Berkeley Municipal Code Ch. 23.330 Density Bonus

The purpose of this chapter is to:

A. Establish procedures and local standards to implement California Government Code Sections 65915--65918 consistent with local zoning regulations and development standards; and

B. Provide special provisions consistent with the intent of State and local law. Unless otherwise noted, all section references in this chapter are to the California Government Code. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Terms Defined. Terms used in this chapter are defined as follows:

1. Administrative Regulations. Guidelines and procedures promulgated by the Planning Director that may be modified from time to time to effectively implement this ordinance.

2. Base Project. The maximum allowable residential density on a housing development site pursuant to the applicable zoning district or, where no density standard is provided, as set forth in the Administrative Regulations before applying the density bonus.

3. Density Bonus. Those residential units, floor area, rental beds or bedrooms added to the Base Project pursuant to the provisions of Government Code Section 65915 and this chapter.

4. Eligible Housing Development. As defined in Government Code Section 65917.2.

5. Housing Development. As defined in Government Code Section 65915(i).

6. Incentive and Concession. An incentive or a concession as the terms are used in Government Code Section 65915 and in particular as defined in Section 65915(k) thereof. The City may request reasonable documentation from the applicant to support the request.

7. Qualifying Unit. A unit that is provided at a below market-rate rent or sales price as set forth in Government Code Section 65915 to receive a Density Bonus and/or Waivers and Reductions and/or Incentives and Concessions.

8. Waiver and Reduction. A waiver or a reduction as the terms are used in Government Code Section 65915 and in particular in Section 65915(e) thereof, and means any and all changes to or exemptions from physical lot development standards that are required to avoid precluding the construction of a Housing Development with Density Bonus Units, as set forth in Section 65915(e). The City may request reasonable documentation from the applicant to support the request.

B. Terms Not Defined. Terms not defined in this section shall be interpreted to give this chapter its most reasonable meaning and application, consistent with applicable state and federal law. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Required Information. In addition to any other information required by the Zoning Ordinance, an application for a density bonus must include the following information:

1. How the proposed project will satisfy the eligibility requirements of Section 65915 or 65917.2.

2. For those districts without density standards, a density bonus schematic as set forth in the City of Berkeley Administrative Regulations.

3. The requested density bonus pursuant to Municipal Code Section 23.330.040 (Density Bonus Calculations and Procedures).

4. Any waivers and reductions that are sought under Section 65915.e that would be required to accommodate the housing development including the density bonus units.

5. Any incentives and concessions that are sought under Section 65915.d accompanied by documentation of resulting cost reductions to provide for affordable housing costs.

6. Any requested additional bonus units under Section 65915.n.

7. Any requested parking reductions under Section 65915.p.

8. Whether the applicant elects to receive a density bonus that is less than that mandated by Section 65915, including a density bonus of zero. In such cases, the applicant retains their entitlement to incentives and concessions.

9. Documentation of how a project complies with regulations regarding replacement units as described in Section 65915.c.3.

B. Repealed.

(Ord. 8007-NS § 20, 2026; Ord. 7787-NS § 2 (Exh. A), 2021)

A. Calculation. Density bonuses must be calculated as set forth in Section 65915, 65917.2, and pursuant to the Administrative Regulations.

B. Procedures. Density bonus requests must accompany housing development permit applications and will be decided upon concurrent with the underlying permit for the project. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Calculation. For purposes of this chapter, the number of incentives and concessions are counted as follows:

1. Any incentive and concession that would otherwise require discretionary approval by the Zoning Officer, the ZAB, or City Council of any single dimensional lot development standard, such as height or setbacks, or any single quantitative lot development standard, such as parking or open space, counts as one.

2. A proposed incentive and concession that would involve exceedance of a single physical lot development standard counts as one even if that exceedance would otherwise require more than one permit (e.g., extra height may require permits for height, floor area ratio, and/or number of stories but would count as one incentive and concession for height).

3. Where it is ambiguous as to whether a proposed incentive and concession involves one or more dimensional or quantitative lot development standards, the stricter interpretation applies, as determined by the review authority.

B. Procedural Requirements.

1. The City shall grant incentives and concession unless findings are made as set forth in Section 65915d.1.

2. The City is not required to deny a proposed incentive and concession solely because it can make a finding under Section 65915.d.1.

3. The City bears the burden of proof for the denial of a requested incentive and concession.

4. Unless denied under Section 65915, incentives and concessions are exempt from discretionary review of permits under the Zoning Ordinance, other than Design Review, and by law do not modify the CEQA review status of a project. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Proposal. An applicant may submit to the City a proposal for waivers and reductions of development standards that physically prevent construction of a housing development and density bonus units meeting the criteria of Section 65915.b.

B. Negotiated Process. The City may negotiate changes to the requested waivers and reductions as part of the Use Permit and Design Review process, in coordination with the applicant, to address aspects of the project that may be of concern in the community or inconsistent with overarching principles of the General Plan, Zoning Ordinance, and Design Guidelines.

C. Denial. The City may deny waivers and reductions for the reasons set forth in Section 65915.e.1. (Ord. 7787-NS § 2 (Exh. A), 2021)

Qualifying units must meet the standards set forth in Chapter 23.328 (Affordable Housing Requirements). (Ord. 7853-NS § 3, 2023)

Before issuance of a certificate of occupancy for a housing development that has received a density bonus, the applicant must enter into a regulatory agreement in a form provided by the City that implements Sections 65915--65918 and this chapter. (Ord. 8007-NS § 21, 2026; Ord. 7787-NS § 2 (Exh. A), 2021)