Berkeley Municipal Code Ch. 23.410 Appeals and Certifications

This chapter establishes procedures for the appeal and certification of City actions made when administering the Zoning Ordinance. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. General. City actions made when administering the Zoning Ordinance may be appealed as shown in Table 23.410-1: Appeal Subjects and Review Authority.

B. Code Enforcement Appeals. See Municipal Code Chapter 1.24 (Abatement of Nuisances).

C. Landmarks Preservation Commission Appeals. Decisions by the Landmarks Preservation Commission (LPC) when administering the Zoning Ordinance shall be appealed in accordance with Municipal Code Chapter 3.24 (Landmarks Preservation Commission).

Table 23.410-1. APPEAL SUBJECTS AND REVIEW AUTHORITY

Notes:

[1]The Zoning Officer may extend the appeal period for a longer time.

[2]For reasonable accommodation requests associated with a project requiring a discretionary permit (e.g., Use Permit), the appeal procedures are the same as for the discretionary permit.

[3]The City Manager’s decision is final. No further appeal is allowed.

[4]Determinations of conformity with Downtown Design Guidelines for Streamlined Entitlement Process (Section 23.408.080) is appealed directly to the City Council.

(Ord. 8007-NS § 22, 2026; Ord. 7787-NS § 2 (Exh. A), 2021)

A. General. Appeals shall be filed and processed consistent with Chapter 23.404 (Common Permit Requirements) except as otherwise specified in this chapter.

B. Eligibility and Timing of Appeal. Table 23.410-1 shows who is eligible to file an appeal and the date by which an appeal must be filed.

C. Appeal Fees.

1. Appeal fees shall be paid by the person filing the appeal (the appellant) except as provided in Paragraph (2) below.

2. The City shall not charge a fee for appeals of projects denied due to conflicting decisions of the Zoning Adjustments Board (ZAB) and Landmarks Preservation Commission as described in Sections 3.24.200 through 3.24.240 of Chapter 3.24 (Landmarks Preservation Commission).

D. Form of Appeal.

1. An appeal shall be submitted to the Department or City Clerk in writing together with all required application fees and shall include the name and contact information of the appellant.

2. The appeal application shall state the pertinent facts and the basis for the appeal.

3. The whole decision or part of the decision may be appealed. If an appellant chooses, an individual finding, action, or condition may be appealed.

E. Appeal Subject--Design Review. Appeals of the Design Review Committee and staff-level Design Review decisions are limited to design-related issues.

F. Takings Claims.

1. If a basis of an appeal is that the review authority’s action constituted a taking of property under the California or United States Constitutions, that basis and all supporting evidence and argument shall be clearly stated as a basis of the appeal, or it shall be waived.

2. If specific evidence is not presented as part of the appeal, the takings claim shall be waived, and appellant shall be deemed to have waived any claim to sworn testimony and cross-examination.

3. This requirement shall apply to appeals on the basis that the review authority’s decision or any condition of approval:

(a) Denied the applicant any reasonable economic use of the subject property;

(b) Was not sufficiently related to a legitimate public purpose;

(c) Was not sufficiently proportional to any impact of the project; or

(d) For any other reason constituted a taking of property for public use without just compensation.

G. Copy to Zoning Officer. If the appeal is submitted to the City Clerk, the City Clerk shall forward a copy to the Zoning Officer.

H. Notice to Applicant. If the appeal is made by someone other than the applicant, the Department shall forward a copy of the written appeal to the applicant.

I. Effect of Appeal. Once an appeal is filed, any action on the associated project is suspended until the appeal is processed and a final decision is made by the review authority. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Scheduling of Hearing.

1. Upon receiving an appeal, the Department shall schedule a hearing with the appropriate review authority.

2. For appeals of projects denied due to conflicting decisions of the ZAB and Landmarks Preservation Commission, the City Council shall schedule a hearing at the earliest feasible date after the final ZAB or Landmarks Preservation Commission action.

3. Any appeal of a Design Review decision shall be heard by the review body within 45 days of the appeal filing.

4. All appeals on a single project shall be considered together at the same hearing.

B. Public Notice. Notice of appeal hearings shall be given in accordance with Section 23.404.040 (Public Notice).

C. Staff Report and Materials. Before the hearing, Department staff shall prepare a staff report describing the appeal with relevant supporting materials.

D. Hearing Procedures. Public hearings on an appeal shall be conducted in accordance with applicable procedures in Section 23.404.040 (Public Notice).

E. De Novo Review.

1. The review authority may take action on the subject of the appeal or any aspect of the appealed project (de novo review), except as provided in Paragraph (2) below.

2. For appeals of Design Review decisions, the review authority may take action only on design-related issues.

F. Public Comment. The review authority may consider written correspondence concerning the appeal that is submitted after the appeal is filed, as well as any other information or evidence permitted under the Council Rules of Procedure.

G. Action. At the appeal hearing, the review authority may:

1. Continue the public hearing;

2. Modify, reverse, or affirm, wholly or partly, any decision, determination, condition or requirement of the prior review authority; or

3. For appeals to the City Council, remand the matter to the prior review authority to reconsider the application, and/or any revisions to the application submitted after the review authority’s action.

H. Criteria for Decision.

1. When acting on an appeal, the appeal review authority shall use the same decision-making criteria and shall make the same findings as the prior review authority.

2. The review authority’s action shall be based upon findings of fact about the appeal and shall identify the reasons for action on the appeal. In doing so, the appeal review authority may adopt the prior review authority’s decision and findings as its own.

I. Timeframe for Action--Use Permit and Variance Appeals. If the City Council does not act on a Use Permit or Variance appeal within 30 days from the date the public hearing was closed by the City Council, then the decision of the ZAB shall be deemed affirmed and the appeal denied.

J. Board Action on Remand.

1. A ZAB decision on an appeal remanded by the City Council may be appealed in the normal manner unless otherwise directed by the City Council.

2. If the ZAB does not act within 90 days after an appeal is remanded by the City Council, the original appeal of the ZAB’s decision shall be placed back on the City Council agenda in the same manner as a new appeal.

K. Effective Date of Appeal Decisions.

1. City Council Decision. The City Council’s decision on an appeal is final and becomes effective on the date the decision is made.

2. ZAB Decisions. Decisions on appeals made by the ZAB becomes effective 14 days after the mailing of the Notice of Decision. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose. Certification is an action by the City Council to review a decision by the ZAB or LPC.

B. Eligible Actions. The City Council may certify the following actions for review:

1. Decisions of the ZAB on Use Permit and Variance applications.

2. Decisions of the LPC on historic resource designations as provided in Section 3.24.190 (Council certification authorized when--effect).

C. Initiation.

1. Any Council member may initiate the certification process by submitting a written request to the City Clerk within:

(a) 14 days from the mailing of the Notice of Decision for ZAB decisions; and

(b) 15 days from the mailing of the Notice of Decision for LPC decisions.

2. Certification shall not require any statement of reasons or justification and shall not represent opposition to or support of an application.

D. Effect of Certification. After initiating certification, any action on the associated project is suspended until City Council review is completed.

E. Hearing and Decision. Certified actions shall be reviewed by the City Council at a noticed public hearing in the same manner as for appeals as described in Section 23.410.040 (Hearing and Decision). (Ord. 7787-NS § 2 (Exh. A), 2021)