Chapter 23.326 — DEMOLITION AND DWELLING UNIT CONTROLS

Sections: 23.326.010 Chapter Purpose. 23.326.020 General Requirements. 23.326.030 Demolition of Residential Units. 23.326.040 Eliminating Dwelling Units through Combination with Other Units. 23.326.050 Demolition of Accessory Buildings. 23.326.060 Private Right of Action. 23.326.070 Demolitions of Non-Residential Buildings. 23.326.080 Building Relocations. 23.326.090 Limitations. 23.326.100 Severability.

This chapter establishes demolition and dwelling unit control standards that promote the affordable housing, and safety goals of the City. (Ord. 7924-NS § 1, 2024; Ord. 7787-NS § 2 (Exh. A), 2021)

A. No Residential Unit(s) may be eliminated or demolished except as authorized by this chapter.

1. "Residential Unit" means, for purposes of this Chapter, any Dwelling Unit, any Live-Work Unit, any
Residential Hotel unit, any bedroom of a Group Living Accommodation (GLA), except a GLA in a University-
recognized fraternity, sorority or co-op, or any Accessory Dwelling Unit ("ADU") or Junior Accessory Dwelling
Unit ("JADU").

2. "Residential Unit" includes Dwelling Units, any Residential Hotel unit, any bedroom of a Group Living
Accommodation (GLA), except a GLA in a University-recognized fraternity, sorority or co-op, ADUs, and JADUs
created without proper zoning approvals or Building Permit(s) if they have been registered with the Rent
Stabilization Board, or the Rent Stabilization Board has otherwise determined that a tenant-landlord
relationship existed during the preceding five years.

3. "Residential Unit" does not include an ADU or JADU on a residential property containing only a Single-
Family Dwelling and one lawfully established and fully permitted ADU or JADU, as defined in BMC Chapter
23.306, where the landlord also occupies a unit in the same property as their principal residence. This shall
only apply to properties containing a single ADU or JADU, shall only apply to units compliant with all applicable requirements of BMC Chapter 23.306 ("Accessory Dwelling Units"), and shall only apply to
tenancies created after November 7, 2018.

4. "Comparable Unit" means a Residential Unit of similar size that contains the same number of bedrooms
than the demolished unit, in accordance with the "equivalent size" requirements of state Government Code
§ 65915 (Density Bonus Law) and § 66300 (Housing Crisis Act). In the case of a Single-Family Dwelling being
replaced, a Comparable Unit is not required to have the same or similar square footage or the same number
of total rooms, but must provide the same number of bedrooms if the Single-Family Dwelling includes three
or fewer bedrooms, or at least three bedrooms if the Single-Family Dwelling contains four or more bedrooms.

5. "Protected Unit" includes a Residential Unit:

(a) Subject to a low-income deed restriction for any of the previous five years;

(b) Subject to rent or price control under BMC Chapter 13.76; or

(c) Rented by a household at 80% Area Median Income or lower within the previous five years. (Ord.
7924-NS § 1, 2024; Ord. 7787-NS § 2 (Exh. A), 2021)

A. Demolition is not allowed if:

1. The Residential Unit(s) was removed from the rental market through a no-fault eviction during the
preceding five years; or

2. There is substantial evidence of harassment or threatened or actual illegal eviction during the
immediately preceding three years. 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, whose
determination may be appealed to the Rent Stabilization Board.

B. Procedure and Findings.

1. A Use Permit is required to eliminate or demolish one or more Residential Units, except where otherwise
provided by the Zoning Ordinance. The ZAB shall only approve the Use Permit if one of the following is true:

(a) The building containing the Residential Unit(s) is hazardous or unusable and is infeasible to repair.

(b) The building containing the Residential Unit(s) will be moved to a different location within Berkeley
with no net loss of units and no change in the rent levels of the unit(s).

(c) The demolition is necessary to permit construction approved pursuant to this Chapter of at least the
same number of Residential Units.

2. A Single-Family Dwelling without sitting tenants may be demolished with a Zoning Certificate, if the
demolition is part of a development project that would result in a net increase in residential density.

3. In the event of a demolition of a Residential Unit created without proper zoning approvals or Building
Permit(s), as defined in 23.326.020(A)(2), the Building Official, Zoning Officer or Fire Marshal may determine
that the replacement of such a unit is infeasible and not required under this Chapter. Such a determination
shall include a finding that the replacement of the unit could not occur in compliance with Zoning Code,
Building Code, Fire Code or other regulations related to public health and safety.

C. Landmarks and Structures of Merit. Demolition of a designated landmark or structure of merit, or of a structure in a designated historic district, must be approved by the Landmarks Preservation Commission, pursuant to Chapter 3.24.

D. Conditions of Approval. Any Protected Unit that is demolished shall be replaced with a Comparable Unit that shall comply with the maximum allowable rent requirements for Affordable Units in Chapter 23.328 [Affordable Housing Requirements] and Chapter 23.330 [Density Bonus] as they may be amended from time to time.

1. In the event that a displaced household has an income below 50% AMI, a Comparable Unit shall be offered at a rent that is affordable to households at 30% of AMI, and the displaced household shall have the first right of refusal for that unit. Such a Comparable Unit shall be counted as a Very Low-Income unit for applicable affordability requirements in Chapter 23.328.

   2. In the event that a demolished Residential Unit is not a Protected Unit under BMC 23.326.020(A)(5)(a) or (b) and the income of the displaced household is unknown, the Residential Unit shall be presumed to have been occupied by Low- or Lower-Income renter households in the same proportion as Residential Units throughout the City. The City shall rely upon US Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy (CHAS) data to determine the number of such Residential Units that must be replaced with Affordable Units as defined in Chapter 23.328.

   3. In the event that a Protected Unit was subject to rent or price controls under BMC Chapter 13.76, and the income level of the displaced household is unknown, the unit shall be replaced with an Affordable Unit as defined in Chapter 23.328.

E. Requirements for Occupied Units.

1. Applicability. The following 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.

2. Notice. The applicant shall provide all sitting tenants and the Rent Stabilization Board notice of the
application for demolition no later than the date the application is submitted to the City, including notice of
their rights under Municipal Code Chapter 13.76 (Rent Stabilization and Eviction for Good Cause Program),
Chapter 13.77 (Requirements, Procedures, Restrictions and Mitigations Concerning the Withdrawal of
Residential Rental Accommodations from Rent or Lease), 13.79 (Tenant Protections: Automatically Renewing

Leases and Buyout Agreements) and 13.84 (Relocation Services and Payments for Residential Tenant
Households).

3. General Requirements. The applicant shall provide moving and relocation assistance equivalent to the requirements set forth in Municipal Code Chapter 13.84 (Relocation Services and Payments for Residential Tenant Households) or Government Code section 66300.6(b)(4)(A), whichever requires greater relocation assistance to displaced tenants, and shall not be subject to the limitations in section 13.84.070.B.3(a). 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. Within five days of the issuance of the Certificate of Occupancy, tenants shall be notified in writing that the units will be ready for move-in on a date specified. Tenants shall confirm in writing their intent to lease the available unit at any time before 20 days after the issuance of the Certificate of Occupancy. Funding for the rent differential shall be guaranteed in a manner approved by City Council Resolution; provided, however, that any project that is carried out or funded by the state or federal government shall be subject to applicable provisions of the California Relocation Act (Government Code section 7260 et seq.) and/or the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. sections 4601- 4655).

   (a) 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.).

   (b) Exception for Tenants in ADUs or Unpermitted Units that Cannot be Replaced. Applicants are required to provide moving and relocation assistance, in an amount provided in BMC Section 13.76.130(A)(8)(g), to the following groups of tenants: (i) tenants who occupy an ADU or JADU on a residential property containing only a Single-Family Dwelling and one lawfully established and fully permitted ADU or JADU,

   where the landlord also occupies a unit in the same property as his/her principal residence; and (ii) tenants who occupy a unit created without proper zoning approvals that cannot be replaced for public health or safety reasons, pursuant to BMC 23.326.030(B)(3). However, applicants are not required to (i) provide such tenants with a temporary replacement unit while a new unit is being constructed, (ii) notify such tenants when a new unit is ready for occupancy; or (iii) provide such tenants with a right for first refusal for the new unit.

   4. Sitting Tenants Rights.

      (a) Any tenant of a Protected Unit that is permitted to be demolished under this section shall have the right of first refusal to rent a Comparable Unit in the new project.

(b) In the event that a displaced household is ineligible for below-market rate replacement units, a market rate Comparable Unit shall be made available to that household at the same rent as had been previously charged, or a lesser rent if that is the market rate.

(c) Where a displaced tenant exercises the right to rent a Comparable Unit, any increase in rent for the
Comparable Unit for the duration of their tenancy shall be no greater than the lesser of 65% of the increase in the Consumer Price Index for All Urban Consumers (CPI-U) in the San Francisco-Oakland-San
Jose region (as reported and published by the U.S. Department of Labor, Bureau of Labor Statistics for
the twelve-month period ending the previous December 31) or 65% of the corresponding increase in
Area Median Income (AMI) for the same calendar year.

(d) Exceptions.

i. An applicant who proposes to construct a 100 percent affordable housing project is not
required to comply with the preceding requirements but must comply with the following
requirement.

ii. Sitting tenants who are displaced as a result of demolition and who desire to return to the
newly constructed affordable housing project will be granted a right of first refusal subject to their
ability to meet income qualifications and other applicable eligibility requirements. (Ord. 7995-NS § 7,
2025; Ord. 7978-NS §§ 45, 46, 2025; Ord. 7924-NS § 1, 2024; Ord. 7810-NS § 1, 2022; Ord. 7787-NS
§ 2 (Exh. A), 2021)

Units.

A. Process for Projects Where Density Exceeds Current Allowance. A Use Permit is required to eliminate one or more Residential Units by combining with another unit when the existing development exceeds currently-allowable density. The ZAB shall approve a Use Permit for the elimination of one or more Residential Units by combining with another unit only if it finds that:

1. The existing number of Residential Units exceeds the current maximum allowed residential density in
the zoning district where the units are located; and

2. One of the following is true:

(a) One of the affected Residential Units has been owner-occupied as a 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 Residential Units are being sold by an estate and the decedent occupied the
Residential Units as their principal residence for no less than two years before the date of their death.

B. Limitations. Combination is not allowed if:

1. The Residential Unit(s) was removed from the rental market through a no-fault eviction during the
preceding five years; or

2. There is substantial evidence of harassment or threatened or actual illegal eviction during the
immediately preceding three years. 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, whose
determination may be appealed to the Rent Stabilization Board.

C. Two-Year Occupancy Requirement Following Elimination.

1. If a Residential Unit that is eliminated through combination is not owner-occupied for at least two
consecutive years from the date of elimination, the affected Residential 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 of approval and notice will provide that if the Residential Unit is not owner-occupied for at
least two years from the date of elimination then the affected Residential Unit(s) must either be restored as
separate Residential Unit(s) and the vacant Residential 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 there is an
unforeseeable life change that requires relocation.

D. Effect of Eliminating a Residential Unit.

1. If eliminating a Residential Unit reduces the number of Residential Units in a building to four or fewer,

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 Residential Units are added or restored such that the building contains at least five Residential Units.

2. The Zoning Officer may issue an AUP for a building conversion which eliminates a Residential Unit upon finding that the conversion will restore or bring the building closer to the original number of Residential Units that was present at the time it was first constructed, provided the conversion meets the requirements of 23.326.040.A.1 and 2 and 23.326.040.B and C.

E. Exception. The ZAB may approve a Use Permit to eliminate a Residential Unit through combination with another Residential Unit for the purpose of providing private bathrooms, kitchenettes, accessibility upgrades, and/ or seismic safety upgrades, or other elements required by funding sources or programmatic needs to single resident occupancy rooms in residential developments undergoing a publicly-funded rehabilitation. (Ord. 7995-NS § 8, 2025; Ord. 7924-NS § 1, 2024; Ord. 7787-NS § 2 (Exh. A), 2021)

A. 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 structures or accessory buildings of any size that are accessory to a residential use, including, but not limited to, garages, carports, and sheds may be demolished by right except where the accessory structure or building is occupied by a residential tenant (regardless of whether it is lawfully permitted) or otherwise contains a lawfully established residential unit, which serves and is located on the same lot as a lawful residential use. Such accessory structures or accessory buildings are considered residential units for the purposes of this Chapter. (Ord. 7981-NS § 8, 2025; Ord. 7924-NS § 1, 2024)

A. 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 (Eliminating Dwelling Units through Demolition) and 23.326.040 (Eliminating Dwelling Units through Conversion and Change of Use). In any such action a prevailing plaintiff shall recover reasonable attorney’s fees. (Ord. 7924-NS § 1, 2024; Ord. 7787-NS § 2 (Exh. A), 2021. Formerly 20.326.050)

A. Main Non-Residential Buildings. A Use Permit is required to demolish a main building used for non-residential purposes on any lot.

B. Accessory Structures or Buildings. For any lot located in a non-residential zoning district, accessory structures or buildings may be demolished as follows:

1. Demolishing an accessory structure or building with less than 300 square feet of floor area is permitted
as of right.

2. An accessory structure or building with 300 square feet or more of floor area may be demolished with an
AUP. Ground Floor Uses.

C. Landmarks Preservation Commission Review.

1. Any application for a Use Permit or AUP to demolish a non-residential building or structure that 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.

   (a) Exception. Projects that are vested pursuant to SB 330 shall be exempt from demolition review.

2. The LPC may initiate a landmark or structure-of-merit designation or may choose solely to forward to the ZAB or Zoning Officer its comments on the application.

3. The ZAB or Zoning Officer shall consider the recommendations of the LPC when acting on the application.

D. Findings. A Use Permit or an AUP for demolition of a main building used for non-residential purposes on any lot or an accessory building located on a lot in a non-residential district 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 uninhabitable 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 by the applicant that it would be infeasible to
obtain prior or concurrent approval for the new construction or new use. (Ord. 8007-NS § 19, 2026; Ord.
7981-NS § 9, 2025; Ord. 7924-NS § 1, 2024; Ord. 7787-NS § 2 (Exh. A), 2021)

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 within the city is subject to all requirements applicable to new construction.

3. When a building is relocated to a different lot within 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.

4. Nothing in this subsection shall exempt Residential Units relocated to the receiving lot from the
provisions of BMC Section 13.76 after a building relocation if the Residential Units located within a building
were otherwise subject to BMC Chapter 13.76 in the source lot.

B. Findings. The Zoning Officer shall approve Zoning Certificate to relocate a building upon finding that: the resulting development on the receiving lot is in conformance with applicable zoning code development standards. (Ord. 7924-NS § 1, 2024; Ord. 7787-NS § 2 (Exh. A), 2021)

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). (Ord. 7924-NS § 1, 2024; Ord. 7787-NS § 2 (Exh. A), 2021)

A. If any part or provision of this Chapter, or the application of this Chapter to any person or circumstance, is held invalid, the remainder of this Chapter, including the application of such part or provision to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this Chapter are severable. (Ord. 7924-NS § 1, 2024)