Berkeley Municipal Code Ch. 22.12 Neighborhood Commercial Preservation

The purpose of this chapter is to place interim regulations on general, community, retail, and neighborhood commercial districts, designated as of July 14, 1982 as "C-1," "C-1A," "C-1B," "C-1C" in the Berkeley Zoning Ordinance, until the zoning ordinance is amended to correspond with, and implement, policies stated in the Berkeley Master Plan of 1977. Five years after adoption of the master plan, zoning regulations for the above named districts have still not been updated to reflect the intent of the master plan policies. (Ord. 5506-NS § 1, 1982)

Specifically:

A. Policy 1.03 states the intent to "modify procedures to assure the effective participation of local residents and community groups in decisions regarding land use." Adequate procedures to assure public review and community participation in land use decisions regarding new commercial construction, conversion or addition of commercial space, or demolition of commercial structures do not exist in the current zoning ordinance.

B. Policy 1.21 states the intent to "encourage commercial activities serving a regional market to locate in the central (business) district of a commercial service (auto-oriented) district, and discourage them in neighborhood and community commercial districts." Adequate regulations to prevent the proliferation of retail and service uses that serve a predominantly regional market in C-1, C-1A, C-1B, and C-1C districts do not exist in the current zoning ordinance.

C. Policy 1.22 states the intent to "identify the neighborhood, community and commercial service districts where a parking deficiency exists and develop zoning regulations to require the provisions of off-street parking and loading in conjunction with new building construction as necessary." No such commercial districts have been systematically identified as having a parking deficiency nor have adequate zoning regulations to require the provision of parking as a condition of new commercial construction in these districts been amended to the zoning ordinance since adoption of the master plan in 1977.

D. Policy 1.24 states the intent to "control the design and operation of commercial establishments to insure their compatibility with adjacent residential areas." No adequate regulations to control the design and operation of commercial establishments to insure their compatibility with surrounding residential neighborhood exists in the current zoning ordinance.

E. The master plan of 1977 outlines the intent to formally review the plan every five years. A further purpose of this chapter is to ensure that the timely five year comprehensive review of the master plan shall include, and encourage, major additions such as neighborhood area plans to the master plan, and that the zoning ordinance shall be amended to incorporate the procedures leading to the preparation of such neighborhood area plans, as stated in Policies 7.10, 7.11, 7.12, 7.13 and 7.14 of the master plan of 1977.

F. Recent actions by the Berkeley City Council and citizens of the City of Berkeley, as set forth in Section 22.12.020 herein, also indicate the need for revision of the zoning ordinance. (Ord. 5506-NS § 1, 1982)

A. On September 15, 1981, the Berkeley City Council adopted Ordinance No. 5390-N.S., establishing a one hundred twenty day moratorium on construction, conversion, or demolition of commercial uses and buildings within the North Shattuck commercial district. On December 8, 1981, this moratorium was extended by majority vote of the City Council to remain in effect until September 14, 1982.

B. On September 15, 1981, the Berkeley City Council adopted Ordinance No. 5391-N.S., establishing a one hundred twenty day moratorium on construction, conversion or demolition of commercial uses and buildings within the Elmwood commercial district. On December 8, 1981, this moratorium was extended by majority vote of the City Council to remain effective until September 14, 1982.

C. On June 8, 1982, a majority of voters in the City of Berkeley approved Measure I, the Elmwood Commercial Rent Stabilization and Eviction Protection Ordinance.

D. On June 15, 1982, the Berkeley City Council rescinded Ordinance 5440-N.S., establishing planned development district procedures in the zoning ordinance, after neighborhood residents filed a referendum petition protesting the ordinance. (Ord. 5506-NS § 3, 1982)

A. The "central business district" also referred to as the "central district" in the master plan of 1977, is the downtown area of Berkeley that is defined in the zoning ordinance and accompanying maps as of July 14, 1982 as the "C-2" district.

B. "Commercial service districts" are those areas zoned "C-1" in the zoning ordinance that are defined in the 1977 master plan and accompanying map as appropriate for "auto-oriented commercial activities."

C. "C-1A districts" or "community commercial districts" are those areas defined in the zoning ordinance and accompanying maps as of July 14, 1982 as "C-1A."

D. "C-1B districts" or "retail commercial districts" are those areas defined in the zoning ordinance and accompanying maps as of July 14, 1982 as "C-1B."

E. "C-1C districts" or "neighborhood commercial districts" are those areas defined in the zoning ordinance and accompanying maps as of July 14, 1982 as "C-1C."

F. "C-1 districts" or "general commercial districts" are those areas defined in the zoning ordinance and accompanying maps as of July 14, 1982 as "C-1."

G. "Demolition" is the act of total destruction or tearing down of a structure, as well as to the act of partial destruction or tearing down of a structure so that it becomes subsumed into a larger structure, thus losing its original distinguishing physical characteristics.

H. "Conversion" is the physical change of the floor area of a structure so as to increase or decrease the number of separate, individual commercial shops or service areas by one or more, or so as to include a new type of commercial or other land use.

I. "Addition" is the creation of floor area through new construction or conversion by addition to the amount of floor area physically present in a commercial structure prior to construction or conversion activities.

J. "Change of retail or commercial use" is any change in the type of retail or commercial goods or services offered on a site. "Change of retail or commercial use" shall be presumed wherever there is transfer or change of any lease of commercial space, except in the circumstance that the new owner or leaseholder does not change the name of the establishment and does not change the exact line or type of commercial goods or services offered in the space.

K. Any other terms not defined herein shall follow the definitions included in applicable City of Berkeley codes. (Ord. 5506-NS § 4, 1982)

A. The Planning Commission of the City of Berkeley shall recommend to the Berkeley City Council amendments to, and revisions of, the Berkeley Zoning Ordinance in order that its provisions correspond with the intent of the master plan of 1977 regarding regulation for C-1, C-1A, C-1B, and C-1C commercial districts.

B. The Planning Commission recommendations shall incorporate the principles set forth in Section 22.12.070 herein and the provisions of any neighborhood area plans prepared and adopted according to master plan guidelines.

C. The Planning Commission shall submit the recommendations, required by this section, to the City Council no later than November 30, 1983. However, the City Council may extend the date for the submission of such recommendations if it finds good cause that an extension is necessary.

D. In order to ensure protection of commercial districts until the Berkeley City Council enacts after submission of the recommendations of the Planning Commission, amendments to the zoning ordinance implementing the master plan policies set forth in Section 22.12.020 of this chapter, the following land use changes in the C-1, C-1A, C-1B, and C-1C districts shall be regulated by this chapter:

1. Demolition of commercial structures;

2. Construction of new commercial structures;

3. Conversions or additions of commercial space;

4. Removal of more than three off-street parking spaces.

E. Until the Berkeley City Council enacts an ordinance with such ordinance being subject to referendum, containing revised use permit criteria that apply to new or changes of retail or commercial use in C-1, C-1A, C-1B, and C-1C districts, or two years after the effective date of this chapter, whichever comes first, the following new or changes of retail or commercial use shall be regulated by this chapter:

1. Any new or change of retail or commercial use involving more than two thousand gross square feet of floor area in C-1A, C-1B, and C-1C districts; and

2. Any new or change of retail or commercial use involving more than seven thousand five hundred gross square feet of floor area in C-I districts. Any revised use permit criteria enacted by the City Council under this subsection E shall incorporate the applicable principles set forth in Section 22.12.070 of this chapter, and shall be prepared in cooperation with the Planning Commission and concerned merchants, residents and property owners. (Ord. 5506-NS § 5, 1982)

A. Demolition permits shall be required for the demolition of commercial structures. These permits may be granted by the Board of Adjustments of the City of Berkeley only after a public hearing. Decisions by the Board of Adjustments may be appealed to the City Council.

B. A demolition permit shall not be granted unless the Board of Adjustments, or the City Council upon appeal, makes all of the following findings:

1. That the demolition would not be materially detrimental to the commercial needs and public interest of any affected neighborhood or the City of Berkeley.

2. That upon receipt of an application to change the facade of, or to demolish a building more than forty years old, the building official has forwarded said application to the Landmarks Preservation Commission for review, except where the application involves an unsafe building, and that said commission has not recommended against granting the permit.

3. That the demolition will remove an unusable or unrepairable structure, or that the demolition is necessary to permit construction approved pursuant to Sections 22.12.070 and 22.12.080 herein and applicable regulations in the zoning ordinance.

4. That neighborhood organizations and concerned residents in the affected area have been effectively notified pursuant to Section 22.12.090 herein. (Ord. 5506-NS § 6, 1982)

A. Use permits shall be required for:

1. Construction of new commercial structures;

2. Conversion or addition of commercial space;

3. Removal of more than three off-street parking spaces;

4. Any new or change of retail or commercial use involving more than two thousand gross square feet of floor area in C-1A, C-1B, and C-1C districts; and

5. Any new or change of retail or commercial use involving more than seven thousand five hundred gross square feet of floor area in C-1 districts.

B. A use permit may not be granted until, after a duly called and noticed public hearing, the Board of Adjustments of the City of Berkeley, or the City Council on appeal, after considering the impact on the surrounding neighborhoods and in the circumstances of the particular case, finds all of the following:

1. That the establishment, maintenance or operation of the structure, space, or use for which the use permit is being applied for will not be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of the proposed building structure, space, or general use(s) or to the general welfare of the City.

2. That the removal of more than three off-street parking spaces or the establishment, maintenance, or operation of the structure, space, or use for which the use permit is being applied for will not result in any of the following:

(a) Significantly increase the amount of auto traffic, congestion, or auto-related pollution; or

(b) Exceed the amount and intensity of use that can be reasonably and safely served by available traffic and parking capacity; or

(c) Represent a building scale, intensity of use, or design that will not appropriately harmonize with other structures in the area; or

(d) Represent the type of commercial use that, because it generates a high amount of traffic and parking demand, should be more appropriately located in the central business district; or

(e) Represent a general use or design that conflicts with the establishment of a pedestrian-oriented retail frontage shopping environment.

3. That the establishment, maintenance, or operation of the major retail or commercial use applied for will not contribute to the displacement of essential local-service businesses or services that have as their primary customers nearby Berkeley residents.

4. That the developer, owner and any existing or prospective tenants of the commercial property involved have read and understood the zoning regulations that apply to the specific commercial district in which the property is located. (Ord. 5506-NS § 7, 1982)

No use permit required by Section 22.12.070 herein for construction, conversion or addition of commercial space involving more than ten thousand gross square feet of floor area, or the removal of more than ten off-street parking spaces, in the C-1, C-1A, C-1B, and C-1C districts may be granted by the Board of Adjustments of the City of Berkeley, or the City Council upon appeal, until the Board of Adjustments has decided, following procedures based on the current guidelines and criteria described specifically in the California Environmental Quality Act, that the project or removal will not have a significant adverse environmental impact on the surrounding neighborhoods. (Ord. 5506-NS § 8, 1982)

A. Notice of public hearing provided for in this chapter shall be sent at least fourteen days before the public hearing date, to all addresses and owners of property within a radius of three hundred feet from the boundaries of the site of the proposed construction, demolition, conversion or addition, removal, or new or change of use. The following information shall be included in the notice of public hearing, except in the case of demolition:

1. The number of commercial shops or services proposed and square footage of the floor area involved.

2. The number of parking spaces provided on or off the site.

3. A small reproduction of the site plan, a line drawing or prospective rendering of the site, as well as a list and description of building materials and colors to be used on the exterior.

4. Time and place of public hearing.

5. City departments to contact for further information.

B. The City comprehensive Planning Department shall maintain a registry of all persons and groups requesting notices of public hearings required by the provisions of this chapter. Such notices shall be mailed to individuals and groups listed on this registry in accordance with the provisions of subsection A herein.

C. A notice of public hearing shall be posted on the site, and in at least three public meeting locations in the immediate neighborhood at least fourteen days before the public hearing date. This posted notice shall have lettering sufficiently large to be seen clearly and read easily by a passerby, and the posted notice shall contain information as specified in subsection A.

D. All costs of giving notice shall be borne by the use, zoning or demolition permit applicant. Charges may be waived by the board of adjustments if it finds it is a financial hardship to the applicant, as determined according to guidelines adopted by the board. (Ord. 5506-NS § 9, 1982)

A. A petition requesting a public hearing before the Board of Adjustments on any zoning, administrative use, or use permit application for new or change of retail or commercial use of any floor area amount in the C-1, C-1A, C-1B, and C-1C districts may be presented to the City Clerk. If the petition is found by the City Clerk to contain the valid signatures of no less than fifty registered Berkeley voters, a public hearing regarding the specific permit application shall be scheduled with proper notification to the neighborhood as provided for Section 22.12.090 herein. The petition for a public hearing on any zoning, administrative use, or use permit application must be filed within twenty days of the formal filing of the zoning, administrative use, or use permit application with the zoning division.

B. Upon the scheduling of a public hearing set forth in this section, the application that triggered the successful petition shall be evaluated according to the procedures and principles as set forth in this chapter and in the zoning ordinance, even if the original application did not require approval of the Board of Adjustments.

C. The applicant shall not be required to pay costs of a public hearing brought by petition. The zoning division, comprehensive Planning Department, or other City agency shall at all times have an up-to-date list of all building, zoning, administrative use, demolition, and land use permits applied for, and shall make such a list of pending applications available to the public upon request.

E. The provisions of this section shall expire two years after the effective date of this chapter. (Ord. 5506-NS § 10, 1982)

The Berkeley City Council may by ordinance, such ordinance being subject to referendum, exempt any specific district(s) from the provisions of this chapter provided that:

A. The ordinance enacting the exemption shall also contain a neighborhood area plan for the district(s) being exempt, including amendments to the zoning ordinance with revised use permit criteria; and

B. The neighborhood area plan incorporates the principles set forth in the master plan of 1977 and Section 22.12.070 herein, and has been prepared with the participation of neighborhood residents and merchants and other concerned citizens. (Ord. 5506-NS § 11, 1982)

It is the purpose of this chapter to implement the specific policies of the master plan listed in Section 22.12.020 and not to repeal the existing zoning ordinance, except insofar as its provisions are in conflict with this chapter. Where there is no conflict, the zoning ordinance shall continue to apply. Wherever the existing zoning ordinance or other ordinances are in conflict with this chapter, this chapter shall apply. (Ord. 5506-NS § 12, 1982)