (Standards for Live/Work).

2. C-SA District. A Use Permit is required for all live/work units in the C-SA district.

3. C - W District.

• a. An AUP is required for live/work units in the C-W district when:

  • i. Nine or fewer live/work units are created; and

  • ii. A dwelling unit is not changed into a live/work unit.

• b. A Use Permit is required when the AUP requirements in Paragraph (a) above are not met.

D. Manufacturing Districts.

1. M and MM Districts. Live/work units are not permitted in the M and MM districts.

2. MU-LI District.

• a. An AUP is required for live/work units in the MU-LI district when:

  • i. No new floor area is created; and

  • ii. A dwelling unit is not changed into a live/work unit.

• b. A Use Permit is required when the AUP requirements in Paragraph (a) above are not met.

3. MU-R District.

• a. An AUP is required for live/work units in the MU-R district when:

  • i. The applicable requirements 23.206.090.D (Development Standards) and 23.322 (Parking and Loading) are satisfied;

  • ii. Less than 5,000 square feet of gross floor area is added or changed;

  • iii. Four or fewer live/work units are created; and

  • iv. A dwelling unit is not changed into a live/work unit.

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• b. A Use Permit is required when the AUP requirements in Paragraph (a) above are not met.

• A. All Districts. The following standards apply to live/work units in all districts.

1. General Standards.

• a. A cooking space and sanitary facility in conformance with applicable building standards adopted by the City is required.

• b. Adequate and clearly defined working space constituting no less than 50 percent of the gross floor area of the live/work unit is required.

  • i. The working space must be reserved for and regularly used by one or more live/work unit residents and be consistent with City administrative guidelines for live/work design.

  • ii. If the workspace is less than 60 percent (or less than 50 percent in units created by change of use from a dwelling unit), the unit is considered a dwelling unit and is subject to all requirements applicable to dwelling units.

• c. At least 40 square feet of usable open space shall be provided for each live/work unit.

• d. For live/work units established through change of use of an existing building, the Zoning Adjustments Board (ZAB) may approve a Use Permit to substitute interior space accessible to all residents for the required open space in the project, if it finds that it is not practical or desirable to provide exterior open space.

2. Business License. At least one resident in each live/work unit shall maintain at all times a valid City Business License and Zoning Certificate or Use Permit for a business on the premises.

3. Employment, Client, and Customer Visits.

• a. Except in the C-AC district, persons who do not live in the live/work unit may be employed in a live/work unit if an additional Use Permit is obtained and the required on-site parking space is provided.

• b. Client and customer visits to live/work units are permitted if an additional Use Permit is obtained and the required on-site parking is provided.

• c. In the C-AC district, clients, customers and employees are permitted at the site without a Use Permit.

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4. Unit Rental and Sale. No portion of a live/work unit may be separately rented or sold as a commercial space for a person or persons not living on the premises, or as a residential space for a person or persons not working on the premises.

5. Change of Use.

• a. To change a dwelling unit to a live/work unit, the findings required by Section 23.326.040 (Elimination of Dwelling Units and Accessory Dwelling Units through Conversion and Change of Use) must be made.

• b. Establishing or changing the work use of a live/work unit to medical offices or group instruction requires ZAB approval of a Use Permit to subject to Section 23.312.050 (Findings) below.

• c. In districts other than the MU-LI district, live/work units may be changed to exclusively residential use or the residential floor area increased above 40 percent, only if all requirements for establishing a residential use are met.

• d. In districts other than the MU-R district, live/work units may be changed to an exclusively commercial use, provided that in the C-W district only ground floor space may be so changed. All such changes are subject to Section 23.326.040 (Elimination of Dwelling Units and Accessory Dwelling Units through Conversion and Change of Use).

6. Low Income Inclusionary Units. The following low income inclusionary standards apply to any project that creates five or more live/work units.

   • a. One inclusionary live/work unit shall be provided for each five live/work units in the project, notwithstanding a fraction of a unit.

   • b. Inclusionary live/work units shall be sold or rented at a price or rent affordable to a household with an income of 80 percent of the median income for the Oakland Primary Metropolitan Statistical Area.

   • c. Inclusionary units shall be affirmatively marketed by the developer of a project to income-eligible persons performing a work activity permitted in the district where the project is located whose type of work causes them to have a requirement for a space larger in size than typically found in residential units.

   • d. Inclusionary live/work units shall maintain affordable rents or resale prices in accordance with the standards in Chapter 23.328 (Inclusionary Housing).

   • e. At the applicant’s sole discretion, inclusionary live/work units may:

     • i. Have a lower grade of finishes than other units in the project.

     • ii. Be located anywhere within the project.

     • iii. Be smaller than other live/work units in the project as long as they meet the minimum size requirement for live/work units in the district.

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• B. C-W District. In addition to the standards in Subsection A (All Districts) above, the following live/work standards apply in the C-W district.

  1. Only ground floor space may be changed to live/work units.

  2. The total floor area of the live/work unit must be at least 800 square feet.

• C. MU-LI District. In addition to the standards in Subsection A (All Districts) above, the following live/work standards apply in the MU-LI district.

  1. At least one resident in the live/work unit must be engaged in an art craft studio activity or in an activity which requires space not typically available in a conventional residential setting.

  2. The specific activity a live/work resident will engage in must be stated.

  3. The total floor area of the live/work unit must be at least 1,000 square feet.

• D. MU-R District. In addition to the standards in Subsection A (All Districts) above, the following live/work standards apply in the MU-R district.

  1. The total floor area of the live/work unit must be at least 1,000 square feet.

  2. The live/work unit must meet the location limitations in 23.206.090.B.8 (MU-R Mixed Use-Residential District - Residential Uses).

A. All Districts.

1. To approve any Use Permit or AUP for a live/work unit in any district, the review authority must find that the proposed project is consistent with the purpose of this chapter.

2. To approve a Use Permit to establish or change the work use of a live/work unit to medical office or group instruction, the ZAB must find that adequate parking for the use has been provided.

• B. C-W District. In addition to the findings in Subsection A (All Districts) above, the ZAB may approve a Use Permit to change a residential unit to a live/work unit and retain less than 75 percent of the pre-existing residential area as living area within the live/work unit only if it makes all of the following findings:

  1. There are special circumstances particular to the application which make it appropriate to retain less than 75 percent of the pre-existing residential area as living space within the live/work unit; and

  2. The exterior appearance of the live/work unit has been designed to be compatible with adjacent and nearby residential uses.

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• C. MU-LI District. In addition to the findings in Subsection A (All Districts) above, the review authority may approve a Use Permit or AUP for a live/work unit in the MU-LI district only if it makes all of the following findings:

  1. The applicant has made adequate provisions to ensure that within the live/work units, occupants of the live/work units will only engage in the occupations listed in the definition of art/craft studios.

  2. Development of such live/work units is not incompatible with adjacent and nearby industrial uses.

  3. The applicant has recorded with the County Recorder a statement acknowledging that the live/work unit is being established in a district where manufacturers and other industries operate lawfully and that the applicant will not seek to impede their lawful operation. In addition, the applicant will require any tenants to sign such a statement, and require all persons purchasing live/work units to sign and record such a statement.

• D. MU-R District. In addition to the findings listed in Subsection A (All Districts) above, the review authority may approve a Use Permit or AUP to establish or modify a live/work unit in the MU-R district only if it makes all of the following findings:

  1. Establishment of a live/work unit will not interfere with the lawful operation of manufacturers and other industries existing in or adjacent to the district and will not impede the lawful future establishment of manufacturers and other industries permitted under the West Berkeley Plan.

  2. The applicant has recorded with the County Recorder a statement acknowledging that the live/work unit is being established in a district where manufacturers and other industries operate lawfully and that he/she will not seek to impede their lawful operation. In addition, the applicant will require any tenants to sign such a statement, and require all persons purchasing live/work units to sign and record such a statement.

d with the County Recorder a statement acknowledging that the live/work unit is being established in a district where manufacturers and other industries operate lawfully and that he/she will not seek to impede their lawful operation. In addition, the applicant will require any tenants to sign such a statement, and require all persons purchasing live/work units to sign and record such a statement.

3. If the applicant proposes to change one or more dwelling unit to a live/work unit, the elimination of dwelling unit and the change of use would not be materially detrimental to the housing needs and public interest of the affected neighborhood and the city.

4. If the applicant proposes to change a residential unit to a live/work unit and retain less than 75 percent of the pre-existing residential area as living area within the live/work unit:

   • a. There are special circumstances particular to the application which make it appropriate to retain less than 75 percent of the pre-existing residential area as living space within the live/work unit; and

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• b. The exterior appearance of the live/work unit has been designed to be compatible with adjacent and nearby residential uses.

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Sections:

23.314.010– Chapter Purpose 23.314.020– Definitions 23.314.030– Applicability 23.314.040– General Regulations 23.314.050– Operating Standards and Requirements 23.314.060– Violations and Remedies

This chapter establishes short-term rental standards that:

• A. Prevent long-term rental units from being replaced with short-term rentals and protect affordable housing units from conversion;

• B. Preserve and protect neighborhood character and livability from nuisances that are often associated with short-term rentals;

• C. Generate City revenue to share infrastructure cost and other public expenditures by operation of short-term rentals under established standards; and

• D. Provide alternative forms of lodging.

• A. Terms Defined. Terms used in this chapter are defined as follows:

  1. Adjacent Properties. The dwelling units abutting and confronting, as well as above and below, a dwelling unit within which a short-term rental is located.

  2. Host. Any owner or tenant host. An owner host is a person who is the owner of record of residential real property, as documented by a deed or other such evidence of ownership, who offers their host residence, or a portion thereof, as a short-term rental. A tenant host is a lessee of residential real property, as documented by a lease or other such evidence, who offers their host residence, or portion thereof, as a short-term rental.

  3. Host Present or Host Presence. The host is living in the host residence during the short-term rental period. In the case of a parcel comprised of a single primary unit and one or more authorized accessory dwelling units and/or accessory buildings, the host is considered present if he or she is present in any unit on such parcel.

  4. Hosting Platform. A business or person that provides a means through which a host may offer a dwelling unit, or portion thereof, for short-term rentals. A hosting

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platform is usually, though not necessarily, provided through an internet-based platform. It generally allows a property owner or tenant to advertise the dwelling unit through a website provided by the hosting platform and provides a means for potential short-term rental transients to arrange short-term rentals, whether the short-term rental transient pays rent directly to the host or to the hosting platform.

5. Host Residence. A host’s principal place of residence, as defined by whether the host carries on basic living activities at the dwelling place and, whether such dwelling place is the host’s usual place of return. Motor vehicle registration, driver’s license, voter registration or other evidence as may be required by the City shall be indicia of principal residency.

6. Local Contact. A person designated by the host who shall be available during the term of any short-term rental for the purpose of

   • a. Responding within sixty minutes to complaints regarding the condition or operation of the dwelling unit or portion thereof used for Short-Term Rental, or the conduct of Short-Term Rental Transients; and

   • b. Taking appropriate remedial action on behalf of the Host, up to and including termination of the short-term rental, if allowed by and pursuant to the shortterm rental agreement, to resolve such complaints.

7. No Fault Eviction. An eviction pursuant to the Ellis Act or Sections 13.76.130.A.9 or 10 of the Municipal Code.

8. Short-Term Rental. The use of any dwelling unit, authorized accessory dwelling unit or accessory building, or portions thereof for dwelling, sleeping or lodging purposes by short-term rental transients. Excludes tourist hotels and residential hotels.

9. Short-Term Rental Transient or STR Transient. Any person who rents a dwelling unit, authorized accessory dwelling unit or accessory building, or portion thereof, for less than 14 consecutive days.

• B. Terms Not Defined. Terms not defined in this section shall be interpreted to give this chapter its most reasonable meaning and application, consistent with applicable state and federal law.

This chapter applies to the rental of a dwelling unit, accessory dwelling unit or accessory building for a period of less than 14 consecutive days.

A. Host Residence. Short-term rentals are permitted only in the host residence.

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• B. BMR Units. Short-term rentals are not permitted in below market rate (BMR) units. BMR units for short-term rental purposes refer to dwelling units whose rents are listed as a result of deed restrictions or agreements with public agencies, and whose tenants must be income qualified.

• C. No-Fault Evictions. A property containing a unit with a no-fault eviction may not operate a short-term rental for five years from the date of the eviction unless it is a single-family home that has been vacated for purposes of owner occupancy in compliance with the Rent Stabilization Ordinance in Municipal Code Chapter 13.76 (Rent Stabilization and Eviction for Good Cause Ordinance).

D. Accessory Buildings.

1. Short-term rentals are allowed in:

   • a. Accessory buildings; and

   • b. Accessory dwelling units permitted before April 3, 2017 unless the accessory dwelling unit is used for long-term rentals, as defined in Municipal Code Chapter 13.76 (Rent Stabilization and Eviction for Good Cause Ordinance) or has been used for long-term rentals at any time before April 3, 2017.

2. A short-term rental is not allowed in an accessory dwelling unit permitted after April 3, 2017.

A short-term rental must conform to all of the operating standards and requirements in this section.

A. Proof of Host Residency.

1. Owner-Host. An owner-host of a short-term rental must provide the Planning and Development Department documentation of owner-host and host residence status and, if applicable, host presence.

2. Tenant-Host. A tenant-host must provide the Planning and Development Department documentation of lessee status, host residence and host presence, if applicable. In addition, a tenant-host must present written authorization allowing for a short-term rental in the host residence from the building owner or authorized agent of the owner.

B. Allowed Duration and Required Residency Timeframes.

1. When the host is present, a short-term rental is allowed for an unlimited number of days during the calendar year.

2. When the host is not present, a unit may be used as a short-term rental for no more than 90 days per calendar year.

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• C. Number of Occupants. The maximum number of short-term rental transients allowed for a short-term rental unit is as provided in Municipal Code Chapter 19.40 (Uniform Housing Code).

D. Notification.

1. After the City approvers a Zoning Certificate and Business License for a shortterm rental, a host shall notify residents of all adjacent properties that a shortterm rental has been established. Notification shall include host and local contact information.

2. A host shall notify residents of all adjacent properties of updated host, local contact, or other information within one week of changes to such information.

E. Enforcement Fees.

1. For the initial enforcement period, while enforcement costs are being determined, the host shall pay an additional enforcement fee in an amount equal to 2 percent of the rents charged by that host, not to exceed the cost of the regulatory program established by this chapter over time.

2. Enforcement fees may be paid by the hosting platform on behalf of the host. After the initial enforcement period, the City Council may revise the enforcement fee by resolution.

• F. Liability Insurance. Liability insurance is required of the host, or hosting platform on behalf of the host, in the amount of at least $1 million.

• G. Documents Provided to Short-Term Rental Transients. The host or hosting platform must provide to short-term rental transients upon booking and arrival electronic or paper copies of:

  1. The Community Noise Ordinance in Municipal Code Chapter 13.40 (Community Noise); and

  2. The Smoke-Free Multi-Unit Housing Ordinance in Municipal Code Chapter 12.70 (Smoking Pollution Control).

• H. Transient Occupancy Tax. Either the host or hosting platform must pay the transient occupancy tax.

• I. Housing Code Compliance. Any building or portion of a building used for shortterm rentals shall comply with Municipal Code Section 19.40 (Uniform Housing Code).

• J. Payment of Taxes. The host shall pay all City taxes and fees owed in a timely manner.

K. Host Responsibilities.

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1. The host shall list on any rental advertisement the Zoning Certificate number.

2. Upon request, the host must provide both the Business License number, if required by Municipal Code Chapter 9.04 (Business Licenses), and Zoning Certificate for the short-term rental to the City and/or a vendor hired by the City to administer this chapter.

• A. Compliance with Second-Response Ordinance. The host shall comply with the Second Response Ordinance in Municipal Code Section 13.48 (Civil Penalties for Multiple Responses to Loud or Unruly Parties, Gatherings or Other Similar Events). The host is prohibited from operating short-term rentals for one year after issuance of a third violation affidavit.

B. Violations and Remedies of this Chapter.

1. Violation of this chapter is punishable as set forth in Municipal Code Sections 1.20 (General Penalty) and 1.28 (Administrative Citations).

2. Violation of this chapter is a public nuisance subject to abatement under Municipal Code Sections 1.24 (Abatement of Nuisances), 1.26 (Violations Declared Public Nuisance), and 23.414 (Nuisance Abatement).

3. In any enforcement action, the prevailing party is entitled to recover reasonable attorneys’ fees and costs; provided that, pursuant to Government Code Section 38773.5, attorneys’ fees are only available in an action or proceeding in which the City has elected, at the beginning of such action or proceeding, to seek recovery of its own attorneys’ fees. An award of attorneys’ fees to a prevailing party may not exceed the amount of reasonable attorneys’ fees incurred by the City in the action or proceeding.

4. Any Berkeley resident may bring a private action for injunctive relief to prevent or remedy a public nuisance. No action may be brought under this subsection unless and until the prospective plaintiff has given the City and the prospective defendant(s) at least 30 days written notice of the alleged public nuisance and the City has failed to initiate proceedings within that period, or after initiation, has failed to diligently prosecute.

5. The following constitute a public nuisance:

   • a. Any occurrence at a short-term rental unit that creates a substantial disturbance of the quiet enjoyment of private or public property in a significant segment of a neighborhood, such as excessive noise or traffic, obstruction of public streets by crowds or vehicles, public intoxication, the service to or consumption of alcohol by minors, fights, disturbances of the peace, litter or other similar conditions.

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• b. Any short-term rental transient of a short-term rental unit where an event is taking place refusing access to, or interfering with access by, Fire Department or other City personnel responding to an emergency call or investigating a situation.

6. Notwithstanding any provision of Municipal Code Chapter 13.48 (Civil Penalties for Multiple Responses to Loud or Unruly Parties, Gatherings or Other Similar Events) to the contrary, a public nuisance as defined in this section is subject to remedies in this subsection.

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Sections:

23.316.010– Chapter Purpose 23.316.020– Applicability 23.316.030– Definitions 23.316.040– General Requirements 23.316.050– Required Permits 23.316.060– In-Lieu Fees 23.316.070– Administrative Regulations (Guidelines)

The purpose of this chapter is to establish a public art requirement for private developments to provide the following benefits to the community:

• A. Maintain Berkeley’s art and culture for generations.

• B. Recognize the vital importance of the arts to the city as a whole.

• C. Enhance the economic sustainability of artists and arts organizations as a key to the vitality of the city.

• D. Make a lasting contribution to the intellectual, emotional and creative life of the community at large, and to create a more desirable community to live, work, and recreate.

• A. Districts. This chapter applies in all districts in Berkeley.

• B. Uses. This chapter applies to:

  1. New multifamily residential projects of five or more dwelling units;

  2. New commercial structures; and

  3. New industrial structures

• C. Project Size. This chapter applies to all construction of building additions exceeding 10,000 square feet.

• D. Exceptions. This chapter does not apply to the following project types:

  1. Multifamily housing that has a regulatory agreement with a government agency restricting the rent and limiting tenancy to qualifying households not exceeding specified incomes for at least 60 percent of the units.

  2. Buildings with religious assembly uses as defined in Chapter 23.502 (Glossary) and buildings with arts and cultural uses. For purposes of this section, "arts and

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cultural use" means buildings that have as their primary purpose the presentation of one or more cultural resources, and that are operated by public entities or nonprofit organizations dedicated to cultural activities available to a broad public.

3. Transitional housing.

• A. Terms Defined. Terms used in this chapter are defined as follows:

  1. Artist. An individual independent professional practitioner of the visual, performing, or literary arts, as judged by educational qualifications, a history of creating a body of public or publicly-displayed artwork, critical recognition in publications or online, a record of exhibitions and/or artwork sales. Members of the design team are not artists for on-site publicly accessible art projects. Individuals who have a conflict of interest, including a familial or financial relationship to the developer or design team, are not artists for on-site publicly accessible art projects.

  2. Construction Cost. The amount determined by the Chief Building Official for purposes of setting the building permit fee in accordance with the most recent building valuation date specified in the building permit fees section of the resolution establishing fees and charges as adopted by the City Council.

  3. Developer. A person or entity that is financially and legally responsible for the planning, development and construction, or maintenance and operation of any project subject to this chapter.

  4. On-Site Publicly Accessible Art. An original work by an artist, including, but not limited to, functional art integrated into the building, landscape, or element of infrastructure, including sculpture, monument, mural, painting, drawing, photography, fountain, banner, mosaic, textile, art glass, digital media art, video, earthworks and multi-media installation, that is in a location that is accessible to and available for use by the general public during normal hours of business operation consistent with the operation and use of the premises.

  5. Guidelines. The guidelines adopted by the City Council pursuant to Section 23.316.070 (Administrative Regulations (Guidelines)).

• B. Terms Not Defined. Terms not defined in this section shall be interpreted to give this chapter its most reasonable meaning and application, consistent with applicable state and federal law.

Developers subject to this chapter shall do one of the following:

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• A. Include on-site publicly accessible art valued at 1.75 percent of the construction cost. If the value of on-site publicly accessible art as installed is less than 1.75 percent of the construction cost, an amount equal to 80 percent of the difference in value shall be paid to the City as an in-lieu fee.

• B. Pay an in-lieu fee top the City of 0.80 percent of the construction cost.

• A. Subject to Laws and Regulations. On-site publicly accessible art is subject to, and shall comply with, all applicable City ordinances and laws and regulations of other governmental agencies.

B. Permits Must Be Obtained.

1. Before construction, the applicant shall identify and secure all applicable permits from the Building and Safety Division, Public Works Department and other affected City divisions and departments.

2. The process for identifying and securing required permits shall be set forth in the Guidelines.

• A. Alternative to On-Site Art. As an alternative to providing on-site publicly accessible art, the developer may elect to pay an in-lieu fee to the City as set forth in this section.

• B. Use of Fees. Any in-lieu fees paid to the City pursuant to this chapter shall be used for art and cultural services as set forth in the Guidelines.

• C. Amount of Fee. The in-lieu fee shall be 0.80 percent of the construction cost.

• D. Time of Payment. The in-lieu fee shall be paid at the same time as other building permit fees.

• A. Adoption of Guidelines. The Civic Arts Commission shall recommend and the Council, by resolution, shall adopt guidelines for the administration and implementation of this chapter.

• B. Determining Compliance with Guidelines. The Civic Arts Commission shall be responsible for determining if On-Site Publicly Accessible Art complies with the Guidelines.

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Sections:

23.318.010– Chapter Purpose 23.318.020– Applicability 23.318.030– Urban Agriculture Uses and Levels of Discretion 23.318.040– Thresholds 23.318.050– Operation Standards 23.318.060– Complaints

This chapter establishes urban agriculture standards to provide the following community benefits:

• A. Support the local economy and increase access to fresh local produce.

• B. Strengthen the health and social fabric of communities by encouraging and supporting community gardens.

• C. Accomplish the Berkeley Climate Action Plan goal of supporting efforts to build more complete and sustainable local food production and distribution systems.

These regulations supersede definitions of incidental or ancillary uses.

• A. Zoning Certificate. When all of the thresholds in Section 23.318.040 (Thresholds) are met, the use is considered Low-Impact Urban Agriculture (LIUA) and is allowed by right with a Zoning Certificate.

• B. Administrative Use Permit. When one or more of the thresholds in Section 23.318.040 (Thresholds) are not met, the use is considered High-Impact Urban Agriculture (HIUA) requires an AUP.

The levels of discretion for urban agriculture are based on the following thresholds:

• A. Maximum parcel size of 7,500 square feet.

• B. Maximum lot coverage of 20 percent for accessory structures and buildings.

• C. Maximum group classes and workshops of 20 participants per class conducted no more than three times per week.

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• D. Hours of operation from 8:00 a.m. to 8:00 p.m., including but not limited to activities related to gardening and planting of horticultural crops, group classes, and sales.

• E. Use of organic pesticides.

• A. Performance Standards. The growing, production, or sale of urban agricultural products may not involve hazardous materials or processes or create offensive or objectionable noise, vibration, odors, heat, dirt, or electrical disturbance perceptible by a person beyond the lot line of the subject lot.

B. Sales and Donations.

1. Sales and/or donations of urban agricultural products grown and produced onsite are permitted.

2. If selling or donating urban agricultural products to the public, the urban agriculture use shall comply with all applicable food safety laws, including the California Health and Safety Code.

C. Garbage and Compost.

1. Garbage and compost receptacles must be screened from the street and adjacent properties by utilizing landscaping, fencing, or storage structures and all garbage shall be removed from the site weekly.

2. Compost piles and containers must be set back at least 10 feet from residential buildings when an urban agriculture use abuts a residential use.

• D. Farm Equipment. Use of mechanized farm equipment is not permitted in Residential Districts and when the urban agriculture use abuts a residential use, with the following exceptions:

  1. Heavy equipment may be used initially to prepare the land for agriculture use.

  2. Landscaping equipment designed for household use is permitted.

  3. Equipment when not in use must be enclosed or otherwise screened from sight.

Uses, activities, or events associated with urban agriculture are subject to Municipal Code Chapters 23.414(Nuisance Abatement) and 12.92 (Anti-Blight) if found to be noncompliant with this chapter.

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Sections:

23.320.010– Chapter Purpose 23.320.020– Cannabis Retail 23.320.030– Commercial Cannabis Cultivation 23.320.040– Cannabis Manufacturers, Testing Labs, and Distributors 23.320.050– Microbusinesses

This chapter establishes standards for cannabis uses that supplement the regulations in Municipal Code Chapter 12.21 (Cannabis Business: General Regulations) and Chapter 12.22 (Cannabis Business Operating Standards).

• A. Definitions. The terms cannabis retailer, storefront retailer, delivery-only retailer, A- Retailer, and M-Retailer are defined in Municipal Code Section 12.21.020 (Definitions).

B. Non-Conforming M-Retailers.

1. A medical cannabis dispensary (M-Retailer) existing and authorized as of January 1, 2010 that does not comply with this section may continue at its current medical cannabis dispensing location as a legal nonconforming use.

2. Notwithstanding Chapter 23.324 (Nonconforming Uses and Structures) or the regulations in this section, the Zoning Officer may approve an AUP to allow the expansion of a lawful nonconforming medical cannabis dispensary onto an adjacent parcel.

C. Location Changes.

1. A cannabis retailer in good standing with state and City regulations, including obtaining all necessary licenses and full payment of all fees and with no outstanding violations, may seek approval for a change in location.

2. An application for a change of location shall be evaluated based on the requirements to operate a cannabis business effective at the time of the proposed change.

D. Storefront Retailers.

1. A storefront retailer is permitted in Commercial Districts with a Zoning Certificate, and must maintain compliance with Municipal Code Chapters 12.21 (Cannabis Business: General Regulations) and 12.22 (Cannabis Business Operating Standards) and security regulations promulgated by the Chief of Police.

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2. A storefront retailer shall be approved through the selection process described in Municipal Code Section 12.22.020 (Selection Process).

3. Up to seven storefront retail permits may be issued, one of which is reserved for an equity candidate as defined in Municipal Code Section 12.21.020 (Selection Process). This limit to the number of storefront retailers shall not be reconsidered for a period of three years from March 15, 2020.

4. Expansion of an approved storefront retailer must comply with the development standards for the zoning district in which it is located.

5. Storefront retailers may operate as a retail storefront microbusiness as defined in Municipal Code Chapter 12.21 (Cannabis Business: General Regulations) subject to obtaining all required state and local licenses.

6. Buffers.

• a. A storefront retailer may not be located:

  • i. Within 600 feet of another storefront retailer, a public or private elementary school, or a City-operated community center or skate park; or

  • ii. Within 1,000 feet of a public or private middle school or high school.

• b. Notwithstanding Paragraph (a) above, a seventh storefront retailer, to be operated by an equity business, may not be located within 600 feet of another storefront retailer or school.

E. Delivery-Only Retailers.

1. Seven delivery-only retailers are permitted citywide, four of which shall be operated by an equity business, and three of which shall be a non-equity business.

2. A delivery-only retailer shall be approved through the selection process described in Municipal Code Section 12.22.020 (Selection Process).

3. Delivery-only retailers are permitted with a Zoning Certificate in all Commercial Districts other than the C-N district.

4. Delivery-only retailers are permitted in the Manufacturing (M) district, shall be evaluated and regulated for zoning purposes in the same way as a warehousebased non-store retailer, and shall be subject to the numeric and buffer requirements in this section for delivery-only retailers.

5. A delivery-only retailer may not be located within 300 feet of any school or Cityoperated community center or skate park.

6. A delivery-only retailer may not be located in a street-fronting tenant space in a Commercial District.

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F. Lounges.

1. A Lounge, as defined in Municipal Code Section 12.21.020 (Definitions), may be permitted at an approved retailer with a Use Permit.

2. A Lounge must comply with the operational standards established by the City of Berkeley Department of Health, Housing and Community Services.

• A. Definition. The term “commercial cannabis cultivation” as used in this chapter is defined in Municipal Code Chapter 12.21 (Cannabis Businesses: General Regulations).

B. General Requirements.

1. Commercial cannabis cultivation shall comply with Municipal Code Chapter 12.22 (Cannabis Business Operating Standards), security measured required by the Chief of Police, and the requirements of this chapter.

2. Commercial cannabis cultivation may include testing, processing, manufacturing, and food preparation only to the extent expressly permitted by MAUCRSA.

• C. Where Allowed. Commercial cannabis cultivation is permitted with a Zoning Certificate in the Manufacturing (M) district, subject to the following limitations:

  1. Commercial cannabis cultivation shall only occur at licensed cannabis businesses.

  2. Cannabis may not be dispensed and client, patient or member services and retail sales are not permitted at cannabis cultivation facilities.

D. Maximum Canopy Area.

1. The total citywide canopy area of cannabis cultivation facilities may not exceed 180,000 square feet.

2. The total citywide canopy area of all minor cannabis cultivation facilities may not exceed 48,000 square feet plus any area not used by a major cannabis cultivation facility.

• E. Different Licenses. Separate spaces used by different licensees may be aggregated at the same location.

• F. Outdoor Cultivation Prohibited. Commercial cannabis cultivation is not permitted outside of a building.

• G. Cannabis Nurseries. A cannabis nursery as defined in Municipal Code Section 21.21.020 (Definitions) is subject to the same regulations as a commercial cannabis cultivation cannabis cultivation facility.

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• H. Buffer. A commercial cannabis cultivation facility may not be located within 300 feet of a school or City-operated community center or skate park.

I. Major Cannabis Cultivation Facilities.

1. No more than six major cannabis cultivation facilities are permitted.

2. A major cannabis cultivation facility may not be approved until the City Council adopts licensing process and standards for such uses.

3. Adopted standards shall require indoor cultivation uses to offset the net increased energy used as compared to a regular industrial facility.

4. Adopted standards also may include whether:

   • a. Cannabis cultivation uses will provide a percentage of all usable product cultivated at no cost to very low-income patients;

   • b. Cannabis cultivation uses will use organic methods in cultivation and processing to the maximum extent reasonable; and

   • c. The form of organization, ownership, and practices of cannabis cultivation uses ensure equity and accountability, low prices, and an adequate supply of high-quality cannabis to customers.

• A. Equivalent Uses. Cannabis manufacturers, testing labs, and distributors shall be evaluated and regulated in the same way as the equivalent non-cannabis uses shown in Table 23.320-1.

TABLE 23.320-1: EQUIVALENT NON-CANNABIS USES

• B. Buffer. Cannabis manufacturers, testing labs and distributors may not be located within 300 feet of a school.

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• A. Definition. The term “microbusiness” as used in this chapter is defined in Municipal Code Chapter 12.21 (Cannabis Business: General Regulations).

• B. General. A microbusiness is subject to the development standards in this chapter for each use on the premises, with the following exceptions:

  1. In cases where the development standards and permit thresholds for two or more uses are different, the more restrictive standards apply.

  2. Retail nursery microbusinesses are subject to 23.320.050.C (Retail Nursery Microbusinesses).

C. Retail Nursery Microbusinesses.

1. A used in this section, “existing nursery” means a legally established plant nursery in Berkeley established as of March 15, 2020.

2. Up to two existing nurseries may convert to a retail nursery microbusiness. Retail nursery microbusinesses are not subject to the numeric or canopy limitations of other retailers or cannabis cultivators.

3. In a Commercial or Manufacturing District, an existing nursery may convert to a retail nursery microbusiness by right with a Zoning Certificate if each use conducted on the premises complies with the applicable development standards in the Zoning Ordinance.

4. In a Residential District, an existing nursery may convert to a retail nursery microbusiness with a Use Permit for a substantial expansion or change in character to a non-conforming use as provided in Chapter 23.324 (Nonconforming Uses, Structures, and Buildings).

5. The City shall issue the Zoning Certificates and/or Use Permits to existing nurseries on a first-come, first-served basis.

6. The City shall determine the right to retain the allocated Zoning Certificates and/or Use Permits as follows:

   • a. For a Zoning Certificate, the date of issuance of a concurrent business license and establishing and continuously operating the business.

   • b. For a Use Permit is required, the date the Use Permit application is deemed complete so long as the Use Permit is implemented with a business license within 30 days of approval and establishing and continuously operating the business.

7. The 600-foot buffer required between cannabis retailers in 23.320.020 (Cannabis Retail) does not apply between a storefront cannabis retailers and a retail nursery microbusiness.

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Sections:

23.322.010– Chapter Purpose 23.322.020– Applicability 23.322.030– Required Parking Spaces 23.322.040– General Requirements 23.322.050– Parking Reductions 23.322.060– C-DMU Parking and Transportation Demand Management 23.322.070– Off-Street Parking Maximums for Residential Development 23.322.080– Parking Layout and Design 23.322.090– Bicycle Parking 23.322.100– On-site Loading Spaces 23.322.110– Parking Lots in Residential Districts 23.322.120– Transportation Services Fee

This chapter establishes parking and loading standards to:

• A. To efficiently allocate parking spaces in the City;

• B. Regulate the provision of off-street parking spaces within the City; and

• C. Reduce the amount of on-street parking of vehicles, thus increasing the safety and capacity of Berkeley’s street system.

• A. New Uses and Buildings. In all districts, off-street parking and loading as required by this chapter shall be provided when:

  1. A new building is constructed or moved onto a lot; and

  2. A new use is established where no use previously existed.

B. Enlargement and Intensification.

1. Where an existing use or structure is enlarged or intensified, but where there is no change in use, additional off-street parking and loading is required to serve only the enlarged or intensified area. Additional parking is not required to remedy parking deficiencies existing before the expansion or enlargement.

2. As used in this section, enlarging or intensifying a use or structure includes, but is not limited to adding or creating floor area, dwelling units, guest rooms, seats, or employees.

• C. Changes of Use.

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1. Commercial Districts. In the Commercial Districts, off-street parking is required for a change in use only when the structure is expanded to include new floor area.

2. Manufacturing and R-SMU Districts.

• a. In the Manufacturing and R-SMU districts, off-street parking is required for a change in use only when:

  • i. The structure is expanded to include new floor area; and/or

  • ii. The use is changed to one with a numerical parking standard greater than the district minimum.

• b. If the new use is changed to one with a higher numerical parking standard than the district minimum, the new use must provide the incremental difference between the two numerical parking standards. A higher numerical parking standard may be reduced to the district minimum as provided in Section 23.322.050.A.2 (Change of Use).

• c. As used in this section, the “district minimum” parking requirement is:

  • i. 2 spaces per 1,000 square feet of floor area in the Manufacturing Districts; and

  • ii. 1 space per 1,000 square feet of floor area in the R-SMU district.

3. All Other Residential Districts. In all Residential Districts except for R-SMU, off-street parking spaces are required for all changes in use.

A. Residential Districts.

1. Spaces Required. Table 23.322-1 shows minimum required off-street parking spaces in the Residential Districts.

TABLE 23.322-1: REQUIRED OFF-STREET PARKING IN RESIDENTIAL DISTRICTS

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Notes:

[1] Excludes community care facilities which under state law must be treated in the same manner as a single-family residence.

2. Other Uses. If a use requires an AUP or Use Permit and is not listed in Table 23.322-1, the review authority shall determine the required number of off-street

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parking spaces based on the amount of traffic generated by the use and the number of spaces required for other similar uses.

3. Offices.

• a. In Residential Districts where offices are allowed, the Zoning Adjustments Board (ZAB) may reduce the parking requirement for non-medical offices to one parking space per 800 square feet of gross floor area.

• b. To approve the reduction, the ZAB must find that the reduction is justified because the amount of direct contact with clients, visitors, or the general public will be less than ordinarily is the case.

4. ES-R Parking Requirement.

• a. For purposes of calculating required parking in the ES-R district, “bedroom” means any habitable space in a dwelling unit or residential accessory structure other than a kitchen or living room that is intended for or capable of being used for sleeping and that is at least 70 square feet in area.

• b. A room identified as a den, library, study, loft, dining room, or other extra room that satisfies this definition is considered a bedroom.

• c. Bathrooms, toilet rooms, closets, halls, storage or utility spaces and similar areas are not considered habitable spaces.

• d. The division of existing habitable space does not require additional parking if there is no net increase in the gross floor area of the building and no more than one additional bedroom is created.

B. Commercial Districts.

1. Spaces Required. Table 23.322-2 shows minimum required off-street parking spaces in the Commercial Districts, excluding the C-T district.

TABLE 23.322-2: REQUIRED OFF-STREET PARKING REQUIREMENTS IN COMMERCIAL DISTRICTS (EXCLUDING C-T)

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.

2. Exemptions. Table 23.322-3 shows projects and land uses in the Commercial Districts that are exempt from parking requirements. No Use Permit or other discretionary approval is required for these exemptions.

TABLE 23.322-3: PARKING EXEMPTIONS IN COMMERCIAL DISTRICTS

3. C-T District .

• a. Off-street parking is not required in the C-T district.

• b. New off-street parking is not permitted on lots abutting Telegraph Avenue exclusively. New off-street parking is only permitted on lots abutting a street other than Telegraph Avenue where access to the parking is from curb cuts existing on July 6, 1989. A Use Permit is required to establish the new parking. To approve the Use Permit, the ZAB must find that traffic from the new parking will not significantly impede pedestrian circulation.

4. C-W District.

• a. Required Parking Determined by Zoning Officer or ZAB. For the following categories of uses as shown in Table 23.204-1 (Allowed Uses in Commercial Districts), the Zoning Officer or ZAB shall determine the number of required off-street parking spaces in the C-W district based on the amount of traffic generated by the use and the number of spaces required for other similar uses:

  • i. Public and quasi-public uses.

  • ii. Automobile and other vehicle oriented uses.

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iii. Outdoor uses.

• iv. Residential and related uses.

• v. Other miscellaneous uses.

• vi. Other industrial uses.

• b. Maximum Parking. The number of parking spaces provided for new commercial floor area in the C-W district shall not exceed:

  • i. 5 spaces per 1,000 square feet of gross floor area of food service uses; and

  • ii. 4 spaces per 1,000 square feet of gross floor area for all other commercial uses.

C. Manufacturing Districts.

1. Spaces Required.

2. Table 23.322-4 shows minimum required off-street parking spaces in the Manufacturing Districts.

TABLE 23.322-4: REQUIRED OFF-STREET PARKING IN MANUFACTURING DISTRICTS

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3. Required Parking Determined by Zoning Officer or ZAB .

• a. For the following categories of uses as shown in Table 23-206.020-1, the Zoning Officer or ZAB shall determine the number of required off-street parking spaces in the Manufacturing Districts based on the amount of traffic generated by the use and the number of spaces required for other similar uses:

  • i. Public and Quasi-Public Uses.

  • ii. Vehicle Sales and Service Uses.

  • iii. Other Miscellaneous Uses.

  • iv. Industrial and Heavy Commercial Uses, excluding manufacturing and wholesale trade.

D. Calculating Required Spaces.

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1. Fractional Spaces. When calculating the number of required off-street parking spaces results in a fractional space, any fraction below one-half is disregarded, and fractions one-half and above are counted as requiring one parking space.

2. Employees. Where a parking requirement is based on the number of employees, the number of employees is based upon the shift or employment period when the greatest number of employees are present.

3. Floor Area.

• a. Where a parking requirement is based on floor area, the definition of gross floor area as set forth in 23.502 (Glossary) shall apply.

• b. In Non-Residential Districts, the floor area calculation for the purpose of determining required parking shall also include outdoor dining areas, garden/building supply yards, customer-serving outdoor areas for retail sales, and other unenclosed areas of the lot.

• E. Additional Required Parking. If the expected demand for off-street parking spaces is found to exceed the number of spaces required by Table 23.322-1, Table 23.322-2, or

• F. Table 23.322-4, additional off-street parking may be required as a condition of approval.

G. Buildings with Multiple Uses.

1. When a building contains two or more uses, the total required number of offstreet parking spaces is the sum of the requirements for each use computed separately.

2. A required off-street parking spaces for one use may not provide required offstreet parking spaces for any other use except as allowed by Section 23.322.040.D (Joint Use of Parking).

• H. Including Existing Uses. Existing off-street parking spaces shall be counted towards meeting the overall parking requirements where new floor area is added to an existing site or project.

I. Spaces Serving Existing Uses.

1. Unless otherwise allowed by this chapter, parking spaces serving an existing use may not be reduced below the number of spaces required by this section. If an existing use has fewer parking spaces than required by this section, the number of spaces serving the use may not be further reduced.

2. In Non-Residential Districts, off-street parking spaces provided in conjunction with a use or structure existing on October 1, 1959, on the same property or on property under the same ownership, may not be reduced below, or if already less

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than, may not be further reduced below, the requirements of this chapter for a similar use or structure.

3. Existing parking spaces in a non-residential district may be removed to meet ADA compliance or traffic engineering standards.

J. In-Lieu Parking Fee.

1. General.

• a. In Non-Residential Districts with a public parking fund to create public parking, an applicant may pay a fee in lieu of providing required off-street parking spaces.

• b. The in-lieu parking fee shall be established by City Council resolution.

• c. In-lieu payments shall be used for the purposes stated in each ordinance establishing the public parking funds.

• d. In-lieu fees may, at the applicant’s option, be paid in a lump sum or in annual installments as specified in each ordinance establishing the parking fund and may be adjusted annually for inflation.

• e. If paid annually, the first annual payment of an in-lieu fee is due as a condition of occupancy and subsequent payments are due on January 31 of succeeding years.

2. C-DMU District. Paying an in-lieu fee to reduce or waive required off-street parking in the C-DMU district requires a Use Permit. To approve the Use Permit, the ZAB must find that the applicant will pay an in-lieu fee to a fund established by the City that provides enhanced transit services.

A. Compliance Required.

1. The City may issue a Zoning Certificate or approve an AUP or Use Permit only for a use or structure that complies with this chapter.

B. Modified Requirements.

1. Number of Spaces. See Section 23.322.050 (Parking Reductions) for allowed reductions to the number of required off-street parking spaces.

2. Other Requirements.

• a. The Zoning Officer or ZAB may reduce any parking requirement in this chapter that is unrelated to the number of required spaces for:

  • i. New floor area created through building expansions in the Commercial, Manufacturing, and R-SMU Districts; and

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• ii. A change of use of existing floor area in the manufacturing and R-SMU districts where the new use has a higher numerical parking standard than the existing use.

• b. If the use served by the parking requires an AUP, the Zoning Officer may approve the modification. If the use requires a Use Permit, the ZAB may approve the modification.

• c. When allowed by Paragraph (a) above, the review authority may allow the modification upon finding that:

  • i. The modification allows the continued use of an existing parking supply; and

  • ii. Meeting the parking requirements is not financially feasible or practical.

C. Location of Parking.

1. Minimum Distance for Use or Structure.

• a. A required off-street parking space must be located within 300 feet from the structure or use it is intended to serve, except as otherwise allowed by this chapter.

• b. The required distance is measured from the nearest point of the off-street parking space provided to the nearest point of the lot on which the use or structure to be served is located. Measurement is along public or private rights-of-way available for pedestrian access from the structure or use to the parking space.

2. C-DMU District. Required off-street parking spaces may be provided on-site or off-site and within 800 feet of the use it serves. Off-site spaces may be more than 800 feet from the use with an AUP.

3. Ownership. If a required off-street parking space is located on a different lot from the structure or use it serves, the parking space must be either:

   • a. Located on land under the same ownership as the land where the structure or use is located; or

   • b. Subject to a Joint Use Agreement as provided in 23.322.040.D (Joint Use of Parking).

D. Joint Use of Parking.

1. All Districts. The Zoning Officer may approve an AUP to allow two uses to share parking spaces and satisfy their off-street parking requirement with a Joint Use Agreement. To approve the AUP, the Zoning Office must find that:

   • a. The off-street parking spaces designated for joint use are located within 800 feet of the use to be served;

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• b. The times demanded for joint-use parking spaces will not conflict substantially between the land uses sharing the spaces; and

• c. The off-street parking spaces designated for joint use are not otherwise committed to satisfying the parking requirements for another land use at similar times.

2. Offices in R-4 and R-5 Districts. The ZAB may approve a Use Permit to allow offices in the R-4 or R-5 district to share parking spaces with a multi-family use. To approve the Use Permit, the ZAB must find that:

   • a. No more than 20 percent of the off-street parking spaces required for the multiple dwelling use will serve as required off-street parking for offices; and

   • b. The shared off-street parking spaces are located on the same lot as the offices that they serve or are on property under the same ownership within 300 feet from the offices.

3. Deed Restriction. A property with joint-use parking spaces shall record a deed restriction as provided in Section 23.322.040.F (Deed Restrictions).

E. Off-Site Parking Spaces.

1. Non-Residential Districts. In Non-Residential Districts, the following requirements apply to required parking spaces not on the property where the use us located.

   • a. Off-site parking spaces may not be used to satisfy the off-street parking requirement for another use.

   • b. Off-site parking must be available during the normal hours of operation of the use that it serves.

   • c. A deed restriction must be recorded as provided in Section 23.322.040.F (Deed Restrictions). Table 23.322-5 shows the maximum distance that off-site parking spaces may be located from the use or structure it serves and the permit required to exceed this distance.

TABLE 23.322-5: OFF-SITE PARKING SPACE DISTANCE REQUIREMENTS

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2. CW District. If the use or structure served by off-site parking is within a designated node in the C-W district, the off-site parking spaces must also be located within the same designated node.

F. Deed Restrictions.

1. If a required off-street parking space is located off-site or in a joint use agreement, a statement shall be recorded in the Office of the County Recorder that restricts the use of the property and designates the off-street parking that is to serve the other property.

2. The deed restrictions shall state that the property cannot be used so as to prevent the use of the parking requirements of the City, unless the restriction is removed by the City.

3. Upon submission of satisfactory evidence either that other parking space meeting the parking requirements has been provided or that the building or use has been removed or altered in use so as to no longer require the parking space, the City of Berkeley shall remove the restriction from the property.

G. Removal of Spaces.

1. Permit Required. A Use Permit is required to remove parking spaces as follows:

   • a. R-S, R-SMU, C-T districts: Removing existing off-street parking spaces for main buildings.

   • b. C-SO, C-NS districts: Removing existing off-street parking spaces in excess of the number required spaces.

2. Findings. To approve the Use Permit in the R-S, R-SMU, and C-T districts, the ZAB must find that the parking reduction is consistent with the purposes of the district and meets the findings in Section 23.322.050.B (Findings). No additional findings are required in the C-SO and C-NS districts.

• H. Required Parking Spaces for Persons with Disabilities. If the number of required off-street parking spaces in a non-residential district is reduced as allowed by this chapter, the number of required parking spaces for persons with disabilities shall be calculated as if there had been no reduction in required spaces.

• I. Nonconforming Parking – ES-R District.

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1. A lawfully established use that does not provide the required number of off-street parking spaces may be continued and maintained if there is no increase in the area, space, or volume occupied by or devoted to the use, except as allowed by Paragraph (2) below.

2. A single-family detached structure that does not provide the required number of off-street parking spaces may be increased by a cumulative total of up to 200 square feet over the floor area that existed on June 6, 2010 if:

   • a. The addition or alteration complies with all other applicable standards;

   • b. The addition or alteration is not used as a bedroom; and

   • c. No portion of the building or any other structure on the same lot is used for rental rooms.

• J. Access to Spaces. A building, structure, alteration, fence, landscaping, or other site feature may not be constructed, erected, planted, or allowed to be established that impedes vehicle access to a required off-street parking space.

• K. Parking Permits. Residents in the following projects are not eligible to receive parking permits under the Residential Permit Parking Program (RPP) as provided in Municipal Code Chapter 14.72 (Preferential Parking Program):

  1. Residential projects in the R-S, R-SMU, and C-T districts that are constructed without parking.

  2. Projects in the C-DMU district with residential units or group living accommodation units, including units converted from a non-residential use.

• A. Allowed Reductions. The Zoning Officer or ZAB may reduce or waive the number of off-street parking spaces required by Section 23.322.030 (Required Parking Spaces) for the following projects.

1. Building Expansions.

• a. Where Allowed: All Commercial and Manufacturing Districts, R-SMU district.

• b. Eligible Uses: Expansions to existing buildings (all uses).

• c. Required Permit: AUP.

• d. Findings: The Zoning Officer must make the findings in Subsection C (Findings) below.

2. Change of Use.

• a. Where Allowed: All Manufacturing Districts, R-SMU district.

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• b. Eligible Uses: Change of use to a new use with a higher numerical parking standard. In a Manufacturing District, the reduction is allowed only if the change of use is 2,500 square feet or less.

• c. Required Permit: Use Permit for projects that require ZAB approval. AUP for all other projects.

• d. Findings: The review authority must make the findings in Subsection C (Findings) below.

3. Non-Residential Uses in Main Residential Building.

• a. Where Allowed: R-SMU district.

• b. Eligible Uses: Non-residential uses in main buildings that contain dwelling units or group living accommodations.

c. Required Permit: AUP.

• d. Findings: To approve the AUP, the Zoning Officer must find that the parking reduction is consistent with the purposes of the R-SMU district as stated in 23.202.140.A (District Purpose).

4. Residential Uses in Mixed-Use Buildings.

• a. Where Allowed: All districts.

• b. Eligible Uses: The residential use portion of a mixed-use building (residential and commercial).

c. Required Permit: AUP

• d. Findings: To approve the Use Permit, the ZAB must make findings in each district chapter:

  • i. C-C district: 23.204.050.D.3.b

  • ii. C-U district: 23.204.060.D.3.b

  • iii. C-N district: 23.204.070.D.3.b

  • iv. C-SA district: 23.204.100.D.2

  • v. C-SO district: 23.204.120.D.2

5. Exclusive Residential Uses.

• a. Where Allowed: All districts.

• b. Eligible Uses: Buildings occupied exclusively by residential uses.

c. Required Permit: AUP

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• d. Findings: To approve the AUP, the Zoning Officer must make findings in each district chapter:

  • i. C-C district: 23.204.050.D3.b

  • ii. CU district: 23.204.060.D.3.b

  • iii. C-N district: 23.204.070.D.3.b

  • iv. C-SA district: 23.204.100.D.2

  • v. C-SO district: 23.204.120.D.2

6. Commercial Uses in Mixed-Use Building.

• a. Where Allowed: C-C, CU, C-SA districts.

• b. Location Limitations: In the C-C, C-U districts, the reduction is allowed only on blocks adjacent to University Avenue and lots north of University Avenue, south of Delaware Street, east of Bonita Avenue and west of Oxford Street.

• c. Eligible Uses: Any commercial use portion of a mixed-use building which combines retail products stores and/or personal household services and multi-family residential uses within the same building or located on the same lot (or contiguous lots as part of the same project).

d. Required Permit: Use Permit.

• e. Findings: The ZAB must make the findings in Subsection C (Findings) below.

7. All Uses in Mixed-Use Building.

• a. Where Allowed: C-W district.

• b. Eligible Uses: All uses in a mixed-use building (residential and commercial).

• c. Permit Required: Use Permit for projects that require ZAB approval. AUP for all other projects.

• d. Finding: To approve the permit, the review authority must find that:

  • i. The reduction promotes any of the C-W district purpose statements in 23.204.140.A (District Purpose); and

  • ii. The reduction in the parking requirement is not expected to cause a serious shortage of parking in the area.

8. Bicycle/Motorcycle Spaces.

• a. Where Allowed: C-W and all Manufacturing Districts.

• b. Eligible Uses: All uses.

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• c. Allowed Reduction: Up to 10 percent of required off-street automobile spaces may be designated as bicycle and/or motorcycle parking. Bicycle parking must be in addition to bicycle parking required by 23.322.090 (Bicycle Parking).

• d. Permit Required: Use Permit for projects that require ZAB approval. AUP for all other projects.

• e. Finding: To approve the permit, the review authority must find that:

  • i. The substitution will not lead to an undue shortage of automobile parking spaces; and

  • ii. It can be reasonably expected that there will be demand for the bicycle and/or motorcycle parking spaces.

9. Proximity to Public Parking Facility.

• a. Where Allowed: C-W district.

• b. Eligible Uses: All uses within 1,000 feet of a public parking facility available to all members of the public.

• c. Permit Required: Use Permit.

• d. Finding: No additional findings.

10. Downtown Reduction/Waiver.

• a. Where Allowed: C-DMU district.

• b. Eligible Uses: All uses.

• c. Permit Required: Use Permit or modified with an AUP.

• d. Finding: The Zoning Officer must make the findings in Subsection C (Findings) below.

11. Adding Residential Units.

• a. Where Allowed: MU-R district.

• b. When Allowed: Adding a residential unit to a property with one or more existing residential units.

c. Permit Required: AUP

• d. Findings. To approve the AUP Permit, the ZAB must find that:

  • i. Existing evening parking supply is adequate; and/or

  • ii. Other mitigating circumstances exist on the property.

12. Limited Duration Reduction.

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  - a. **Where Allowed:** M and MM District. 

  - b. **Eligible Uses:** All uses. 

  - c. **Permit Required:** Use Permit valid for a specified duration not to exceed five years.

• d. Findings. To approve the Use Permit, the ZAB must find that under the circumstances of the particular use and building, the demand for parking can be expected to be below the otherwise required level for a sustained period of time.

• B. Findings. Required findings below are in addition to permit findings required in Section 23.406 (Specific Permit Requirements).

  1. Commercial, R-S, and R-SMU Districts. When required by Subsection A (Allowed Reductions) above or elsewhere in the Zoning Ordinance, the review authority must make the following findings to approve a reduction in required offstreet parking spaces in a Commercial District, the R-S district, or the R-SMU district:

     • a. The reduction will not substantially reduce the availability of on-street parking in the vicinity of the use.

     • b. One of the following is true:

       • i. The use is located one-third of a mile or less from a Bay Area Rapid Transit (BART) station, intercity rail station or rapid bus transit stops.

       • ii. The use is located one-quarter of a mile or less from a public or private parking area, lot, or structure that is accessible by the employees of the use and sufficient parking supply is available therein to mitigate the reduction in parking for the use.

       • iii. A parking survey conducted under procedures set forth by the Planning Department finds that within 500 feet or less of the use, on non-residential district streets, at least two times the number of spaces requested for reduction are available at on-street parking spaces during the peak hours of operation of the use.

     • c. One of the following is true:

       • i. The parking requirement modification will meet the purposes of the district related to improvement and support for alternative transportation, pedestrian improvements, and activity, or similar policies.

       • ii. There are other factors, such as alternative transportation demand management strategies or policies in place, that will reduce the parking demand generated by the use.

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2. Manufacturing Districts. When required by Subsection A (Allowed Reductions) above or elsewhere in the Zoning Ordinance, the review authority must make the following findings to approve a reduction in required off-street parking spaces in a Manufacturing District:

   • a. The reduction will not substantially reduce the availability of on-street parking in the vicinity of the use.

   • b. One of the following is true:

     • i. The use is located one-third of a mile or less from a rapid bus transit stop, an intercity rail station, or a bus stop serving at least four lines.

     • ii. The use is located one-quarter of a mile or less from a public or private parking area, lot, or structure that is accessible by the employees of the use and sufficient parking supply is available in these facilities to mitigate the reduction in parking.

• iii. A parking survey conducted under procedures set forth by the Planning Department finds that within 500 feet or less of the use, on non-residential district streets, at least two times the number of spaces requested for reduction are available at on-street parking spaces during the peak hours of operation of the use.

  • c. One of the following is true:

    • i. The parking requirement modification will implement the West Berkeley Plan goals and policies related to improvement and support for alternative transportation, pedestrian improvements and activity, and similar policies.

    • ii. There are other project-specific transportation demand management strategies or policies in place, including but not limited to employer sponsored transit subsidies, car sharing programs, bicycle storage, and flexible work schedules.

The parking and transportation demand management requirements in this section apply in the C-DMU district.

A. Dynamic Signage.

1. New construction that results in an off-street total of more than 25 publicly available parking spaces shall install dynamic signage to Transportation Division specifications.

2. Required signage includes, but is not limited to:

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• a. Real-time garage occupancy signs at the entries and exits to the parking facility with vehicle detection capabilities and enabled for future connection to the regional 511 Travel Information System; or

• b. Equivalent signs as determined by the Zoning Officer in consultation with the Transportation Division Manager.

B. Unbundled Parking.

1. For any new building with residential units or structures converted to a residential use, required parking spaces shall be leased or sold separate from the rental or purchase of dwelling units for the life of the dwelling unit.

2. The ZAB may approve a Use Permit to waive the requirement in Paragraph (1) above for projects that include financing for affordable housing. To approve the Use Permit, the ZAB must find that the applicant has shown that the combined parking is necessary to obtain financing or meeting other obligations.

C. Employee/Resident Benefits.

1. For new structures or additions over 20,000 square feet, the property owner shall provide at least one of the following transportation benefits at no cost to every employee, residential unit, and/or group living accommodation resident:

   • a. A pass for unlimited local bus transit service; or

   • b. A functionally equivalent transit benefit in an amount at least equal to the price of a non-discounted unlimited monthly local bus pass. Any benefit proposed as a functionally equivalent transportation benefit shall be approved by the Zoning Officer in consultation with the Transportation Division Manager.

2. A notice describing these transportation benefits shall be posted in a location visible to employees and residents.

D. Vehicle Sharing Spaces .

1. Spaces Required. For residential structures constructed or converted from a non-residential use that provide off-street parking, vehicle sharing spaces shall be provided in the amounts shown in Table 23.322-6. Vehicle sharing spaces are not required for projects that do not provide off-street vehicle parking.

TABLE 23.322-6: REQUIRED VEHICLE SHARING SPACES

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2. Requirements.

• a. The required vehicle sharing spaces shall be offered to vehicle sharing service providers at no cost.

• b. The vehicle sharing spaces shall remain available to a vehicle sharing service provider as long as providers request the spaces.

• c. If no vehicle sharing service provider requests a space, the space may be leased for use by other vehicles.

• d. When a vehicle sharing service provider requests such space, the property owner shall make the space available within 90 days.

E. Parking and Transportation Demand Management Compliance Report.

1. Before issuance of a Certificate of Occupancy, the property owner shall submit to the Department of Transportation a completed Parking and Transportation Demand Management (PTDM) compliance report on a form acceptable to the City of Berkeley.

2. The property owner shall submit to the Department of Transportation an updated PTDM compliance report on an annual basis.

A. Applicability.

1. This section applies to new residential projects with two or more dwelling units on a parcel, including the residential portion of mixed-use projects, where any portion of the project is located either:

   • a. Within 0.25 miles of a major transit stop, as defined by Section 21064.3 of the California Public Resources Code; or

   • b. Along a transit corridor with service at 15-minute headways during the morning and afternoon peak periods.

2. Exemptions . The following types of projects are exempt from the requirements of this section:

   • a. Projects for which a building permit was issued before March 19, 2021.

   • b. Residential projects, including the residential portions of mixed-use projects, with the majority of the units subject to recorded affordability restrictions;

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• c. Projects located on a roadway with less than 26 feet pavement width in the Hillside Overlay.

• d. Projects located in the Environment Safety-Residential (ES-R) district.

• B. Off-Street Parking Maximum . Any project subject to this chapter shall not include off-street residential parking at a rate higher than 0.5 parking spaces per Dwelling Unit.

C. Adding Units to Existing Buildings or Properties.

1. The parking maximum required by this section applies to new dwelling units added to an existing property or building where the addition results in two or more units on the parcel.

2. Adding a unit to an existing property or building does not require the removal of any existing off-street parking spaces.

D. Excess Off-Street Parking.

1. Off-street residential parking in excess of the maximum number in Section 23.322.070.B (Off-Street Parking Maximum) may be approved with an AUP.

2. To approve an AUP for excess off-street parking, the review authority must make one or both of the following findings:

   • a. Trips to the use or uses to be served, and the apparent demand for additional parking, cannot be satisfied by the amount of parking permitted by this section, by transit service which exists or is likely to be provided in the foreseeable future, or by more efficient use of existing on-street and off-street parking available in the area;

   • b. The anticipated residents of the proposed project have special needs or require reasonable accommodation that relate to disability, health or safety that require the provision of additional off-street residential parking.

A. Traffic Engineering Requirements.

1. All off-street parking spaces, access driveways, circulation patterns, and ingress and egress connections to the public right-of-way must conform to the City of Berkeley’s Traffic Engineering requirements.

2. The Traffic Engineer shall determine whether the size, arrangement, and design of off-street parking spaces, access driveways, circulation patterns, and ingress and egress connections to the public right-of-way are adequate to create usable, functional, accessible, and safe parking areas, and are adequately integrated with Berkeley’s overall street pattern and traffic flows.

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• B. Dimensional Standards. Dimensional requirements and standards for off-street parking spaces, driveways, and other access improvements, and maneuvering aisles shall be incorporated in administrative regulations, subject to the review and approval by the City Manager and ZAB.

• C. Access Orientation in Non-Residential Districts. Access to new parking areas in a Non-Residential District that serve commercial uses shall be oriented in such a way as to minimize the use of streets serving primarily residential uses.

D. Placement – Residential Districts.

1. Side Setback Areas.

• a. One new off-street parking space in a required side setback area, where none exists, is allowed by right.

• b. The space must be constructed of a permeable surface unless the Public Works Department or Office of Transportation determines it is infeasible.

• c. The space must be screened as required by 23.322.080.G (Screening).

• d. The location of the space shall minimize impact on usable open space.

2. Other Setback Areas. No portion of an off-street parking space may be located in a required front, street side, or rear setback area unless:

   • a. The parking space location is authorized by Chapter 23.306 (Accessory Dwelling Units); or

   • b. The Zoning Officer approves an AUP, in consultation with the Traffic Engineer, and the space meets all applicable requirements in this section.

3. Multifamily Buildings.

• a. An off-street parking space may not be located closer than 10 feet in horizontal distance from a door or a window of a building with three or more dwelling units where the space is on the same or approximately the same level as the building.

• b. For the purposes of this section, a window whose bottom edge or point is more than 6 feet in vertical height from the level of the subject off-street parking space is not considered on the same or approximately the same level.

• c. The Zoning Officer may approve and AUP to grant an exception to this requirement.

E. Placement – Non-Residential Districts.

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1. Where Prohibited. Except when otherwise allowed by this chapter, ground-level off-street parking spaces are not permitted within 20 feet of the lot’s street frontage unless the parking is entirely within a building with walls.

2. Corner Lots. For a corner lot, the ZAB may approve a Use Permit to allow the parking within 20 feet of the street frontage facing the secondary street.

3. C-W District.

  - a. Off-street automobile parking in the C-W district is not permitted between the front lot line and a main structure within a designated node. 

  - b. Outside of a designated node, off-street automobile parking may be allowed between the front lot line and a main structure with a Use Permit or AUP. If the project requires ZAB approval, a Use Permit is required. An AUP is required for all other projects. 

  - c. To approve the AUP or Use Permit, the review authority must find that one or more of the following is true: 

     - _i._ Parking in the rear or on the side of the property is impractical because of the lot’s depth and/or width. 

     - _ii._ Parking in the rear of the property would result in adverse impacts on abutting residential or other uses. 

     - _iii._ Parking in the rear or on the side of the property would result in the placement of a driveway in an unsafe location. 

     - _iv._ Continuation or re-establishment of parking in front of the building is necessary for the reuse of an existing structure which is substantially set back from the front lot line. 

• F. Grade Change. This subsection applies to off-street parking spaces in all districts, except for parking decks in Residential Districts.

  1. The difference in elevation between a parking space and the finished grade on adjacent areas of the lot may not exceed 5 feet at any point.

  2. Where there is a difference in elevation between a parking space and adjacent finished grade, the parking space shall be setback from a lot line as shown in Table 23.322-7.

TABLE 23.322-7: REQUIRED SETBACKS FOR PARKING SPACES WITH ADJACENT GRADE CHANGES

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G. Screening.

2. Table 23.322-8 shows required parking space screening. Screening must effectively screen parked vehicles from view from buildings and uses on adjacent, abutting, and confronting lots. Screening may not interfere with pedestrian safety.

TABLE 23.322-8: REQUIRED PARKING SPACE SCREENING

3. In the C-W, M, MM, MU-LI districts, screening and landscape buffers are not required for any portion of a parking lot adjacent to Third Street (Southern Pacific Railroad).

• H. Landscape Buffers.

  1. All paved areas for off-street parking spaces, driveways, and any other vehiclerelated paving must be separated from adjacent lot lines and the public right-ofway by a landscaped strip as shown in Table 23.322-9.

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TABLE 23.322-9: REQUIRED LANDSCAPE BUFFERS

Note:

[1] Calculated as average width along the full length of landscape strip.

2. In all districts, this landscape buffer requirement does not apply to driveways that serve two adjacent lots when adjacent to a side lot line.

3. In the Residential Districts, this landscape buffer requirement also does not apply to pedestrian walkways that are separated from such areas by a landscaped strip at least two feet wide.

• I. Paved Setback Areas. In Residential Districts, the total area of pavement devoted to off-street parking spaces, driveways, and other vehicle-related paving may not exceed 50 percent of any required setback area that runs parallel to and abuts a street.

J. Driveway Width.

1. A driveway may not exceed 20 feet in width at any lot line abutting a street or one-half of the width of the street frontage of the lot, whichever is less.

2. In a Non-Residential district, the Zoning Officer may modify this requirement with an AUP.

• K. Driveway Separation. On a single lot in a Residential District, driveways must be spaced at least 75 feet from one another, as measured along any continuous lot line abutting a street.

• L. Tandem Parking. Tandem spaces that provide required off-street parking require an AUP, except when allowed by right by Chapter 23.306 (Accessory Dwelling Units).

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• M. Residential Parking Lots in Non-Residential Districts. Parking lots in a nonresidential district used exclusively for residential parking must comply with standards in this section that apply in Residential Districts.

• N. Carports. A carport shall meet the minimum horizontal and vertical dimensions specified by the City's Traffic Engineer to be used for one or more legal parking spaces required under this chapter.

• A. Parking Spaces Required.

  1. Non-Residential Bicycle Parking . Table 23.322-10 shows districts where bicycle parking is required, land uses requiring bicycle parking, and the number of required spaces. Bicycle parking is required for new construction and for expansions to existing buildings that add new floor area.

TABLE 23.322-10: REQUIRED NON-RESIDENTIAL BICYCLE PARKING

• a. In the C-DMU district, the Zoning Officer, in consultation with the City Traffic Engineer, may approve an AUP to modify the bicycle parking requirement in Table 23.322-10 for Tourist Hotels.

2. Residential Parking . Table 23.322-11 shows the types of residential projects, including the residential portion of mixed-use projects, for which bicycle parking is required.

TABLE 23.322-11: REQUIRED RESIDENTIAL BICYCLE PARKING

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• B. Bicycle Parking Standards. The following standards apply to required bicycle parking spaces in a non-residential district:

  1. Bicycle parking spaces shall be located in either a locker, or in a rack suitable for secure locks, and shall require location approval by the City Traffic Engineer and Zoning Officer.

  2. Bicycle parking shall be located in accordance to the Design Review Guidelines and other design specifications promulgated by the Transportation Division.

• A. When Required. Table 23.322-12 shows land uses that require on-site loading spaces consistent with this section. In Residential Districts, on-site loading spaces are required for any modifications to existing uses and for new construction. In Commercial and Manufacturing Districts, on-site loading spaces are required for new or additional construction of 10,000 square feet or more.

TABLE 23.322-12: LAND USES REQUIRING OFF-STREET LOADING SPACES

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• B. Number of Loading Spaces. For land uses that require an on-site loading space, Table 23.322-13 shows the minimum number of required spaces.

TABLE 23.322-13: NUMBER OF REQUIRED OFF-STREET LOADING SPACES

C. Loading Space Requirements.

1. General. The following requirements apply to required on-site loading spaces in all districts except for the R-1, R-1A, R-2, R-2A districts.

   • a. Dimensions. A required loading space must be at least 12 feet wide and 25 feet long with a minimum vertical clearance of 14 feet.

   • b. Location. A required loading spaces must be located on the same lot as the structure or use the space is designed to serve.

   • c. Parking Spaces. A required parking space may not be used to satisfy the requirements for an off-street loading space.

   • d. Access and Paving. A required loading space must have adequate means of access from a street or alley. Both the space and access driveway must be paved with a durable, dustless material that is usable under all weather conditions.

2. Residential Buffer. An on-site loading space in a Non-Residential District may not be located within 35 feet of a lot in a Residential District unless the loading space is either:

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• a. Located wholly within an enclosed building; or

• b. Screened from such residential lot by a wall, hedge, or fence not less than 6 feet in height.

3. C-W District. A building or site in the C-W district may not be altered to deprive a leasable space used or designated for use by any manufacturing or wholesale trade of an on-site loading space consistent with Paragraph 1 (All Districts) above.

4. M and MM Districts. All uses in the M and MM districts which have one or more on-site loading spaces shall retain at least one such space.

5. Modified Requirements . In all Manufacturing and Commercial Districts other than the C-T district, the Zoning Officer in consultation with the City Traffic Engineer may approve an AUP to modify the on-site loading spaces standards in this section.

• A. Applicability. This section applies to the exclusive or primary use of a lot for offstreet parking spaces in a Residential District.

• B. Use Limitations. Commercial repair work or service of any kind is prohibited on the lot.

C. Standards.

1. Signs may only designate the parking lot name, entrances, exits, and conditions of use. No other types of signed may be erected or maintained.

2. Lighting fixtures must be oriented to direct the light away from adjacent lots.

3. Suitable wheel bumpers must be provided to protect screening and adjacent property.

4. A durable and dustless surface must be provided and maintained.

5. The lot must comply with 23.322.070.G (Screening) and 23.322.070.H (Landscape Buffers).

6. The lot must be graded to dispose of all surface water.

• D. Exceptions. The ZAB may waive any of the requirements in this section with a Use Permit for a temporary parking lot.

A. When Required.

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1. A Transportation Services Fee (TSF) may be required for all new construction of gross floor area pursuant to resolution of the City Council.

2. If so resolved, the following districts are required to pay a TSF: R-S, R-SMU, C- C, C-U, C-N, C-NS, C-T, C-SO, M, and MM.

B. Paying and Collecting Fees.

1. All TSF payments shall be made to the Finance Department and deposited into the City or Berkeley’s traffic/transportation mitigation fund.

2. TSF payments shall be collected in the form of annual payments based on the fee rate applicable to each district multiplied by the square feet of gross floor area of new construction and may be adjusted annually for inflation.

3. TSF payments shall be made for 30 years from the issuance of a certificate of occupancy for any new floor area.

4. The first annual payment of the TSF shall be due as a condition of occupancy and subsequent payments shall be due on January 1 of each succeeding year for 29 years.

• C. Use of Funds . TSF funds shall be used to purchase transit or paratransit passes, coupons, and tickets to be made available at a discount to employees and customers and to promote and support incentives for employee ride sharing.

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Sections:

23.324.010– Chapter Purpose 23.324.020– General 23.324.030– Nonconforming Lots 23.324.040– Nonconforming Uses 23.324.050– Nonconforming Structures and Buildings 23.324.060– Exemptions

This chapter establishes regulations for nonconforming lots, uses, structures, and buildings. These regulations are intended allow for:

• A. The development and use of lawful nonconforming lots;

• B. Changes to nonconforming uses and the termination of abandoned uses;

• C. Maintenance, repair, and expansion of nonconforming structures and buildings; and

• D. Alterations to nonconforming structures and buildings when needed for public safety.

• A. Cause of Nonconformity. A nonconformity may result from any inconsistency with the Zoning Ordinance, whether substantive or procedural, including, but not limited to:

  1. The inconsistency of the use, building, or structure or aspects thereof, with any requirement of the Zoning Ordinance; and

  2. The lack of a Zoning Certificate, AUP, or Use Permit.

• B. Change to a Conforming Use or Structure. A use, building, or structure which is nonconforming solely by reason of the lack of a Zoning Certificate, AUP, or Use Permit may be recognized as a conforming use, building, or structure by issuance of the required Zoning Certificate, AUP, or Use Permit.

• C. Permit and Approvals Required. A use, building, or structure conforms to the Zoning Ordinance only if it was established or constructed with the prior approval of, or legalized after the fact by, the issuance of the required Zoning Certificate, AUP, or Use Permit.

• D. Nonconformities in Continuous Existence. A lawful nonconforming use, structure, building, or lot shall be deemed to comply with the Zoning Ordinance if it has remained in continuous existence.

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• A. Lawful Nonconforming Lots . A lot with an area less than the minimum lot size required by the Zoning Ordinance is considered a lawful nonconforming lot if the lot is:

  1. Described in the official records on file in the office of the County Recorder of Alameda County or Contra Costa County as a lot of record under one ownership before November 30, 1950;

  2. Shown as a lot on any recorded subdivision map, filed before November 30, 1950; or

  3. In the Environmental Safety Residential (ES-R) district and described in the official records on file in the office of the County Recorder of Alameda County as either:

a. A lot of record under one ownership; or

• b. A lot on any recorded subdivision map filed before February 13, 1975.

B. Requirements.

1. A lawful nonconforming lot may be used as building site subject to all other requirements of the Zoning Ordinance, except as provided in Paragraph (2) below.

2. If the total area of all contiguous vacant lots fronting on the same street and under the same ownership on or after September 1, 1958 is less than that required for one lot under the Zoning Ordinance, such lawful nonconforming lots may be used as only one building site.

A. Changes to Nonconforming Uses.

1. Table 23.324-1 shows permits required to change a lawful nonconforming use.

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TABLE 23.324-1: PERMIT REQUIREMENTS FOR CHANGES TO NONCONFORMING USES

2. Substantial expansions and changes to a nonconforming use, as used in Table 23.324-1, means:

   • a. All changes to a use listed in 23.404.070.B (Permit Modification Required); and

   • b. Extending the nonconforming use into an existing or expanded portion of a building which has not been previously occupied by that nonconforming use.

B. Abandoned Uses.

1. Termination.

• a. Subject to the exceptions in Paragraph 2 (Exceptions) below, the ZAB may declare a lawful nonconforming use to be terminated upon finding that:

  • i. The use has not occurred for at least one year; and

  • ii. The most recent prior user has not shown a good-faith intent to resume it.

• b. The ZAB may require any person claiming that the use should not be declared terminated to produce documentation to substantiate good faith intent to resume the use.

2. Exceptions.

• a. Residential Uses. No lawful residential use can lapse, regardless of the length of time of the non-use.

• b. Uses with Major Investments. Lawful nonconforming full or quick service restaurants with cooking or food preparation facilities, gas/auto fuel stations, theaters, manufacturing plants with specifically designed fixed facilities and

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other uses which represent a major investment in physical plant or facilities shall not be considered or declared terminated, regardless of the duration of non-use, unless:

• i. Such fixed structures, equipment, or facilities are removed; or

• ii. Other uses could not be established without major removal of or extensive remodeling or replacement of structures associated with the previous established use.

• c. Alcoholic Beverage Retail Sales. If a lawful nonconforming alcoholic beverage retail sale use is closed is more than 90 days, the Zoning Adjustments Board (ZAB) may not declare the use terminated if the use was closed due to:

  • i. Repair that does not change the nature of the license premises or increase the square footage of the business used for alcoholic beverages sales; or

• ii. Restoration of premises made totally or partially unusable by an act of nature, fire, accident, or other involuntary cause where the restoration does not increase the square footage of the business used for alcoholic beverage sales.

• A. Maintenance and Repair. A lawful nonconforming structure or building may be maintained and repaired, as long as such maintenance or repair does not result in a change to the use of the structure or building.

• B. Replacement. Replacing portions of a nonconforming structure or building is allowed if the removed portions were lawfully constructed and are replaced to the same size, height, extent, and configuration as previously existed.

C. Removal.

1. A nonconforming portion of a nonconforming structure or building may be removed by right if such removal does not constitute demolition.

2. For a structure or building subject to the Landmarks Preservation Ordinance, the regulations under Municipal Code Section 3.24 (Landmarks Preservation Commission) apply.

D. Expansion and Alteration.

1. General. An addition to or enlargements of a lawful nonconforming structure or building is allowed if:

   • a. The addition or enlargement complies with all applicable laws;

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• b. The existing use of the structure or building is conforming, except as provided below in Paragraph 4 (Property with Nonconforming Use); and

• c. The addition or enlargement obtains all permits required by this subsection.

2. Nonconforming Setbacks and Height.

• a. An AUP is required for an addition or enlargement that:

  • i. Vertically or horizontally extends a building wall projecting into a minimum required setback;

  • ii. Horizontally extends the portion of a building exceeding the height limit;

  • iii. Alters the portion of a building (including windows and other openings) projecting into a minimum required setback; or

  • iv. Alters the portion of a building exceeding the height limit.

• b. The Zoning Officer may approve the AUP only if:

  • i. The addition or enlargement does not increase or exacerbate any nonconforming setbacks; and

  • ii. The addition or enlargement does not exceed maximum or calculated height limits.

3. Nonconforming Coverage, FAR, and Density.

• a. A Use Permit is required for an addition to and/or enlargement of a structure or building that exceeds the maximum allowed lot coverage, floor area ratio, or residential density.

• b. The ZAB may approve the Use Permit only if the project does not:

  • i. Increase or exacerbate the nonconformity; or

  • ii. Exceed the height limit.

4. Property with Nonconforming Use.

• a. A Use Permit is required for an addition to and/or enlargement of a lawful nonconforming structure or building on a property with a lawful nonconforming use.

• b. The Use Permit is required whether or not the nonconforming use occupies the subject structure or building.

E. Tenant Space Reconfigurations.

1. The reconfiguration of non-residential tenant space in a nonconforming structure or building requires permits as follows:

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• a. AUP for structures or buildings nonconforming to setback, height, or lot coverage standards.

• b. Use Permit for structures or buildings nonconforming to FAR standards.

2. The reconfiguration is allowed only if the existing use of the property is conforming.

F. Damage and Reconstruction.

1. Calculation of Appraisal Value. As used in this subsection, the “appraised value” of a structure or building is the higher of:

   • a. The records of the Assessor of the County of Alameda for the fiscal year during which such destruction occurred; or

   • b. An appraisal performed by a certified appraiser.

2. Damage Less than 50 Percent. If 50 percent or less of its appraised value of a lawful nonconforming structure or building is damaged or destroyed for any reason, the replacement of the damaged portions of the structure or building is allowed by right if the replaced portions are the same size, extent, and configuration as previously existed.

3. Damage More than 50 Percent.

• a. Except as provided in Paragraph 4 (Residential Buildings with Four Units or Less) below, if more than 50 percent of the appraised value of a lawful nonconforming structure or building is damaged or destroyed for any reason, the structure or building shall either:

  • i. Be brought into full compliance with the requirements of the Zoning Ordinance; or

  • ii. Receive ZAB approval of a Use Permit for the structure or building to be rebuilt to the same size, extent, and configuration as previously existed. To approve the Use Permit, the ZAB must find that the previous use will be continued in a manner that meets the requirements of this chapter.

4. Residential Structures or Buildings with Four Units or Less.

• a. A residential-only structure or building with four residential units or less, including any accessory structures or buildings, that is involuntarily damaged or destroyed may be replaced or reconstructed with a Zoning Certificate.

• b. The Zoning Certificate may be approved only if all of the following conditions exist:

  • i. The structure or building, or any portion thereof, has been destroyed by any involuntary cause including fire, earthquake, or flood.

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• ii. The replacement structure or building or portion thereof is substantially similar in use, dimensions, floor area, square footage, envelope, lot coverage, footprint, and number of units to the destroyed structure or building or portion thereof that it is designed to replace.

• iii. The replacement or repair complies with all currently applicable building codes and any other regulations including any ordinance or emergency regulation adopted by the City Council or the Director of Emergency Services to protect against serious safety problems at the site such as engineering conditions and soil stability.

• c. Where a structure or building to be replaced or rebuilt does not conform to Paragraph (b)(ii) above and is to be expanded or changed, the structure or building is subject to all otherwise applicable regulations governing such expansion or change.

• d. The Planning Director shall establish a process that allows an owner of a qualifying residential structure or building to apply for an advance determination that the proposed repair or replacement of a structure or building is substantially similar as required by Paragraph (b)(ii) above including the information required to document existing conditions.

• e. The Planning Director shall develop a description or building information for owners of qualifying residential structures or buildings required by the City to document existing characteristics of the building in case of future damage or destruction.

A. Public Safety Structural Alterations.

1. General. The following public safety structural alterations or extensions to conforming and nonconforming buildings are permitted by right to the extent necessary, as determined by the Zoning Officer:

   • a. Vertical and/or horizontal extensions of a nonconforming setback.

   • b. Horizontal extensions of a nonconforming height.

   • c. Vertical extensions of a nonconforming height in residential districts.

   • d. Alterations of a portion of a building that encroaches into a nonconforming setback.

   • e. Extensions of nonconforming lot coverage.

   • f. Structural alterations to nonconforming residential density.

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• g. Structural alterations to nonconforming buildings located on a property that also contains a lawful nonconforming use, whether or not that use occupies the subject building or structure.

2. Parking. Public safety structural alterations to a conforming or lawful nonconforming building or structure that reduce, relocate, or remove required parking spaces are permitted as follows:

   • a. Parking spaces may be converted to substandard compact spaces if approved by the Traffic Engineer.

   • b. Parking spaces may be relocated into a setback or other location by right to the extent necessary, as determined by the Zoning Officer, if:

     • i. The requirements in Paragraph (a) above cannot be met.

     • ii. The screening and landscaping requirements in Chapter 23.322 (Parking and Loading) are met.

     • iii. The parking relocation is approved by the Traffic Engineer.

   • c. Required parking may be removed if the Traffic Engineer determines that the requirements of Paragraphs (a) and (b) above cannot be met.

3. Aesthetic Improvement or Screening. Any aesthetic improvement or screening that the Zoning Officer determines is associated with a public safety structural alteration shall be treated as part of the public safety structural alteration.

B. Existing Public Libraries.

1. Notwithstanding any other provision in the Zoning Ordinance, a conforming or lawful nonconforming public library existing as of May 1, 2010 may be changed, expanded, or replaced by a new public library on the same site following demolition, subject to issuance of a Use Permit.

2. If the change, expansion, or new library is allowed by right under the Zoning Ordinance, a Use Permit is not required.

3. The ZAB may modify any requirement of the Zoning Ordinance applicable to such change, expansion, or new library as part of the Use Permit.

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Sections:

23.326.010– Chapter Purpose 23.326.020– General Requirements 23.326.030– Eliminating Dwelling Units through Demolition 23.326.040– Eliminating Dwelling Units through Conversion and Change of Use 23.326.050– Private Right of Action 23.326.060– Elimination of Residential Hotel Rooms 23.326.070– Demolitions of Non-Residential Buildings 23.326.080– Building Relocations 23.326.090– Limitations

This chapter establishes demolition and dwelling unit control standards that promote the affordable housing, aesthetic, and safety goals of the City.

• A. Applicability. No dwelling unit or units may be eliminated or demolished except as authorized by this chapter.

• B. Findings. In addition to the requirements below, the Zoning Adjustments Board (ZAB) may approve a Use Permit to eliminate or demolish a dwelling unit only upon finding that eliminating the dwelling unit would not be materially detrimental to the housing needs and public interest of the affected neighborhood and Berkeley.

A. Buildings with Two or More Units Constructed Before June 1980.

1. Applicability. This subsection only applies to building with two or more units constructed before June 1980.

2. Findings . The ZAB may approve a Use Permit to demolish a building constructed before June 1980 on a property containing two or more dwelling units if any of the following are true:

   • a. The building containing the units is hazardous or unusable and is infeasible to repair.

   • b. The building containing the units will be moved to a different location within Berkeley with no net loss of units and no change in the affordability levels of the units.

   • c. The demolition is necessary to permit construction of special housing needs facilities such as, but not limited to, childcare centers and affordable housing developments that serve the greater good of the entire community.

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• d. The demolition is necessary to permit construction approved pursuant to this chapter of at least the same number of dwelling units.

3. Fee Required.

• a. The applicant shall pay a fee for each unit demolished to mitigate the impact of the loss of affordable housing in Berkeley.

• b. The amount of the fee shall be set by resolution of the City Council.

c. In Lieu of a Fee .

• i. In lieu of paying the impact fee, the applicant may provide a designated unit in the new project at a below market rate to a qualifying household in perpetuity.

• ii. The affordability level of the below market rent and the income level of the qualifying household shall be set by resolution of the City Council.

• iii. The applicant shall enter into a regulatory agreement with the City of Berkeley to provide the in lieu units.

4. Occupied Units.

a. Applicability.

• i. The requirements in this subsection apply if units to be demolished are occupied.

• ii. These requirements do not apply to tenants who move in after the application for demolition is submitted to the City if the owner informs each prospective tenant about the proposed demolition and that demolition constitutes good cause for eviction.

• b. Notice . The applicant shall provide all sitting tenants notice of the application to demolish the building no later than the date it is submitted to the City, including notice of their rights under Municipal Code Section 13.76 (Rent Stabilization and Eviction for Good Cause Program).

c. General Requirements.

• i. The applicant shall provide assistance with moving expenses equivalent to in Chapter 13.84 (Relocation Services and Payments for Residential Tenant Households).

• ii. The applicant shall subsidize the rent differential for a comparable replacement unit, in the same neighborhood if feasible, until new units are ready for occupancy. Funding for the rent differential shall be guaranteed in a manner approved by the City.

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• iii. Exception. An applicant who proposes to construct a 100 percent affordable housing project is not required to comply with this subsection but must comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended and the California Relocation Act (Government Code sections 7260 et seq.).

d. Sitting Tenants Rights.

• i. Sitting tenants who are displaced as a result of demolition shall be provided the right of first refusal to move into the new building.

• ii. Tenants of units that are demolished shall have the right of first refusal to rent new below-market rate units designated to replace the units that were demolished, at the rent that would have applied if they had remained in place, as long as their tenancy continues.

iii. Income restrictions do not apply to displaced tenants.

iv. Exception.

1. An applicant who proposes to construct a 100 percent affordable housing project is not required to comply with 23.326.030.A.4.a, b, and c, but must comply with the following requirement.

2. Sitting tenants who are displaced as a result of demolition and who desire to return to the newly constructed building will be granted a right of first refusal subject to their ability to meet income qualifications and other applicable eligibility requirements when the new units are ready for occupancy.

B. Buildings with a Single Dwelling Unit.

1. Applicability. This subsection only applies to buildings with a single dwelling unit.

2. Limitations.

• a. Demolition is not allowed if:

  • i. The building was removed from the rental market under the Ellis Act during the preceding five years; or

  • ii. There have been verified cases of harassment or threatened or actual illegal eviction during the immediately preceding three years.

• b. Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner. The Rent Board Hearing Examiner will provide an assessment of the evidence and all available documentation to the ZAB. The ZAB shall

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determine whether harassment or threatened or actual illegal eviction occurred.

• C. Accessory Buildings. Notwithstanding anything in Municipal Code Title 23 (Zoning Ordinance) to the contrary, but subject to any applicable requirements in Municipal Code Section 3.24 (Landmarks Preservation Ordinance), accessory buildings of any size, including, but not limited to, garages, carports, and sheds, but not including any structure containing a lawfully established dwelling unit, which serves and is located on the same lot as a lawful residential use, may be demolished by right.

• 23.326.040 – Eliminating Dwelling Units through Conversion and Change of Use

  • A. General. The ZAB may approve a Use Permit for the elimination of a dwelling unit in combination with another dwelling unit used for occupancy by a single household if it finds that:

1. The existing number of dwelling units exceeds maximum residential density in the district where the building is located; and

   2. One of the following is true:

      • a. One of the affected dwelling units has been occupied by the applicant’s household as its principal place of residence for no less than two years before the date of the application and none of the affected units are currently occupied by a tenant.

      • b. All of the affected dwelling units are being sold by an estate and the decedent occupied the units as their principal residence for no less than two years before the date of their death.

B. Limitations.

1. Demolition is not allowed if:

   • a. The building was removed from the rental market under the Ellis Act during the preceding five years; or

   • b. There have been verified cases of harassment or threatened or actual illegal eviction during the immediately preceding three years.

2. Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner. The Rent Board Hearing Examiner `will provide an assessment of the evidence and all available documentation to the ZAB. The ZAB shall determine whether harassment or threatened or actual illegal eviction occurred.

C. Effect of Noncompliance with the Two-Year Requirement.

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1. In a unit eliminated under Subsection A (General) is not occupied by the applicant’s household for at least two consecutive years from the date of elimination, the affected unit must be restored to separate status.

2. This requirement shall be implemented by a condition of approval and a notice of limitation on the property, acceptable to the City of Berkeley.

3. The condition and notice will provide that if the owner’s household does not occupy the unit for at least two years from the date of elimination the affected units must either be restored as separate dwelling units and the vacant unit(s) offered for rent within six months or the owner must pay a fee of $75,000 in 2013 dollars, adjusted in May of each year according to the Consumer Price Index for the San Francisco Bay Area. The fee shall be deposited into the City of Berkeley’s Housing Trust Fund.

4. The City of Berkeley may exempt an applicant from the two-year residency requirement if of an unforeseeable life change that requires relocation.

D. Effect of Eliminating a Dwelling Unit.

1. If eliminating a dwelling unit reduces the number of units in a building to four, the applicant shall record a notice of limitation against the subject property that the limitation on eviction of tenants under Chapter 13 (Public Peace, Morals and Welfare) shall continue to apply until:

   • a. The building is demolished; or

   • b. Sufficient units are added or restored such that the building contains at least five units.

2. The Zoning Officer may issue an AUP for a building conversion which eliminates a dwelling unit upon finding that the conversion will restore or bring the building closer to the original number of dwelling units that was present at the time it was first constructed, provided the conversion meets the requirements 23.326.040.A.1 and 2 and 23.326.040.B and C.

E. Exceptions.

1. The ZAB may approve a Use Permit for a change of use to a community care or a child care facility which eliminates a dwelling unit if it finds that such use is in conformance with the regulations of the district in which it is located.

2. The ZAB may approve a Use Permit to eliminate a dwelling unit through combination with another dwelling unit for the purpose of providing private bathrooms, kitchenettes, accessibility upgrades, and/or seismic safety upgrades to single-residential occupancy rooms in residential developments undergoing a publicly-funded rehabilitation.

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3. Notwithstanding the general Use Permit requirement under 23.326.020 (General Requirements), a lawfully established accessory dwelling unit that is not a controlled rental unit may be eliminated with a Zoning Certificate if:

   • a. The re-conversion restores the original single-family use of the main building or lot; and

   • b. No tenant is evicted.

Any affected tenant may bring a private action for injunctive and/or compensatory relief against any applicant and/or owner to prevent or remedy a violation of Sections 23.326.030 (Elimination of Dwelling Units through Demolition) and 23.326.040 (Elimination of Dwelling Units through Conversion and Change of Use). In any such action a prevailing plaintiff may recover reasonable attorney’s fees.

• A. General Requirements. Before removal, the following requirements must be met for the ZAB to approve a Use Permit for the elimination of residential hotel rooms:

  1. The residential hotel owner shall provide or cause to be provided standard housing of at least comparable size and quality, at comparable rents and total monthly or weekly charges to each affected tenant

  2. One of the following three requirements shall be met:

     • a. The residential hotel rooms being removed are replaced by a common use facility, including, but not limited to, a shared kitchen, lounge, or recreation room, that will be available to and primarily of benefit to the existing residents of the residential hotel and that a majority of existing residents give their consent to the removal of the rooms.

     • b. Before the date on which the residential hotel rooms are removed, one-forone replacement of each room to be removed is made, with a comparable room, in one of the methods set forth in this section.

     • c. Residential hotel rooms are removed because of building alterations related to seismic upgrade to the building or to improve access to meet the requirements of the American Disabilities Act (ADA).

• B. Criteria for Replacement Rooms. For purposes of this section, replacement rooms must be:

  1. Substantially comparable in size, location, quality, and amenities;

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2. Subject to rent and eviction controls substantially equivalent to those provided by the Rent Stabilization Ordinance or those that applied to the original rooms which are being replaced; and

3. Available at comparable rents and total monthly or weekly charges to those being removed. Comparable rooms may be provided by:

   • a. Offering the existing tenants of the affected rooms the right of first refusal to occupy the replacement rooms;

   • b. Making available comparable rooms, which are not already classified as residential hotel rooms to replace each of the rooms to be removed; or

   • c. Paying to the City of Berkeley’s Housing Trust Fund an amount sufficient to provide replacement rooms.

     • i. The amount to be paid to the City of Berkeley shall be the difference between the replacement cost, including land cost, for the rooms and the amount which the City of Berkeley can obtain by getting a mortgage on the anticipated rents from the newly constructed rooms.

     • ii. The calculations shall assume that rents in the newly constructed rooms shall not exceed the greater of either a level comparable to the weekly or monthly charges for the replaced rooms or the level which would be charged if no current tenant paid more than 30 percent of such tenant’s gross income for rent.

• C. Exception for Non-Profit Ownership. In a residential hotel owned and operated by a non-profit organization, recognized as tax-exempt by either the Franchise Tax Board and/or the Internal Revenue Service, residential hotel rooms may be changed to non-residential hotel room uses if the average number of residential hotel rooms per day in each calendar year is at least 95 percent of residential hotel rooms established for that particular residential hotel.

• A. Main Non-Residential Buildings. A main building used for non-residential purposes may be demolished with a Use Permit.

B. Accessory Buildings .

1. Demolishing an accessory building with less than 300 square feet of floor area is permitted as of right.

2. An accessory building with 300 square feet or more of floor area may be demolished with an AUP.

C. Landmarks Preservation Commission Review.

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1. Any application for a Use Permit or AUP to demolish a non-residential building or structure which is 40 or more years old shall be forwarded to the Landmarks Preservation Commission (LPC) for review before consideration of the Use Permit or AUP.

2. The LPC may initiate a landmark or structure-of-merit designation or may choose solely to forward to the ZAB its comments on the application.

3. The ZAB shall consider the recommendations of the LPC in when acting on the application.

• D. Findings. A Use Permit or an AUP for demolition of a non-residential building or structure may be approved only if the ZAB or the Zoning Officer finds that:

  1. The demolition will not be materially detrimental to the commercial needs and public interest of any affected neighborhood or the City of Berkeley; and

  2. The demolition:

     • a. Is required to allow a proposed new building or other proposed new use;

     • b. Will remove a building which is unusable for activities which are compatible with the purposes of the district in which it is located or which is infeasible to modify for such uses;

     • c. Will remove a structure which represents an inhabitable attractive nuisance to the public; or

     • d. Is required for the furtherance of specific plans or projects sponsored by the City of Berkeley or other local district or authority upon a demonstration that it is infeasible to obtain prior or concurrent approval for the new construction or new use which is contemplated by such specific plans or projects and that adhering to such a requirement would threaten the viability of the plan or project.

A. Treatment of Building Relocation.

1. Relocating a building from a lot is considered a demolition for purposes of this chapter.

2. Relocating a building to a lot is considered new construction and is subject to all requirements applicable to new construction.

3. When a building is relocated to a different lot within in Berkeley, the lot from which the building is removed shall be known as the source lot and the lot on which the building is to be sited shall be known as the receiving lot. In such cases all notification requirements apply to both the source and receiving lots.

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• B. Findings. The ZAB may approve a Use Permit to relocate a building upon finding that:

  1. The building to be relocated is not in conflict with the architectural character, or the building scale of the neighborhood or area to which it will be relocated; and

  2. The receiving lot provides adequate separation of buildings, privacy, yards, and usable open space.

A. Unsafe, Hazard, or Danger.

1. Notwithstanding anything to the contrary, if a building or structure is unsafe, presents a public hazard, and is not securable and/or is in imminent danger of collapse so as to endanger persons or property, as determined by the city’s building official, it may be demolished without a Use Permit.

2. The Building Official’s determination in this matter shall be governed by the standards and criteria in the most recent edition of the California Building Code that is in effect in the City of Berkeley.

• B. Ellis Act. This chapter shall be applied only to the extent permitted by state law as to buildings which have been entirely withdrawn from the rental market pursuant to the Ellis Act (California Government Code Chapter 12.75).

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Sections:

23.328.010– Chapter Purpose and Applicability 23.328.020– General Requirements 23.328.030– Payment of In-Lieu Fees as an Alternative to Providing Inclusionary Units 23.328.040– Requirements Applicable to All Inclusionary Units 23.328.050– Inclusionary Unit Requirements for Rental Housing Projects 23.328.060– Inclusionary Unit Requirements for Ownership Projects 23.328.070– Special Requirements for Avenues Plan Area 23.328.080– Administrative Regulations 23.328.090– Fees

• A. Purpose. The purpose of this chapter is to:

  1. Promote Housing Element goals to develop affordable housing for households with incomes below the median, as defined in this chapter, or, in the case of limited equity cooperatives, households with incomes below 120 percent of the median.

  2. Require the inclusion of affordable dwelling units in specified proposed developments (“projects”).

B. Applicability.

1. The following types of projects must comply with the inclusionary housing requirements of this chapter:

   • a. Residential housing projects constructing five or more dwelling units.

   • b. Residential housing projects constructing one to four new dwelling units when:

     • i. Such units are added to an existing one to four-unit property developed after August 14, 1986; and

     • ii. The resulting number of units totals five or more.

   • c. Residential housing projects proposed on lots with a size and zoning designation that allows construction of five or more dwelling units.

2. This chapter does not apply to dormitories, fraternity and sorority houses, boarding houses, residential hotels, or live/work units.

3. Live/work units are subject to low income inclusionary provisions in Section 23.312 (Live/Work).

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4. This chapter sets forth specific inclusionary housing requirements for the Avenues Plan Area, which prevails over any conflicting requirements set forth elsewhere.

A. Minimum Percent of Units.

1. Any project subject to this chapter is required to include at least 20 percent of the total number of dwelling units within the project as inclusionary units, except that limited equity cooperatives are required to include at least 51 percent of their units as inclusionary units.

2. In applying the percentages above, any decimal fraction above a whole number of dwelling units shall be paid as an in-lieu fee as stated in Section 23.328.040 (Requirements Applicable to All Inclusionary Units).

• B. Median Income Levels. For the purpose of determining the median income levels for households under this chapter, the City shall use the Oakland Primary Metropolitan Statistical Area (PMSA) statistical figures that are available to the City from the most recent U.S. Census.

A. Applicability.

1. As an alternative to providing inclusionary units required in an ownership project, the applicant may elect to enter in an agreement with the City to pay fees as set forth in this section in-lieu of providing units that are not required to be provided at below market prices pursuant to Government Code Section 65915.

2. This section applies to projects for which all required permits have already been issued, as long as no units within such a project have been sold.

• B. Deposit . The fee shall be deposited in the City’s Housing Trust Fund.

C. Fee Amount.

1. The in-lieu fee shall be 62.5 percent of the difference between the permitted sale price for inclusionary units and the amounts for which those units are actually sold by the applicant.

2. The fee shall be calculated and collected based on the sales prices of all of the units in a project to which the inclusionary requirement applies, such that the fee as charged shall be a percentage of the difference between the actual sales price for each unit, and the sales price that would have been permitted had that unit been an inclusionary unit.

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3. The percentage shall be determined using the following formula: the number of units for which an in-lieu fee is substituted for an inclusionary unit divided by the total number of units to which the inclusionary ordinance applies, multiplied by 62.5 percent.

4. This fee shall only apply to units in a project that are counted in determining the required number of inclusionary units in a project and shall not apply to any units provided as a density bonus.

5. If the City Manager determines that an actual sales price does not reflect the fair market value of a unit, the City Manager shall propose an alternate price based on the fair market value of the unit.

6. If the developer and the City Manager cannot agree on a fair market value, the City Manager shall select an appraiser to prepare an appraisal of the unit and the appraised value shall be used as the market value.

D. Calculation of Inclusionary Sales Price.

1. The allowable inclusionary sales price for the purpose of calculating the in-lieu fee amount shall be three times 80 percent of the Area Median Income (AMI) last reported as of the closing date of the sale of the unit, with the exception that if the developer has already been authorized to charge an inclusionary sale price based on development costs pursuant to Ordinance 6,790-N.S. (adopted January 27, 2004, sunsetted February 19, 2006) the allowable inclusionary sale price for the purposes of this section shall be the price permitted under that ordinance.

2. Area median income (AMI) shall be calculated in accordance with the affordability regulations established by the City Manager pursuant to Section 23.328.080 (Administrative Regulations).

• E. Time of Payment of Fee. The developer shall pay the in-lieu fee no later than the closing date of the sale of a unit as a condition of the closing.

A. Recipient Requirement.

1. All inclusionary units other than those in limited equity cooperatives shall be sold or rented to:

   • a. The City or its designee; or

   • b. Low income, lower income, or very low-income households.

2. Units in limited equity cooperatives shall be sold or rented to households whose gross incomes do not exceed 120 percent of the Oakland PMSA median.

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• B. Agreement. The applicant shall execute a written agreement with the City indicating the number, type, location, approximate size, and construction schedule of all dwelling units and other information as required to determine compliance with this chapter.

• C. Timing . All inclusionary units in a project and phases of a project shall be constructed concurrently with, or before, the construction of non-inclusionary units.

• D. Criteria. All inclusionary units shall be:

  1. Reasonably dispersed throughout the project;

  2. Of the same size and contain, on average, the same number of bedrooms as the non-inclusionary units in the project; and

  3. Comparable with the design or use of non-inclusionary units in terms of appearance, materials, and finish quality.

• E. In-Lieu Fee Requirement. In projects where calculating the inclusionary requirement results in a fraction of a unit, the fraction shall be paid in the form of an in-lieu fee to the City.

  1. Where Government Code Section 65915 does not apply, the in-lieu fee shall be the fractional value of the difference between development cost (excluding marketing costs and profit) and actual sales price for the average comparable unit in projects.

  2. Where Government Code Section 65915 does apply, the in-lieu fee shall be the difference between affordable cost for an appropriately-sized household and the fractional value of the average comparable actual sales price for the fraction of the unit in projects to require a density bonus or equivalent incentive.

F. Use of In-Lieu Fees.

1. The in-lieu fee shall be used by the City or its designee (such as a non-profit housing development corporation) to provide, construct, or promote the creation or retention of low-income housing in Berkeley.

2. The use of in-lieu fees for specific housing programs shall be brought before the Housing Advisory and Appeals Board for review and approval.

• G. Exceptions. Where the applicant shows, and the City agrees, that the direct construction and financing costs of the inclusionary units, excluding marketing cost and profit (and also excluding land costs if a density bonus or equivalent incentive is provided), exceeds the sales prices allowed for inclusionary units by this chapter, the Zoning Adjustments Board (ZAB) may approve one or more of the following measures to reduce costs or increase profitability:

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1. Reduce the floor area or the interior amenities of the inclusionary units, provided that such units conform to applicable building and housing codes.

2. Increase the number of bedrooms in the inclusionary units.

3. In a home ownership project, construct rental units in a number required to meet the inclusionary provisions of this chapter applicable to rental housing projects.

4. Waive the in-lieu fees for fractions of units.

A. General Rental Requirements.

1. All inclusionary units shall be occupied by low, lower, or very low -income households.

2. The maximum rental price for inclusionary units shall be affordable to an appropriate-sized household whose income is 81 percent of the Oakland PMSA median.

3. In projects requiring more than one inclusionary unit, at least 50 percent of those units shall be rented at a price that is affordable to low or lower-income households, provided that the City can make available rental subsidies through the federal Section 8 Existing Housing Program or an equivalent program.

4. When there is an uneven number of inclusionary units, the majority of units shall be priced to be affordable to a household at 50 percent of median income if subsidies are available.

5. If no rental subsidies are available, all inclusionary unit prices shall be affordable to households at 81 percent income of the Oakland PMSA median.

6. If an applicant agrees to provide 10 percent lower income inclusionary units, the rental price for such units shall be affordable to a household with income that is 60 percent of the Oakland PMSA median.

7. Dwelling units designated as inclusionary units shall remain in conformance with the regulations of this section for the life of the building.

8. The City or its designee shall screen applicants for the inclusionary units and refer eligible households of the appropriate household size for the unit.

9. For purposes of occupancy, the appropriate household size standards used by the housing authority for the federal Section 8 Existing Housing Program or any future equivalent program shall be used.

• 10.The applicant or owner shall retain final discretion in the selection of the eligible households referred by the City.

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• 11.The owner shall provide the City with data on vacancies and other information required to ensure the long-term affordability of the inclusionary units by eligible households.

• B. Affordability Defined. A unit shall be considered affordable if the rent (including utilities) does not exceed 30 percent of a household’s gross income.

  1. Gross household income and utility allowance shall be calculated according to the guidelines used by the Berkeley Housing Authority for the federal Section 8 Existing Housing Program.

  2. For purposes of calculating rent, appropriate household size shall be determined by using the schedule contained in the administrative regulations developed for this chapter.

• A. General Sale Requirements. Inclusionary units in ownership projects shall be sold as set forth below:

  1. Inclusionary units in ownership projects shall be sold at a price that is affordable to an appropriate-sized household whose income is no more than 80 percent of the area median income reported for the Oakland PMSA for households of that size, unless the cost of development of the unit is greater than the affordable sales price.

  2. Appropriate sizes of household and the ratio of income to sales price for affordable units shall be defined by City Manager regulation.

  3. Inclusionary ownership units shall be affirmatively marketed to tenants with Section 8 housing vouchers, and who are known to be interested in participating in the Section 8 homeownership program, or other equivalent program(s) of the City, which are in effect at the time the units are offered for sale by the developer.

B. Right of First Refusal and Purchaser Preference.

1. The applicant for a project other than a limited equity housing cooperative is required to give right of first refusal to purchase any or all new inclusionary units to the City or a City designee for a period of not less than 60 days as evidenced by issuance of a certificate of occupancy.

2. Should the City choose not to exercise its right of first refusal, it shall provide the applicant or owner with a purchaser or with a list of eligible purchasers within a period of not less than 60 days.

   • a. If the list is not provided, the applicant may select a low-income purchaser of the applicant’s choice as long as the City verifies income eligibility and the unit is sold at an affordable price as described in this chapter.

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  - b. The City shall maintain a list of eligible low-income households and review the assets and incomes of prospective purchasers of the inclusionary units on a project-by-project basis and refer potential purchasers to the applicant or owner. 

3. All purchasers of inclusionary units shall be first-time home buyers from low, lower, or very low-income households.

4. Purchasers are also required to occupy the unit except that such requirement may be waived with the approval of the City. In such cases, the unit shall be rented to a low, lower, or very low-income household at a rent affordable by such households.

5. Preference of inclusionary units are as follows:

   • a. First preference will be given to eligible Berkeley residents.

   • b. Second preference will be given to eligible persons employed in Berkeley.

   • c. Other preferences may also be established administratively, with Planning Commission review, to help meet the City’s Housing Element goals.

6. The City shall advise all prospective purchasers on the City’s eligibility list of the resale restrictions applicable to ownership of inclusionary units and shall provide purchasers with a Declaration of Restrictions applicable to ownership of inclusionary units.

7. Purchasers of inclusionary units in limited equity cooperatives at time of first occupancy shall be first time home buyers with gross incomes no greater than 120 percent of the Oakland PMSA median.

   8. Subsequent purchasers of inclusionary units in limited equity cooperatives shall be first time home buyers whose yearly gross income is no more than 44 percent of the cost of a unit at the time of sale, provided that such income is no more than 110 percent of the Oakland PMSA median.

• C. Resale Restrictions. All inclusionary units developed under this chapter except for those in limited equity cooperatives are subject to the resale restrictions set forth below.

  1. Home ownership inclusionary units offered for sale or sold under the requirements of this chapter shall be offered to the City or its designee for a period of at least 60 days by the first purchaser or subsequent purchasers from the date of the owner’ s notification to the City of intent to sell.

  2. The resale price of the unit shall not exceed the original price and customary closing costs, except to allow for:

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• a. The lower of any increase of either the Consumer Price Index (CPI) for all urban consumers (as produced by the U.S. Bureau of Labor Statistics or its successor agencies) applicable to the Oakland PMSA; or

• b. The increase as measured in household income guidelines published annually by the U.S. Department of Housing and Urban Development (or its successor agencies) for the Oakland PMSA.

3. The resale formula shall supersede and replace the earlier resale formula in deed restrictions executed between February 19, 1987 (adoption date for Ordinance 5791-N.S.) and May 23, 2006.

   • a. The City, or its designee, shall notify each such owner of this change to the resale formula contained in their deed restriction within 60 days of adoption of this section.

   • b. All other terms and conditions of these deed restrictions shall remain in effect.

4. If the City does not act on its right of first refusal, the same procedure for new inclusionary units shall be used for selection of a purchaser.

5. The seller shall not levy or charge any additional fees nor shall any finders fee or other monetary consideration be allowed, other than customary real estate commissions if the services of a licensed real estate agent are employed.

6. The City or its designee may monitor resale of inclusionary units in limited equity cooperatives.

7. The City or its designee shall monitor the resale of ownership of inclusionary units.

8. The owners of any inclusionary units shall attach, lawfully reference in the grant deed conveying title of any such inclusionary ownership unit, and record with the County Recorder a Declaration of Restrictions provided by the City, stating the restrictions imposed pursuant to this chapter. Violators of any of the terms may be prosecuted by the City.

• A. City Council Findings. The City Council finds and determines that:

  1. The Avenues Plan process identified several regional and Berkeley-specific barriers to housing development.

  2. Among the Berkeley-specific barriers were:

     • a. High land prices;

     • b. Lengthy, difficult, and uncertain permit processes; and

     • c. Insufficient financing, especially for affordable housing projects.

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3. The Avenues Plan area represents a core area of Berkeley where it is particularly appropriate to encourage housing development because of the area’s generally good access to workplaces, transit service, senior services, and retail stores.

4. The policy to encourage housing in this area is reflected in several documents, including, but not limited to, the City’s Housing Element of the General Plan, the Concept Plan for the General Plan revision, the Downtown Plan, the South Berkeley Area Plan, the West Berkeley Plan, and the University Avenue statement of planning of goals.

5. Despite the City’s support for housing in this area, new housing development here has been limited and this has hindered revitalization of the area.

6. As part of a multi-pronged experimental strategy to create incentives to encourage housing development, relaxation of various inclusionary zoning requirements within the Avenues Plan area as set forth in this section is appropriate.

7. These changes will also assist the buyer of below market rate inclusionary units, by allowing buyers to gain greater appreciation on their investments (market conditions permitting), making the investment more similar to conventional home ownership, while retaining the long term affordability of inclusionary units.

8. The changes will also encourage the construction of larger family-sized units, rather than the smaller units which have generally been built in multi-family developments.

9. These changes in inclusionary zoning will be followed by mechanisms to make more financing available and changes in zoning standards and permit processes.

• 10.The success of these changes will be reviewed annually until the five-year time period of the Avenues Plan experiment expires July 1, 2000.

B. Applicability.

1. This section shall remain in effect until July 1, 2000, at which time the Planning Commission, in consultation with other relevant commissions, shall re-examine its effectiveness. At that time the Commission may initiate modifications to, or an extension of, this section.

2. This section applies on the streets and the addresses listed in Table 23.328-1. The area of applicability consists of the entire C-DMU District and portions of the C-C, C-U, C-SA, C-W, C-N, R-2A, R-3, and R-4 districts as indicated in the table. Within this area, this section supersedes any inconsistent provisions in this chapter.

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TABLE 23.328-1: AVENUE AREAS PLAN AREA: STREET AND ADDRESS RANGE

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• C. Definitions. For purposes of this section, the following definitions apply:

  1. “Project” means the total number of housing units planned to be built on a single lot or on a grouping of contiguous, commonly owned, or controlled lots, regardless of whether those units are all built simultaneously.

  2. “Affordable family-sized unit” means a unit which:

     • a. Is at least 850 square feet in area if two bedrooms or 1,100 square feet if three bedrooms or more;

     • b. Contains at least two lawful bedrooms;

     • c. Contains at least as many bathrooms as the corresponding two-bedroom market rate units; and

     • d. Is sold at a price that is affordable to an appropriate sized household whose income is no more than 80 percent of the metropolitan area median as reported by the Department of Housing and Urban Development (HUD).

D. Number of Inclusionary Units Required.

1. The number of inclusionary units required are shown in the Table 23.328-2.

TABLE 23.328-2: NUMBER OF INCLUSIONARY UNITS REQUIRED

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2. For every five units which the applicant can show with bona fide sales documents have been sold at a price at or below that affordable to an appropriately sized household with an income of 100 percent of metropolitan area median, the applicant is released of the obligation to provide one inclusionary unit.

3. For every 10 affordable family-sized units, the applicant is released of the obligation to provide one inclusionary unit sold at a price at or below that affordable to an appropriately sized household with an income of 100 percent of metropolitan area median.

4. Within the area of applicability for that portion of a project wherein both the inclusionary and the non-inclusionary units contain at least as many bathrooms as the corresponding two-bedroom market rate units, only 10 percent of units must be inclusionary.

E. Pricing Requirements.

1. The first inclusionary unit in projects with units for sale shall be sold at a price that is affordable to an appropriately sized household whose income is no more than 80 percent of the Oakland PMSA median as reported by HUD.

2. Except as otherwise provided in Section 23.328.070.C.2.d above, the second inclusionary unit shall be sold at a price that is affordable to an appropriate sized household whose income is no more than 100 percent of the PMSA median and subsequent inclusionary units shall be sold alternately at these price levels.

3. Inclusionary sale units in projects in the Avenues Plan Area shall be sold at a price such that first year housing cost (including homeowners’ association dues, if any) for a household of appropriate size with an income at the targeted level shall not exceed 33 percent of income.

4. This cost shall be calculated assuming that the buyer makes a 10 percent down payment, which shall not be considered a portion of the cost.

5. The housing cost shall be calculated for each project at the time the condominium association budget is approved by the California Department of Real Estate and shall not be changed after that time for that project, regardless of future changes in cost.

6. The resale price of inclusionary units within the Avenues Plan Area may increase at the rate of increase of the Consumer Price Index for all urban consumers (CPIU) applicable to the metropolitan area.

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The City Manager or the City Manager’s designee shall promulgate rules and regulations pertaining to this chapter, including but not limited to setting and administering gross rents and sale prices, requiring guarantees, entering into recorded agreements with applicants and taking other appropriate steps necessary to ensure that the required low income and very low income dwelling units are provided and occupied by low income households.

The City Council, by resolution, may establish fees for the administration of this chapter.

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Sections:

23.330.010– Chapter Purpose 23.330.020– Definitions 23.330.030– Application Requirements 23.330.040– Density Bonus Calculations and Procedures 23.330.050– Incentives and Concessions 23.330.060– Waivers and Reductions 23.330.070– Qualifying Units 23.330.080– Regulatory Agreements

The purpose of this chapter is to:

• A. Establish procedures and local standards to implement California Government Code Sections 65915–65918 consistent with local zoning regulations and development standards; and

• B. Provide special provisions consistent with the intent of State and local law. Unless otherwise noted, all section references in this chapter are to the California Government Code.

• A. Terms Defined. Terms used in this chapter are defined as follows:

  1. Administrative Regulations. Guidelines and procedures promulgated by the Planning Director that may be modified from time to time to effectively implement this ordinance.

  2. Base Project. The maximum allowable residential density on a housing development site pursuant to the applicable zoning district or, where no density standard is provided, as set forth in the Administrative Regulations before applying the density bonus.

  3. Density Bonus. Those residential units, floor area, rental beds or bedrooms added to the Base Project pursuant to the provisions of Government Code Section 65915 and this chapter.

  4. Eligible Housing Development . As defined in Government Code Section 65917.2.

  5. Housing Development. As defined in Government Code Section 65915(i).

  6. Incentive and Concession. An incentive or a concession as the terms are used in Government Code Section 65915 and in particular as defined in Section

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65915(k) thereof. The City may request reasonable documentation from the applicant to support the request.

7. Qualifying Unit. A unit that is provided at a below market-rate rent or sales price as set forth in Government Code Section 65915 to receive a Density Bonus and/or Waivers and Reductions and/or Incentives and Concessions.

8. Waiver and Reduction. A waiver or a reduction as the terms are used in Government Code Section 65915 and in particular in Section 65915(e) thereof, and means any and all changes to or exemptions from physical lot development standards that are required to avoid precluding the construction of a Housing Development with Density Bonus Units, as set forth in Section 65915(e). The City may request reasonable documentation from the applicant to support the request.

• B. Terms Not Defined. Terms not defined in this section shall be interpreted to give this chapter its most reasonable meaning and application, consistent with applicable state and federal law.

• A. Required Information. In addition to any other information required by the Zoning Ordinance, an application for a density bonus must include the following information:

  1. How the proposed project will satisfy the eligibility requirements of Section 65915 or 65917.2.

  2. For those districts without density standards, a density bonus schematic as set forth in the City of Berkeley Administrative Regulations.

  3. The requested density bonus pursuant to Municipal Code Section 23.330.040 (Density Bonus Calculations and Procedures).

  4. Any waivers and reductions that are sought under Section 65915.e that would be required to accommodate the housing development including the density bonus units.

  5. Any incentives and concessions that are sought under Section 65915.d accompanied by documentation of resulting cost reductions to provide for affordable housing costs.

  6. Any requested additional bonus units under Section 65915.n.

  7. Any requested parking reductions under Section 65915.p.

  8. Whether the applicant elects to receive a density bonus that is less than that mandated by Section 65915, including a density bonus of zero. In such cases, the applicant retains their entitlement to incentives and concessions.

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9. Documentation of how a project complies with regulations regarding replacement units as described in Section 65915.c.3.

• B. Documentation Supporting Requests. The City may request reasonable documentation from the applicant to support requested waivers/reductions and incentives/concessions.

• A. Calculation. Density bonuses must be calculated as set forth in Section 65915, 65917.2, and pursuant to the Administrative Regulations.

• B. Procedures. Density bonus requests must accompany housing development permit applications and will be decided upon concurrent with the underlying permit for the project.

• A. Calculation. For purposes of this chapter, the number of incentives and concessions are counted as follows:

  1. Any incentive and concession that would otherwise require discretionary approval by the Zoning Officer, the ZAB, or City Council of any single dimensional lot development standard, such as height or setbacks, or any single quantitative lot development standard, such as parking or open space, counts as one.

  2. A proposed incentive and concession that would involve exceedance of a single physical lot development standard counts as one even if that exceedance would otherwise require more than one permit (e.g., extra height may require permits for height, floor area ratio, and/or number of stories but would count as one incentive and concession for height).

  3. Where it is ambiguous as to whether a proposed incentive and concession involves one or more dimensional or quantitative lot development standards, the stricter interpretation applies, as determined by the review authority.

B. Procedural Requirements.

1. The City shall grant incentives and concession unless findings are made as set forth in Section 65915d.1.

2. The City is not required to deny a proposed incentive and concession solely because it can make a finding under Section 65915.d.1.

3. The City bears the burden of proof for the denial of a requested incentive and concession.

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4. Unless denied under Section 65915, incentives and concessions are exempt from discretionary review of permits under the Zoning Ordinance, other than Design Review, and by law do not modify the CEQA review status of a project.

• A. Proposal. An applicant may submit to the City a proposal for waivers and reductions of development standards that physically prevent construction of a housing development and density bonus units meeting the criteria of Section 65915.b.

• B. Negotiated Process. The City may negotiate changes to the requested waivers and reductions as part of the Use Permit and Design Review process, in coordination with the applicant, to address aspects of the project that may be of concern in the community or inconsistent with overarching principles of the General Plan, Zoning Ordinance, and Design Guidelines.

• C. Denial. The City may deny waivers and reductions for the reasons set forth in Section 65915.e.1.

Qualifying units must meet the standards set forth in Section 23.328.040 (Requirements Applicable to All Inclusionary Units).

Before issuance of a certificate of occupancy for a housing development that has received a density bonus, the applicant must enter into a regulatory agreement in a form provided by the City that implements Sections 65915–65918 and this chapter.

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Sections: 23.332.010– Chapter Purpose and Applicability 23.332.020– Definitions 23.332.030– General Requirements 23.332.040– Minimum Application Requirements 23.332.050– Location Requirements 23.332.060– Height Requirements 23.332.070– Design Requirements 23.332.080– Operation and Maintenance Standards 23.332.090– Public Information Requirements 23.332.100– Certification Requirements 23.332.110– Permits and Findings Required for Approval 23.332.120– Cessation of Operations

• A. Purpose. The purpose of this chapter is to:

  1. Provide a uniform and comprehensive set of standards for the development, siting, installation, and operation of wireless telecommunications antennas and related facilities (“wireless telecommunications facilities”) for personal wireless services;

  2. Foster an aesthetically pleasing urban environment, prevent visual blight, protect and preserve public safety and general welfare, and maintain the character of residential areas, including those adjacent to commercial areas and neighborhood commercial areas, consistent with the General Plan and adopted area plans and in compliance with applicable state and federal legislation; and

  3. Prevent the location of wireless telecommunications facilities in Residential Districts unless:

     • a. The City is required to permit them in such locations to avoid violating the Telecommunications Act of 1996.

     • b. The wireless telecommunications facilities are designed to interfere as little as possible with the character of the neighborhood.

  4. Establish and maintain telecommunications facilities that are components of a wireless telecommunications infrastructure designed to enhance the City’s emergency response network and not interfere with such emergency systems in violation of applicable federal or state regulations.

  5. Establish a process for obtaining necessary permits for wireless telecommunication facilities that provides greater certainty to both applicants and

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interested members of the public while ensuring compliance with all applicable zoning requirements.

6. Provide opportunities for further reduction in potential aesthetic or land use impacts of wireless telecommunications facilities as changes in technology occur.

7. Support the use of personal wireless services to enhance personal and public health and safety as well as the public welfare of Berkeley.

• B. Applicability. The regulations in this chapter apply to all wireless telecommunications facilities for personal wireless services on property other than the public right-of-way in Berkeley.