Division 4 — PERMITS AND ADMINISTRATION 23.402 - Administrative Responsibility Section…

Discussion:

In the existing Zoning Ordinance, the Zoning Officer (ZO) “has the authority” to “Interpret and enforce this Ordinance, subject to the review by the Board and Council.” This authority is included as one bullet point in a list of seven things the Zoning Office “has the authority” to do. That list is housed within a Chapter describing the Zoning Officer and their “responsibilities and duties .” The Chapter shows up after Chapters describing the “responsibilities and powers” of the Zoning Board (ZAB) and Design Review Committee (DRC), and elaboration of the role of the LPC (which is in 3 - Board, Commissions and Committees). This authority , which is part of a responsibility or duty of the ZO, and is not a power such as those held by ZAB and DRC, is neither prominent in the ZO’s responsibilities and duties, nor is it phrased or placed in the Zoning Ordinance in such a manner as to suggest that the ZO is “The Authority” on interpretation and enforcement of the Ordinance.

In the newly proposed BZO, an entirely new Section - Authority - is introduced in a Title named INTERPRETING THE ZONING ORDINANCE. It states that “The Zoning Officer is responsible for interpreting the meaning and applicability of all provisions of the Zoning Ordinance,” “subject to review and modification by the Zoning Adjustments Board (ZAB) and City Council.”

This Section - Authority - is entirely new to the BZO. It doesn’t parallel anything in the existing Ordinance’s Chapter on interpretation, and by its prominent placement in the BZO, and enhanced wording, the Zoning Officer becomes the first and primary authority - “The Authority” - on interpretation and enforcement of the Ordinance.

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Baseline Zoning Ordinance (BZO) Proposed Amendments September 13, 2021 The proposed BZO includes a list of “Responsibilities and Powers” of the Zoning Officer. In the existing Zoning Ordinance, these are “Responsibilities and Duties.” The bullet point about interpretation of the meaning and applicability of the Zoning Ordinance is the proposed BZO states that the Zoning Officer “Interprets the meaning and applicability of the Zoning Ordinance.” In the existing Zoning Ordinance, the Zoning Officer “has the authority to Interpret and enforce this Ordinance, subject to the review by the Board and Council.” The small changes in wording confer significantly greater agency to the ZO that the current Ordinance provides, and together with the creation of a new “Authority” earlier in the BZO, constitute a major substantive change.

These sets of changes in the placement, prominence, and wording of sections relating to the ZO’s “authority” and powers are significant, and I believe best considered as part of Phase 2. The amendments offered revert the BZO to mirror the current Zoning Ordinance.

[continued on next page]

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Baseline Zoning Ordinance (BZO) Proposed Amendments September 13, 2021

Proposed Amendments to new Section 23.402.020 (page 365), new Table 23.402-1 (Page 366-367) and new Section 23.402.030

Major Substantive Policy Change

Presenting reports and background materials and possibly recommended actions to a Commission or to the City Council is not the same as being a body/entity statutorily empowered by the Zoning Code to make “official” Recommendations.

In both the existing and proposed Zoning Ordinances, the Zoning Officer (or Planning and Development Department) is the official Secretary to the ZAB, LPC and DRC, and supports the City Council when land use appeals are before the Council. However, the proposed BZO equates the role of briefing and potentially offering recommended actions to the bodies for which the ZO/Planning Department serves as Secretary with a statutorily provided, official role as a “Recommender,” on the same level as when the ZAB or another elected or appointed body makes and official, statutorily required Recommendation to another body.

These two roles, being a Commission Secretary providing reports and recommended actions and being an official, statutorily required “Recommender” are very different, and introducing the ZO as a Recommender I believe is a major substantive change to the Zoning Code which should be considered in Phase 2.

The following amendments to the proposed BZO revert language and placement to more closely track the existing Zoning Ordinance and the role of ZAB/DRC/LPC/PC Secretary in the proposed BZO :

Page 365

• B. Meaning of Notations. Authority roles as noted in Table 23.402-1 mean the following:

  1. “Present” means the authority prepares and presents a report and, where -

  appropriate, provides a recommended action to the decision making authority.

  2. “Recommend” means . . . .

[ etc. - the rest remains the same, just renumbered]

Page 366-367 TABLE 23.402-1: Review and Decision-Making Authority

On the following lines of the Table, in the vertical column for “Planning and Development Department,” the word “ Recommend ” is deleted and substituted with the word “Present”

Permits| Use Permits Master Use Permits

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September 13, 2021

Baseline Zoning Ordinance (BZO) Proposed Amendments

Design Review Design Review Flexibility and Relief Variances Modifications to Development Standards in West Berkeley

Page 368 23.402.030 - Planning and Development Department

The Planning and Development Department:

A. Makes recommendations or prepares and presents a report and, where appropriate, a recommended action on requested permits and approvals as shown in Table 23.402-1: Review and Decision-Making Authority

CONTACT PERSON Councilmember Sophie Hahn

Council District 5 510-682-5905

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Office of the City Manager

PUBLIC HEARING September 28, 2021 (Continued from September 14, 2021)

To: Honorable Mayor and Members of the City Council

From: Dee Williams-Ridley, City Manager Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Adoption of the Baseline Zoning Ordinance (BZO)

RECOMMENDATION

Conduct a public hearing and, upon conclusion, adopt the first reading of an Ordinance rescinding the current Berkeley Municipal Code (BMC) Title 23 and adopting the new Baseline Zoning Ordinance (BZO) as BMC Title 23 with an effective date of December 1, 2021.

SUMMARY

The Zoning Ordinance Revision Project (ZORP) originated from a 2016 City Council referral which asked the Planning Department to undertake structural revisions of the Zoning Ordinance. The goals of the referral included making the ordinance more straightforward to use, reducing the types of projects requiring extensive discretionary review, and adding graphic illustrations of terms, regulations and processes. The project has been divided into two phases. The first is a new Baseline Zoning Ordinance (BZO), which is reworded and formatted to make land use regulations easier to read, understand and administer. The BZO contains all the regulatory elements of the existing Zoning Ordinance and contains no major substantive policy changes. The second phase, yet to begin, will include substantive amendments intended to reduce the complexity of the City’s zoning regulations and address the streamlining recommended in the referral.

A fully-formatted and more readable PDF of the Baseline Zoning Ordinance can be found at this link:

• https://www.cityofberkeley.info/uploadedFiles/Planning_and_Development/Level_3_ - _Land_Use_Division/Att%201%20Exhibit%20A%20 %20Baseline%20Zoning%20Ordinance.pdf

FISCAL IMPACTS OF RECOMMENDATION

Revising the Zoning Ordinance is a staff-intensive effort with a robust public input process and significant time dedicated to drafting language and reviewing for accuracy. Staffing costs are covered utilizing the existing Land Use Policy team and project

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

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consultants. Consultant work for development of the BZO cost approximately half of the ZORP’s $300,000 project budget.

It will cost $15,000 for the City’s ordinance publisher to replace the existing onlineversion of the BMC Title 23 with the BZO. This will include hyperlinked crossreferencing and quality assurance check of presentation on the City website.

CURRENT SITUATION AND ITS EFFECTS

The BZO is a Strategic Plan Priority Project, advancing the City’s goal to be a customerfocused organization that provides excellent, timely, easily-accessible service and information to the community. This project was initiated by a January 26, 2016 City Council referral that focused on customer service enhancements and the need to provide a Zoning Ordinance that was written clearly and concisely and laid out in an intuitive manner (see Attachment 2). Requested revisions would clarify rules and procedures, provide informative tables and figures, and ensure internal consistency with the rest of the BMC. The 2017 City-commissioned Zucker report on Planning Department customer service also recommended that the City revise the Ordinance to correct grammatical and technical errors, reduce complexity, eliminate possible conflicts or contradictions, and align with current policies and practices.

Project Approach

In 2017, staff released a Request for Proposals and selected a consultant team with technical zoning expertise (Ben Noble and Clarion Associates) to support the ZORP project. ZORP began with a baseline evaluation of the existing Zoning Ordinance that involved a thorough review of the existing zoning code, prior zoning interpretations, and staff-suggested technical edits. The project team also interviewed Planning Department staff to understand challenges implementing the code and to compile a summary of issues raised by members of the public. Based on this evaluation and a survey of Zoning Ordinances from cities of similar size and character, the project team proposed a two-phased approach to ZORP.

Phase 1: Prepare a new Baseline Zoning Ordinance (BZO). This phase will result in a newly written, newly formatted Zoning Ordinance that is easy to read, understand and administer. Phase 1 also provides the opportunity to systematically review the regulations to identify code sections that could benefit from substantive changes to be addressed in Phase 2.

Phase 2: Undertake selected major substantive changes, identified in Phase 1, that could be implemented to bolster customer service or improve the permitting process. Phase 2 revisions will be aligned with other Planning Division initiatives and outstanding referrals from City Council.

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Meetings and Engagement

The Planning Commission and the Zoning Adjustments Board have been actively involved in this project. Planning Commission supported the two-phase approach, and appointed three members to a ZORP Subcommittee. The Zoning Adjustments Board (ZAB) also formed a ZORP Subcommittee that met concurrently with Planning Commission’s subcommittee to provide guidance, input and review of draft BZO chapters. The full Planning Commission and ZAB received regular updates from subcommittee members at their meetings, and the project team provided project updates annually to the full commission/board when subcommittees were re-established[1] , providing an opportunity for feedback from the parent commission/board and public comment from the community.

On July 7, 2020 the ZORP Subcommittees recommended that the draft BZO move forward for public review and public hearings. The BZO then went through a final round of drafting and returned to the Planning Commission on December 16, 2020 for a public hearing. At that meeting, Planning Commission voted to recommend that City Council adopt the BZO (Moved: Vincent; Seconded: Wiblin. Vote 8-0-1; Ayes: Beach, Hauser, Kapla, Krpata, Lacey, Schildt, Vincent and Wiblin. Noes: none. Abstain: Ghosh; see Attachment 3).

Public Outreach and Feedback

In addition to receiving feedback at public meetings, the project team designed a Community Outreach Plan to solicit input on the draft BZO, which included:

• The creation of the Zoning Ordinance Revision Project website (see Link 1);

• Targeted outreach to over 35 frequent project applicants;

• Internal outreach to Planning Department staff;

• Office hours to meet with members of the public via Zoom, to introduce the BZO and receive questions and comments; and

• A Berkeley Considers survey, which received 194 visitors and 24 responses.

Summary of BZO

The BZO rewrites and reformats the Zoning Ordinance without making any substantive changes in regulations. The BZO addresses a portion of the Council referral and provides a better customer experience with the following improvements:

• Provides Easy to Follow Format and Writing Style . The current Zoning Ordinance has been criticized for containing technical jargon, wordy phrases, inconsistent formatting, and a repetitive structure. The BZO addresses these concerns by providing clear explanations, updated formatting, and an intuitive

1 The Commissioners Handbook requires parent commissions to re-elect subcommittee members on an annual basis.

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outline structure. In addition, the BZO is written in accessible language and presents regulations in tables or lists when appropriate, to provide a better user experience. See Attachment 4 for an example of this improved writing format and style.

• Consolidates Land Use Tables. In the current Zoning Ordinance, each of the 25 zoning districts contains a unique land use table that lists permitted uses and permit requirements. Having 25 separate land use tables has resulted in different lists of uses and disparate treatment of similar uses across zoning districts. These inconsistencies raise questions about whether these differences are intentional or not. The BZO instead provides three comprehensive Land Use Tables (Residential, Commercial and Industrial) that consolidate land uses, applies naming conventions, and allows for easy comparisons among districts.

• Introduces New Maps and Figures. The current Zoning Ordinance includes only narrative descriptions of certain important geographic areas and subzones, such as the University Strategic Plan Area, the Car-Free Housing Overlay, or the Downtown Arts District Overlay. The BZO uses maps to illustrate important districts, subzones and areas, eliminating long, narrative descriptions and references to other adopted plans. The BZO also includes updated figures and diagrams to illustrate important land use regulations, such as Floor Area Ratio, setbacks, and measurement methods.

• Eliminates Repetitive Language. The current Zoning Ordinance is repetitive. Each of the 25 districts lists special land use regulations, development standards, and permit requirements separately. Sometimes these are unique to one district, but often they apply to multiple districts. Similarly, administrative procedures that apply to various types of permits are often repeated in various sections. This repetition creates an opportunity for technical errors and discrepancies when word choice or punctuation differs from district to district, or when amendments are made to some but not all sections. These inadvertent errors result in inconsistent application of regulations. The BZO eliminates this unnecessary repetition by collecting these special land use regulations, development standards or permit requirements and stating them in a single section.

• Introduces a List of “Consent Changes.” Developing the BZO has provided the opportunity to make a number of minor, but important, changes to the Zoning Ordinance. These changes are not substantive. They clarify ambiguous terms, reflect updated legal requirements, and codify existing interpretations and practice. Including these changes in the BZO makes it a clearer, more comprehensive document. These consent changes are summarized in a Consent Changes Matrix (see Attachment 5), which includes an explanation for each change.

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The recommendation for adoption of the BZO requests an effective date of December 1, 2021. This time allows staff to work with the City’s code publisher after the second reading of the Ordinance to ensure a timely and accurate version of the BZO is uploaded to the City’s website, including hyperlinks and graphics.

BACKGROUND

The current Zoning Ordinance was adopted in 1999. It constituted the first comprehensive revision of the Zoning Ordinance since its original adoption in 1949, and still carries many of the original provisions. It is codified in Title 23 of the BMC and includes six sub-titles:

• Title 23A, Ordinance Applicability, which includes the official title of the Ordinance and the Zoning Ordinance’s purpose.

• Title 23B, Ordinance Administration, which includes all of the processes for permit approval and review, application requirements, regulations for abating nuisances, as well as defining the roles of the Zoning Adjustments Board, the Design Review Committee and the Zoning Officer.

• Title 23C, General Provisions Applicable to All Districts, which includes citywide regulations, such as Inclusionary Zoning, Short-Term Rentals and Cannabis Uses.

• Title 23D, Provisions Applicable in All Residential Districts, which includes the regulations for all of the Residential (R) zoning districts;

• Title 23E, Provisions Applicable in All Non-Residential Districts, which includes the regulations for all of the Commercial (C) and Manufacturing (M) zoning districts, as well as the Hillside Overlay (H) zone; and

• Title 23F, Definitions, which includes definitions of many of the terms and most of the uses included in the Zoning Ordinance.

The Zoning Maps are also included as part of Title 23.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS

There are no identifiable environmental and climate impacts or opportunities associated with the BZO.

RATIONALE FOR RECOMMENDATION

Preparation of the BZO has been a thorough and detail-oriented process. The involvement of the Planning Commission and ZAB has meant that the draft BZO was

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reviewed for consistency of land use policy and for usability when reviewing project proposals. The BZO has also been reviewed by Planning Department staff to ensure its usability in day-to-day work. Finally, the public has provided feedback on the BZO that supports the new document. The Planning Commission recommended that the City Council adopt the BZO, finding it a clear improvement over the existing Zoning Ordinance and agreeing that it met project goals and objectives.

ALTERNATIVE ACTIONS CONSIDERED

No alternatives were considered; however, City Council could choose to not adopt the BZO.

CONTACT PERSON

Justin Horner, Associate Planner, Planning and Development, 510-981-7476 Alene Pearson, Principal Planner, Planning and Development, 510-981-7489

Attachments:

• 1: Ordinance

Exhibit A: Text of new Baseline Zoning Ordinance Exhibit B: Revised Zoning Map

• 2: 2016 City Council Referral

• 3: December 16, 2020 Planning Commission Final Minutes

• 4: Code Comparison Example (Variance Section)

• 5: Consent Changes Matrix

6. December 16, 2020 Planning Commission Staff Report (without BZO attachment)

7. Public Hearing Notice

Link

• 1: ZORP website:

https://www.cityofberkeley.info/Planning_and_Development/Land_Use_Division/Zoning Ordinance_Revision_Project(ZORP).aspx

2: A PDF of the full Baseline Zoning Ordinance: - https://www.cityofberkeley.info/uploadedFiles/Planning_and_Development/Level_3_ - _Land_Use_Division/Att%201%20Exhibit%20A%20

%20Baseline%20Zoning%20Ordinance.pdf

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ORDINANCE NO. -N.S.

REPEALING ZONING ORDINANCE AND OFFICIAL ZONING MAP (BERKELEY MUNICIPAL CODE TITLE 23) AND ADOPTING NEW ZONING ORDINANCE AND OFFICIAL ZONING MAP

BE IT ORDAINED by the Council of the City of Berkeley as follows:

Section 1. That the existing Berkeley Municipal Code Title 23, including the Official Zoning Map adopted by Berkeley Municipal Code Section 23A.16.010, is repealed.

Section 2. That a new Berkeley Municipal Code Title 23 is adopted as set forth in Exhibit A.

Section 3. That the new Official Zoning Map is adopted as set forth in Exhibit B.

Section 4. That the new Official Zoning Map maintains existing boundaries, but creates two new zoning districts (University Avenue Commercial [C-U] and Corridor Commercial [C-C]) from the General Commercial (C-1) zoning district.

Section 5. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

Exhibits A: New Baseline Zoning Ordinance (BMC Title 23)

B: New Official Zoning Map

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