Berkeley Municipal Code § 23.102.040 Purpose of the Zoning Ordinance

Municipal Code Title 23 is known and cited as the "City of Berkeley Zoning Ordinance" and referred to in this title as "the Zoning Ordinance." (Ord. 7787-NS § 2 (Exh. A), 2021)

The Zoning Ordinance takes effect and is in force from and after October 12, 2021. (Ord. 7787-NS § 2 (Exh. A), 2021)

The Zoning Ordinance is adopted under the authority in California Government Code Section 65850 and all other relevant laws of the State of California. If the Zoning Ordinance refers to a section of state law that is later amended or superseded, the Zoning Ordinance is deemed amended to refer to the amended section or the section that most closely corresponds to the superseded section. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. General. The purpose of the Zoning Ordinance is to implement the General Plan and adopted area plans and to protect the public health, safety, and welfare.

B. Specific. The Zoning Ordinance is intended to:

1. Encourage appropriate land uses and a harmonious relationship among land uses by regulating the location and type of allowed land uses and development.

2. Provide for the appropriate intensity of development by regulating:

(a) The establishment, density and change of uses;

(b) The construction of buildings and additions; and

(c) The size and coverage of lots.

3. Provide for adequate light and air by:

(a) Limiting building height, bulk, and size; and

(b) Requiring building setbacks from lot lines and separations between buildings.

4. Provide for adequate usable open space, off-street parking, and off-street loading spaces for specified land uses by:

(a) Requiring reservations of land and structures for such purposes; and

(b) Regulating the number, placement, and location of such spaces and areas.

5. Prevent adverse effects of commercial and manufacturing activities by:

(a) Limiting the hours, intensity, presence of outdoor activities, and other aspects of commercial and manufacturing land uses; and

(b) Limiting the number and size of commercial and manufacturing land uses in specified districts.

6. Provide review of major changes in buildings by regulating proposals for their demolition, conversion, or relocation.

7. Ensure that the construction and alteration of buildings in Non-Residential Districts is compatible with the existing neighborhoods by requiring Design Review to provide for a pleasing Berkeley environment and encourage excellence in design.

8. Protect Berkeley’s existing housing stock by regulating the reduction in size, removal, demolition, or conversion of dwelling units, group living accommodations, and residential hotel rooms.

9. Promote the development of affordable housing for all persons and in particular for persons with low and moderate incomes.

10. Incorporate the substantive provisions of the Neighborhood Preservation Ordinance (Ordinance 4641-NS, not codified), a citizen initiative, to the extent permitted by law. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Applicability.

1. General. The Zoning Ordinance applies to all property in Berkeley, including property owned by the City and other governmental entities, to the full extent permitted by law.

2. Public Right-of-Way. The Zoning Ordinance does not apply to uses and structures wholly in the public right-of-way, unless otherwise specified. Such uses and structures must comply with Encroachment Permit regulations in Municipal Code Chapter 16.18 (Right-of-Way Encroachments and Encroachment Permits).

B. Compliance Required. All land uses and structures in Berkeley must comply with the Zoning Ordinance and all applicable City ordinances and regulations.

C. City Actions. No City department, employee, or official may issue a permits or license for a use or structures that conflicts with the Zoning Ordinance. Any permit or license issued in conflict with the Zoning Ordinance is null and void. Nothing in this subsection is intended to create a mandatory duty under Government Code Section 815.6.

D. Approvals Required. A land use may be established and a structure may be constructed, altered, or moved only after:

1. All applicable project review and approval processes have been followed;

2. All required permits and approvals have been obtained; and

3. All required authorizations to proceed have been issued.

E. Other Regulations. Compliance with the Zoning Ordinance does not relieve an applicant from requirements to comply with other federal, state, and City regulations that also apply to the property. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Deviations Allowed. During a local emergency, the City Council may allow a land use or structure to be established without a Use Permit or other approval ordinarily required by the Zoning Ordinance.

B. Approval Procedures.

1. The City Council may approve such a land use or structure by the same vote required for the adoption of an urgency ordinance upon finding that:

(a) An emergency exists as defined in Municipal Code Section 2.88.020--Emergency Defined; and

(b) The use or structure is required to ameliorate the effects of the emergency.

C. Effective Date of Action. Action by the City Council under this section is effective immediately.

D. Post-Emergency Requirements.

1. Uses and structures permitted under this section are no longer authorized after the City Council declares the emergency has ended.

2. After the emergency has ended, uses and structures shall either:

(a) Be removed or discontinued; or

(b) Apply for all permits and approvals required by the Zoning Ordinance. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. It is not the intent of the Zoning Ordinance to interfere with, abrogate, or annul any easement, covenant, deed restriction, or other agreement between private parties. If the Zoning Ordinance imposes a greater restriction than imposed by a private agreement, the Zoning Ordinance controls. Private agreements may impose greater restrictions than the Zoning Ordinance, and at its sole discretion, the City may monitor or enforce private agreements. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Relation to Prior Zoning Ordinance. The Zoning Ordinance supersedes the prior Zoning Ordinance codified in Municipal Code Title 23, including all Title 23 sub-titles and appendices.

B. Violations Continue. A violation of the prior Zoning Ordinance continues to be a violation under this Zoning Ordinance unless the violation is brought into compliance with this Zoning Ordinance.

C. Pending Applications.

1. If the City deems an application complete but does not take final action on the application before the effective date of this Zoning Ordinance, the application remains subject to prior Zoning Ordinance in effect when the application was deemed complete.

2. If an application is withdrawn before a decision, any re-application is subject to the requirements of this Zoning Ordinance.

D. Approved Projects.

1. Permits and other approvals valid on the effective date of this Zoning Ordinance remain valid until their expiration date.

2. Projects with valid permits or approvals shall be completed in compliance with the standards in effect at the time of approval. If the permit or approval expires, future development shall comply with the requirements of this Zoning Ordinance.

E. Nonconformities. A parcel, land use, or structure lawfully established before December 1, 2021, that does not comply with this Zoning Ordinance is considered nonconforming and subject to the requirements in Chapter 23.324 (Nonconforming Uses, Structures, and Buildings). (Ord. 7787-NS § 2 (Exh. A), 2021)

If any portion of the Zoning Ordinance is found invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity or the constitutionality of the remaining portions of the Zoning Ordinance, which shall remain in full force and effect. The City Council declares that it would have passed the Zoning Ordinance and each of its portions, regardless of whether any portion is declared invalid or unconstitutional. (Ord. 7787-NS § 2 (Exh. A), 2021)

Except as otherwise expressly provided in this Ordinance, formal rules of evidence or procedure which must be followed in a court of record in this state shall not apply. No action, inaction or recommendation made by any City official, employee, commission, board or other entity under this Ordinance shall be void or invalid or be set aside by any court on the ground of the improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect or omission (hereinafter called error) as to any matter pertaining to petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals or any matters of procedure whatever, unless after an examination of the entire case, including the evidence, the court is of the opinion that the error complained of was prejudicial, and that by reason of such error the party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error had not occurred or existed. There shall be no presumption that error is prejudicial or that injury was done if error is shown. (Ord. 7787-NS § 2 (Exh. A), 2021)