Berkeley — Nonconforming Uses

Last reviewed: June 29, 2026

Overview

Berkeley regulates nonconforming lots, uses, structures, and buildings in the City’s Zoning Ordinance, Title 23, Chapter 23.324. In plain terms, the City lets many lawfully established nonconformities continue, but tightly controls expansions, changes, lapses, and reconstruction. If you’re planning a change that also affects parking, triggers design review, or falls under an overlay, you’ll need to navigate both the citywide nonconforming rules and the base-district standards in Berkeley Zoning and Berkeley Development Standards.

What counts as a “lawful” nonconformity

• Title 23 recognizes nonconforming lots/uses/structures that were lawfully created and have remained in continuous existence; if your status issue is only a missing permit, the City may “cure” it by issuing the right Zoning Certificate, AUP, or Use Permit (UP) so the use/structure becomes conforming. See 23.324.010–.020 .
• Transitional provisions confirm that any parcel, land use, or structure lawfully established before the effective date of the Baseline Zoning Ordinance (BZO) but not compliant today is treated as nonconforming and governed by Chapter 23.324 .

Nonconforming lots (23.324.030)

• A lot smaller than the current minimum is a lawful nonconforming lot if it was a recorded lot of record before November 30, 1950, appears on a subdivision map filed before that date, or (in ES-R) was recorded before February 13, 1975. A lawful nonconforming lot may still be used as a building site subject to all other requirements .
• Where the same owner holds multiple contiguous substandard vacant lots fronting the same street (on/after September 1, 1958), they can be used only as one building site .

Nonconforming uses (23.324.040)

• Permit thresholds for changes to a lawful nonconforming use are set by Table 23.324‑1: minor changes that result in a conforming use in a conforming building may need only a Zoning Certificate (ZC); other changes to a nonconforming use typically need an AUP; any substantial expansion or change needs a UP (Public Hearing). In ES‑R, increasing the area/space/volume occupied by a nonconforming use is not allowed at all .
• “Substantial expansions/changes” include extensions of the nonconforming use into portions of a building it didn’t previously occupy, and other changes listed in 23.404.070.B (Permit Modification Required) .
• Abandonment: The Zoning Adjustments Board (ZAB) may declare a lawful nonconforming use terminated after one year of non-use if there’s no good‑faith intent to resume; however, lawful residential uses never lapse, and certain “major investment” uses (e.g., full/quick service restaurants with built-in cooking facilities, gas stations, theaters, manufacturing plants with fixed facilities) do not lapse unless specialized facilities are removed or would require major removal/replacement for any new use. Limited protections also apply for temporarily closed nonconforming alcoholic beverage retail uses (e.g., repairs or restoration after an involuntary event) .

Nonconforming structures and buildings (23.324.050)

• Maintenance/repair are allowed if the use doesn’t change; replacing portions of a nonconforming building is allowed if rebuilt to the same size, height, extent, and configuration .
• Expansions/alterations:
  • Extending walls in a nonconforming setback or portions exceeding height limits generally requires an AUP; approval hinges on not increasing or exacerbating the nonconformity and staying within height limits .
  • If the structure already exceeds maximum lot coverage, FAR, or residential density, additions need a UP and cannot increase/exacerbate the nonconformity or exceed height limits .
  • On property that contains any lawful nonconforming use, additions to any building need a UP, even if the addition is to a different (conforming) building on the same lot .
  • Nonresidential tenant-space reconfigurations in nonconforming buildings require an AUP if the nonconformity is setbacks/height/coverage, and a UP if FAR is nonconforming; allowed only if the property’s existing use is conforming .
• Damage/reconstruction:
  • If a lawful nonconforming building is damaged ≤50% of appraised value, you may replace the damaged portion by right to the same size/extent/configuration; if >50%, you must either bring it fully into compliance or obtain a UP to rebuild the nonconforming envelope as before. A streamlined ZC path allows like‑for‑like reconstruction of a residential-only building with four or fewer units that was involuntarily destroyed, if rebuilt “substantially similar” and compliant with current safety codes .

Exemptions for public-safety structural work (23.324.060)

• Certain structural alterations/extensions needed for public safety are allowed by right even if they extend nonconforming setbacks, height, lot coverage, or density, including on sites with nonconforming uses. Parking reductions/relocations/removal are also authorized when necessary, if approved by the Traffic Engineer and compliant with Chapter 23.322 screening/landscaping standards; this is a key interaction with parking rules .
• Existing public libraries (as of May 1, 2010) may be changed/expanded/replaced on the same site with a UP; ZAB may modify other zoning requirements as part of that UP .
• For exterior changes on landmarked properties, see Berkeley Historic Preservation; Landmarks Preservation Ordinance rules apply in addition to zoning .

How nonconforming rules interact with Berkeley’s districts

The nonconformity chapter applies citywide across all districts listed in Table 23.108‑1 and on the Official Zoning Map (e.g., R‑1, R‑1A, ES‑R, R‑2, R‑2A, R‑3, R‑4, R‑5, R‑S, R‑SMU; C‑C, C‑U, C‑N, C‑E, C‑NS, C‑SA, C‑T, C‑SO, C‑DMU, C‑W, C‑AC; M, MM, MU‑LI, MU‑R) . Below are brief district spotlights with where nonconforming issues most often arise; district‑specific development standards live in Division 2 (23.202 Residential, 23.204 Commercial, 23.206 Manufacturing) and citywide standards in 23.304.

R-1 Single-Family Residential (23.202.050)

• Purpose: protect low‑density single‑family patterns and light/air access; allow community facilities that serve the neighborhood .
• Typical allowed uses: single‑family dwellings and accessory uses per the Residential Allowed Uses table (23.202‑1) .
• Key dimensional standards: set in R‑1 tables under 23.202.050 and citywide 23.304; verify parcel specifics (Not found in retrieved materials).
• Nonconformity pinch points: additions that extend nonconforming setbacks/height require an AUP (23.324.050.D.2) .

R-1A Limited Two-Family (23.202.060)

• Purpose/uses/standards: see 23.202.060 and citywide 23.304 (Not found in retrieved materials).
• Nonconformity pinch points: same as R‑1; check lot coverage/FAR/density triggers for UP under 23.324.050.D.3 .

ES-R Environmental Safety–Residential (23.202.070)

• Purpose: protect the Panoramic Hill area’s unique safety constraints; intensification requires findings that the project won’t threaten residents’ safety/welfare .
• Typical standards: front/rear setbacks 20 ft, interior 15 ft, street side 15 ft; main building height 35 ft (with findings for increases), and specific limits on residential‑addition height (e.g., 14 ft by right for additions, higher only with AUP/UP) .
• Unique nonconformity rule: no additions/enlargements to a structure that contains a nonconforming use; alterations to a nonconforming structure with a conforming use may proceed subject to 23.324.050.D .

R-2 Restricted Two-Family (23.202.080)

• Purpose: enable low‑medium density (single‑family to duplex/small apartments) while preserving light/air and open space .
• Dimensional standards: see R‑2 tables at 23.202.080.D and citywide 23.304 (Not found in retrieved materials).
• Nonconformity pinch points: extensions in nonconforming setbacks/height need AUP; exceeding coverage/FAR/density triggers UP (23.324.050.D) .

R-2A Restricted Multiple-Family (23.202.090)

• Typical standards: for new buildings, average height 28 ft/3 stories (to 35 ft with AUP). Setbacks for 1st/2nd/3rd stories are 15 ft front/rear, 4/4/6 ft interior sides, 6/8/10 ft street side; lot coverage max 45/40/35% for 1/2/3 stories (corner lots 50/45/40%) .
• Nonconformity pinch points: same as R‑2.

R-3 Multiple-Family (23.202.100)

• Purpose: encourage relatively high‑density residential with usable open space in accessible locations (summary per 23.202.100.A) .
• Uses/standards: see 23.202.100 and 23.304 (Not found in retrieved materials). Nonconformity controls per 23.324.

R-4 Multi-Family (23.202.110); R-5 High‑Density (23.202.120)

• Purpose/uses/standards: see 23.202.110 and 23.202.120; rely on 23.304 for citywide metrics (Not found in retrieved materials).
• Nonconformity: additions that worsen nonconforming envelopes require AUP/UP per 23.324.050.D .

R-S Residential Southside; R-SMU Residential Southside Mixed Use (23.202.130–.140)

• Uses/standards: see district sections and 23.304. Some retail may be accessory in R‑S/R‑SMU (see 23.202.040.B) .
• Setback reductions are sometimes allowed in R‑SMU with AUP (reduced minimum to “no minimum” in specific contexts north of Durant Avenue) .
• Nonconformity: same 23.324 framework; verify Southside‑specific findings.

C-C Corridor Commercial; C-U University Commercial (23.204.050–.060)

• Allowed uses and permits are in the master table at 23.204.020; C‑U includes University Avenue frontage/open‑space feature requirements (e.g., minimum open space at street or podium level equal to 10% of required resident‑serving open space) .
• Nonconformity: tenant-space reconfigurations in nonconforming buildings often require AUP/UP per 23.324.050.E .

C-N Neighborhood Commercial (23.204.070)

• Purpose: local‑serving convenience goods/services, compatibility with nearby housing, minimize traffic/parking spillover .
• Development standards: see 23.204‑17; allowed uses: see Table 23.204‑1 .

C-E Elmwood Commercial (23.204.080)

• For residential‑only buildings in C‑E, front/rear setbacks are 15 ft (all stories), interior sides 4/4/6 ft, street side 6/8/10 ft, and building separations 8/12/16 ft for 1st/2nd/3rd stories respectively; lot coverage limits vary by stories (e.g., 45%/45%/40% for interior/through lots) .

C-NS North Shattuck; C-SA South Area; C-T Telegraph; C-SO Solano; C-DMU Downtown Mixed Use; C-W West Berkeley; C-AC Adeline (23.204.090–.150)

• Allowed uses/permits are consolidated in Table 23.204‑1, with district‑specific development standards in each section .
• Example: in C‑DMU, tiered development controls show typical FAR ranges from 2.0 to 5.0 and heights 35–80 ft depending on affordability tier and project type (see district tables) .
• Nonconformity: exterior modifications to nonconforming commercial buildings may also trigger design review in addition to 23.324 permits (Verify with the jurisdiction).

Manufacturing: M, MM, MU‑LI, MU‑R (23.206)

• Purpose: maintain industrial districts per the West Berkeley Plan; protect and support manufacturing/industrial jobs and character; each district has additional findings and protected non‑industrial use rules (e.g., category‑protected arts and childcare) .
• Allowed uses/permits appear in 23.206 tables; many entertainment/visitor uses are restricted; vehicle service/sales vary by district and permit type .
• Nonconformity: as with other districts, 23.324 governs expansions, tenant‑space changes, and reconstruction.

Overlays and special purposes (23.210; 23.208)

• Overlay standards (e.g., Hillside Overlay) add to, and may supersede, base‑district standards where in conflict; check Berkeley Overlay Districts and district maps before planning nonconforming alterations .
• The Specific Plan and Unclassified districts are addressed at 23.208; always confirm overlay applicability (Verify with the jurisdiction) .

Additional topic crossovers to watch

• ADUs: State law limits a city’s ability to deny an ADU because of existing nonconforming zoning conditions that don’t affect health/safety; see Berkeley ADUs and the state ADU guidance for this narrow context .
• Building safety codes: Reconstruction “substantially similar” after involuntary destruction must meet current safety codes; coordinate early with the California Building Standards Code authority while keeping zoning approvals distinct (23.324.050.F) .

Key nonconforming decision points (Table)

Checklist

• Confirm the use/structure/lot was lawfully established and has remained in continuous existence (23.324.020.D) .
• Identify whether the site is in ES‑R, Southside, Downtown, or a manufacturing district that has special nonconforming nuances or protected uses (23.202, 23.204, 23.206) .
• Determine if your change is a “substantial expansion/change” of a nonconforming use; apply Table 23.324‑1 to select ZC vs AUP vs UP (23.324.040.A) .
• For structural changes, test whether you’re extending a wall in a nonconforming setback/height (AUP) or touching coverage/FAR/density (UP) (23.324.050.D) .
• If the property contains any nonconforming use, plan for a UP for additions anywhere on the lot (23.324.050.D.4) .
• If damaged, document appraised value and percent damage to determine the ≤50% vs >50% reconstruction path (23.324.050.F) .
• If proposing health/safety retrofits, use the public‑safety exemption and coordinate any parking relocation/removal per Chapter 23.322 and Traffic Engineer review .
• Check overlays and landmarks status; overlays may supersede base standards, and landmarks have separate review (23.210; BMC 3.24) .
• If adding an ADU, note state limits on conditioning approval on fixing unrelated nonconforming zoning conditions (state ADU law guidance) .

Risks & Ambiguities

Plain-English Summary

If your building or use was legal when created but doesn’t meet today’s rules, Berkeley usually lets it stay. But if you want to change it, the City sets tight lines: small changes may be easy, while expansions—especially into setback/height space or where coverage/FAR/density are already over the limit—often need special permits and can’t make the nonconformity worse. If a nonconforming use stops for a year, it may lose protection, and big damage can force full compliance unless you secure a special approval.

Source References

• Title 23, Chapter 23.324 Nonconforming Uses, Structures, and Buildings: purpose, general, lots, uses, structures, exemptions (23.324.010–.060) .
• Transitional provisions tying nonconformities to Chapter 23.324 (23.102.080.E) .
• Residential districts (23.202), including R‑1 purpose (23.202.050), ES‑R standards and ES‑R nonconformity limits (23.202.070), R‑2 purpose (23.202.080), R‑2A numeric standards (Tables 23.202‑8/‑9/‑10), and related residential allowed‑uses table context (23.202‑1) .
• Commercial districts master allowed-uses table and district sections (23.204.010–.150); C‑E setbacks/coverage for residential‑only buildings; C‑U open‑space features; C‑N purpose/standards .
• Manufacturing districts (23.206), protected non‑industrial uses/change‑of‑use permits, district purposes/findings, and allowed-use patterns .
• Overlays and special district structure (23.208; 23.210) and district list/map (23.108; Appendix tables) .
• State ADU guidance on nonconforming zoning conditions (for ADU-specific cases) .

Retrieved passages

• Berkeley Zoning Code High relevance show source text
• Berkeley Zoning Code High relevance show source text
• Berkeley Zoning Code (Chapter Purpose) High relevance show source text
• Berkeley Zoning Code (Section 3.24) High relevance show source text
• CBC § 66314 (§ 66314) Medium relevance show source text
• CBC § 66321 (§ 66321) Medium relevance show source text
• Berkeley Zoning Code (Section 23.502.020.B) Medium relevance show source text
• Berkeley Zoning Code (§ 66314) Medium relevance show source text
• Berkeley Zoning Code (Section 23.202.070.A) Medium relevance show source text
• Berkeley Zoning Code (Title 23A) Medium relevance show source text
• Berkeley Zoning Code (Chapter Purpose.244) Medium relevance show source text
• Berkeley Zoning Code (Section 23.206.100) Medium relevance show source text
• Berkeley Zoning Code Medium relevance show source text
• Berkeley Zoning Code Medium relevance show source text
• Berkeley Zoning Code (Chapter 23.406) Medium relevance show source text
• Berkeley Zoning Code (Section 23.306) High relevance show source text
• Berkeley Zoning Code (Chapter Purpose.269) Medium relevance show source text
• CBC § 202 (section 202) Medium relevance show source text
• Berkeley Zoning Code Medium relevance show source text
• Berkeley Zoning Code Medium relevance show source text
• Berkeley Zoning Code (chapter alongside) Medium relevance show source text

Cited sections

• Title 23, Chapter 23.324 Nonconforming Uses, Structures, and Buildings: purpose, general, lots, uses, structures, exemptions (23.324.010–.060) . (Title 23)
• Transitional provisions tying nonconformities to Chapter 23.324 (23.102.080.E) . (Chapter 23.324)
• Residential districts (23.202), including R‑1 purpose (23.202.050), ES‑R standards and ES‑R nonconformity limits (23.202.070), R‑2 purpose (23.202.080), R‑2A numeric standards (Tables 23.202‑8/‑9/‑10), and related residential allowed‑uses table context (23.202‑1) .
• Commercial districts master allowed-uses table and district sections (23.204.010–.150); C‑E setbacks/coverage for residential‑only buildings; C‑U open‑space features; C‑N purpose/standards .
• Manufacturing districts (23.206), protected non‑industrial uses/change‑of‑use permits, district purposes/findings, and allowed-use patterns .
• Overlays and special district structure (23.208; 23.210) and district list/map (23.108; Appendix tables) .
• State ADU guidance on nonconforming zoning conditions (for ADU-specific cases) .
• Berkeley_ZoningCode.md

• Official Berkeley code library