Chapter 13.42 — OPERATING STANDARDS FOR MINI-DORMS AND GROUP LIVING

ACCOMMODATIONS

Sections: 13.42.005 Applicability. 13.42.010 Findings and purpose. 13.42.020 Definitions. 13.42.030 Operating standards--Owners, Property Managers and responsible residents. 13.42.035 Nuisances. 13.42.036 Entertainment events involving service or availability of alcoholic beverages. 13.42.040 Remedies. 13.42.050 Fee.

A. This Chapter shall not apply to Community Care Facilities or Senior Congregate Housing as defined in Chapter 23F.04.

B. 1. A GLA that has adopted operating protocols that the City determines are functionally equivalent to the requirements set forth in this Chapter shall be exempt from this Chapter except as it applies to owners and/ or Property Managers, provided that said protocols are consistently implemented and enforced.

2. Such protocols shall include provisions for monitoring and enforcement by a Monitoring Organization.

3. An exemption under this subdivision shall lapse upon written notice by the City to a GLA:

a. of two violations of Section 13.42.030 or 13.42.036 on different dates at its location during any twelve-
month period from September 1st through August 30th, unless those violations were remedied as provided
in the adopted protocols; or

b. that the adopted protocols, although followed and enforced, are inadequate to ensure compliance with
Sections 13.42.030 and 13.42.036. In such cases, the GLA shall be given a reasonable opportunity to propose
revised protocols for review by the City.

4. An exemption under this subdivision premised on monitoring and enforcement by a Monitoring
Organization shall lapse if the City determines, after written notice to the Monitoring Organization that the
required monitoring or enforcement has not occurred or that it has omitted to report noncompliance with
the protocols.

C. This Chapter shall not apply to any apartment house that is subject to and in compliance with Section 19.40.100, Chapter 17 of the Berkeley Housing Code, section 1701.

D. This Chapter shall not apply to hotels as defined in Section 7.36.020.A.

E. This Chapter shall not apply to owner-occupied buildings. (Ord. 7631-NS §1, 2018; Ord. 7455-NS § 2, 2016; Ord. 7226-NS § 1 (part), 2012. Formerly 13.42.070)

A. The heavy demand for student housing in Berkeley, especially in low density areas near the University of California campus, has resulted in numerous existing single family and multifamily residential buildings being significantly modified by the addition of numerous bedrooms.

B. Prior to the enactment of amendments to the Zoning Ordinance that regulated the addition of bedrooms in certain zoning districts such modifications were allowed as a matter of right without triggering discretionary review. As a result, there has been a proliferation of buildings that are occupied by a far larger number of persons than was ever contemplated by the General Plan or Zoning Ordinance in those districts. In addition, there are already numerous pre-existing Group Living Accommodations, including but not limited to fraternities and sororities, in these affected areas.

C. Because of the number of residents in such buildings and, in many cases, the lack of on-site managers, such buildings tend to impair the quiet enjoyment of the surrounding neighborhoods by creating trash and litter, creating excess parking demand, and being the location of numerous loud and unruly parties.

D. It is often the case that the loud and unruly parties involve the consumption of large amounts of alcoholic beverages, which often are consumed by individuals under the age of 21 who either reside in such buildings or attend such parties. Consumption of alcohol by minors is harmful to the minors and consumption of large amounts of alcohol by individuals of all ages at these gatherings contributes to the nuisance conditions affecting the surrounding neighborhood.

E. Police officers frequently have been required to make calls to a location of a party, in order to disperse uncooperative participants, causing a drain of staffing and resources and, in some cases, leaving other areas of the City with inadequate police protection.

F. The manner in which Group Living Accommodations and Mini-dorms operate, including the behavior of guests, is the collective responsibility of those who own and manage them and those who reside in them, and in particular the sponsors of events that result in large numbers of attendees. In some cases City emergency personnel responding to medical emergencies have been denied access to GLAs to provide treatment and/or transport to medical facilities. Therefore it is appropriate that owners and residents bear the consequences of any nuisances that are allowed to occur.

G. In areas most affected by the proliferation of such buildings and the resulting density and intensity of use, disturbances that would be considered minor and tolerable in less intensely inhabited areas become much more severe and intolerable because they are no longer occasional, but have become chronic.

H. The purpose of this Chapter is to remedy these and other associated problems by adopting and providing for the enforcement of operating standards for such buildings, and by defining these disturbances as a public nuisance in areas that are most affected by them. (Ord. 7455-NS § 3, 2016; Ord. 7337-NS § 1, 2014; Ord. 7226-NS § 1 (part), 2012)

The definitions set forth in this Section shall govern the application and interpretation of this Chapter.

A. "Mini-dorm" means any building in an R-1, R-1A, R-2, R-2A, or R-3 Zoning District that contains a dwelling unit that is occupied by six or more persons over the age of eighteen years, but is not a Group Living Accommodation as defined in Chapter 23F.04. Permitted and Legal non-conforming Sororities, Fraternities, and Student Co-ops shall not be considered Mini-Dorms, as long as they have a resident manager.

B. "Bedroom" means any Habitable Space in a Dwelling Unit or habitable Accessory Structure other than a kitchen or living room that is intended for or capable of being used for sleeping with a door that closes the room off from other common space such as living and kitchen areas that is at least 70 square feet in area, exclusive of closets and other appurtenant space, and meets Building Code standards for egress, light and ventilation. A room identified as a den, library, study, loft, dining room, or other extra room that satisfies this definition will be considered a bedroom for the purposes of applying this requirement.

C. "Accessory Structure," "Gross Floor Area," "Dwelling Unit" and "Group Living Accommodation" (or "GLA") have the same meanings as set forth in Chapter 23F.04.

D. "Alcoholic Beverage" shall have the same meaning as Vehicle Code Section 109.

E. "Monitoring Organization" shall mean the University of California, the ASUC, the Intrafraternity Council or any other organization that the City determines is capable of providing quarterly monitoring and reporting sufficient to enable the City to determine continued compliance with practices adopted by a GLA under Section 13.42.005(B).

F. "Responsible Resident" means a person or persons, or committee, designated pursuant to Section 13.42.030.B.

G. "Property Manager" means a person who is responsible for the day-to-day maintenance, upkeep, and security of the property. The property manager may be the Owner of the property. (Ord. 7631-NS § 2, 2018; Ord. 7455-NS § 4, 2016; Ord. 7337-NS § 2, 2014; Ord. 7226-NS § 1 (part), 2012)

responsible residents.

A. 1. Any person who owns a GLA or Mini-Dorm shall register with the City of Berkeley as such. Registration shall include contact information for both the owner and any Property Manager, including the name and contact information for a natural person who can be contacted in the event of an emergency.

2. The owner of any GLA with more than 15 residents, and the owner of more than one parcel that includes a Mini-dorm, shall hire a Property Manager. The Property Manager need not be a resident of a GLA or Mini-

dorm but must be available and authorized to respond to complaints about the GLA or Mini-dorm at all times. The owner or Property Manager shall provide all tenants with a copy of this Chapter and Chapter 13.48 at the time they begin their tenancy. For purposes of this subdivision, a person owns a Mini-dorm or GLA if they have a majority or controlling interest in a Mini-dorm or GLA.

3. Owners and Property Managers shall be liable for any violation of this Chapter.

B. The residents of each Mini-dorm or GLA shall designate a Responsible Resident, who shall be responsible for:

1. ensuring that all refuse and materials to be recycled are properly managed and collected, and that all
refuse and recycling containers are returned to their appropriate locations after collection;

2. ensuring that all vehicles at each Mini-dorm or GLA are utilizing off-street parking in approved spaces in
compliance with Section 23D.12.080; and

3. responding to all complaints regarding the Mini-dorm or GLA within 24 hours; keeping a log of all
complaints, the response to the complaint and the resolution of the complaint; and retaining the complaint
log for no less than 24 months. The Responsible Resident shall be responsible for these requirements unless
a Property Manager is residing on site, in which case the Property Manager shall be responsible for these
requirements. The complaint log shall be made available to City staff on request. The logs shall be made
available to Berkeley residents residing within 300 feet of a mini-dorm or GLA within 10 days of a request. Any
Berkeley residents residing within 300 feet of a mini-dorm or GLA may submit to the City a written request for
a copy of the Responsible Resident’s or Property Manager’s log and City staff shall within 10 days of receipt of
such request ask for a copy of the Responsible Resident’s or Property Manager’s log on behalf of the
requesting resident; and

4. promptly notifying the owner and Property Manager (if any) of any notices under Chapters 12.70 or
13.48.

The Responsible Resident shall not be responsible for any of the foregoing tasks that are the sole responsibility of the owner or Property Manager.

C. The owner or Property Manager shall provide notice to all residents within 300 feet of:

1. the existence and location of the Mini-dorm or GLA;

2. the contact information for the Responsible Resident (or Property Manager, if they reside on-site), which
shall include at least a telephone number or numbers, or e-mail address or addresses at which the
Responsible Resident or Property Manager can be reached at any time; and

3. the name and contact information for the Property Manager (if any) and the owner and the phone
numbers at which they can be reached at any time.

Such notice shall be provided at least annually by September 1st, and whenever the identity or contact information for the Responsible Resident, Property Manager or owner changes.

D. For any event subject to Section 13.42.036, the Responsible Resident shall notify at least one of the residents of each confronting or abutting property no less than 48 hours prior to the event and provide a contact number at which a Responsible Resident can be reached during the entire course of the event. Such notification may be in any form reasonably calculated to provide actual notice. (Ord. 7631-NS § 3, 2018; Ord. 7455-NS § 5, 2016; Ord. 7226-NS § 1 (part), 2012)

A. Any occurrence at a Mini-dorm or GLA that constitutes a substantial disturbance of the quiet enjoyment of private or public property in a significant segment of a neighborhood, such as excessive noise under Section 13.40.030 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, constitutes a public nuisance.

B. It shall be a public nuisance for any resident of a GLA or Mini-dorm where an event is taking place to refuse access to, or interfere with access by, Fire Department personnel responding to an emergency call or investigating a situation.

C. Notwithstanding any provision of Chapter 13.48 to the contrary, a public nuisance as defined in this Section shall be subject to the remedies set forth in Section 13.42.040. (Ord. 7455-NS § 6, 2016; Ord. 7337-NS § 3, 2014)

alcoholic beverages.

This Section applies to entertainment events that are open to the public as defined in Section 13.46.030.A.& B that: (1) draw, or can reasonably be expected to draw over 50 attendees; (2) involve the service or availability of Alcoholic Beverages at any Mini-dorm or GLA; and (3) are not limited to the residents of that GLA or Mini-dorm.

A. The following actions during events subject to this Section may be deemed a public nuisance:

1. use of or entry upon the roof except for purposes of escaping a fire when entry upon the roof is required
for legal egress. For purposes of this paragraph, "roof" does not include decks or balconies, wherever located,
that were legally constructed and are in compliance with all applicable safety requirements;

2. service or availability of Alcoholic Beverages in Bedrooms occupied by residents under the age of 21
years;

3. service or availability of Alcoholic Beverages in common areas where they are accessible to persons
under the age of 21, unless service or availability is controlled in a manner that does not allow service or
availability to persons under 21 years of age;

4. service to or availability of Alcoholic Beverages to persons under the age of 21.

B. Events subject to this Section should be kept to a manageable size, generally under 200 persons total, and should not be allowed to take place in any part of the public right-of-way.

C. Events subject to this Section must comply with the standards set forth in the Community Noise Ordinance, Chapter 13.40.

D. The presence of a minor who is under the influence of alcohol at an event subject to this Section shall create a rebuttable presumption that the event is not being conducted in compliance with the provisions of this Section relating to service and availability of Alcoholic Beverages.

E. This Section does not apply to regularly scheduled meetings and/or meals involving non-residents if such meetings or meals involve only members or alumni of the entity that owns or operates the Mini-dorm or GLA and their parents or guardians, even if such meetings or meals include the service or availability of Alcoholic Beverages, as long as such service or availability is limited to persons of 21 years of age or more.

F. Notwithstanding any provision of Chapter 13.48 to the contrary, a public nuisance as defined in this Section shall be subject to the remedies set forth in Section 13.42.040. (Ord. 7631-NS § 4, 2018; Ord. 7455-NS § 7, 2016)

A. This Chapter may be enforced as set forth in Chapters 1.20 and 1.28.

B. Violation of any provision of this Chapter is hereby declared to be a public nuisance subject to abatement under Chapters 1.24, 1.26 and 23B.64.

C. In any enforcement action, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs; provided that, pursuant to Government Code Section 38773.5, attorneys’ fees shall only be available in an action or proceeding in which the City has elected, at the commencement of such action or proceeding, to seek recovery of its own attorneys’ fees. In no action or proceeding shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the City in the action or proceeding.

D. Nothing in this section shall preclude the City from setting priorities in the use of its resources by enforcing this chapter against events that are the most disruptive or against properties at which disruptive events are held most often or on the basis of other similar legitimate factors.

E. 1. In determining the appropriate remedy, if any, for a public nuisance under this Chapter, the City shall consider factors such as the severity and impact of the nuisance, whether it was an isolated event that is not likely to recur and whether it was preventable. Remedies for public nuisance should be reasonably designed to address the nuisance that the City determines occurred.

2. Nuisance determinations, and remedies for nuisances, applicable to Mini-dorms shall apply only to the
unit or units involved in or causing the nuisance, and remedies shall be designed to affect residents of other
units as little as feasible. No remedy based on the occurrence of a sexual assault may adversely affect the
housing situation of a survivor of sexual assault.

3. No remedy may be imposed on a GLA or Mini-dorm for actions or failure to take actions exclusively
within the authority of the landlord or property manager.

F. Determinations of public nuisance may result in further administrative citations, which may escalate based on the number of violations, and repeated violations at the subject property.

G. Nothing in this Chapter is intended to create a monetary remedy against any Responsible Resident.

H. Any resident of the City may bring a private action for injunctive relief to prevent or remedy a public nuisance as defined in this Chapter. No action may be brought under this subdivision 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. Notwithstanding subdivision (G), in any action prosecuted under this Section a prevailing plaintiff may recover reasonable attorneys’ fees. (Ord. 7631-NS § 5, 2018; Ord. 7455-NS § 8, 2016; Ord. 7337-NS § 4, 2014; Ord. 7226-NS § 1 (part), 2012)

The City Council may by resolution adopt fees for the administration and enforcement of this Chapter. (Ord. 7226-NS § 1 (part), 2012)

If any provision of this Chapter or its application to any situation is held to be invalid, the invalidity shall not affect other provisions or applications of this Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable. (Ord. 7226-NS § 1 (part), 2012)