Berkeley Municipal Code Ch. 21.30 Small Lot Subdivisions (middle Housing Infill Projects)

A. The purpose of this Chapter is to implement the provisions of Government Code Sections 66499.41, 65913.4.5, and 65852.28 (Senate Bill 684 (2023), as amended by subsequent legislation), which require a ministerial process for approval of certain small-lot subdivisions creating up to ten lots for residential development, and to provide a parcel-map process for similar small-lot subdivisions that meet minimum zoning density but do not qualify under Section 66499.41.

B. This Chapter establishes local procedures and objective standards for the subdivision of qualifying parcels, referred to as Middle Housing Infill Projects (MHIPs), consistent with the Subdivision Map Act and Titles 21 and 23 of the Berkeley Municipal Code.

C. The intent of this Chapter is to: (1) facilitate homeownership opportunities; (2) ensure consistency with state law; (3) apply zoning development standards at the parent-parcel level; (4) apply objective standards for access and development standards; and (5) ensure compliance with replacement-housing requirements under Government Code Section 66300.6 and BMC Chapter 23.326 (Demolition and Dwelling Unit Controls).

D. The definition of Protected Unit in this Chapter applies to Middle Housing Infill Projects processed as either an SB 684 MHIP or a Parcel Map MHIP. (Ord. 8002-NS § 7, 2026)

A. Middle Housing Infill Project (MHIP). A subdivision and related housing development processed under this Chapter.

1. SB 684 MHIP. A subdivision creating up to ten lots and up to ten dwelling units, that meets all of the eligibility criteria of Government Code Section 66499.41 as well as the minimum density in BMC Section 21.30.060(E). SB 684 MHIPs shall be processed ministerially under Section 21.30.040(B)(1).

2. Parcel-Map MHIP. A subdivision creating two to four lots, that meets or exceeds the minimum residential density of the underlying zoning district, but does not meet all SB 684 criteria. Parcel-Map MHIPs are processed under BMC Chapter 21.24 (Parcel Maps).

B. Parent Parcel. The legally-established parcel that exists prior to a subdivision creating a MHIP. For purposes of applying zoning development standards under this Chapter, the parent parcel shall be treated as a single lot prior to subdivision.

C. Protected Unit. For purposes of this Chapter, a "Protected Unit" means a dwelling unit:

1. occupied by tenants at any time within the last five years prior to submittal of a subdivision application, or

2. subject to affordability restrictions, or

3. subject to rent-control provisions, or

4. located on a parcel on which an owner of residential real property has, within the past fifteen (15) years, exercised rights under Chapter 12.7 (commencing with Section 7060) of Division 7 of Title 1 of the Government Code (the “Ellis Act”) to withdraw accommodations from rent or lease.

D. Vacant Lot. For the purposes of this Chapter, "vacant" has the same meaning as in Government Code Section 66499.41(a)(2)(A). (Ord. 8002-NS § 7, 2026)

A. Zoning Districts. This Chapter applies to:

1. Parcels in zoning districts where Multi-Family Dwellings are a permitted use; and

2. Vacant parcels zoned for single-family residential development as specified in Section 21.30.050(A)(1).

B. Project Types. This Chapter applies to Middle Housing Infill Projects (MHIP), as defined in Section 21.30.020 (Definitions). (Ord. 8002-NS § 7, 2026)

A. Application. Applications shall be filed on City forms with required fees and shall include all of the following:

1. A parcel map prepared pursuant to Chapter 21.24 or a tentative map prepared pursuant to Chapter 21.16.

2. Project plans, including a site plan, floor plans, tabulation of dwelling units, open-space and parking diagrams, and massing elevations, sufficient to demonstrate objective compliance with Titles 21 and 23 at the parent parcel scale.

3. Housing development plans demonstrating compliance with applicable objective standards in Titles 21 and 23.

4. An affidavit of ownership, and a tenancy history for the 5 years prior to the submission of the application, for the parent parcel.

5. Evidence of access and utility service easements for each proposed lot.

6. Any other information necessary to verify compliance with applicable objective standards.

B. Review Process.

1. SB 684 MHIPs. Applications shall be processed ministerially, consistent with Government Code Section 66499.41. A decision shall be rendered within sixty (60) days of a complete map application.

2. Parcel-Map MHIPs. Applications shall be processed pursuant to BMC Chapter 21.24 (Parcel Maps).

C. Approving Authority. The Planning Director, or their designee, shall serve as the advisory agency for SB 684 MHIPs. The Planning Director shall serve as the advisory agency for Parcel-Map MHIPs.

D. Appeals. Decisions on SB 684 MHIPs, including any associated parcel maps processed ministerially pursuant to this Chapter, are ministerial determinations and are not subject to appeal. (Ord. 8002-NS § 7, 2026)

A. Eligible Parcels. An MHIP may be approved only if the parent parcel meets all of the following requirements:

1. The parent parcel is either:

(a) Zoned to allow Multi-Family residential uses, and is no larger than five (5) acres; or

(b) Vacant and zoned for single-family residential development, and is no larger than one and one-half (1.5) acres.

2. The parent parcel is located within an urbanized area or urban cluster and meets all locational eligibility requirements in Government Code Section 66499.41(a)(9).

(a) The parent parcel is not located on prime farmland or farmland of statewide importance, on land zoned or designated by a voter-approved ballot measure for agricultural protection or preservation, in wetlands, or on lands identified for conservation, habitat for protected species, or lands under a conservation easement, as described in Government Code Section 66499.41(a)(9)(A), (B), and (H) through (J).

(b) The parent parcel is not located within a Very High Fire Hazard Severity Zone, as identified by the State Fire Marshal and designated by the City pursuant to Government Code Sections 51178 through 51179. For purposes of this subsection, the City’s "High Fire Hazard Severity Zone" designation alone does not render a parcel ineligible under this Chapter unless the parcel is also designated as a Very High Fire Hazard Severity Zone under Government Code Section 51178.

(c) If the parent parcel is located on a hazardous waste site, within an earthquake fault zone, a special flood hazard area, or a regulatory floodway, it shall be eligible under this Chapter only to the extent permitted by, and in compliance with, the conditions for such locations in Government Code Section 66499.41(a)(9)(D) through (G).

B. Lot and Unit Count.

1. An SB 684 MHIP may create two to ten lots and up to ten dwelling units.

2. A Parcel-Map MHIP may create two to four lots.

3. No MHIP shall result in more than ten dwelling units on the parent parcel.

C. Protected Units.

1. No SB 684 MHIP shall require the demolition of, or result in the loss of, any Protected Units.

2. No Parcel Map MHIP shall require the demolition of, or result in the loss of, any Protected Units unless replacement housing is provided consistent with Government Code Section 66300.6 and BMC Chapter 23.326.

D. Further Subdivision. The lot was not established pursuant to this section, including a designated remainder parcel described in Section 66499.41(a)(1)(B), or Section 66411.7 (SB 9--Urban lot split). (Ord. 8002-NS § 7, 2026)

A. Parent Parcel Compliance. Zoning development standards, including minimum lot size, density, floor-area ratio, lot coverage, usable open space, setbacks, and parking, shall be applied at the parent parcel level prior to subdivision. The Planning Director shall waive or modify any such standard if its application would physically preclude construction of the minimum residential density required under Section 21.30.060(E). Any waiver or modification shall be the minimum necessary to achieve compliance with that density requirement.

B. Minimum Lot Dimensions.

1. Multi-Family-zoned parent parcel. The minimum lot size for each new lot shall be six hundred (600) square feet.

2. Vacant single-family-zoned parent parcel. The minimum lot size for each new lot shall be six hundred (600) square feet.

C. Street Frontage. Street frontage is required and may be satisfied through a public street, alley, or recorded access easement consistent with Fire and Building Codes.

D. Access and Utilities. Each lot shall have recorded vehicular and emergency access easements and recorded utility easements sufficient for water, sewer, power, and drainage service.

E. Residential Density.

1. SB 684 MHIPs shall satisfy one of the following:

(a) If the parent parcel is identified in the City’s Housing Element for the current planning period, the development shall result in at least the number of dwelling units (and affordable units, if applicable) identified for that site; or

(b) If the parent parcel is not identified in the City’s Housing Element, the development shall result in at least sixty-six percent of the maximum allowable residential density specified by the underlying zoning. If the underlying zoning district does not establish a minimum residential density, the project shall meet or exceed 20 dwelling units per acre.

2. Parcel-Map MHIPs shall meet or exceed the minimum residential density required by the underlying zoning district. If the underlying zoning district does not establish a minimum residential density, the project shall meet or exceed 20 dwelling units per acre.

F. Floor Area Limits. SB 684 MHIPs are subject to the floor area limits in BMC 23.304.160(D)(3).

G. Parking.

1. Transit Exemption. No parking shall be required if the parcel is located within one-half mile walking distance of either a stop in a high-quality transit corridor, as defined in Public Resources Code Section 21155(b) or a major transit stop, as defined in Public Resources Code Section 21064.3.

2. Application of Local Standards. Where the transit exemption does not apply, off-street parking shall conform to the requirements of BMC Chapter 23.322, except where superseded by state law.

3. Parking Configuration. Shared driveways, tandem spaces, and unbundled parking are permitted, provided they meet dimensional standards.

4. Consistency with State Law. Where state law establishes fewer required off-street parking spaces than this Section, those rules shall govern.

H. Inclusionary Housing. All MHIP housing developments shall comply with the City’s inclusionary housing requirements (BMC Chapter 23.328 or successor), including on-site affordable units and/or in-lieu fees, as applicable. For purposes of this section, “MHIP housing development” or "project" means the entire development approved under this Chapter, regardless of whether lots are subsequently sold, transferred, or developed separately.

1. In-Lieu Fee Option. For MHIP housing developments that elect to comply via payment of an in-lieu fee pursuant to BMC Section 23.328.030(B), the in-lieu fee shall be due and payable upon issuance of the first Certificate of Occupancy for any unit within the MHIP housing development, or earlier at the applicant’s election. No additional Certificates of Occupancy shall be issued until the in-lieu fee is paid. The in-lieu fee may not be prorated across the units.

2. On-Site Affordable Units Option. For MHIP housing developments that elect to comply via the construction of affordable units:

(a) The required affordable units shall each be subject to a recorded affordability restriction consistent with BMC Chapter 23.328.

(b) Prior to recordation of the final map, the subdivider shall record a covenant, in a form approved by the City, binding all parcels created under this Chapter to the inclusionary housing obligations of the MHIP housing development until those obligations are satisfied.

(c) Phased Development Timing.

1. At least fifty percent (50%) of the required affordable units shall have received building permits prior to the issuance of building permits for more than fifty percent (50%) of the market-rate units.

2. All required affordable units shall receive Certificates of Occupancy prior to the issuance of any Certificate of Occupancy for the final market-rate unit within the MHIP housing development.

I. Sale or Financing Sequencing. Parcels created under this Chapter may be sold, leased, or financed as permitted by Gov. Code Section 66499.41(e)(1). Notwithstanding Gov. Code Section 66499.41(e)(1), and pursuant to Gov. Code Section 66499.41(e)(2), the City authorizes the sale, lease, or financing of a parcel without a completed dwelling unit upon issuance of a building permit for at least one dwelling unit on that parcel. This authorization shall be secured by a recorded covenant under Section 21.30.070(D).

J. Ownership Forms. For SB 684 MHIPs, the resulting housing shall be constructed on fee-simple lots, or be part of a common-interest development, a housing cooperative, a community land trust, or a tenancy in common, consistent with Government Code Section 66499.41. (Ord. 8002-NS § 7, 2026)

A. SB 684 MHIPs shall be approved ministerially by the Planning Director within sixty (60) days of a complete map application.

B. Approval. Approval requires substantial conformance with the submitted project plans under Section 21.30.040(A)(2) and compliance with applicable objective standards and state law.

C. Recordation. A final or parcel map shall be recorded prior to issuance of building permits, unless otherwise allowed by the Planning Director with a recorded covenant ensuring consistency between the approved map and subsequent permits. Submission of building permits or certificates of occupancy shall not be a prerequisite to map recordation.

D. Covenants. A covenant shall be recorded against each lot created under this Chapter which prohibits further small-lot subdivision under Government Code Section 66499.41 (SB 684) and urban lot splits under Government Code Section 66411.7 (SB 9),

E. CEQA. Pursuant to Government Code Section 66499.41, SB 684 MHIPs are ministerial actions not subject to the California Environmental Quality Act (CEQA).

F. Application Denial. SB 684 MHIPs may be denied only upon written findings by the Planning Director that the proposed development would have a specific, adverse impact on public health and safety or the physical environment, and that no feasible method exists to satisfactorily mitigate or avoid the impact, consistent with Government Code Sections 65913.4.5, 66499.41, and 65852.28. (Ord. 8002-NS § 7, 2026)

Tentative or parcel maps approved under this Chapter shall expire pursuant to applicable provisions of Berkeley Municipal Code Title 21 and relevant state law. The Planning Director may approve extensions consistent with such provisions. (Ord. 8002-NS § 7, 2026)

A. The City Attorney is authorized to enforce this Chapter by injunction, civil action, or any other remedy provided by law.

B. Any violation of this Chapter or conditions of approval shall constitute a violation of the Berkeley Municipal Code and may be enforced as provided in BMC Chapter 1.28.

C. Remedies are cumulative and not exclusive. (Ord. 8002-NS § 7, 2026)

A. Each provision of this Chapter shall be applied only to the extent it is consistent with state law. (Ord. 8002-NS § 7, 2026)

A. If any provision of this initiative is found to be invalid or unconstitutional, such finding shall not affect the validity or constitutionality of the remaining provisions. (Ord. 8002-NS § 7, 2026)