Berkeley Municipal Code Ch. 23.408 Green Pathway

A. The purpose of this chapter is to implement the "Green Pathway" provisions of Measure R (2010) by providing a voluntary streamlined permit process for buildings that:

1. Exceed the Green Building requirements applicable in the C-DMU district; and

2. Provide extraordinary public benefits that could not otherwise be obtained, as specified in this chapter.

B. This chapter establishes standards and requirements to clarify the City’s expectations for projects eligible for approval under this chapter and to ensure they will be designed and developed consistent with the Downtown Area Plan. (Ord. 7787-NS § 2 (Exh. A), 2021)

This chapter applies only to development projects in the Downtown Mixed Use (C-DMU) district that:

A. Do not propose alteration or demolition of a historical resource as defined by the California Code of Regulations Title 14, Section 15064.5; and

B. Will not have a significant adverse impact on any adjacent historical resource as defined by the California Code of Regulations Title 14, Section 15064.5. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. RFD Purpose. To determine if a project is eligible for processing under this chapter, an applicant shall submit to the City a Request for Determination (RFD). The RFD process applies to development projects that may be eligible for Green Pathway processing notwithstanding anything to the contrary in Chapter 3.24 (Landmarks Preservation Commission).

B. RFD Submittal. A property owner or the owner’s authorized agent shall request the Landmarks Preservation Commission (LPC) to determine whether the subject property, as well as each adjacent property, is an historical resource under the California Code of Regulations Title 14, Section 15064.5, by submitting a RFD. Potential historical resources include, but are not limited to, properties identified in any of the following sources:

1. Downtown Plan and EIR (Adopted 1990).

2. State Historic Preservation Office California Historical Resources Information System Historical Resources Inventory for Alameda County, City of Berkeley (Most Recent).

3. Any site identified as a potential resource needing further evaluation in the Downtown Area Plan Historic Resource Evaluation (Architectural Resource Group, 5 November 2008).

C. Processing an RFD.

1. The City shall not accept an RFD unless it is accompanied by proof that the applicant has posted a conspicuous notice on the subject property in a location that is readily visible from the street on which the structure or site has its major frontage. Such notice shall be in a form specified by the Zoning Officer.

2. Upon receiving a RFD, the City shall contract with an independent consultant from a list of qualified consultants approved by the LPC to prepare an historic resource assessment. The costs of the assessment shall be borne by the applicant. Alternatively, the applicant for a RFD may submit its own historic resource assessment, which shall then be subject to peer review by the City’s consultant at the applicant’s expense. If a property that is the subject of the RFD is not identified on any of the lists in Subsection B (RFD Submittal) above, the applicant’s assessment may consist of a statement of why the applicant believes the property does not include an historical resource.

3. A RFD shall be deemed complete upon completion of the City consultants’ historic resource assessment or peer review that determines that the applicant’s submitted historic resource assessment is complete and accurate.

4. The LPC shall begin its consideration of whether to designate a property that is the subject of a RFD at a public hearing at the first regular meeting that occurs no less than 21 days after the RFD is complete, and shall take final action no later than 90 days after it is complete. Notice of the public hearing shall be provided as set forth in Municipal Code Section 3.24.140 (Designation proposal--Public hearing notice requirements).

D. Timeline Extensions; Failure to Act. Any of the timelines specified in this section may be extended at the written request of the applicant. Failure to act within any of the timelines set forth in this section, as they may be extended, shall constitute a decision to take no action to designate.

E. When Chapter 3.24 Applies. If a property that is the subject of a RFD is not designated within the time limitations set forth in this section, Municipal Code Chapter 3.24 (Landmarks Preservation Commission) shall not apply to that property unless and until the earliest of the following occurs:

1. The expiration of two years from the date of any final action not to designate the property; or

2. If an application under this chapter is submitted within that period, then either:

(a) The application is withdrawn or denied; or

(b) Any entitlement approved for the property expires, is cancelled or revoked, or for any other reason ceases to have effect.

F. Appeal and Certification. Decisions by the LPC under this section shall be subject to appeal as set forth in Section 3.24.300 (Appeals--Procedures required--City Council authority), and certification as set forth in Section 3.24.190 (Council certification authorized when--Effect).

G. Effect of Determination. If a subject property is determined to be an historical resource as defined by California Code of Regulations, Title 14, Section 15064.5, it shall not be processed as a Green Pathway Project under this chapter. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Voluntary Option. The Green Pathway authorized by this chapter is a voluntary development option under which applicants for development projects in the C-DMU district may waive certain rights and agree to certain obligations the City could not otherwise impose in return for certain processing benefits.

B. Application Contents. An application for processing using the Green Pathway shall include the information otherwise required by the Zoning Ordinance for the entitlement sought, as well as:

1. The applicant’s commitment to enter into binding agreements to satisfy all applicable Green Pathway requirements if the application is approved; and

2. Proof that the LPC has not taken any action under Section 23.408.030 (Eligibility Determination) to designate the subject property as a structure of merit or landmark under Chapter 3.24 (Landmarks Preservation Commission).

C. Additive Requirements. Except as expressly specified in this chapter, the requirements of this chapter are in addition to, and do not change or replace any other requirements or standards of the Zoning Ordinance and Chapter 3.24 (Landmarks Preservation Commission). (Ord. 7787-NS § 2 (Exh. A), 2021)

All Green Pathway projects are subject to the following requirements.

A. Affordable Units.

1. In addition to any other applicable affordable housing mitigation fee or requirement, at least 20 percent of the total units in a proposed multi-unit rental development shall be rented to very low income households whose annual income does not exceed 50 percent of the annual median income for Alameda County adjusted for household size based upon income levels published by the U.S. Department of Housing and Urban Development.

2. Rents for these units shall be set at prices affordable to very low income households, as defined by Section 50053 of the California Health and Safety Code for the life of the project.

3. As an alternative, an applicant may pay an in-lieu fee to the Housing Trust Fund as established by the City Council.

B. Density Bonus. The applicant shall waive, in writing, any rights under State Density Bonus Law, Section 65915 of California Government Code.

C. Local Hire Requirement.

1. The applicant shall sign an agreement that no less than 30 percent of a project’s construction workers will be Berkeley residents.

2. If insufficient Berkeley residents are available to fulfill the 30 percent local hire requirement, then the next tier of residents shall come from the East Bay Green Corridor (which includes the cities of Albany, Alameda, Berkeley, El Cerrito, Emeryville, Hayward, Richmond, Oakland, and San Leandro).

3. If insufficient residents are available from the Green Corridor to fulfill the 30 percent local hire requirement, then residents of Alameda County will be used to fulfill the local hire requirements.

4. An applicant who agrees to require employment of Berkeley residents on another project the applicant is building or has approval to construct in Berkeley may count such employment toward the 30 percent local hire requirement by providing the same documentation the City requires to show compliance with paragraphs 1 and 2 of this subsection.

D. Use Regulations. Uses shall comply with the requirements and limitations of Section 23.204.130 (C-DMU Downtown Mixed-Use District). (Ord. 7787-NS § 2 (Exh. A), 2021)

In addition to the requirements of Section 23.408.050 (General Requirements), a Green Pathway project that includes either a hotel, a building over 75 feet in height, or a building with more than 100 units of housing, are subject to the following requirements.

A. Prevailing Wage.

1. All construction workers shall be paid state prevailing wage as established by the California Department of Industrial Relations.

2. Employees in hotels with a height over 75 feet shall be paid prevailing wages as established by the Department of Industrial Relations for hotel employees. If the Department of Industrial Relations does not establish prevailing wages for hotel employees, such employees shall be paid wages consistent with area mean wages per occupational category.

B. State Certified Apprenticeship Program. To the extent that enough qualified apprentices are reasonably available, no less than 16 percent of the construction workers shall be apprentices from a State Certified Apprenticeship program with a record of graduating apprentices.

C. Requirements Binding to Future Owners. As a condition of approval for any Green Pathway project subject to the requirements of this section, the owner shall enter into a written agreement that shall be binding on all successors in interest. (Ord. 7787-NS § 2 (Exh. A), 2021)

Green Pathway projects shall comply with the applicable development standards in Section 23.204.130 (C-DMU Downtown Mixed-Use District) and the following additional requirements.

A. Building Setbacks Within View Corridors. To minimize interference with significant views, buildings that are 75 feet in height or less that are located on a corner lot at any intersection with University Avenue, Center Street, or Shattuck Avenue must include upper story setbacks as follows: any portion of a building between 45 feet and 75 feet must be set back from property lines abutting the street by at least one foot for every one foot by which the height exceeds 45 feet.

B. Street Wall Facade. Notwithstanding the Downtown Design Guidelines, the street wall facade shall be architecturally modulated by volumes that are 50 feet in width or less.

1. Smaller modulations may be incorporated within larger volumes.

2. Volumes along the street wall must be defined by structural bays and/or substantial reveals or offsets in the wall plane, and by changes in the rhythmic pattern of one or more of the following features:

(a) Window openings, oriel windows, or balconies.

(b) Awnings, canopies, or entrances.

(c) Arcades, columns, or pilasters.

(d) Materials and color.

(e) Other architectural features.

C. Shadow Analysis. A shadow analysis is required for buildings with heights between 60 and 75 feet. Applications shall include diagrams showing:

1. The extent of shading on public sidewalks and open spaces by a building 60 feet in height that complies with all applicable setback requirements on an area within a radius of 75 feet of the closest building wall that would be cast on March 21, June 21, December 21, and September 21 at the following times of day:

(a) Two hours after sunrise;

(b) 12 p.m. noon; and

(c) Two hours before sunset.

2. Features incorporated into the building design, including, but not limited to, additional upper floor setbacks that will reduce the extent of shadowing of the proposed building to no more than 75 percent of the shadowing projected in previous Paragraph (1).

D. Height Restrictions. Consistent with the height standards of Measure R (adopted November 2, 2010), Section 4.B, as required by Section 3, Paragraph 12, Green Pathway Buildings of exceptional height are restricted as follows:

1. Two mixed-use buildings and one hotel/conference center in the Core, no more than 180 feet in height.

2. Two buildings, up to 120 feet in height in the Core or Outer Core.

E. Mitigation Measures. To ensure that potential environmental impacts are mitigated to less than significant levels, projects under this chapter are subject to applicable measures identified in the adopted Mitigation Monitoring Program of the Downtown Area Plan Final EIR. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Projects Involving Only Buildings at or Below 75 Feet in Height.

1. Projects Allowed By Right. Notwithstanding anything to the contrary in the Zoning Ordinance, Green Pathway projects that do not involve either hotels, buildings over 75 feet, or buildings with more than 100 units of housing, shall be approved as a matter of right with a Zoning Certificate if they comply with the applicable zoning requirements, standards, and requirements in this chapter and the Downtown Design Guidelines. Such projects are subject to Design Review under Section 23.406.070 (Design Review).

2. Historic Resource. If a proposed Green Pathway project is adjacent to a property that has been determined to be an historic resource under Section 23.408.030 (Eligibility Determination), the application for a Green Pathway project shall include an analysis demonstrating how the project meets the Secretary of the Interior’s Standards for the Treatment of Historic Properties, including guidelines for the treatment of cultural landscapes with respect to such adjacent property.

(a) After determining that the application is complete, the Zoning Officer shall forward the analyses described in Subsections A and B of Section 23.408.030 (Eligibility Determination) to the Secretary of the LPC to place on the agenda for the next regular meeting of the LPC that occurs no less than 21 days thereafter. The LPC shall then have 90 days in which to evaluate the submission and provide any comments to the Design Review Committee (DRC).

(b) The DRC shall determine whether a project conforms to the Secretary of the Interior’s Standards for the Treatment of Historic Properties and the associated guidelines, including the standards and guidelines for the treatment of cultural landscapes, with respect to adjacent historical resources. A project that clearly conforms to those standards and guidelines shall be considered to not have a significant impact on the historical resource. If the DRC determines that the proposed project would have a significant adverse impact on any adjacent historical resource and the project is not modified to avoid that impact, it shall not be processed as a Green Pathway project.

3. Downtown Design Guidelines.

(a) Notwithstanding Section 23.406.070 (Design Review), the DRC shall determine whether the project conforms to the Downtown Design Guidelines and shall take final action on the project no later than 90 days from the date the application for a Green Pathway project, including for Design Review, is complete.

(b) When determining whether a project subject to review under this section conforms to the Downtown Design Guidelines, the DRC shall treat applicable guidelines as standards.

(c) The decision of the DRC regarding whether the project conforms to the Guidelines may be appealed directly to the City Council by filing an appeal stating the reasons for the appeal, along with the required fee, with the City Clerk within 14 days of the date of the DRC action. Design Review appeals shall be limited to design issues.

B. Projects Involving Buildings Over 75 Feet in Height.

1. Notwithstanding anything to the contrary in the Zoning Ordinance, the Zoning Adjustments Board (ZAB) shall take final action on a Green Pathway project over 75 feet in height or any other project not processed under previous Subsection (A) no later than 210 days after the application is complete, provided that this time limit shall be extended as necessary to comply with the California Environmental Quality Act (CEQA).

2. Such projects shall receive priority status to meet the review timeframes set forth in this section. (Ord. 7787-NS § 2 (Exh. A), 2021)

Timelines under this chapter shall be extended by the time taken for any proceedings pursuant to Chapter 3.24 (Landmarks Preservation Commission) relating to a Green Pathway project. (Ord. 7787-NS § 2 (Exh. A), 2021)

The applicable public benefit requirements of this chapter shall be included as conditions of approval and in a binding agreement for all Green Pathway projects. (Ord. 7787-NS § 2 (Exh. A), 2021)

The City Manager or his/her designee may promulgate rules and regulations pertaining to this chapter, including, but not limited to

A. Setting and administering gross rents and sale prices for below-market-rate units; and

B. Specifying and requiring guarantees, including recorded agreements and other appropriate measures necessary or convenient to assure that required below-market-rate units are provided to and occupied by very low income households, and that other public benefits set forth in this chapter are secured. (Ord. 7787-NS § 2 (Exh. A), 2021)