1. "Evaluate" means the Department presents to the review authority an evaluation of the application as provided in Section 23.404.030.D (Project Evaluation and Staff Report).

2. "Recommend" means the authority reviews and makes a recommendation to a higher decision-making body.

3. "Decision" means the authority has the power to approve, conditionally approve, or deny an application.

4. "Appeal" means the authority has the power to hear an appeal of a decision by a lower review authority.

5. "--" means the authority role has no role in the application.

1. The Zoning Officer:

2. The Zoning Officer may designate one or more Planning and Development Department staff to perform the duties described in Paragraph (1) above.

1. Present to the ZAB and DRC applications for permits and other requested approvals;

2. Prepare staff reports on applications;

3. Advise the ZAB and DRC on the meaning and applicability of the Zoning Ordinance; and

4. Transmit to the City Attorney requests for legal opinions on pending applications. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. Municipal Code Chapter 3.24 identifies the responsibilities and powers of the Landmarks Preservation Commission.

2. Design Review. The Landmarks Preservation Commission (LPC) shall consider Design Review applications for projects that involve landmarks, structures of merit, or buildings within a historic district. The LPC shall either approve, modify, or deny such applications in accordance with Section 23.406.070--Design Review. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. The DRC shall consist of seven members, as follows:

2. DRC members from boards and commissions shall be appointed by their respective bodies, and members of the public shall be appointed by the ZAB.

3. DRC membership shall include at least two-licensed architects, one licensed landscape architect, and two laypersons (persons who are neither a planning or design professional nor an expert in the fields of land use planning, architecture, or landscape architecture).

4. The DRC shall elect a chairperson and vice chairperson.

1. The DRC shall consider applications for Design Review and either approve, modify, or deny such applications in accordance with Section 23.406.070 (Design Review).

2. The DRC may make a recommendation on other matters upon request by the ZAB, Planning Commission, City Council, or other City boards or commissions. DRC recommendations shall be limited to the subject areas of its expertise.

1. The ZAB shall consist of nine members appointed by the City Council in accordance with Municipal Code Chapter 2.04 (City Council).

2. The ZAB shall elect a chairperson and vice chairperson.

1. The ZAB:

2. The City Council may assign additional responsibilities to the ZAB as needed in the administration of the Zoning Ordinance.

1. Applications shall be made in writing on a form provided by the Department.

2. Applications shall identify one person as the applicant.

3. Applications shall be filed with all information and materials required by the Department. Depending on the type of project and required permit, required information and materials may include plans, renderings, models, photographs, material samples, reports, studies, and other items necessary to describe existing conditions and the proposed project.

4. All submitted application materials become City property available to the public.

5. The applicant is responsible for the accuracy and completeness of all information submitted to the City.

1. The owner of the subject property;

2. An agent with written authorization to represent the owner;

3. A person under contract or with an exclusive option to purchase the property, with written consent of the current owner;

4. A tenant with written consent of the owner or the owner’s authorized designee; or

5. An agency lawfully instituting eminent domain proceedings.

1. Before submitting an application for a discretionary permit, an applicant shall post a conspicuous notice of the proposed project readily visible from the street adjacent to the property’s primary frontage.

2. The form and contents of the notice shall be as specified by the Department.

1. When Required.

2. Fee Waivers. In addition to seeking a fee waiver or deferral under other provisions of the Municipal Code, an applicant may request a fee waiver or deferral as follows:

3. Refunds and Withdrawals.

1. Zoning Ordinance Discretionary Permits. The following procedures apply to proposed projects that require multiple discretionary permits under the Zoning Ordinance (e.g., Use Permit and Variance).

2. Design Review. See Section 23.406.070 (Design Review) for the Design Review application process.

3. Other Permits.

1. Determination of Completeness. Department staff shall determine whether an application is complete based on the Department application submittal checklist.

2. Request for Additional Information. If it is not complete, the Department shall inform the applicant in writing as to the information and materials needed to complete the application.

3. Review Timeline. The Department shall review and determine whether an application is complete within the timelines required by Government Code Section 65920 et seq. (Permit Streamlining Act).

1. Staff Evaluation. The Department shall review all applications to determine if they comply with the Zoning Ordinance, the General Plan, and other applicable City policies and regulations and state laws.

2. Staff Report. For all applications requiring review by the ZAB and City Council, the Department shall prepare a staff report describing the proposed project and including, where appropriate, a recommendation to approve, approve with conditions, or deny the application.

3. Report Distribution. The staff report shall be given to the applicant after it is provided to the review authority and before action on the application.

1. CEQA Review.

2. Special Studies Required. Special studies, paid for in advance by the applicant, may be required to supplement the City’s CEQA compliance review.

1. Section Purpose. This section describes the process by which the Zoning Officer may deny an application without notice or hearing ("summary denial") for property subject to City action to abate a public nuisance or correct a Zoning Ordinance violation.

2. Applications Subject to Summary Denial.

3. Factors to Consider. When deciding whether to deny such an application, the Zoning Officer shall consider:

4. Hearing Not Required. A public hearing is not required for the Zoning Officer to summarily deny an application.

5. Decision is Final. A decision by the Zoning Officer to summarily deny an application is final and may not be appealed. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. When Required. A Notice of Administrative Decision shall be given after the Zoning Officer’s decision on an Administrative Use Permit (AUP).

2. Content of Notice. A Notice of Administrative Decision shall contain the following information:

3. Timing of Notice. A Notice of Administrative Decision shall be posted and mailed after the Zoning Officer’s decision on the AUP.

4. Notice Posting. A Notice of Administrative Decision shall be posted at:

5. Notice Mailing.

6. Temporary Uses and Structures. An AUP for a temporary use or structure is subject to the same notice requirements as other AUPs, except that notice shall be provided at least 14 days before the establishment of the temporary use or structure.

7. Failure to Receive Notice. The validity of the decision shall not be affected by the failure of any property owner, resident, or neighborhood or community organization to receive a mailed notice.

1. When Required. Public notice shall be given as required by this section for:

2. Content of Notice. Notice of a public hearing shall contain the following information:

3. Timing of Notice. Notices shall be posted and mailed at least 14 days before the hearing unless a longer notice period is required by state law. The Zoning Officer or ZAB may extend the notice period to a maximum of 30 days for applications of major significance.

4. Notice Posting. A notice of public hearing shall be posted:

5. Notice Mailing.

6. Master Use Permit. For a Master Use Permit application, all businesses, residents, and property owners within 500 feet of the subject property shall receive a notice in addition to the notice recipients listed in Paragraph B.5.a (Minimum Requirement) above.

1. When Required. Public notice shall be given as required by this section for Planning Commission and City Council hearings on proposed Zoning Ordinance Amendments.

2. Content of Notice. Notice of a public hearing shall contain the following information:

3. Timing of Notice. Notice shall be provided at least 10 days before the hearing unless a longer notice period is required by state law. The Planning Commission or City Council may require an extended notice period for applications of major significance.

4. All Zoning Ordinance Amendments. The following notice requirements apply to all Zoning Ordinance Amendments.

5. Zoning Ordinance Text Amendments. In addition to requirements in Paragraph 4 (All Zoning Ordinance Amendments) above, notice of a Zoning Ordinance Text Amendment shall be published in a newspaper of general circulation in the city at least 7 days before the hearing.

6. Zoning Ordinance Map Amendments. The following notice requirements apply to Zoning Ordinance Map Amendments in addition to requirements in Paragraph 4 (All Zoning Ordinance Amendments) above.

7. Additional Notice. The Zoning Officer, Planning Commission, and City Council may require additional public notice as determined necessary or desirable.

8. Failure to Receive Notice. The validity of the hearing shall not be affected by the failure of any property owner, resident, tenant, or neighborhood or community organization to receive a mailed notice.

1. Staff-Level Design Review.

2. Design Review Committee Meetings.

1. The Department shall maintain a registry of neighborhood and community organizations to receive notices of public hearings and administrative decisions.

2. An organization shall be included in the registry shall submit a written request to the Department with the following information:

3. It is the responsibility of the organization to inform the Department of any changes to the organization information identified in Paragraph (2) above. (Ord. 7830-NS § 8, 2022; Ord. 7787-NS § 2 (Exh. A), 2021)

1. Any public hearing may be continued from time to time without further notice, provided that the chair of the review authority announces the date, time, and place to which the hearing will be continued before the adjournment or recess of the hearing.

2. Hearings may not be continued beyond the time limits for reviewing applications established by the Permit Streamlining Act, CEQA, and other state and federal laws unless the applicant expressly waives their rights relating to time limits for City action on a pending application.

1. After the close of public hearing, the review authority shall either approve, modify, or deny the application; continue the hearing to a future date; or refer the application to a mediation or conflict resolution service.

2. If an application is referred to mediation, it must return to the review authority for action.

1. The review authority may attach conditions to any permit as it deems reasonable or necessary to achieve consistency with the General Plan and Zoning Ordinance, and to promote the public health, safety, and welfare.

2. As a condition of approval, the City may require an applicant to provide adequate financial security to guarantee the proper completion of an approved project.

3. Any approval may be subject to time limits.

1. The ZAB or City Council may waive or limit the application of any Zoning Ordinance requirement to a development project if it finds that such requirement would result in a deprivation of the applicant’s constitutional rights.

2. The burden of establishing that this exemption applies is on the applicant.

1. General. The ZAB or Zoning Officer may refer an applicant and neighbors to a conflict resolution or mediation service to resolve conflicts over a proposed project.

2. Eligible Services. The ZAB or Zoning Officer may refer participating parties only to a conflict resolution or mediation service on a pre-approved list maintained by the City.

3. Non-Binding Results. The results of the conflict resolution or mediation service shall be non-binding on the final decision of the ZAB or Zoning Officer.

4. Timing of Referral. A referral may be made at any time after an application is deemed complete and before a final decision on the application.

5. Additional Meetings Allowed. Nothing in this section prevents the parties from meeting on their own at any time, with or without a mediator, in an attempt to resolve their differences.

6. Early Discussions Encouraged. The City encourages applicants and neighbors to discuss proposed projects early in the project-planning process so that differences may be resolved before the submission of an application.

7. Payment for Service. The applicant shall pay for the cost of conflict resolution or mediation service.

8. Rules and Expectations. Mediation and conflict resolution shall be conducted in accordance with the following provisions, a copy of which shall be made available to participating parties, before beginning the process.

1. Resubmittals Prohibited. For twelve months following the denial of a discretionary permit application, the Department may not accept an application that is the same or substantially similar to the previously denied application, unless:

2. Determination. The Zoning Officer shall determine whether an application is the same or substantially similar to the previously denied application.

3. Appeal. The determination of the Zoning Office may be appealed to the ZAB, in compliance with Chapter 23.410 (Appeals and Certifications).

1. A Notice of Decision shall be issued after the ZAB:

2. The Notice of Decision shall be issued before the ZAB’s next regular meeting and shall describe the ZAB’s action, findings, and applicable conditions.

3. The Notice of Decision shall be posted in the lobby of the Permit Service Center and shall be mailed to:

4. The Notice of Decision shall be filed with the City Clerk and provided to the ZAB. The City Clerk shall make the notice available to interested members of the City Council and the public. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. Council Decisions.

2. Other Decisions. The following applies to decisions of the Zoning Officer, Design Review Committee, and ZAB.

1. Approval Limited to Proposed Project. An approval authorizes only the proposed project described in the application. In no way does an approval authorize other uses, structures or activities not included in the project description.

2. Replacement of Existing Uses. When the City approves a new use that replaces an existing use, any prior approval of the existing use becomes null and void when permits for the new use are exercised (e.g., building permit or business license issued). To reestablish the previously existing use, an applicant must obtain all permits required by the Zoning Ordinance for the use.

3. Periodic Review and Reporting.

4. Conformance to Approved Plans.

1. Exercised Defined.

2. Expiration of Permit.

3. Effect of Lapsed Permit. A permit declared lapsed shall be void and of no further force and effect. To establish the use or structure authorized by the lapsed permit, an applicant must apply for and receive City approval of a new permit.

1. Expand the floor or land area devoted to an approved use;

2. Expand a customer service area and/or increase the number of customer seats;

3. Change a building’s occupant load rating under the City’s Building Code so that it is classified in a different category with a higher occupancy rating;

4. Increase the number of employees, beds, rooms or entrances;

5. Establish a new product line, service, function or activity so as to substantially change the character of the use;

6. Increase the volume of production, storage or capacity of any business manufacturing process or activity;

7. Change the type of alcohol sales and/or service; and

8. Change, expand, or intensify a use or structure in any other manner or substantially alters the use or structure.

1. Exercised Permits. Public notice and hearing in compliance with this chapter is required to modify a permit that has been exercised. See Section 23.404.060.C.1 (Exercised Defined).

2. Permits Not Yet Exercised. For modifications to permits not yet exercised, the Zoning Officer or ZAB may act on the permit modification without a public hearing, or may set the matter for public hearing at its discretion. A noticed public hearing for a permit modification shall occur in compliance with this chapter.

1. This section establishes procedures for the City to revoke or modify a discretionary permit for completed projects due to:

2. Notwithstanding anything to the contrary, no lawful residential use can lapse, regardless of the length of time of the vacancy.

3. Expiration of permits not yet exercised are addressed in Section 23.404.060.C (Time Limits).

1. Proceedings to revoke or modify a permit may be initiated by Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.

2. Such referral shall identify the permit being considered, the property to which the permit applies, and the reason for the potential revocation or modification.

3. The Zoning Officer shall determine the public hearing date for all referrals.

1. Public Hearing.

2. ZAB Recommendation.

3. Final Decision. A ZAB recommendation to deny or modify a permit shall be deemed a final decision if the permit holder consents to the recommendation within 10 days after the recommendation is made. In such a case, there shall be no City Council review and action on the matter.

4. Report to City Clerk. The Department shall file the ZAB’s recommendation with the City Clerk within 14 days following the recommendation.

1. Report to Council. The City Clerk shall present a ZAB recommendation to the City Council at soonest possible regular City Council meeting.

2. Public Hearing.

3. Council Decision. The City Council may modify or revoke the permit based upon the findings shown in Subsection E (Findings) below.

1. The permit holder has failed to comply with one or more of the conditions of approval.

2. The use or structure has been substantially expanded or changed in character beyond the approved project.

3. The property has been vacant for one year and the permit holder has not made a good faith effort to re-occupy the property with the use allowed by the approved permit.

1. If the City Council revokes or modifies a permit, the City Clerk shall issue a Notice of Decision describing the City Council’s action, with its findings.

2. The City Clerk shall mail the notice to the permit holder, the property owner, the person who requested proceedings under this chapter (if any), and any person who requests such a notification.

3. The City Clerk shall file a copy of the Notice of Decision with the Department.

1. If the City revokes or modifies a permit, the City may impose any of the following remedies:

2. If the permit holder fails to comply with newly imposed conditions, the City may impose additional conditions or enjoin the use in whole or in part.

1. Permit Revocation and Modification.

2. Remedies.

1. Confirm that a structure or land use complies with the Zoning Ordinance; and

2. Establish a record of the initial establishment of a structure or land use.

1. Unless specifically stated otherwise in the Zoning Ordinance, a Zoning Certificate is required to:

2. A Zoning Certificate is not required to:

1. Zoning Certificate applications shall be made in writing on a form provided by the Department accompanied by all fees, information, and materials as required by the Department.

2. An application fee is not required where the legal use of property or building is unchanged and no building alterations occur.

1. The Zoning Officer shall review a Zoning Certificate application to verify compliance with the Zoning Ordinance. If the project complies with all applicable requirements, the Zoning Officer shall approve the application.

2. The Zoning Officer may attach to the Zoning Certificate project plans and other information as needed to document project compliance with the Zoning Ordinance.

3. The Zoning Officer may attach to the Zoning Certificate any applicable uniformly applied Standard Conditions of Approval.

1. The approved use is established at the subject premises; or

2. In the case of construction, when a valid building permit, if required, is issued for the approved structure and construction has begun.

1. Contrary to the project description attached to a Zoning Certificate approval; and

2. In a manner that violates the Zoning Ordinance or requires additional City approvals. (Ord. 7978-NS § 47, 2025; Ord. 7787-NS § 2 (Exh. A), 2021)

1. The Zoning Officer takes action on AUP applications.

2. For a project with special neighborhood or community significance, the Zoning Officer may refer an AUP application to the Zoning Adjustments Board (ZAB) for review and final decision. In such an instance, the ZAB shall review and act on the application following the requirements that apply to Use Permit applications.

1. Land uses and development projects in each district as identified in Chapters 23.202--23.210 (Zoning Districts);

2. Temporary land uses and structures in accordance with Section 23.302.030.B (AUP Required); and

3. Other types of development projects when specifically required by the Zoning Ordinance.

1. To approve an AUP, the Zoning Officer shall find that the proposed project or use:

2. To approve the AUP, the Zoning Officer must also make any other AUP findings specifically required by the Zoning Ordinance for the proposed project.

3. When taking action on an AUP, the Zoning Officer shall consider the following when making findings:

4. Required findings shall be made based on the circumstances existing at the time a decision is made on the application.

5. The Zoning Officer shall deny an AUP application if unable to make any of the required findings.

1. Land uses and development projects in each district as identified in Chapters 23.202--23.210 (Zoning Districts).

2. Other types of development projects when specifically required by the Zoning Ordinance.

1. To approve a Use Permit, the ZAB shall find that the proposed project or use:

2. To approve the Use Permit, the ZAB must also make any other Use Permit findings specifically required by the Zoning Ordinance for the proposed project.

3. When taking action on a Use Permit, the ZAB shall consider in its findings:

4. Required findings shall be made based on the circumstances existing at the time a decision is made on the application.

5. The ZAB shall deny a Use Permit application if it determines that it is unable to make any of the required findings. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. Deviations Allowed with a Variance. The ZAB may grant a Variance to allow for deviation from any provision in the Zoning Ordinance related allowed land uses, use-related standards, and development standards.

2. Deviations Allowed with a Use Permit. The ZAB may allow deviations from building setback, lot coverage, and on-site parking standards with a Use Permit instead of a Variance if:

1. To approve a Variance, the ZAB shall make all of the following findings:

2. The ZAB shall deny a Variance if it determines that it is unable to make any of the required findings. (Ord. 7850-NS § 18, 2023; Ord. 7787-NS § 2 (Exh. A), 2021)

1. Facilitate the implementation of the General Plan and area plans, including the West Berkeley Plan;

2. Expedite the reuse of large and multi-user sites that might otherwise prove difficult to reuse;

3. Facilitate the development and reuse of large, multi-user sites as integrated units in a stable and desirable environment to benefit occupants, the neighborhood, and the city as a whole.;

4. Allow the review and analysis of impacts of multi-tenant projects in a coordinated, consolidated manner; and

5. Improve Berkeley’s competitiveness in attracting and retaining businesses by allowing businesses to quickly move into a site once overall development requirements have been established.

1. The property is located entirely or partially in one of the following districts:

2. The property will be occupied by three or more independently operating businesses.

1. A Master Use Permit may allow by right more than one individual business and/or use on a site, provided that all other applicable requirements of the Zoning Ordinance are met.

2. A Master Use Permit shall state the square feet of buildings and land allocated for the following uses:

1. The area of a building or site occupied by a use may exceed the Master Use Permit allocation with the permits shown in Table 23.406-1.

2. If the allocation of floor area for various uses as shown in Paragraph D (Where Allowed) above remains within the limits set forth in Table 23.406-1, lease spaces may be divided or aggregated in any manner as-of-right.

1. Encourage excellence in building and site design;

2. Ensure that development is compatible with its urban context; and

3. Provide a pleasing urban environment for persons living, working, or visiting the city.

1. Design Review is required for:

2. As used in Paragraph (1) above, "project" means an activity requiring a building or sign permit that involves any of the following:

g. Signs not part of a Coordinated Sign Design Program.

1. Use Permit Projects.

2. Projects Not Requiring a Use Permit.

1. Department Staff. Department staff, under the supervision and authority of the Zoning Officer, conducts Design Review for projects that do not require a Use Permit, except when the Landmarks Preservation Commission (LPC) conducts Design Review as provided in Paragraph (3) below. Design review conducted by Department staff is referred to as "Staff-Level Design Review."

2. Design Review Committee.

3. Landmarks Preservation Commission. The Landmarks Preservation Commission (LPC) conducts Design Review of projects which involve landmarks, structures of merit, or buildings within a historic district in accordance with Chapter 3.24 (Landmarks Preservation Commission. The LPC conducts Design Review for landmarked properties through the Structural Alteration Permit process.

1. The Zoning Officer may refer any project subject to ZAB review to the Design Review Committee, staff, or the LPC for non-binding input on design-related issues. However, Design Review approval is required only for projects in Subsection B (When Required) above.

2. The LPC may refer any project subject to LPC review to the Design Review Committee for non-binding input on design-related issues.

1. Mandatory Referrals. The following Design Review applications shall be referred to the LPC for review and comment before action on the application:

2. Optional Referrals. Department staff or the Design Review Committee may choose to refer the following projects to the LPC for review and comment before action of the application:

1. The City of Berkeley Design Guidelines provide direction to the City when reviewing proposed projects and assists applicants in planning and design of their projects. The Design Guidelines are intentionally generalized to encourage individual creativity. It is not expected that every project will respond to every guideline.

2. When conducting design review the Design Review Committee, the LPC, and staff shall use the Design Guidelines adopted by the Planning Commission as its official policy.

3. The Design Review Guidelines may be amended by the Planning Commission. The ZAB may comment to the Planning Commission on such amendments.

1. Design Review projects requiring an AUP or a Zoning Certificate shall be completed within 60 days of the date the application is deemed complete. If an applicant modifies the application, or if the applicant submits a written time extension, Department staff may extend the review period beyond 60 days.

2. Design Review for projects that require ZAB approval shall be completed within 60 days of submittal of complete final Design Review plans or within the time limit required by the Permit Streamlining Act, whichever is less.

1. The Design Review Committee shall meet with the applicant and shall operate as a working group. Its meetings shall be open to the public.

2. Review of a project by the Design Review Committee may be continued as necessary subject to the timeline set forth in this chapter.

3. The Design Review Committee shall adopt its own rules and procedures.

1. The review authority may approve a Design Review application only upon finding that the proposed project conforms with the City of Berkeley Design Guidelines and any City-adopted design standards and guidelines applicable to the project.

2. The review authority may consider public input during the Design Review process and may require modifications to the proposed project as a condition of Design Review approval.

1. Design Review Modification (Minor Changes). Before issuance of a building permit, Department staff may approve minor changes to a project with final Design Review approval if the change complies with all of the following criteria:

2. Other Changes. A project change that does not meet the definition of a minor change in previous Paragraph (1) shall be approved following the same procedures as the original Design Review approval.

1. Facilitate the implementation of the West Berkeley Plan;

2. Facilitate the reuse of large and multi-user sites which might otherwise prove difficult to reuse;

3. Facilitate the development and reuse of large, multi-user sites as integrated units in a stable and desirable environment to benefit occupants, the neighborhood, and the city as a whole; and

4. Allow modifications of standards when:

1. More than 50 percent of the site area must be within a C-W, MU-LI, MM or M district.

2. The site must be either:

1. Permitted location of land uses within a building, site, or district.

2. Development standards including but not limited to, height, yards, open space, and parking.

1. To approve a Modification of Development Standards, the ZAB shall make all of the following findings:

2. To approve a Modification of Development Standards, the ZAB shall also make all required Use Permit findings in Section 23.406.040 (Use Permits) and any additional Use Permit findings required by the Zoning Ordinance for the use or development in the applicable district. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. Eligible Applicants.

2. Eligible Request. An eligible applicant may request a modification or exception to any provision in the Zoning Ordinance or Subdivision Ordinance (Title 21) that acts as a barrier to fair housing opportunities for persons with disabilities.

1. Zoning Officer. The Zoning Officer takes action on reasonable accommodation applications unless the application is filed for concurrent review with a requested permit reviewed by the Zoning Adjustments Board (ZAB).

2. Zoning Adjustments Board. If a reasonable accommodation application is submitted concurrently with a permit application reviewed by the ZAB, the reasonable accommodation application shall be acted on by the ZAB.

3. Referral to Zoning Adjustments Board. The Zoning Officer may refer any reasonable accommodation application to the ZAB for review and final decision.

1. Application. A request for reasonable accommodation shall be submitted on an official City application form. No application fee is required. The application shall include:

2. Concurrent Applications. If the project for which the reasonable accommodation is requested requires another planning permit (e.g., Use Permit), the reasonable accommodation application shall be filed concurrently with the related permit application.

1. Independent Application.

2. Concurrent Application. For a reasonable accommodation request submitted concurrently with another planning permit application, the reasonable accommodation request shall be reviewed and acted upon concurrently with the other application.

1. Decision. The review authority shall make a written decision supported by findings and conclusions to approve, approve with conditions, or deny the application.

2. Criteria. The review authority shall consider the following factors when acting on the application:

3. Conditions of Approval. The review authority may impose conditions of approval, including a condition to provide for the automatic expiration of the approval under appropriate circumstances (e.g., person with disability vacates home).

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

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).

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).

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:

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).

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.

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.

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.

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:

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:

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).

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.

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.

3. Downtown Design Guidelines.

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)

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).

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.

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:

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.

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.

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.

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.

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.

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)

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).

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

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

1. Resolution of the City Council or Planning Commission; or

2. Application of one or more owners of the property for which the amendment is sought.

1. The Planning Commission may recommend that the City Council approve, conditionally approve, or deny the proposed Zoning Ordinance Amendment based upon the findings specified in Section 23.412.060 (Findings for Approval).

2. A recommendation for approval shall be made by a majority vote of the total membership of the Planning Commission.

3. If the Planning Commission recommends denial of a Zoning Map amendment, the City Council is not required to take further action on the proposed amendment unless the City receives a written request from an interested party for a City Council hearing within ten days after the Planning Commission action.

1. A Planning Commission recommendation shall expire and have no further effect if the City Council takes no action on a proposed Zoning Ordinance Amendment within six months after the date the Planning Commission approved the recommendation.

2. The City Council may extend the effective period of a Planning Commission recommendation for up to an additional 18 months. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. General.

2. Referral to Planning Commission.

1. The proposed amendment is consistent with the General Plan and any applicable specific plan or area plan.

2. The proposed amendment is consistent with state law.

3. The proposed amendment will not be detrimental to the public interest, health, safety, convenience, or welfare.

1. The original application is denied without prejudice; or

2. The City Council allows resubmittal within six-months of denial as allowed by Subsection B (Six-Month Exception) below.

1. The City Council may allow a resubmitted application within six months from the date of denial if the Council finds that:

2. The burden rests with the applicant to submit evidence and show that the findings in Paragraph B.1 above can be made. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. Any of the following activities: disturbances of the peace, illegal drug activity including sales or possession thereof, public drunkenness, drinking in public, harassment of passers-by, gambling, prostitution, public vandalism, excessive littering, excessive noise (particularly between the hours of 11:00 p.m. and 7:00 a.m.), noxious smells or fumes, curfew violations, lewd conduct or police detention, citations or arrests, or any other activity declared by the City to be a public nuisance.

2. A violation of any City, state, or federal ordinance, law, or regulation.

3. A use or activity, other than one that takes place at a dwelling and is sponsored by a resident of that dwelling, that is conducted in a manner that results in a disturbance of any kind that requires six Berkeley Police Department patrol officers after 11:00 p.m. and before 2:00 a.m., or three Berkeley Police Department patrol officers at any other time, to quell such disturbance. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. Remove a use or structure;

2. Prevent the establishment of a use or structure;

3. Prevent the continued operation of a use or structure; or

4. Prevent the removal or demolition of a structure. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. Proceedings to abate a nuisance may be initiated by Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.

2. A nuisance abatement referral shall identify the subject property, the nature of the violation, and the reason for the proposed abatement.

3. After receiving a nuisance abatement referral, the Zoning Officer shall schedule the matter for a public hearing.

1. Public Hearing.

2. Recommendation.

3. Final Decision. A ZAB recommendation to abate a nuisance shall be deemed a final decision if the property owner consents to the recommendation within 10 days after the recommendation is made. In such a case, there shall be no City Council review and action on the matter.

4. Report to City Clerk. The Department shall file the ZAB’s recommendation with the City Clerk within 14 days following the recommendation. The City Clerk shall present a ZAB recommendation to the City Council at soonest possible regular City Council meeting.

1. Public Hearing. The City Council shall hold a public hearing on the proposed abatement in compliance with Section 23.404.050 (Public Hearing and Decision). The hearing shall occur within:

2. Decision. After hearing, the City Council may find that the use, structure, or event constitutes a public nuisance and may impose any remedy provided for in this chapter, or take no action.

1. If the City Council makes a nuisance determination, the City Clerk shall issue a Notice of Decision describing the City Council’s action, with its findings.

2. The City Clerk shall mail the notice to any permit holder, the property owner, the person who requested proceedings under this chapter (if any), and any person who requests such a notification.

3. The City Clerk shall file a copy of the Notice of Decision with the Zoning Officer. (Ord. 7787-NS § 2 (Exh. A), 2021)

1. If a person does not comply with an order of the Zoning Officer to correct a violation of this chapter within the specified time as provided in Chapter 1.24 (Abatement of Nuisances), the City may file a statement in the Office of the County Recorder that:

2. The City shall record proof of service with the filed notice and order.

1. Enjoin the use in whole or in part.

2. Impose reasonable conditions upon any continued operation of the use, including existing non-conforming uses.

3. Require continued compliance with newly imposed any conditions.

4. Require the permit holder to guarantee compliance with newly imposed conditions.

1. The City may recover the costs to administer abatement proceedings in accordance with Sections 1.24.140 through 1.24.210 of Municipal Code Chapter 1.24 (Abatement of Nuisances), except as provided in Sub-paragraph (2) below.

2. The hearing provided by Section 1.24.180 shall be held by the City Manager or his/her designee and may be appealed to the City Council within ten days after a decision is mailed. The Council shall hold a hearing on appeals as specified in Section 1.24.180.

1. If the City imposes a remedy authorized in Section 23.414.080 (Remedies), the City may recover costs for time spent administering the remedy.

2. Payment of City costs shall be a condition of continued operation of a use or structure subject to a remedy.

3. Payments submitted under this Subsection B (Remedies) shall be deducted from any payments submitted under Subsection A (Abatement Proceedings) above. (Ord. 7787-NS § 2 (Exh. A), 2021)