Berkeley Municipal Code § 23.406.070 Design Review

This chapter identifies procedures for specific types of permits required by the Zoning Ordinance. See Chapter 23.404 (Common Permit Requirements) for procedures that apply generally to all types of permits. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose. A Zoning Certificate is a ministerial approval to:

1. Confirm that a structure or land use complies with the Zoning Ordinance; and

2. Establish a record of the initial establishment of a structure or land use.

B. When Required.

1. Unless specifically stated otherwise in the Zoning Ordinance, a Zoning Certificate is required to:

(a) Construct, modify, repair, or move a structure; and/or

(b) Establish, change, or expand a land use.

2. A Zoning Certificate is not required to:

(a) Continue a previously-approved use or structure; or

(b) Establish a temporary use or structure allowed by right as shown in 23.302.030.A (Permitted By Right).

C. Applications.

1. Zoning Certificate applications shall be made in writing on a form provided by the Department accompanied by all fees, information, and materials as required by the Department.

2. An application fee is not required where the legal use of property or building is unchanged and no building alterations occur.

D. Referrals. The Zoning Officer may review applications referred from other City departments, including building permits and business licenses applications, and require that applicants submit Zoning Certificate applications and additional information as needed.

E. Review and Action.

1. The Zoning Officer shall review a Zoning Certificate application to verify compliance with the Zoning Ordinance. If the project complies with all applicable requirements, the Zoning Officer shall approve the application.

2. The Zoning Officer may attach to the Zoning Certificate project plans and other information as needed to document project compliance with the Zoning Ordinance.

3. The Zoning Officer may attach to the Zoning Certificate any applicable uniformly applied Standard Conditions of Approval.

F. When Exercised. A Zoning Certificate is considered exercised when either:

1. The approved use is established at the subject premises; or

2. In the case of construction, when a valid building permit, if required, is issued for the approved structure and construction has begun.

G. Scope of Approval. A Zoning Certificate applies only to the structures and uses shown in the application specifically approved through the application. A Zoning Certificate does not in any way validate or constitute approval of any building, structure, use, subdivision, or lot line adjustment not shown in the application.

H. Appeals. A decision on a Zoning Certificate may not be appealed.

I. Non-Compliance. A Zoning Certificate is considered null and void if a structure or land use is established:

1. Contrary to the project description attached to a Zoning Certificate approval; and

2. In a manner that violates the Zoning Ordinance or requires additional City approvals. (Ord. 7978-NS § 47, 2025; Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose. An Administrative Use Permit (AUP) is a discretionary permit approved by the Zoning Officer to ensure that a proposed project will not adversely impact neighboring properties or the general public.

B. Review Authority.

1. The Zoning Officer takes action on AUP applications.

2. For a project with special neighborhood or community significance, the Zoning Officer may refer an AUP application to the Zoning Adjustments Board (ZAB) for review and final decision. In such an instance, the ZAB shall review and act on the application following the requirements that apply to Use Permit applications.

C. When Required. An AUP is required for:

1. Land uses and development projects in each district as identified in Chapters 23.202--23.210 (Zoning Districts);

2. Temporary land uses and structures in accordance with Section 23.302.030.B (AUP Required); and

3. Other types of development projects when specifically required by the Zoning Ordinance.

D. Public and City Franchise Uses. The Zoning Officer may issue an AUP for any accessory building for public use or any use on City-owned property that is subject to franchise by the City. Such an AUP is subject to the same appeal and certification procedures as all other AUPs.

E. Public Notice and Hearing. See Section 23.404.040.A (Notice of Administrative Decisions).

F. Findings for Approval.

1. To approve an AUP, the Zoning Officer shall find that the proposed project or use:

(a) Will not be detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or working in the area or neighborhood, of the proposed use; and

(b) Will not be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City.

2. To approve the AUP, the Zoning Officer must also make any other AUP findings specifically required by the Zoning Ordinance for the proposed project.

3. When taking action on an AUP, the Zoning Officer shall consider the following when making findings:

(a) The proposed land use; and

(b) The structure or addition that accommodates the use.

4. Required findings shall be made based on the circumstances existing at the time a decision is made on the application.

5. The Zoning Officer shall deny an AUP application if unable to make any of the required findings.

G. ZAB Notification. The Zoning Officer shall inform the ZAB of all AUP decisions. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose. A Use Permit is a discretionary permit approved by the Zoning Adjustments Board (ZAB) to ensure that a proposed project will be designed, located, and operated to be compatible with neighboring properties and minimize impacts to the general public.

B. Review Authority. The ZAB takes action on all Use Permit applications.

C. When Required. A Use Permit is required for:

1. Land uses and development projects in each district as identified in Chapters 23.202--23.210 (Zoning Districts).

2. Other types of development projects when specifically required by the Zoning Ordinance.

D. Public Notice and Hearing. The ZAB shall review and take action on a Use Permit application at a noticed public hearing in compliance with Chapter 23.404(Common Permit Requirements).

E. Findings for Approval.

1. To approve a Use Permit, the ZAB shall find that the proposed project or use:

(a) Will not be detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or visiting in the area or neighborhood of the proposed use; and

(b) Will not be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood, or to the general welfare of the City.

2. To approve the Use Permit, the ZAB must also make any other Use Permit findings specifically required by the Zoning Ordinance for the proposed project.

3. When taking action on a Use Permit, the ZAB shall consider in its findings:

(a) The proposed land use; and

(b) The structure or addition that accommodates the use.

4. Required findings shall be made based on the circumstances existing at the time a decision is made on the application.

5. The ZAB shall deny a Use Permit application if it determines that it is unable to make any of the required findings. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose. A Variance is a discretionary approval that allows for deviations from development standards and land use regulations in the Zoning Ordinance. The City may grant a Variance only when the strict application of development standards creates a unique hardship due to unusual circumstances associated with the property.

B. When Allowed.

1. Deviations Allowed with a Variance. The ZAB may grant a Variance to allow for deviation from any provision in the Zoning Ordinance related allowed land uses, use-related standards, and development standards.

2. Deviations Allowed with a Use Permit. The ZAB may allow deviations from building setback, lot coverage, and on-site parking standards with a Use Permit instead of a Variance if:

(a) The property is 30 feet or less from an open creek; and

(b) Deviation from the standard is necessary to comply with Chapter 17.08 (Preservation and Restoration of Natural Watercourses).

C. Variances Not Allowed. A Variance may not be granted to allow deviation from a requirement of the General Plan.

D. Review Authority. The ZAB takes action on all Variance applications.

E. Public Notice and Hearing. The ZAB shall review and act on a Variance application at a noticed public hearing in compliance with Chapter 23.404 (Common Permit Requirements).

F. Findings for Approval.

1. To approve a Variance, the ZAB shall make all of the following findings:

(a) There are exceptional circumstances applying to the property which do not apply generally in the same district.

(b) The Variance is necessary to preserve a substantial property right.

(c) The Variance will not adversely affect the health or safety of persons residing or working near the property.

(d) The Variance will not be materially detrimental to the public welfare or injurious to nearby property or improvements.

(e) The Variance will promote the municipal health, welfare, and safety and benefit the city as a whole.

(f) Any other Variance findings required by Zoning Ordinance can be made.

2. The ZAB shall deny a Variance if it determines that it is unable to make any of the required findings. (Ord. 7850-NS § 18, 2023; Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose. A Master Use Permit is a discretionary approval that allows flexibility in the amount of space occupied by individual tenants in a multi-user site. The purpose of a Master Use Permit is to:

1. Facilitate the implementation of the General Plan and area plans, including the West Berkeley Plan;

2. Expedite the reuse of large and multi-user sites that might otherwise prove difficult to reuse;

3. Facilitate the development and reuse of large, multi-user sites as integrated units in a stable and desirable environment to benefit occupants, the neighborhood, and the city as a whole.;

4. Allow the review and analysis of impacts of multi-tenant projects in a coordinated, consolidated manner; and

5. Improve Berkeley’s competitiveness in attracting and retaining businesses by allowing businesses to quickly move into a site once overall development requirements have been established.

B. Review Authority. The ZAB takes action on all Master Use Permit applications.

C. Voluntary Option. A Master Use Permit is a voluntary option for property owners. If a property owner does not request and receive a Master Use Permit, individual tenants are subject to the Use Permit requirements that ordinarily apply as required by the Zoning Ordinance.

D. Where Allowed. A property that meets the following criteria may apply for a Master Use Permit:

1. The property is located entirely or partially in one of the following districts:

(a) Any Commercial District.

(b) Mixed Use-Light Industrial (MU-LI).

(c) Mixed Manufacturing (MM).

(d) Manufacturing (M).

2. The property will be occupied by three or more independently operating businesses.

E. Use Allocation.

1. A Master Use Permit may allow by right more than one individual business and/or use on a site, provided that all other applicable requirements of the Zoning Ordinance are met.

2. A Master Use Permit shall state the square feet of buildings and land allocated for the following uses:

(a) Industrial (manufacturing, wholesaling, and warehousing).

(b) Office (excludes offices ancillary to other uses).

(c) Commercial (retail, personal service, restaurants).

(d) Live/work units.

(e) Residential.

F. Allowed Variations.

1. The area of a building or site occupied by a use may exceed the Master Use Permit allocation with the permits shown in Table 23.406-1.

Table 23.406-1. ALLOWED VARIATION IN USE ALLOCATIONS

2. If the allocation of floor area for various uses as shown in Paragraph D (Where Allowed) above remains within the limits set forth in Table 23.406-1, lease spaces may be divided or aggregated in any manner as-of-right.

G. Public Notice and Hearing. The ZAB shall review and take action on a Master Use Permit application at a noticed public hearing in compliance with Chapter 23.404 (Common Permit Requirements).

H. Findings for Approval. To approve a Master Use Permit, the ZAB must find that approval will expedite occupancy and use of the site consistent with the purpose of the district, the General Plan, and any applicable area plan. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose. Design Review is a discretionary process to ensure that exterior changes to buildings comply with the City of Berkeley Design Guidelines and other applicable City design standards and guidelines. The purpose of Design Review is to:

1. Encourage excellence in building and site design;

2. Ensure that development is compatible with its urban context; and

3. Provide a pleasing urban environment for persons living, working, or visiting the city.

B. When Required.

1. Design Review is required for:

(a) Projects in all Non-Residential Districts, except for Residential Uses in the MU-R zoning district.

(b) Mixed use and community and institutional projects in the R-3 district within the Southside Plan area. See Figure 23.202-1: R-3 Areas Subject to Design Review; and

(c) Commercial, mixed-use, and community and institutional projects in the R-4, R-SMU, and R-S districts.

2. As used in Paragraph (1) above, "project" means an activity requiring a building or sign permit that involves any of the following:

(a) Modifying the exterior of an existing structure.

(b) Additions to an existing structure.

(c) Demolishing all or a portion of an existing structure.

(d) Removing all or part of a building facade fronting the public right-of-way.

(e) Constructing a new structure.

(f) Installing a sign or replacing a sign with a different location, size, or design.

g. Signs not part of a Coordinated Sign Design Program.

C. Design Review Process.

1. Use Permit Projects.

(a) If a project requires a Use Permit, Preliminary Design Review is required before ZAB action on the Use Permit.

(b) Review authority for Preliminary Design Review is described in Section 23.406.070.D (Review Authority).

(c) The ZAB shall consider Preliminary Design Review recommendations when acting on the Use Permit. Before acting on the Use Permit, the ZAB may require further review by the Design Review Committee or Department staff as part of the Preliminary Design Review process.

(d) As a condition of Use Permit approval, the ZAB may require Final Design Review to verify that the project conforms to design-related Use Permit conditions of approval or to review finalized project design details. The Design Review Committee conducts Final Design Review unless the ZAB directs staff to conduct Final Design Review as a condition of approval.

(e) If the ZAB requires Final Design Review, the City may issue a building permit only after Final Design Review is complete.

2. Projects Not Requiring a Use Permit.

(a) For a project that does not require a Use Permit, Department staff conducts Design Review before the Zoning Officer takes action on the required permit or approval.

(b) The Zoning Officer will consider the Design Review recommendations when acting on the required permit or approval. The Zoning Officer may require modifications to the project design as a condition of approval.

(c) The Department will verify conformance with Design Review recommendations and design-related conditions of approval when issuing a building permit, sign permit, or Zoning Certificate for the project. Final Design Review is not required.

(d) Housing Element Opportunity Site Projects (BMC Section 23.302.070(M)).

1. Staff shall schedule a single consultation meeting of the Design Review Committee for non-binding input on design-related issues; and

2. Staff-level design review conducted under this section shall not be subject to the Appeal provisions of 23.406.070(O).

D. Review Authority.

1. Department Staff. Department staff, under the supervision and authority of the Zoning Officer, conducts Design Review for projects that do not require a Use Permit, except when the Landmarks Preservation Commission (LPC) conducts Design Review as provided in Paragraph (3) below. Design review conducted by Department staff is referred to as "Staff-Level Design Review."

2. Design Review Committee.

(a) For projects requiring a Use Permit, Design Review is conducted by the Design Review Committee except as provided by Paragraph (b) below or when the Landmarks Preservation Commission (LPC) conducts Design Review as provided in Paragraph (3) below.

(b) The Zoning Officer may determine that, due to unique circumstances, Department staff will conduct Design Review for a project requiring a Use Permit. The Zoning Officer, or Department staff on their behalf, shall confer with the Design Review Committee Chair before making such a determination and shall consider project size, visibility, and degree of sensitivity to the neighboring properties or the general public.

3. Landmarks Preservation Commission. The Landmarks Preservation Commission (LPC) conducts Design Review of projects which involve landmarks, structures of merit, or buildings within a historic district in accordance with Chapter 3.24 (Landmarks Preservation Commission. The LPC conducts Design Review for landmarked properties through the Structural Alteration Permit process.

E. Zoning Officer and LPC Referrals.

1. The Zoning Officer may refer any project subject to ZAB review to the Design Review Committee, staff, or the LPC for non-binding input on design-related issues. However, Design Review approval is required only for projects in Subsection B (When Required) above.

2. The LPC may refer any project subject to LPC review to the Design Review Committee for non-binding input on design-related issues.

F. Referrals to Landmarks Preservation Commission.

1. Mandatory Referrals. The following Design Review applications shall be referred to the LPC for review and comment before action on the application:

(a) Projects that involve a building or structure listed on the State Historic Resources Inventory, or on the List of Structures and Sites adopted by the LPC under Chapter 3.24.

(b) Projects that involve a building or a structure over 40 years old which may have special architectural or historical significance, as determined by the secretary to the LPC.

2. Optional Referrals. Department staff or the Design Review Committee may choose to refer the following projects to the LPC for review and comment before action of the application:

(a) Projects that involve a building that is 40 years old or less that may have special architectural and/or historical significance, as determined by the secretary to the LPC.

(b) Signs and awnings which involve a building or structure listed on the State Historic Resources Inventory, or on the LPC’s current List of Structures and Sites.

G. Design Guidelines.

1. The City of Berkeley Design Guidelines provide direction to the City when reviewing proposed projects and assists applicants in planning and design of their projects. The Design Guidelines are intentionally generalized to encourage individual creativity. It is not expected that every project will respond to every guideline.

2. When conducting design review the Design Review Committee, the LPC, and staff shall use the Design Guidelines adopted by the Planning Commission as its official policy.

3. The Design Review Guidelines may be amended by the Planning Commission. The ZAB may comment to the Planning Commission on such amendments.

H. Scope of Design Review. Design Review considers only issues of building and site design and does not address land use issues. Site design included the placement of buildings on a lot, vehicle access and circulation, pedestrian circulation, parking placement and design, landscaping, and other similar issues.

I. Design Review Timeline.

1. Design Review projects requiring an AUP or a Zoning Certificate shall be completed within 60 days of the date the application is deemed complete. If an applicant modifies the application, or if the applicant submits a written time extension, Department staff may extend the review period beyond 60 days.

2. Design Review for projects that require ZAB approval shall be completed within 60 days of submittal of complete final Design Review plans or within the time limit required by the Permit Streamlining Act, whichever is less.

J. Public Notice. Public notice of pending Design Review decisions shall be given in accordance with Section 23.404.040.D (Public Notice for Design Review).

K. Public Hearing. None required.

L. Design Review Committee Proceedings.

1. The Design Review Committee shall meet with the applicant and shall operate as a working group. Its meetings shall be open to the public.

2. Review of a project by the Design Review Committee may be continued as necessary subject to the timeline set forth in this chapter.

3. The Design Review Committee shall adopt its own rules and procedures.

M. Basis for Approval. The review authority shall consider a proposed project in relation to its surrounding context when acting on a Design Review application.

1. The review authority may approve a Design Review application only upon finding that the proposed project conforms with the City of Berkeley Design Guidelines and any City-adopted design standards and guidelines applicable to the project.

2. The review authority may consider public input during the Design Review process and may require modifications to the proposed project as a condition of Design Review approval.

N. Changes to Approved Projects.

1. Design Review Modification (Minor Changes). Before issuance of a building permit, Department staff may approve minor changes to a project with final Design Review approval if the change complies with all of the following criteria:

(a) The change does not involve a feature of the project that was:

i. A specific consideration by the review authority in granting the approval;

ii. A condition of approval; or

iii. A basis for a finding in the project CEQA determination.

(b) The change is consistent with the spirit and intent of the original approval.

2. Other Changes. A project change that does not meet the definition of a minor change in previous Paragraph (1) shall be approved following the same procedures as the original Design Review approval.

O. Appeals. Design Review decisions may be appealed in accordance with Chapter 23.410 (Appeals and Certifications).

P. Review of Building Plans. Department staff shall review all building permit applications subject to Design Review for compliance with the approved Design Review plans and conditions. (Ord. 8000-NS §§ 3, 4, 2026; Ord. 7847-NS § 3, 2022; Ord. 7835-NS § 10, 2022; Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose. A Modification of Development Standards is a discretionary approval to modify land use and development standards for development projects in the West Berkeley Plan area. The purpose of these modifications is to:

1. Facilitate the implementation of the West Berkeley Plan;

2. Facilitate the reuse of large and multi-user sites which might otherwise prove difficult to reuse;

3. Facilitate the development and reuse of large, multi-user sites as integrated units in a stable and desirable environment to benefit occupants, the neighborhood, and the city as a whole; and

4. Allow modifications of standards when:

(a) The modifications serve the overall purposes of their districts and the West Berkeley Plan on large, complex sites; and

(b) The design of the project is compatible with the design and character of the surrounding area.

B. Eligibility. A project must satisfy the following criteria to be eligible for a Modification of Development Standards.

1. More than 50 percent of the site area must be within a C-W, MU-LI, MM or M district.

2. The site must be either:

(a) At least five contiguous acres within the City boundary under a single ownership and not primarily being used by a use conforming to the West Berkeley Plan; or

(b) Less than five acres and forms a full city block bounded on all sides by public streets (exclusive of alleys), mainline railroad tracks, and/or the borders of the City.

C. Allowed Modifications. The ZAB may allow modifications to the following land use and development standards:

1. Permitted location of land uses within a building, site, or district.

2. Development standards including but not limited to, height, yards, open space, and parking.

D. Project Phases. The ZAB may approve a Modification of Development Standards application to allow a project to be built in phases.

E. Limitation. A Modification of Development Standards may not allow any modification that would violate Section 23.206.050 (Protected Uses).

F. Review Authority. The ZAB takes action on all Modification of Development Standards applications.

G. Public Notice and Hearing. The ZAB shall review and act on a Modification of Development Standards application at a noticed public hearing in compliance with Chapter 23.404 (Common Permit Requirements).

H. Findings for Approval.

1. To approve a Modification of Development Standards, the ZAB shall make all of the following findings:

(a) The site is eligible for a Modification of Development Standards under Subsections B (Eligibility) and E (Limitation);

(b) The project is likely to advance the purposes of the West Berkeley Plan and this section;

(c) The project supports the attraction and/or retention of the types of businesses reflected in the purpose statement of the applicable district.

(d) The modification is necessary and appropriate for the development of the proposed project.

2. To approve a Modification of Development Standards, the ZAB shall also make all required Use Permit findings in Section 23.406.040 (Use Permits) and any additional Use Permit findings required by the Zoning Ordinance for the use or development in the applicable district. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose. This section establishes a process for the City to approve modifications to development regulations to support equal access to housing for persons with disabilities. This process is established in accordance with the Federal Fair Housing Act, the Americans with Disabilities Act, and the California Fair Employment and Housing Act.

B. When Allowed.

1. Eligible Applicants.

(a) Any person with a disability, or their representative, may request reasonable accommodation as allowed by this section.

(b) A person with a disability is a person who has a physical or mental impairment that limits or substantially limits one or more major life activities, anyone who is regarded as having this type of impairment, or anyone who has a record of this type of impairment.

2. Eligible Request. An eligible applicant may request a modification or exception to any provision in the Zoning Ordinance or Subdivision Ordinance (Title 21) that acts as a barrier to fair housing opportunities for persons with disabilities.

C. Review Authority.

1. Zoning Officer. The Zoning Officer takes action on reasonable accommodation applications unless the application is filed for concurrent review with a requested permit reviewed by the Zoning Adjustments Board (ZAB).

2. Zoning Adjustments Board. If a reasonable accommodation application is submitted concurrently with a permit application reviewed by the ZAB, the reasonable accommodation application shall be acted on by the ZAB.

3. Referral to Zoning Adjustments Board. The Zoning Officer may refer any reasonable accommodation application to the ZAB for review and final decision.

D. Application Requirements.

1. Application. A request for reasonable accommodation shall be submitted on an official City application form. No application fee is required. The application shall include:

(a) The name, address, and telephone number of the applicant;

(b) The address of the property for which the accommodation is requested;

(c) The current use of the property.

(d) The ordinance provision for which modification is requested;

(e) Reason that the requested accommodation may be necessary to enable the person with the disability to use the dwelling; and

(f) Other information requested by the Zoning Officer.

2. Concurrent Applications. If the project for which the reasonable accommodation is requested requires another planning permit (e.g., Use Permit), the reasonable accommodation application shall be filed concurrently with the related permit application.

E. Review Procedure.

1. Independent Application.

(a) For a Reasonable Accommodation application submitted independently from any other planning permit application, the Zoning Officer shall take action within 45 days of receiving the application.

(b) If necessary to reach a determination on the request for reasonable accommodation, the Zoning Officer may request further information from the applicant consistent with fair housing laws. If a request for additional information is made, the 45-day period to issue a decision is stayed until the applicant submits the requested information.

2. Concurrent Application. For a reasonable accommodation request submitted concurrently with another planning permit application, the reasonable accommodation request shall be reviewed and acted upon concurrently with the other application.

F. Action on Application.

1. Decision. The review authority shall make a written decision supported by findings and conclusions to approve, approve with conditions, or deny the application.

2. Criteria. The review authority shall consider the following factors when acting on the application:

(a) Need for the requested modification.

(b) Alternatives that may provide an equivalent level of benefit.

(c) Physical attributes of and proposed changes to the property.

(d) Whether the requested modification would impose an undue financial or administrative burden on the City.

(e) Whether the requested modification would constitute a fundamental alteration of the City’s zoning or subdivision regulations.

(f) Whether the requested accommodation would result in a concentration of uses otherwise not allowed in a residential neighborhood to the substantial detriment of the residential character of that neighborhood.

(g) Any other factor that may have a bearing on the request.

3. Conditions of Approval. The review authority may impose conditions of approval, including a condition to provide for the automatic expiration of the approval under appropriate circumstances (e.g., person with disability vacates home).

G. Appeals. Reasonable accommodation decisions may be appealed in accordance with Chapter 23.410 (Appeals and Certifications). (Ord. 7787-NS § 2 (Exh. A), 2021)