Berkeley Municipal Code Ch. 23.324 Conforming and Nonconforming Uses, Structures, Buildings, and Lots

This chapter establishes regulations for conforming and nonconforming lots, uses, structures, and buildings. These regulations are intended to allow for:

A. The development and use of lawful nonconforming lots;

B. Changes to nonconforming uses and the termination of abandoned uses;

C. Maintenance, repair, and expansion of nonconforming structures and buildings; and

D. Alterations to nonconforming structures and buildings when needed for public safety. (Ord. 7882-NS § 23, 2023; Ord. 7787-NS § 2 (Exh. A), 2021)

A. Cause of Nonconformity. A nonconformity may result from any inconsistency with the Zoning Ordinance, whether substantive or procedural, including, but not limited to:

1. The inconsistency of the use, building, or structure or aspects thereof, with any requirement of the Zoning Ordinance; and

2. The lack of a Zoning Certificate, AUP, or Use Permit.

B. Change to a Conforming Use or Structure. A use, building, or structure which is nonconforming solely by reason of the lack of a Zoning Certificate, AUP, or Use Permit may be recognized as a conforming use, building, or structure by issuance of the required Zoning Certificate, AUP, or Use Permit.

C. Permit and Approvals Required. A use, building, or structure conforms to the Zoning Ordinance only if it was established or constructed with the prior approval of, or legalized after the fact by, the issuance of the required Zoning Certificate, AUP, or Use Permit.

D. Nonconformities in Continuous Existence. A lawful nonconforming use, structure, building, or lot shall be deemed to comply with the Zoning Ordinance if it has remained in continuous existence. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Lawful Nonconforming Lots. A lot with an area less than the minimum lot size required by the Zoning Ordinance is considered a lawful nonconforming lot if the lot is:

1. Described in the official records on file in the office of the County Recorder of Alameda County or Contra Costa County as a lot of record under one ownership before November 30, 1950;

2. Shown as a lot on any recorded subdivision map, filed before November 30, 1950; or

3. In the Environmental Safety Residential (ES-R) district and described in the official records on file in the office of the County Recorder of Alameda County as either:

(a) A lot of record under one ownership; or

(b) A lot on any recorded subdivision map filed before February 13, 1975.

B. Requirements.

1. A lawful nonconforming lot may be used as building site subject to all other requirements of the Zoning Ordinance, except as provided in Paragraph (2) below.

2. If the total area of all contiguous vacant lots fronting on the same street and under the same ownership on or after September 1, 1958 is less than that required for one lot under the Zoning Ordinance, such lawful nonconforming lots may be used as only one building site. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Changes to Nonconforming Uses.

1. Table 23.324-1 shows permits required to change a lawful nonconforming use.

Table 23.324-1. PERMIT REQUIREMENTS FOR CHANGES TO NONCONFORMING USES

Notes:

[1]In the ES-R district the increase in the area, space, or volume occupied by or devoted to a lawful nonconforming use is not allowed.

2. Substantial expansions and changes to a nonconforming use, as used in Table 23.324-1, means:

(a) All changes to a use listed in 23.404.070.B (Permit Modification Required); and

(b) Extending the nonconforming use into an existing or expanded portion of a building which has not been previously occupied by that nonconforming use.

B. Abandoned Uses.

1. Termination.

(a) Subject to the exceptions in Paragraph 2 (Exceptions) below, the ZAB may declare a lawful nonconforming use to be terminated upon finding that:

i. The use has not occurred for at least one year; and

ii. The most recent prior user has not shown a good-faith intent to resume it.

(b) The ZAB may require any person claiming that the use should not be declared terminated to produce documentation to substantiate good faith intent to resume the use.

2. Exceptions.

(a) Residential Uses. No lawful residential use can lapse, regardless of the length of time of the non-use.

(b) Uses with Major Investments. Lawful nonconforming food services establishments with cooking or food preparation facilities, gas/auto fuel stations, theaters, manufacturing plants with specifically designed fixed facilities and other uses which represent a major investment in physical plant or facilities shall not be considered or declared terminated, regardless of the duration of non-use, unless:

i. Such fixed structures, equipment, or facilities are removed; or

ii. Other uses could not be established without major removal of or extensive remodeling or replacement of structures associated with the previous established use.

(c) Alcoholic Beverage Retail Sales. If a lawful nonconforming alcoholic beverage retail sale use is closed is more than 90 days, the Zoning Adjustments Board (ZAB) may not declare the use terminated if the use was closed due to:

i. Repair that does not change the nature of the license premises or increase the square footage of the business used for alcoholic beverages sales; or

ii. Restoration of premises made totally or partially unusable by an act of nature, fire, accident, or other involuntary cause where the restoration does not increase the square footage of the business used for alcoholic beverage sales. (Ord. 7898-NS § 20, 2024; Ord. 7787-NS § 2 (Exh. A), 2021)

A. Maintenance and Repair. A lawful nonconforming structure or building may be maintained and repaired, as long as such maintenance or repair does not result in a change to the use of the structure or building.

B. Replacement. Replacing portions of a nonconforming structure or building is allowed if the removed portions were lawfully constructed and are replaced to the same size, height, extent, and configuration as previously existed.

C. Removal.

1. A nonconforming portion of a nonconforming structure or building may be removed by right if such removal does not constitute demolition.

2. For a structure or building subject to the Landmarks Preservation Ordinance, the regulations under Municipal Code Section 3.24 (Landmarks Preservation Commission) apply.

D. Expansion and Alteration.

1. General. An addition to or enlargements of a lawful nonconforming structure or building is allowed if:

(a) The addition or enlargement complies with all applicable laws;

(b) The existing use of the structure or building is conforming, except as provided below in Paragraph 4 (Property with Nonconforming Use); and

(c) The addition or enlargement obtains all permits required by this subsection.

2. Nonconforming Setbacks and Height.

(a) An AUP is required for an addition or enlargement that:

i. Vertically or horizontally extends a building wall projecting into a minimum required setback;

ii. Horizontally extends the portion of a building exceeding the height limit;

iii. Alters the portion of a building (including windows and other openings) projecting into a minimum required setback; or

iv. Alters the portion of a building exceeding the height limit.

(b) The Zoning Officer may approve the AUP only if:

i. The addition or enlargement does not increase or exacerbate any nonconforming setbacks; and

ii. The addition or enlargement does not exceed maximum or calculated height limits.

3. Nonconforming Coverage, FAR, and Density.

(a) A Use Permit is required for an addition to and/or enlargement of a structure or building that exceeds the maximum allowed lot coverage, or maximum floor area ratio, or is nonconforming to minimum or maximum residential density.

(b) The ZAB may approve the Use Permit only if the project does not:

i. Increase or exacerbate the nonconformity; or

ii. Exceed the height limit.

(c) The provisions of this section do not apply to Residential Uses in the R-1, R-2, R-2A or MU-R Zoning Districts.

4. Property with Nonconforming Use.

(a) A Use Permit is required for an addition to and/or enlargement of a lawful nonconforming structure or building on a property with a lawful nonconforming use.

(b) The Use Permit is required whether or not the nonconforming use occupies the subject structure or building.

E. Tenant Space Reconfigurations.

1. The reconfiguration of non-residential tenant space in a nonconforming structure or building requires permits as follows:

(a) AUP for structures or buildings nonconforming to setback, height, or lot coverage standards.

(b) Use Permit for structures or buildings nonconforming to FAR standards.

2. The reconfiguration is allowed only if the existing use of the property is conforming.

F. Damage and Reconstruction.

1. Calculation of Appraisal Value. As used in this subsection, the "appraised value" of a structure or building is the higher of:

(a) The records of the Assessor of the County of Alameda for the fiscal year during which such destruction occurred; or

(b) An appraisal performed by a certified appraiser.

2. Damage Less than 50 Percent. If 50 percent or less of its appraised value of a lawful nonconforming structure or building is damaged or destroyed for any reason, the replacement of the damaged portions of the structure or building is allowed by right if the replaced portions are the same size, extent, and configuration as previously existed.

3. Damage More than 50 Percent.

(a) Except as provided in Paragraph 4 (Residential Buildings with Four Units or Less) below, if more than 50 percent of the appraised value of a lawful nonconforming structure or building is damaged or destroyed for any reason, the structure or building shall either:

i. Be brought into full compliance with the requirements of the Zoning Ordinance; or

ii. Receive ZAB approval of a Use Permit for the structure or building to be rebuilt to the same size, extent, and configuration as previously existed. To approve the Use Permit, the ZAB must find that the previous use will be continued in a manner that meets the requirements of this chapter.

4. Residential Structures or Buildings with Four Units or Less.

(a) A conforming or nonconforming residential-only structure or building with four residential units or less, including any accessory structures or buildings, that is involuntarily damaged or destroyed may be replaced or reconstructed with a Zoning Certificate.

(b) The Zoning Certificate may be approved only if all of the following conditions exist:

i. The structure or building, or any portion thereof, has been destroyed by any involuntary cause including fire, earthquake, or flood.

ii. The replacement structure or building or portion thereof is substantially similar in use, dimensions, floor area, square footage, envelope, lot coverage, footprint, and number of units to the destroyed structure or building or portion thereof that it is designed to replace.

iii. The replacement or repair complies with all currently applicable building codes and any other regulations including any ordinance or emergency regulation adopted by the City Council or the Director of Emergency Services to protect against serious safety problems at the site such as engineering conditions and soil stability.

(c) Where a structure or building to be replaced or rebuilt does not conform to Paragraph (b)(ii) above and is to be expanded or changed, the structure or building is subject to all otherwise applicable regulations governing such expansion or change.

(d) The Planning Director shall establish a process that allows an owner of a qualifying residential structure or building to apply for an advance determination that the proposed repair or replacement of a structure or building is substantially similar as required by Paragraph (b)(ii) above including the information required to document existing conditions.

(e) The Planning Director shall develop a description or building information for owners of qualifying residential structures or buildings required by the City to document existing characteristics of the building in case of future damage or destruction. (Ord. 8003-NS § 1, 2026; Ord. 7978-NS § 44, 2025; Ord. 7882-NS §§ 24, 25, 2023; Ord. 7787-NS § 2 (Exh. A), 2021)

A. Public Safety Structural Alterations.

1. General. The following public safety structural alterations or extensions to conforming and nonconforming buildings are permitted by right to the extent necessary, as determined by the Zoning Officer:

(a) Vertical and/or horizontal extensions of a nonconforming setback.

(b) Horizontal extensions of a nonconforming height.

(c) Vertical extensions of a nonconforming height in residential districts.

(d) Alterations of a portion of a building that encroaches into a nonconforming setback.

(e) Extensions of nonconforming lot coverage.

(f) Structural alterations to nonconforming residential density.

(g) Structural alterations to nonconforming buildings located on a property that also contains a lawful nonconforming use, whether or not that use occupies the subject building or structure.

2. Parking. Public safety structural alterations to a conforming or lawful nonconforming building or structure that reduce, relocate, or remove required parking spaces are permitted as follows:

(a) Parking spaces may be converted to substandard compact spaces if approved by the Traffic Engineer.

(b) Parking spaces may be relocated into a setback or other location by right to the extent necessary, as determined by the Zoning Officer, if:

i. The requirements in Paragraph (a) above cannot be met.

ii. The screening and landscaping requirements in Chapter 23.322 (Parking and Loading) are met.

iii. The parking relocation is approved by the Traffic Engineer.

(c) Required parking may be removed if the Traffic Engineer determines that the requirements of Paragraphs (a) and (b) above cannot be met.

3. Aesthetic Improvement or Screening. Any aesthetic improvement or screening that the Zoning Officer determines is associated with a public safety structural alteration shall be treated as part of the public safety structural alteration.

B. Existing Public Libraries.

1. Notwithstanding any other provision in the Zoning Ordinance, a conforming or lawful nonconforming public library existing as of May 1, 2010 may be changed, expanded, or replaced by a new public library on the same site following demolition, subject to issuance of a Use Permit.

2. If the change, expansion, or new library is allowed by right under the Zoning Ordinance, a Use Permit is not required.

3. The ZAB may modify any requirement of the Zoning Ordinance applicable to such change, expansion, or new library as part of the Use Permit.

C. Accessory Dwelling Units. The following alterations of a lawful nonconforming existing structure or building that is an existing ADU or proposed to be converted to an ADU are permitted with a Zoning Certificate:

1. New windows, doors, or other openings to a portion of a building or structure within a minimum required setback.

2. New windows, doors, or other openings to a portion of a building or structure exceeding the height limit. (Ord. 7888-NS § 14, 2023; Ord. 7787-NS § 2 (Exh. A), 2021)