3 COMMERCIAL DISTRICTSZC = Zoning Certificate
AUP = Administrative Use Permit
UP(PH) = Use Permit
NP = Not Permitted
-- = Permitted with AUP, see
23.204.020(B)
[#] = Table Note Permit
Requirement
* Use-Specific Regulations Apply
C-C C-U C-N C-E C-NS C-SA C-T C-SO C-DMU C-W C-AC
USE-SPECIFIC
REGULATIONS
Senior Congregate Housing See 23.302.070.H
Public and Quasi-Public Uses
Child Care Center UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Cemetery/Crematory/Mausoleum NP NP NP NP NP NP NP NP NP NP NP Club/Lodge UP(PH) UP(PH) UP(PH) UP(PH) NP UP(PH) UP(PH) NP UP(PH) UP(PH) UP(PH) Columbaria See 23.302.070.C
Community Care Facility AUP AUP AUP AUP AUP AUP AUP AUP AUP ZC AUP Community Center UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Emergency Shelter See 0 – – See 0
Family Day Care Home, Large ZC ZC ZC ZC ZC ZC ZC ZC ZC ZC ZC Family Day Care Home, Small ZC ZC ZC ZC ZC ZC ZC ZC ZC ZC ZC Hospital UP(PH) UP(PH) NP NP NP NP NP NP UP(PH) UP(PH) NP Library UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Mortuaries and Crematories UP(PH) UP(PH) NP NP NP NP NP NP NP UP(PH) NP Municipal Animal Shelter – – – – – – – – – – --
Nursing Home UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Park/Playground ZC ZC ZC ZC ZC ZC ZC ZC ZC AUP ZC
Public Safety and Emergency
Service
UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Public Utility Substation/Tank UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Religious Assembly UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) AUP UP(PH) School UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) School, Vocational AUP AUP AUP AUP AUP AUP AUP AUP AUP UP(PH) AUP
Retail Uses
Alcoholic Beverage Retail Sale UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* NP UP(PH)* UP(PH)* UP(PH)* UP(PH)* 23.204.060.B.2;
23.310
Cannabis Retailer ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC* 23.320; 12.21; and
12.22 Cannabis Retailer, Delivery Only ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC* -- 23.320; 12.21; and
12.22 Firearm/Munitions Business UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* NP UP(PH) UP(PH)* 23.302.070.D Industrial and Mining Products – – – – – – – – – – --
Pawn Shop/Auction House UP(PH) – NP NP NP NP NP NP UP(PH) UP(PH) NP Pet Store UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) ZC [3] UP(PH) Retail, General ZC [1] ZC [1] ZC* [2] ZC* [2] ZC* [2] ZC [1] ZC ZC* [2] ZC ZC* [3] ZC*
23.204.040.E (for
department stores)
23.204.040.F (for
drug stores)
Smoke Shop UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* UP(PH)* NP UP(PH)* UP(PH)*
23.302.070.I
Personal and Household Service Uses
Personal and Household Services,
General
ZC [1] ZC [1] ZC [2] ZC [2] ZC [2] ZC [1] ZC ZC [2] ZC ZC [5] ZC Kennels and Pet Boarding NP NP NP NP NP NP NP NP NP UP(PH) NP Laundromats and Cleaners AUP AUP UP(PH) UP(PH) UP(PH) AUP AUP UP(PH) UP(PH) AUP [4] AUP Veterinary Clinic UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Video Tape/Disk Rental ZC [1] ZC [1] ZC [2] AUP ZC [2] - ZC ZC [2] ZC ZC [5] NP
4 COMMERCIAL DISTRICTSZC = Zoning Certificate
AUP = Administrative Use Permit
UP(PH) = Use Permit
NP = Not Permitted
-- = Permitted with AUP, see
23.204.020(B)
[#] = Table Note Permit
Requirement
* Use-Specific Regulations Apply
C-C C-U C-N C-E C-NS C-SA C-T C-SO C-DMU C-W C-AC
USE-SPECIFIC
REGULATIONS
Office Uses
Business Support Services ZC [1] ZC [1] ZC [2] ZC [2] ZC [2] ZC [1] ZC* ZC [2] ZC ZC [5] ZC [6] 23.204.110.B.6 Banks and Financial Services,
Retail
AUP AUP UP(PH) UP(PH) UP(PH) ZC [1] AUP* UP(PH) ZC* AUP ZC
23.204.110.B.6;
23.204.130.B.3;
23.204.130.D.3
Insurance Agents, Title
Companies, Real Estate Agents,
Travel Agents
ZC [1] ZC [1] ZC* [2] ZC* [2] ZC* [2] ZC [1] ZC* ZC* [2] ZC* ZC [5] ZC [6]
23.204.040.D;23.20
4.110.B.6;
23.204.130.D.3
Medical Practitioners ZC [1] ZC [1] AUP NP UP(PH) ZC [1] AUP* UP(PH) ZC* ZC [5] ZC [6]
23.204.040.D;
23.204.110.B.6;
23.204.130.D.3
Non-Chartered Financial
Institutions
UP(PH)* UP(PH)* NP NP NP UP(PH)* UP(PH)* NP NP UP(PH)* UP(PH) 23.302.070.F
23.204.110.B.6
Office, Business and Professional
ZC [1] ZC [1] AUP* AUP* AUP* ZC [1] AUP* AUP* ZC* ZC [5] ZC [6]
23.204.040.B;
23.204.110.B.6;
23.204.130.D.3
Food and Alcohol Service, Lodging, Entertainment, and Assembly Uses Adult-oriented Business UP(PH)* UP(PH)* NP NP NP NP NP NP UP(PH)* UP(PH)* NP 23.302.070.A Amusement Device Arcade UP(PH)* UP(PH)* NP NP NP UP(PH)* NP NP UP(PH)* UP(PH)* UP(PH) 23.302.070.B Bar/Cocktail Lounge/Tavern UP(PH)* UP(PH)* UP(PH)* – NP UP(PH)* UP(PH)* NP UP(PH)* UP(PH)* UP(PH)
23.204.100.B.3;
23.204.110.B.2;
23.310
Commercial Recreation Center See 23.204.040.A
Dance/Exercise/Martial Arts/Music
Studio
ZC [1] ZC [1] ZC [2] AUP AUP [4] ZC [1] ZC AUP ZC ZC [7] ZC Entertainment Establishment UP(PH) UP(PH) UP(PH) NP UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Food Service Establishment See 23.204.040.E
Group Class Instruction ZC [1] ZC [1] AUP AUP AUP* ZC [1] ZC* AUP ZC* ZC ZC 23.204.040.B Gym/Health Club See 23.204.040.C
Hotels, Tourist UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Motels, Tourist UP(PH) UP(PH) NP NP NP NP NP NP UP(PH) UP(PH) NP Theater
UP(PH) UP(PH) UP(PH) UP(PH) NP UP(PH) UP(PH) NP AUP UP(PH) UP(PH) Vehicle Service and Sales Uses
Alternative Fuel Station UP(PH) UP(PH) UP(PH) NP UP(PH) UP(PH) NP* UP(PH) NP AUP* UP(PH) 23.204.110.B.4;
23.204.140.B.3
Electric Vehicle Charging Station AUP AUP AUP AUP AUP AUP AUP AUP AUP AUP* AUP Gasoline Fuel Stations UP(PH) UP(PH) UP(PH) NP UP(PH) UP(PH) NP* UP(PH) NP UP(PH)* UP(PH) 23.204.140.B.3 Large Vehicle Sales and Rental AUP NP NP NP NP NP NP NP NP AUP* [8] NP 23.204.140.B.3 Small Vehicle Sales and Service AUP NP NP NP NP UP(PH)* NP NP UP(PH) UP(PH)* NP 23.204.100.B.5;
23.204.140.B.3
Tire Sales and Service UP(PH) NP NP NP NP NP NP NP NP UP(PH)* NP 23.204.140.B.3 Vehicle Parts Store ZC [1] NP ZC [2] ZC [2] ZC [2] ZC [1] ZC ZC [2] NP AUP* [8] ZC Vehicle Rentals AUP NP NP NP NP NP NP NP UP(PH) AUP* [8] NP 23.204.140.B.3 Vehicle Repair and Service AUP NP NP NP NP NP NP NP NP AUP* [8] NP Vehicle Sales, New AUP NP NP NP NP UP(PH)* NP NP UP(PH) AUP* [8] NP
23.204.100.B.5
23.204.140.B.3
Vehicle Sales, Used AUP NP NP NP NP UP(PH)* NP NP UP(PH) UP(PH)* NP
23.204.100.B.5;
23.204.140.B.3;
23.204.140.D.4
5 COMMERCIAL DISTRICTSZC = Zoning Certificate
AUP = Administrative Use Permit
UP(PH) = Use Permit
NP = Not Permitted
-- = Permitted with AUP, see
23.204.020(B)
[#] = Table Note Permit
Requirement
* Use-Specific Regulations Apply
C-C C-U C-N C-E C-NS C-SA C-T C-SO C-DMU C-W C-AC
USE-SPECIFIC
REGULATIONS
Vehicle Wash UP(PH) NP NP NP NP NP NP NP NP UP(PH)* NP 23.204.140.B.3 Vehicle Wrecking NP NP NP NP NP NP NP NP NP NP NP
Industrial and Heavy Commercial Uses
Bus/Cab/Truck/Public Utility Depot – – – – – – – – – – -- Commercial Excavation UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) – NP UP(PH) Contractors Yard – – – – – – – – – AUP --
Dry Cleaning and Laundry Plant UP(PH) UP(PH) NP – UP(PH) NP NP NP UP(PH) NP NP Laboratory
Commercial Physical or
Biological
AUP AUP NP NP NP NP NP NP AUP NP NP
Cannabis Testing AUP AUP NP NP NP NP NP NP AUP AUP [9] NP Manufacturing
Construction Products – – – – – – – – UP(PH) --
Light Manufacturing – – – – – – – – AUP [8] --
Pesticides/Herbicides/Fertiliz
ers
– – – – – – – – UP(PH) --
Petroleum Refining and
Products
– – – – – – – – UP(PH) --
Pharmaceuticals – – – – – – – – UP(PH) --
Primary Production
Manufacturing
– – – – NP – – – – UP(PH) --
Semiconductors – – – – NP – – – – UP(PH) --
Material Recovery Enterprise – – – – – – – – – – --
Media Production UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH)* AUP UP(PH) 23.204.130.B.4 Mini-storage UP(PH) NP NP NP NP NP NP – UP(PH) NP NP
Recycled Materials Processing – – – – – – – – – – --
Recycling Redemption Center AUP AUP AUP AUP AUP AUP AUP AUP AUP AUP AUP Repair Service, Non-Vehicle – – – – – – – – – AUP --
Research and Development – – – – – – – – – AUP-- --
Services to Buildings and Dwellings – – – – – – – – – AUP -- Warehouse UP(PH) NP NP NP NP NP NP – UP(PH) NP NP
Warehouse-Based Non-Store
Retailer
– – – – – – – – – --
Wholesale Trade – – – – -- – – – – AUP [8] --
Incidental Uses
Amusement Devices AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP* UP(PH) 23.302.070.B Alcoholic Beverage Service See 23.310
Cafeteria, On-Site UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) AUP UP(PH) Columbaria See 23.302.070.C
Food and Beverage for Immediate
Consumption
ZC ZC AUP UP(PH) UP(PH) ZC AUP UP(PH) ZC ZC ZC
Food Service Establishment See 23.302.070.E
Live Entertainment See 23.302.020.D
Manufacturing AUP AUP UP(PH) UP(PH) NP UP(PH) AUP AUP AUP AUP AUP Retail Sale of Goods Manufactured
On-Site
ZC [1] ZC [1] ZC [2] ZC [2] ZC [2] ZC [1] ZC ZC [2] ZC AUP ZC Storage of Goods (>25% gross
floor area)
AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP 23.302.020.C Wholesale Activities AUP* AUP* UP(PH)* UP(PH)* NP AUP* AUP* AUP* AUP* AUP AUP 23.204.080.B.3
6 COMMERCIAL DISTRICTSZC = Zoning Certificate
AUP = Administrative Use Permit
UP(PH) = Use Permit
NP = Not Permitted
-- = Permitted with AUP, see
23.204.020(B)
[#] = Table Note Permit
Requirement
* Use-Specific Regulations Apply
C-C C-U C-N C-E C-NS C-SA C-T C-SO C-DMU C-W C-AC
USE-SPECIFIC
REGULATIONS
Other Miscellaneous Uses
Art/Craft Studio AUP AUP AUP AUP AUP AUP AUP AUP AUP AUP ZC [6] ATM, Exterior and Attached to
Bank
AUP AUP AUP UP(PH) AUP AUP AUP AUP* AUP AUP AUP 23.204.120.B.2 ATM, Interior or Exterior and Not
With Bank
UP(PH) UP(PH) UP(PH) NP UP(PH) UP(PH) UP(PH) NP UP(PH)* AUP UP(PH) 23.204.130.B.2 Circus/Carnival UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) UP(PH) Drive-in Uses UP(PH) NP NP NP UP(PH) UP(PH) NP UP(PH) NP NP UP(PH) Home Occupations See 23.302.040
Live/Work See 23.312
Parking Lot/Structure See 23.302.070.G
Public Market, Open Air AUP AUP AUP AUP AUP AUP AUP AUP AUP UP(PH) AUP Public Market, Enclosed AUP AUP AUP AUP AUP AUP AUP AUP AUP AUP [9] AUP Short-Term Rental See 23.314 NP See 23.314 NP See 23.314 NP Urban Agriculture, Low-Impact ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC* ZC ZC 23.318 Urban Agriculture, High-Impact AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP* AUP AUP 23.318 Wireless Telecommunication
Facility See 23.332—Wireless Communication Facilities
Notes:
[1] Change of use of floor area over 3,000 square feet requires an AUP.
Change of use of floor area over 2,000 square feet requires an AUP.
Requires an AUP for uses 3,500 sq. ft. to 7,500 square feet. Requires a Use Permit for uses more than 7,500 sq. ft.
Requires a Use Permit if 5,000 sq. ft. or more.
Requires an AUP for uses 3,000 sq. ft. to 5,000 square feet. Requires a Use Permit for uses more than 5,000 sq. ft.
Requires an AUP for uses 2,500 sq. ft. or greater or 50 ft. wide or greater on Shattuck, between Ward and Russell; Adeline between Russell and the City boundary; on Ashby, east of Adeline; or on the north side of Ashby, west of Adeline.
Requires a Use Permit if 7,500 square feet or more.
Require a Use Permit if either 5,000 sq. ft. or more of floor area or 10,000 square feet or more of lot area.
Requires a Use Permit if more than 10,000 sq. ft.
Section 3. That Berkeley Municipal Code 23.204.030 is hereby amended as follows:
23.204.030 Additional Permit Requirements.
A. Change of Use.
1. Uses subject to additional permit requirements with a change of use are shown in Table
23.204-1: Allowed Uses in the Commercial Districts with a note [1] or [2] following the permit requirement (e.g., ZC [1]).
2. A change of use means a change to a different category of commercial or manufacturing use but does not include changes between uses that are classified in the same category of commercial or manufacturing use. For example, changing a pet store (in "Retail Use" category) to a medical practitioner (in "Offices" category) is subject to change
7 of use permit requirements in Table 23.204-1. Changing a pet store to general retail (also in "Retail Use" category) is not subject to the change of use permit requirements.
BA. New Floor Area.
1. When Permit is Required. A project that creates new floor area for any use requires permits as shown in Table 23.204-2: New Floor Area Permit Requirements. Creation of new floor area includes:
(a) Construction of new main buildings or accessory buildings; (b) Additions to existing buildings; or
(c) The installation of new floor or mezzanine levels within or onto existing buildings.
Table 23.204-2. NEW FLOOR AREA PERMIT REQUIREMENTS
DISTRICT/NEW GROSS FLOOR AREA PERMIT REQUIRED FOR
NEW FLOOR AREA
C-C, C-U
Less than 5,000 sq. ft. ZC
5,000 sq. ft. or more UP(PH)
C-N, C-E, C-SO (any amount of new floor area) UP(PH)
C-NS
Less than 2,000 sq. ft. ZC
2,000 sq. ft. or more UP(PH)
C-SA
Less than 3,000 sq. ft. ZC
3,000 sq. ft. or more UP(PH)
C-T --
Less than 1,500 sq. ft. AUP
1,500 sq. ft. or more UP(PH)
C-DMU
Less than 10,000 sq. ft. ZC
10,000 sq. ft. or more UP(PH)
8 DISTRICT/NEW GROSS FLOOR AREA PERMIT REQUIRED FO
R
NEW FLOOR AREA
C-W
5,000 sq. ft. or more except when an AUP is required below UP(PH) 7,500 sq. ft. or less in a building containing only retail uses AUP 20,000 sq. ft. or less in a building with residential and retail space that is more than 15% and less than 33% of the floor area being created
AUP
C-AC
New Main Building or New Dwelling Unit UP(PH)
Addition of 5,000 sq ft or more UP(PH)
2. C-DMU Findings. To approve a Use Permit for new floor area in the C-DMU district, the ZAB must find that:
(a) The addition or new building is compatible with the visual character and form of the district; and
(b) No designated landmark structure, structure of merit, or historic district in the vicinity would be adversely affected by the appearance or design of the proposed addition.
3. C-W Findings. To approve an AUP or Use Permit for new floor area in the C-W district, the review authority must find that the new use or structure provides an intensity of development which does not underutilize the property.
4. C-AC Findings. To approve a Use Permit for new floor area in the C-AC district, the review authority must find that the proposed use or structure will:
(a) Be compatible with the purposes of the District;
(b) Be compatible with the design and character within the District and the adjacent residential neighborhoods;
(c) Encourage utilization of public transit and off-street parking facilities in the area of the proposed building; and
(d) If a new residential development, that the proposed use or structure facilitates construction of affordable housing as defined by the US Department of Housing and Urban Development (HUD) Guidelines.
9 CB. Tenant Space Reconfiguration.
1. Reconfiguration of tenant space in an existing building requires a permit as listed in Table 23.204-3: Tenant Space Reconfiguration Permit Requirements.
2. As used in this section, tenant reconfiguration means any physical change to an existing building’s walls separating leased spaces so as to change:
(a) The number of lease spaces for commercial businesses; or (b) The square footage of leasable floor area of an existing commercial lease space.
Table 23.204-3. TENANT SPACE RECONFIGURATION PERMIT REQUIREMENTS District
Permit Required for Tenant
Space Reconfiguration
Project
C-C, C-U
Less than 5,000 sq. ft. ZC
5,000 sq. ft. or greater AUP
C-N, C-E, C-NS, C-SO (All reconfiguration projects) AUP C-SA, C-DMU, C-AC No additional permit required
C-T
Increasing the number of individual tenant spaces ZC
5,000 sq. ft. or greater AUP
Creating a tenant space less than 1,000 sq. ft. AUP
C-W
Less than 5,000 sq. ft ZC
In existing buildings in a designated node affecting 5,000 sq. ft. or greater
AUP
DC. Major Residential Additions.
1. Where Allowed/Required Permits.
(a) Major residential additions in the C-W district require an AUP.
10 (b) No additional permits are required for major residential additions in all other C districts.
2. Findings. To deny an AUP for a major residential addition in the C-W district, the review authority must find that although the proposed major residential addition satisfies all other standards of the Zoning Ordinance, the addition would unreasonably obstruct sunlight, air, or views.
ED. Changes to Nonconforming Structures. See Section 23.324.050--Nonconforming Structures and Buildings for permits required to modify structures that do not conform to setback, height, and other development standards.
FE. Accessory Structures. For accessory structure permit requirements, see the following:
1. Section 23.304.060--Accessory Buildings and Enclosed Accessory Structures.
2. Section 23.304.070--Unenclosed Accessory Structures in Residential Districts.
3. Section 23.304.080--Fences. (Ord. 7787-NS § 2 (Exh. A), 2021) Section 4. That the Berkeley Municipal Code 23.204.130.E.6 is hereby amended as follows:
6. Open Space Alternatives.
a. In lieu of providing the open space required by this section on-site, an applicant may either:
i. Pay an in-lieu fee to help fund the Streets and Open Space Improvement Plan (SOSIP); and/or
ii. Construct public improvement consistent with the SOSIP. b. Payment of a n in-liue fee in lieu of providing publicly accessible open space requires a Use Permit. To allow payment of an in-lieu fee, the ZAB must find that the payment will support timely development of open space improvements that will serve the needs of both project residents and other people living in and using the downtown.
c. Construction of public improvements consistent with the SOSIP in lieu of open space requires a Use Permit. To allow construction of public improvements, the ZAB must find that the public improvements:
i. Will be located within the vicinity of the project and are consistent with the SOSIP;
11 ii. Will be coordinated with other ongoing or approved SOSIP or other right- of-way improvements in the vicinity, and will not create a hazardous situation or an unusual appearance in the downtown; and iii. Will be finished before issuance of a certificate of occupancy for the project, unless otherwise allowed by the project conditions of approval.
Section 5. That Berkeley Municipal Code 23.206.202 Figure 23.206-6 is hereby amended as follows:
TABLE 23.206-6: PERMITS REQUIRED FOR CHANGES TO PROTECTED LAND USES Zoning
District Change to Protected Use
Permit
Required
MM Change any amount of ground-floor protected use
to a non-protected use UP(PH)
Change less than or equal to 20,000 sq. ft. or less
than or equal to and 25% of protected use to a non-
protected use
AUP
MU-LI
Change over 20,000 sq. ft. or over 25% of
protected use to a non-protected use UP(PH)
Section 6. That Berkeley Municipal Code Section 23.302.030.D.3.d is amended to read as follows:
(d) Permits issued pursuant to this subsection must be posted in plain view within the commercial establishment for which the permit has been issued Section 7. That Berkeley Municipal Code Section 23.302.070.E.3 is amended as follows:
3. Notification of Decision. Food service establishments requiring an AUP in the C-N, C-E, C-NS, C-SA, C-T, C-SO districts must provide public notification of decision (NOD) within a 300-foot radius of the subject property.
Section 8. That Berkeley Municipal Code Section 23.404.040.C is amended as follows:
C. Public Notice for Zoning Ordinance Amendments.
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.
12 2. Content of Notice. Notice of a public hearing shall contain the following information:
a. The date, location, and time of the hearing.
b. A written description of the proposed amendment.
c. A map showing the location of a proposed Zoning Map amendment, if applicable.
d. The environmental review status under the California Environmental Quality Act (CEQA).
e. Directions on how to obtain further information about the proposed amendment or hearing.
f. Instructions to submit written comments on the proposed amendment.
3. Timing of Notice. Notice shall be provided at least 14 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.
a. Notice shall be posted at the Civic Center (Old City Hall) and in the lobby of the Permit Service Center.
b. Notice shall be mailed to:
i. Neighborhood and community organizations with a registered interest in receiving notice of the proposed amendment. See Section 23.404.040.E (Public Notice).
ii. The City of Berkeley Central Library; and
iii. Any person who has filed a written request for notice.
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:
a. At least 14 days before the hearing; and then again
b. At 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.
13 a. Less the 5 Acres. For Zoning Map Amendments affecting an area less than 5 acres, public notice shall be:
i. Posted at three visible locations in the vicinity of the subject property; and ii. Mailed to subject property owners, residents and tenants of the subject property, and all property owners, residents, and tenants within 300 feet of any part of the subject property.
b. 5 Acres or More. For Zoning Map Amendments affecting an area 5 acres or more, public notice shall be:
i. Posted on each street frontage adjacent to the subject property. ii. Mailed to all property owners, residents, and tenants within the subject property.
iii. Published twice in a newspaper of general circulation in the city at least 14 days before the hearing, and then again at least 7 days before the hearing.
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.
Section 9. That Berkeley Municipal Code Section 23.502.020.F.3 is hereby amended to read as follows:
3. Family Day Care Home. An establishment providing day care for 14 or fewer children in a dwelling unit as licensed by the California Department of Social Services. A family day care homes must be incidental to a residential use. The day care operator must live in the primary dwelling on the lot. and must be operated in the dwelling unit or accessory building where the family day care operator resides.
a. Small Family Day Care Home. A family day care homes for eight or fewer children, including children who live at the home.
b. Large Family Day Care Home. A family day care homes for nine to fourteen children, including children who live at the home.
Section 10: Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be
14 filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
BASELIN
E ZONING ORDINANCE CONSENT CHANGES MATRIX
Topic Description BZO Location Existing
Location
Rationale for Change
23.102 – Introductory Provisions
Effective Date Statement of when the Ordinance becomes effective 23.102.020 NEW Provide effective date Authority States that if state law referenced in Zoning Ordinance is amended, the Zoning Ordinance is deemed amended to reference the amended state law
23.102.030 NEW Added for clarity
Laws of Other
Agencies
Removes statement that uses and structures must comply with regulations and laws of other governmental agencies.
N/A 23B.56.040 It is unnecessary to
state that uses and
structures must
comply with the law.
Removed for clarity
Approvals Required Describes approvals required for land uses and development
23.102.050 D NEW Expands on existing
Section 23A.12.010 to
reflect current
practice
Conflict with State
or Federal
Regulations
Explains how to handle conflicts with State and Fed law 23.102.070 NEW Consistent with the Supremacy Clause of
the United States
Constitution and
Article XI, Section 5(a)
of the California
Constitution
Conflicts with Other
City Regulations
New language: “Where the Zoning Ordinance conflicts with other ordinances, resolutions, or regulations of the City of Berkeley, the more restrictive controls.”
23.102.070.B NEW Clarity needed on
how to handle
conflicting
requirements. The
Zoning Ordinance
does not supersede
other City regulations.
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
Conflicts with
Private Agreements
Adds statement that the City is not responsible for monitoring or enforcing private agreements.
23.102.070.C NEW Clarifies City role in
neighbor disputes
involving private
agreements
Pending
Applications
Clarifies status of applications submitted during transition from ZO to BZO 23.102.080 C NEW Necessary to inform status of applications
submitted during
transition to BZO
Nonconformities Defines what is considered nonconforming at the time of BZO adoption 23.102.080 E NEW Adds up-front reference to
nonconformity
chapter alongside
other transitional
provisions
23.104 – Interpreting the Zoning Ordinance
Purpose States purpose of chapter 23.104.010 NEW BZO standard includes purpose statement
for each chapter
Authority Clarifies existing Zoning Officer authority 23.104.020 NEW see
23B.12.020
More accurately state
ZO’s authority
Rules of
Interpretation
New rules of interpretation relating to: meaning and intent; harmonious construction; lists and examples; references to other regulations, publications, and documents; technical and non-technical terms; terms not defined; public officials and agencies; tenses and plurals. New harmonious construction language replaces existing language: “In case of conflict between any of the provisions of this Ordinance, the most restrictive shall apply.”
23.104.030 23A.080.010 Provides for
consistent application
of rules
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
Zoning Map Clarifies intention to follow city limits 23.104.050 A 3 NEW Greater clarity to resolve uncertainty in
zoning district
boundaries
23.106 Rules and Measurement
Chapter Purpose States chapter purpose 23.106.010 NEW BZO standard includes purpose statement
for each chapter
Building Separation Defines method of building separation measurement (outer wall to outer wall) 23.106.080 A NEW Codifies existing practice and increases
clarity
23.108 –Zoning Districts and Map
Chapter Purpose States chapter purpose 23.108.010 NEW BZO standard includes purpose statement
for each chapter
C-C and C-U
Districts
C-1 zone split into two zones: Corridor Commercial (C-C) and University Avenue Commercial (C-U) district. C-U includes University Avenue Strategic Plan Overlay standards.
23.108.020.A 23A.16.020.A Simplifies and clarifies
C-1 rules inside and
outside of University
Avenue Strategic Plan
area
Purpose of Overlay
Zones
Explains purpose of overlay zones 23.108.020.C.1 NEW Provide definition; explains that Overlay
Zone regulations are
in addition to
regulations of
underlying zone (not a
replacement)
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
Applicability of
Overlay Zone
Standards
Existing language: “the height, coverage, parking and usable open space shall comply with the provisions of the underlying district.” BZO language: “If the overlay zone applies a standard to a property that conflicts with the underlying district, the overlay zone standard governs. If the overlay zone is silent on a standard in the underlying district, the underlying district standard applies.”
23.108.020.C.3 23A.16.030.C Corrects statement
inconsistent with
existing use of overlay
zones
23.202 – Residential Districts
Allowed Land Uses In Residential Districts, unlisted uses are prohibited 23.202.020.B NEW Codifies existing practice, making
explicit that if a use is
not listed in the
Allowed Uses Table
for Residential
Districts, the use is
prohibited.
Open Space for
ADUs in R-1 District
Removes requirement for ADUs to include usable open space. All standards for ADUs will be addressed in updated ADU chapter.
Table 23.202-2 23D.16.070.F Codifies existing
practice consistent
with Gov’t Code
Section 65852.2
23.206 – Manufacturing Districts
Industrial
Performance
Standards
Removes statements allowing City Manager to establish industrial performance standards.
23.206.040.F 23E.64.070.E
23E.72.070.E
23E.76.070.E
23E.80.D
23E.84.070.H
Language is
unnecessary and
implies authorization
is required for other
similar requirements.
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
23.302 – Supplemental Use Regulations
Warehouse Storage
for Retail Use
Allows on-site storage of goods as an accessory use to a primary retail use in all districts where retail is permitted
23.302.070.J NEW Codifies existing
practice of allowing
retail establishments
to store their goods
on-site if retail is
permitted.
23.304 – General Development Standards
Setback Projections
– Disabled Access
Allows projections into setbacks to accommodate the disabled with a reasonable accommodations request.
23.304.030.B.4 23D.04.030.A2 Confirm with The
Americans with
Disabilities Act, and
the California Fair
Employment and
Housing Act
Building Height
Projections – Public
Buildings in
Residential Districts
Deletes “the height limit for schools, buildings for religious assembly use, hospitals and other public buildings shall not exceed the height limit permitted for that district. This is true for all uses.”
23.304.050.A 23D.04.020.A;
23E.04.020.A
Removal of
extraneous language.
Calling out these uses
implies other uses
may exceed height
limit, which is not
true.
Adeline Corridor
Plan
States that projects in the Adeline Plan Area are subject to mitigation measures in the Adeline Plan FEIR
23.304.140.D NEW Adds Adeline Corridor
Plan to list of existing
plans
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
23.310 – Alcohol Beverage Sales and Service
Chapter Purpose States purpose of chapter 23.310.010 NEW BZO standard includes purpose statement
for each chapter
23.320 – Cannabis Uses
Chapter Purpose States purpose of chapter 23.320.010 NEW BZO standard includes purpose statement
for each chapter
23.324 – Nonconforming Uses, Structures and Buildings
Chapter Purpose States purpose of chapter 23.324.010 NEW BZO standard includes purpose statement
for each chapter
23.326 – Demolition and Dwelling Unit Control
Chapter Purpose States purpose of chapter 23.326.010 NEW BZO standard includes purpose statement
for each chapter
23.328 – Inclusionary Housing
Required
Inclusionary Units in
Avenues Plan Area
Deletes “Except as provided in this chapter” from 23C.12.080E, which conflicts with 23C.12.080B: “Within this area, the provisions of this section superseded any inconsistent provisions of this chapter.”
23.328.070.D.1 23C.12.080.E Maintain internal
consistency
23.402 – Administrative Responsibility
Chapter Purpose States purpose of chapter 23.402.010 NEW BZO standard includes purpose statement
for each chapter
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
Review and
Decision-Making
Authority
Describes purpose of summary table 23.402.020.A NEW Description of table Review and
Decision-Making
Authority
Defines authority roles (Recommend, Decision, Appeal) 23.402.020.B NEW Explains notation meaning
Planning and
Development
Department
Defines duties of Planning and Development Department 23.402.030 NEW Codifies existing role and summarizes
responsibilities
Landmarks
Preservation
Commission
Refers reader to BMC Chapter 3.24 for roles and responsibilities of Landmarks Preservation Commission
23.402.050.B NEW Provides clarity on
LPC role
ZAB Responsibilities
and Powers
Provides that City Council may assign additional responsibilities to ZAB 23.402.070.C.2 NEW Codifies existing Council authority
City Council Provides that City Council has authority to take actions related to the Zoning Ordinance consistent with existing law
23.402.090.C NEW Codifies existing
Council authority
23.404 – Common Permit Requirements
Purpose and
Applicability
States purpose of chapter; clarifies that the chapter applies to all discretionary permits, not just use permits and variances
23.404.010 NEW BZO standard includes
purpose statement
for each chapter.
Clarifies existing
practice
Multiple Permit
Applications
Clarifies how applications are handled when they require more than one discretionary permit
23.402.020.F NEW Codifies existing
practice
Review Timeline Adds statement that City will abide by Permit Streamlining Act 23.404.030.A.3 NEW Codifies existing practice. Recognizes
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
compliance with state
law is required
Project Evaluation
and Staff Reports
Describes role of staff in reviewing, analyzing and presenting project applications
23.404.030.D NEW Codifies existing
practice
CEQA Add statement that City will review projects for CEQA compliance 23.404.030.E NEW Codifies existing practice. Recognizes
that compliance with
state law is required
Timing of Notice Permits PC or CC to extend notice periods for applications of major significance 23.404.040.C.3 NEW Best practice in compliance with Gov’t
Code Section 65091
Zoning Ordinance
Amendment
Noticing
Adds notice requirements for Zoning Ordinance Amendments 23.404.040.C.4 NEW Adds notice requirement for
Zoning Ordinance
Amendments. New
requirement here is
the same as for
discretionary permits
Additional Notice Adds “The Zoning Officer, Planning Commission or City Council may require additional public notice as determined necessary or desirable.”
23.404.040.C.7 NEW Codifies existing
practice
Public Notice for
Design Review
States that there is no requirement to mail or post notices in advance of a Design Review Committee meeting
23.404.040.D.2.b NEW Codifies existing
practice
Public Hearings Clarifies that hearings will be conducted consistent with procedures developed by the review authority
23.404.050.A NEW Codifies existing
practice and
recognizes that
review authorities are
empowered to create
their own procedures.
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
Time and Place of
Hearings
Clarifies that meetings will be held at time and place for which notice was given unless there is not a quorum
23.404.050.B NEW Codifies legal
requirement
consistent with Gov’t
Code Section 65091
CEQA Action Adds that action on a permit’s CEQA determination must be taken before a permit is approved
23.404.050.G NEW Codifies CEQA
Guidelines Sections
15074 and 15090
Exceptions to
Protect
Constitutional
Rights
Allows the City Council as well as ZAB to make exceptions to protect constitutional rights and clarifies that the exception can be made when acting on any permit and is not tied to a Variance
23.404.050.I 23B.44.050 Best practice. Council
needs this ability in
addition to ZAB to
protect City from legal
challenge
Payment for Service Adds that applicant shall pay for mediation or conflict resolution services 23.040.050.J.7 NEW Codifies existing practice
Effective Dates Adds effective dates of Council actions on Zoning Ordinance amendments and legislative matters, and permits, appeals and non-legislative matters.
Adds effective dates of actions by the Zoning Officer, Design Review Committee or ZAB
23.404.060.A NEW Codifies current
practice and legal
requirements
consistent with Gov’t
Code Section 65853-
65857
Expiration of Permit Adds that if a permit is not exercised after one year, it will not lapse if the applicant has made a substantial good faith effort to obtain a building permit and begin construction.
23.404.060.C.2.
b
23B.56.100.C
&D
Best practice
Expiration of Permit Defines a lapsed permit as “void and of no further force and effect,” and that a new permit application mist be submitted to establish a use or structure.
23.404.060.C.3 NEW Provides explicit
definition of what a
lapsed permit means
and makes explicit the
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
requirement to
reapply.
Permit Revocation -
City Council Hearing
Removes requirement for the City Council hearing must occur within 30 days after the ZAB issued its recommendation.
23.404.080.D.2 23B.60.050.B CC hearing within 30
days of ZAB decision
is frequently
infeasible. Council
can hold hearing “at
its discretion.”
23.406 – Specific Permit Requirements
Variances -
Eligibility
Existing Language: “The Board may grant Variances to vary or modify the strict application of any of the regulations or provisions of this Ordinance with reference to the use of property, the height of buildings, the yard setbacks of buildings, the percentage of lot coverage, the lot area requirements, or the parking space requirements of this Ordinance.”
BZO Language: “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.”
23.406.050.B.1 23B.44.010 ZAB should have
authority to grant a
variance to any use or
development-related
standard, not just
uses, heights, yard
setbacks, lot
coverage, lot area, or
parking
Variances – Not
Allowed
Adds: “A Variance may not be granted to allow deviation from a requirement of the General Plan.”
23.406.050.C N/A Codifies state law
consistent with Gov’t
Code Section 65906.
Design Review –
Changes to
Approved Projects
Describes features of minor changes to approved projects that may be approved administratively: “A change that does not involve a feature of the project that was: 1) a specific consideration by the review authority in granting the approval; 2) a condition of approval; or 3) a basis for a finding in the project CEQA determination.
23.406.070.N N/A Codifies current
practice
Reasonable
Accommodations –
Review Procedure
Existing Language: “If an application under this chapter is filed without any accompanying application for another approval, permit or entitlement under this title or Title 21, it shall be heard and acted upon at the same time and in the
23.406.090.E.1 23B.52.040.B The Americans with
Disabilities Act, and
the California Fair
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
same manner, and be subject to the same procedures, as the application that would normally be required to modify the provision which is the application seeks to modify, as determined by the Zoning Officer.”
BZO Language: “For a Reasonable Accommodation application submitted independently from any other planning permit application, the Zoning Officer shall take action within 45 days of receiving the application.”
Employment and
Housing Act
Existing language
requires the
application to be
reviewed in the same
manner as a Variance.
This conflicts with
state and federal law.
23.410 – Appeals
Appeals –
Remanded Matters
Removes option for prior review authority to reconsider application without a public hearing.
23.410.040.G 23B.32.060.D Remanded matters
require public hearing
23.412 – Zoning Ordinance Amendments
Zoning Ordinance
Amendments –
Initiation
Deletes language to allow for amendments initiated without a public hearing. 23.412.020 23A.20.020.C Existing language conflicts with Gov’t
Code Section 65853-
65857
Zoning Ordinance
Amendments –
Planning
Commission
Hearing
Removes requirement to hold Planning Commission hearing within 30 days of initiation.
23.412.040.A 23A.20.030.A CC hearing within 30
days of PC decision is
frequently infeasible.
Council can hold
hearing consistent
with Public Notice
section.
Zoning Ordinance
Amendments –
Effect of Planning
Deletes language that uses or structures not yet established must conform to Planning Commission recommendation before Council approval, when amendments become effective only after Council adoption.
23.412.040.C 23A.20.050.B New regulations can
only take effect after
Council adoption.
Attachment 2
Topic Description BZO Location Existing
Location
Rationale for Change
Commission
Recommendation
Zoning Ordinance
Amendments – City
Council Hearing
Removes language requiring the Planning Commission recommendation to be forwarded to the Council within 30 days and consideration by Council within 60 days for Commission decision.
23.412.050.A
23A.20.040 CC hearing within 60
days of PC decision is
frequently infeasible.
Council can hold
hearing consistent
with Public Hearings
and Decision section.
Zoning Ordinance
Amendments – City
Council Action
Removes option for Council to act on amendment without a public hearing. 23.412.050.A 23A.20.060.A &B
Conflicts with Gov’t
Code Section 65853-
65857
Zoning Ordinance
Amendments –
Effective Date
Removes language about “more restrictive” amendments going into effective immediately upon adoption of ordinance.
23.412.050.C 23A.20.070 Conflicts with Gov’t
Code Section 65853-
65857
Zoning Ordinance
Amendments –
Findings
Adds findings for Zoning Ordinance amendments 23.412.060 N/A Best Practice.
23.502 – Glossary
Defined Terms Adds definitions to undefined terms in existing Zoning Ordinance 23.502 23F.04 Best practice.
Attachment 2
Planning and Development Department
Land Use Planning Division
STAFF REPORT
DATE: April 6, 2022
TO: Members of the Planning Commission
FROM: Justin Horner, Associate Planner
SUBJECT: Public Hearing on Zoning Ordinance Amendments that Address Technical Edits and Corrections to Berkeley Municipal Code (BMC) Title 23 – Package #2 RECOMMENDATION:
Conduct a public hearing to discuss amendments to the following sections of the Berkeley Municipal Code (BMC) and make a recommendation to City Council to approve the amendments.
• BMC Section 23.202.140 (R-SMU Zoning District)
• BMC Section 23.204.020 (Commercial Districts -- Allowed Land Uses) • BMC Section 23.204.030 (Additional Permit Requirements) • BMC Section 23.204.060 (C-U Zoning District)
• BMC Section 23.204.130 (C-DMU District)
• BMC Section 23.206.202 (Manufacturing Districts – Allowed Land Uses) • BMC Section 23.302.030 (Temporary Uses and Structures) • BMC Section 23.302.070 (Use-Specific Regulations)
• BMC Section 23.404.040 (Public Notice)
• BMC Section 23.502.020 (Glossary)
BACKGROUND
On October 12, 2021, the City Council passed Ordinance No. 7,787-NS, which repealed the then-existing Title 23 of the Berkeley Municipal Code and zoning maps (“the old Zoning Ordinance”) and adopted a new Title 23 of the Berkeley Municipal Code and zoning maps (“the new Zoning Ordinance”). The new Zoning Ordinance became effective December 1, 2021.
The new Zoning Ordinance was created as a customer service improvement and was limited in scope to changes that reorganized and reformatted Title 23 to make the City’s zoning code easier to understand and administer. Minor “consent changes” were approved by City Council where changes were needed to bring the Ordinance into compliance with State law or to codify prior zoning interpretations (Attachment 2). Other than the “consent changes”, no substantive changes were intended by City Council.
ATTACHMENT 3
Public Hearing on Zoning Ordinance Technical Edits & Corrections Item 10
As part of City Council’s approval action, staff was directed to regularly return to the Planning Commission and City Council with amendments necessary to maintain the integrity of the new Zoning Ordinance. Amendments presented under this direction should be for the purposes of clarifying the new Zoning Ordinance, fixing mistakes in transcription and correcting unintentional errors. Substantive changes in planning policy are not to be included in this set of routine amendments, but should be presented as separate Zoning Ordinance amendments, consistent with BMC Chapter 23.412 (Zoning Ordinance Amendments).
PROPOSED ZONING ORDINANCE AMENDMENTS
Since the new Zoning Ordinance came into effect on December 1, 2021, a number of clean-up amendments have been identified. The project team anticipated technical edits and corrections during the roll-out of the new Zoning Ordinance and was prepared with an efficient process and schedule for addressing these requests. This report is the product of that process and is labeled “Package #2” because it is the second set of edits to come before Planning Commission.
Future reports will be numbered accordingly.
The proposed Zoning Ordinance amendments are presented in two categories. The first category includes nine amendments that require an explanation or justification. These amendments are presented below with information on what was in the old Zoning Ordinance, what is in the new Zoning Ordinance, and recommended amendments including reasons why amendments are necessary. The second category includes technical edits such as simple spelling, punctuation or grammatical errors. These amendments are summarized in Table 1:
Text Edits and Other Routine Amendments.
Category One Zoning Ordinance Amendments
1. BMC Section 23.202.140 (R-SMU Zoning District)
Old Zoning Ordinance: Section 23D.52.070 of the old Zoning Ordinance regulated height requirements for Main Buildings in the R-SMU. The Section set a maximum height of 60 feet, but provides for heights above that maximum with a Use Permit. The maximum height attainable with a Use Permit depended upon a parcel’s location in the R-SMU District:
• Within the portions of the District located east of Telegraph Avenue and/or more than 130 feet south of Bancroft Way, the Board may approve a Use Permit to increase a project’s maximum height to five stories and 65 feet;
• Within the portion of the District located west of Telegraph Avenue and within 130 feet from Bancroft Way, the Zoning Board may approve a Use Permit to increase a project’s maximum height to five stories and 75 feet.
New Zoning Ordinance: Figure 23.202-2 in the new Zoning Ordinance includes a map of R-SMU subareas. The map does not accurately represent the subarea boundaries created to reflect the text above from the old Zoning Ordinance. The parcels in Figure
23.202-2 that are not assigned to any subarea should be assigned to Height Sub Area Two.
Public Hearing on Zoning Ordinance Technical Edits & Corrections Item 10
Proposed Amendment: Amend Figure 23.202-2 to accurately read:
Figure 23.202-2: R-SMU Subareas
2. BMC Section 23.204.030 (Commercial Districts – Additional Permit Requirements)
Old Zoning Ordinance: Section 23E.64.030 (C-W District – Uses Permitted) of the old Zoning Ordinance did not include Research and Development in the C-W Uses Permitted Table. Section 23E.64.303.C indicates that a use not listed in the Uses Permitted Table may be permitted with an AUP if found to be consistent with the purposes of the C-W district.
New Zoning Ordinance: This provision was not accurately carried over into Table
23.204-1: Allowed Land Uses in the Commercial Districts in the new Zoning Ordinance.
Table 23.204-1 indicates that Research and Development is permitted in the C-W with an AUP when it should be a use not listed (denoted with a “--“).
Proposed Amendment: Amend Table 23.204-1: Allowed Uses in Commercial Districts to read:
Public Hearing on Zoning Ordinance Technical Edits & Corrections Item 10
ZC = Zoning Certificate
AUP = Administrative
Use Permit
UP(PH) = Use Permit
NP = Not Permitted
-- = Permitted with
AUP, see Error!
Reference source not
found.(B)
[#] = Table Note Permit
Requirement
* Use-Specific
Regulations Apply
COMMERCIAL DISTRICTS
USE-
SPECIFI
C
REGULA
TIONS
C-C C-U C-N C-E C-NS C-SA C-T C-SO C-
DMU
C-
W
C-
AC
Research and
Development -- -- -- -- -- -- -- -- -- AUP
-- --
3. BMC Section 23.204.130 (C-DMU Zoning District)
Old Zoning Ordinance: Section 23E.68.070.D of the old Zoning Ordinance included provisions regulating required on-site open space. Section 23E.68.070.D.3 allowed a project to meet their on-site open space requirement by either constructing improvements consistent with the Streets and Open Space Improvement Plan (SOSIP) or paying an appropriate in-lieu fee towards similar improvements. Either option required a Use Permit.
New Zoning Ordinance: Section 23.204.130.E.6 of the new Zoning Ordinance includes the option to construct or fund construction improvements consistent with the SOSIP, but does not include the requirement to obtain a Use Permit.
Proposed Amendment: Amend Section 23.204.130.E.6 to read:
6. Open Space Alternatives.
(a) In lieu of providing the open space required by this section on-site, an applicant may either:
i. Pay an in-lieu fee to help fund the Streets and Open Space Improvement Plan (SOSIP); and/or
ii. Construct public improvement consistent with the SOSIP.
(b) Payment of an in-lieu fee in lieu of open space requires a Use Permit. To allow payment of in-lieu fee, the ZAB must find that the payment will support timely development of open space improvements that will serve the needs of both project residents and other people living in and using the downtown.
(c) Construction of public improvements consistent with the SOSIP in lieu of open space requires a Use Permit. To allow construction of public improvements, the ZAB must find that the public improvements…
4. BMC Section 23.302.070 (Use Specific Regulations – Food Service Establishments)
Public Hearing on Zoning Ordinance Technical Edits & Corrections Item 10
Old Zoning Ordinance: Table 23E.56.030 of the old Zoning Ordinance indicated that uses established by an AUP in the C-T district require public notification of a decision within a 300-foot radius of the subject property.
New Zoning Ordinance: Section 23.302.070.E.3 of the new Zoning Ordinance identifies the zoning districts in which a public notification is required for food service establishments that receive an AUP. The C-T district is missing from the list.
Proposed Amendment: Amend Section 23.302.070.E.3 to read:
3. Notification of Decision. Food service establishments requiring an AUP in the C-N, C-E, C-NS, C-SA, C-T, C-SO districts must provide public notification of decision (NOD) within a 300-foot radius of the subject property.
5. BMC Section 23.404.040 (Public Notice)
Old Zoning Ordinance: Pursuant to California Government Code Section 65090, amendments to the Zoning Ordinance require a public hearing, with a 10 day public notice.
New Zoning Ordinance: Section 23.404.040.C.3 of the new Zoning Ordinance indicates that a public hearing notice must be provided 14 days prior to a public hearing
Proposed Amendment: Amend Section 23.404.040.C.3 to read:
3. Timing of Notice. Notice shall be provided at least 14 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.
6. BMC Section 23.404.040 (Public Notice)
Old Zoning Ordinance: Pursuant to California Government Code Section 65090, amendments to the Zoning Ordinance require a public hearing, with a 10 day public notice and the publication of a public hearing notice (PHN) in a newspaper of general circulation no more than 7 days prior to the public hearing.
In addition to the requirement above, pursuant to section 23A.20.030 of the old Zoning Ordinance, the following public notices were required for amendments to the Zoning Map:
• For a zoning map amendment of less than 5 acres, a PHN must be posted at 3 locations near the subject property no fewer than 14 days before the hearing, and a mailing to property owners, residents, tenants and neighborhood associations within 300 feet of the property no fewer than 14 days before the hearing.
• For a zoning map amendment of 5 acres or more, a PHN must be posted on each block front involved no fewer than 14 days prior to the hearing; a mailing to
Public Hearing on Zoning Ordinance Technical Edits & Corrections Item 10
all owners, tenants and residents occupying the subject property no fewer than 14 days before the hearing; and the publication of the PHN in a newspaper of general circulation 14 days prior to the hearing and, again, 7 days prior to the hearing. [emphases added]
New Zoning Ordinance: Section 23.404.040.C.5 of the new Zoning Ordinance indicates that text amendments to the Zoning Ordinance must be published in a newspaper of general circulation both 14 days and 7 days prior to a public hearing. The double- publication requirement only applies to amendments to the Zoning Map of 5 acres of more.
Proposed Amendment: Amend Section 23.404.040.C.5 to read:
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
(a) At least 14 days before the hearing; and then again
(b) At least 7 days before the hearing.
7. BMC Section 23.502.020 (Glossary)
New Zoning Ordinance: The Glossary includes the following definition for Family Day Care Home (emphasis added):
Family Day Care Home. An establishment providing day care for 14 or fewer children in a dwelling unit as licensed by the California Department of Social Services. A family day care homes must be incidental to a residential use. The day care operator must live in the primary dwelling on the lot.
(a) Small Family Day Care Home. A family day care homes for eight or fewer children, including children who live at the home.
(b) Large Family Day Care Home. A family day care homes for nine to fourteen children, including children who live at the home.
The definition is imprecise, however, as there is no definition of “primary dwelling” in the Zoning Ordinance.
Proposed Amendment: Amend the definition of Family Day Care Home in the Glossary to read:
Family Day Care Home. An establishment providing day care for 14 or fewer children in a dwelling unit as licensed by the California Department of Social Services. A family day care homes must be incidental to a residential use and
Public Hearing on Zoning Ordinance Technical Edits & Corrections Item 10
must be operated in the dwelling unit or accessory building where the family day care operator resides. The day care operator must live in the primary dwelling on the lot.
(a) Small Family Day Care Home. A family day care homes for eight or fewer children, including children who live at the home.
(b) Large Family Day Care Home. A family day care homes for nine to fourteen children, including children who live at the home.
Category Two Zoning Ordinance Amendments
The following table includes minor text edits, along with a rationale for each edit.
Table 1: Text Edits and Other Routine Amendments
Zoning Ordinance
Section
Proposed Amendment Rationale
23.204.030
(Additional Permit
Requirements—
Commercial Districts)
Remove definition of Change of Use Glossary already contains exact same definition
language. Stating it twice
raises the opportunity for
discrepancies in future
updates. One location for
definitions is best practice.
Table 23.204-12
(C-U Setback Standards)
Lots on south north side of University Avenue Parcels on the north side of University Avenue are
subject to C-U Solar Access
Standards, not on the south
side.
Table 23.206-6
(Permits Required for
Changes to Protected Land
Uses)
Zoning
District
Change to
Protected Use
Permit
Required
MM
Change any
amount of
ground-floor
protected use to
a non-protected
use
UP(PH)
MU-LI
Change less than
or equal to
20,000 sq. ft. or
less than or
equal to and 25%
of protected use
to a non-
protected use
AUP
Change over
20,000 sq. ft. or
over 25% of
protected use to
a non-protected
use
UP(PH)
Clarification of appropriate
thresholds.
Public Hearing on Zoning Ordinance Technical Edits & Corrections Item 10
23.302.030.D.3.d
(Temporary Outdoor Uses
on Private Property –
COVID Local Emergency)
(d) Permits issued pursuant to this subsection must
be posted in plain view within the commercial
establishment for which the permit has been issued.
Spelling correction
NEXT STEPS
Staff recommends that the Planning Commission hold a public hearing, receive public testimony, and recommend to City Council adoption of the proposed Zoning Ordinance amendments.
ATTACHMENTS
1. Ordinance – Zoning Ordinance Amendments
2. Consent Changes Matrix
3. Public Hearing Notice
ATTACHMENT 4
NOTICE OF PUBLIC HEARING – BERKELEY CITY COUNCIL
Zoning Ordinance Amendments Making Technical Edits and Corrections to the Berkeley Municipal Code Sections 23.202.140 (R-SMU Zoning District);
23.204.020 (Allowed Land Uses); 23.204.030 (Additional Permit Requirements);
23.204.060 (C-U Zoning District); 23.204.130 (C-DMU District); 23.206.202 (Manufacturing Districts – Allowed Land Uses); 23.302.030 (Temporary Uses and Structures); 23.302.070 (Use-Specific Regulations); 23.404.040 (Public Notice);
23.502.020 (Glossary)
PUBLIC PARTICIPATION BY REMOTE VIDEO ONLY
The Department of Planning and Development is proposing amendments to the Zoning Ordinance. The hearing will be held on July 12, 2022 at 6:00 p.m. On October 12, 2021, the City Council passed Ordinance No. 7,787-NS, which repealed the then-existing Title 23 of the Berkeley Municipal Code and zoning maps (“the old Zoning Ordinance”) and adopted a new Title 23 of the Berkeley Municipal Code and zoning maps (“the new Zoning Ordinance”). The new Zoning Ordinance became effective December 1, 2021.
As part of City Council’s approval action, staff was directed to regularly return to City Council with any required amendments to the new Zoning Ordinance to aid in clarity, fix mistakes in transcription, or correct unintentional errors discovered as part of the transition from the old to the new Zoning Ordinance. The public hearing will consider a set of amendments to the new Zoning Ordinance that address these errors. No substantive changes to planning policy are included in this set of amendments. The Planning Commission unanimously recommended adoption of the proposed amendments.
The proposed amendments are exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines Sec.15061(b)(3). The proposed amendments are only text changes to the Berkeley Municipal Code and, therefore, there is no possibility of a significant effect on the environment.
The hearing will be held via videoconference pursuant to Government Code Section 54953(e) and the state declared emergency.
The hearing will be held on Tuesday, July 12, 2022 at 6:00 PM. The hearing will be held via videoconference pursuant to Government Code Section 54953(e) and the state declared emergency.
A copy of the agenda material for this hearing will be available on the City’s website at www.CityofBerkeley.info as of June 30, 2022. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology.
For further information, please contact Justin Horner, Associate Planner, at 510-981- 7476.
Written comments should be mailed directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or emailed to [email protected] in order to ensure delivery to all Councilmembers and inclusion in the agenda packet.
Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service.
If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981- 6900 or [email protected] for further information.
Published: Friday, July 1, 2022 per California Government Code Sections 65856(a) and 65090.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on June 30, 2022.
__________________________________
Mark Numainville, City Clerk
Office of Mayor Arreguin
2180 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7100 TDD: 510.981.6903 Fax: 510.981.XXXX E-Mail: mayor @CityofBerkeley.info
REVISED
AGENDA MATERIAL
for Supplemental Packet 2
Meeting Date: May 24, 2022
Item Number: 19
Item Description: Revisions to Section 311.6 Warrantless Searches of Individuals on Supervised Release Search Conditions of the Berkeley Police Department Law Enforcement Services
Submitted by: Mayor Arreguín and Vice Mayor Harrison
This supplemental proposes an alternative approach to addressing the authors’ concern that Council- adopted policy precludes BPD from utilizing the warrantless search provision to search a sex offender on probation or parole.
The recommended language creates a carve out making it clear that policy 311.6 does not apply to registered sex offenders on probation or parole consistent with their special assigned status under California Penal Code 290.
ACTION CALENDAR
May 24, 2022
1 To: Honorable Members of the City Council
From: Mayor Jesse Arreguín and Vice-Mayor Kate Harrison Subject: Alternative Revisions to Section 311.6 Warrantless Searches of Individuals on Supervised Release Search Conditions of the Berkeley Police Department Law Enforcement Services Manual
RECOMMENDATION
Amend Section 311.6 Warrantless Searches of Individuals on Supervised Release Search Conditions of the Berkeley Police Department (BPD) Law Enforcement Services Manual to enable officers of the Berkeley Police Department to conduct detentions and warrantless searches of registered sex offenders on parole/probation consistent with and supportive of the provisions in the probationer’s/parolee’s release conditions. The proposed language maintains the current policy in Section 311.6 but adds additional language clarifying that this policy does not apply to registered sex offenders, consistent with their special status under California Penal Code 290.
See the full proposed language below, additions are shown in underline:
In accordance with California law, individuals on probation, parole, Post Release Community Supervision, or other supervised release status may be subject to warrantless search as a condition of their probation. Officers shall only conduct probation or parole searches to further a legitimate law enforcement purpose. Searches shall not be conducted in an arbitrary, capricious, or harassing fashion.
Officers shall not detain and search a person on probation or parole solely because the officer is aware of that person 's probation or parole status. The decision to detain a person and conduct a probation or parole search , or otherwise enforce probation or parole conditions, should be made, at a minimum, in connection with articulable facts that create a reasonable suspicion that a person may have committed a crime, be committing a crime, or be about to commit a crime.
Notwithstanding this general policy, consistent with the special status assigned to sex offenders specified in California Penal Code 290, officers may search registered sex offenders on probation or parole as otherwise permissible by law.
2 BACKGROUND
Process and Rationale for Developing Policy 311.6
On May 11, 2022, the Police Accountabiilty Board (PAB) sent a letter to the City Council (Attachment 1), including background submitted by the PRC subcommittee on Probation and Parole Searches summarized in the September 9th, 2020 packet (Attachment 2). This background was not included in the original item but provides important context as to how and why this policy was formulated.
On April 24, 2018, the Berkeley City Council agreed on consent to “Review and Update BPD Policy Surrounding Inquiries to Parole and Probation Status” triggering a review of these policies by the Police Review Commission (PRC). Policy 311, Section 311.6 was the product of 18 months of work and collaboration between the former PRC and the Berkeley Police Department. The policy was later adopted by the Police Department and later affirmed by the Mayor’s Working Group on Fair and Impartial Policing and the Council as part of its acceptance of the Fair and IMpartial Policing Working Group’s report. The PRC gathered evidence, reviewed the legal and scholarly literature, and received input from practitioners and experts, including the Alameda County Assistant Chief of Probation.
The PRC initially recommended differentiating between violent and non-violent offenders, similar to Oakland’s policy. However, this approach was deemed too burdensome by BPD and thus Chief Greenwood proposed the language that was ultimately adopted by BPD with the support of the PRC (Attachment 3).
Concerns with Policy Committee Recommendation
The proposal to revise Section 311.6 does not adequately consider the original purpose, process, and concerns that led to the creation of this policy narrowing the scope of warrantless searches by the Berkeley Police Department. The April 24, 2018, Council Action was in response to the PRC’s report to “Achieve Fairness and Impartiality”. The reason for initiating this policy change was concern that suspicionless searches of persons who are on supervised release are a factor contributing to racial disparities. The disparate impacts of this policy are in part a result of the upstream systemic racism in our criminal justice system. Blacks and Latinxs are 71% of Alameda County’s probationers making people of color disproportionately impacted by a change to this policy. Any change to this policy needs to contend with the broader racial disparate impact of its implementation.
Policy 311.6 does not prohibit searches of individuals on supervised release, just suspicionless searches, a critical distinction. The reasonable suspicion standard is a lower threshold, not “nearly equal” to the standard of probable cause required to search an individual that is not on probation or parole. Additionally, a non-parolee can only be searched in a much more restricted manner, a pat-down, whereas a probationer/parolee can be subjected to a much more invasive search.
Berkeley is not alone in restricting these types of searches. Oakland has a policy, General Order R-02 that limits warrantless searches of individuals and distinguishes between violent and
3 non-violent offenders. Moreover, California is one of only nine states that allows these types of searches at all. It is not clear that Berkeley will be safer or achieve more equitable policing outcomes by adopting the policy committee recommendation.
The Supreme Court has long affirmed the application of 4th Amendment protections to people of all statuses, including supervised release, absent individualized suspicion (See Griffin v.
Wisconsin [1987]; U.S. v. Knight [2001]). Deviating from this principle, the Court in Samson v.
California (2006) found California's practice of police searches of people on supervisory release to be constitutionally permissible, given California's interest in suppressing its high recidivism rate. However, legal scholars argue that the Samson opinion is a radical departure from precedent and violates the constitutional protections of the 4th Amendment, and criminologists note that law enforcement's ability to do random searches of people on supervised release has not reduced California's recidivism rate. In fact, the City Council has received letters from distinguished scholars expressing deep concern for revising the policy to allow suspicionless searches.
Vincent Southerland, Assistant Professor of Clinical Law and Co-Faculty Director of the Center on Race, Inequality and the Law at the New York University School of Law, noted that California’s policy was upheld by the Supreme Court in Samson v. California based on the assumption that suspcisionless search of people on supervised release would reduce California’s above average recidivism rate (Attachment 4). This decision is contrary to the spirit of the Fourth Amendment that safeguards from unreasonable searches and seizures by the government apply to to all people, regardless of race, sex, national origin or criminal status.
On May 22, 2022 the City Council received a letter from Erwin Chemerinsky, Dean and Jesse H. Chopper Distinguished Professor of Law at the University of California, Berkeley School of Law, perhaps the most respected constitutional scholar in the country, urging the City Council to retain the current policy. Chermerinsky notes the danger of allowing police to stop individuals without at least having reasonable suspicion, and that in his view, California’s permission of suspicionless stops, and thus the proposed revision back to that standard, likely violates the Fourth Amendment (Attachment 5).
RATIONALE FOR RECOMMENDATION
We are in agreement with many of the points laid out in the letter from the PAB. There is no compelling evidence to support a complete rollback of Section 311.6. In particular, such a rollback could set back important progress toward fair and impartial policing.
However, given the unique concerns surrounding sex offenders, we are compelled to have a carve-out that waives the applicability of Policy 311 Section 311.6 with respect to registered sex offenders on probation or parole.
ALTERNATIVES CONSIDERED
The City Council could refer the policy back to the Police Accountability Board for a more thorough discussion on the legal and public safety considerations. This process could unpack
4 the role of probation and parole officers, as well as their capacity to enforce the release conditions of their clients.
Alternatively, the City Council could adopt a standard in place in Alaska and North Carolina, which only allow warrantless searches of individuals on supervised release at the request of their probation or parole officer.
FINANCIAL IMPLICATIONS
Asking officers to supplement the duties of Parole and Probation Officers can drive up costs and stretch police staff time that is already thin.
Attachments:
1. May 11, 2022, Police Accountability Board Letter
2. September 9, 2020, Police Review Commission Agenda Packet
3. September 23, 2020, Police Review Commission Agenda Packet
4. May 9, 2022, Letter from Vincent Southerland, Assistant Professor of Clinical Law and Co-Faculty Director of the Center on Race, Inequality and the Law at the New York University School of Law
5. May 22, 2022, Letter from Erwin Chemerinsky, Dean and Jesse H. Chopper Distinguished Professor of Law at the University of California, Berkeley School of Law
School of Law
Clinical Law Center
245 Sullivan Street, Room 629
New York, New York 10012
212-998-6882
[email protected]
Vincent M. Southerland
Assistant Professor of Clinical Law
May 9, 2022
City Council
City of Berkeley
2180 Milvia St.
Berkeley, CA 94704
[email protected]
Dear Berkeley City Council Members,
I am writing in light of your consideration of Berkeley Police search policy which currently requires that officers have reasonable suspicion to justify a search of a person on probation or parole. I was disheartened to learn that the Berkeley City Council is considering a rollback of policies meant to curtail the suspicionless search of people on supervision by Berkeley Police. Given the serious implications of these practices on Fourth Amendment rights and racial equity, I strongly urge City Council to leave the current limits on police authority in place.
I am an Assistant Professor of Clinical Law and co-Faculty Director of the Center on Race, Inequality, and the Law at the New York University School of Law. My expertise centers on the intersection of race and the criminal legal system, as well as criminal law and procedure.
Prior to joining NYU School of Law, I was an Assistant Federal Defender with the Federal Defenders for the Southern District of New York, where I represented individuals in federal criminal proceedings and during post-conviction supervised release. My time as a federal defender was preceded by nearly a decade at the NAACP Legal Defense and Educational Fund and several years as a state public defender in New York.
The Fourth Amendment safeguards our fundamental right to be secure from unreasonable searches and seizures by the government.
1 It ensures that law enforcement cannot
intrude upon our privacy without at least individualized, reasonable suspicion. This basic requirement is “the shield the Framers selected to guard against the evils of arbitrary action, caprice, and harassment.”2 The Fourth Amendment’s safeguards apply to all people, regardless of race, sex, national origin, or for that matter, criminal status. As the Supreme Court has long recognized, people on supervised release, just like any other class of people, merit the Fourth Amendment’s protections.3
1 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” CONST. AMEND. IV
2 Samson v. California, 547 U.S. 843, 866 (Stevens, J. dissenting). 3 See United States v. Knight, 534 U.S. 122 (2001) (holding that there must still be reasonable suspicion of wrongdoing to justify warrantless search of people on supervised release); Griffin v. Wisconsin, 483 U.S. 868, 876-77 (1987) (holding that warrantless searches carried out by probation officers as part of individualized counseling and monitoring may give rise to special needs justifying departure from the Fourth Amendment’s strictures); c.f. Samson, 547 U.S. 843 (2006).
Yet, contrary to the spirit of the Fourth Amendment, California is one of only nine states to allow warrantless, suspicionless searches by law enforcement of those on probation or parole.
4 Although California’s arcane policy was upheld by the Supreme Court in Samson v. California,5 the state’s justifications for the measure emanated from the assumption that the suspicionless search of people on supervised release would reduce California’s above-average recidivism rate. This assumption was flawed in 2006, when Samson was decided, and remains erroneous today. In Samson, the Court overlooked the fact that California’s recidivism rate was driven by the state’s system-wide failure to provide people in prison with vocational education, mental health treatment, and related services upon release, 6 combined with “lockup quotas” that perversely incentivized the violation of parolees to fill bed space in the state’s prisons. 7 These shortcomings resulted in California returning more people on supervised released to its custody than in 39 states combined. 8 As recently as 2019, the state has admitted its failure to adequately support the re-entry of people in its custody. 9 The suspicionless search of people on supervised release bolsters the falsehood that people on supervised release are inherently suspicious and therefore less entitled to the law’s fundamental protections. Such policies vest police with the sort of unbridled authority that resulted in a national outcry over policing in the wake of George Floyd’s death.
In response to that outcry, the Berkeley City Council made significant strides to promote racial justice within its criminal legal system. Among the policies adopted were measures restricting law enforcement’s ability to inquire about a person’s supervised release status and limiting warrantless searches of people on supervised release to only those instances where there are “articulable facts that create a reasonable suspicion” that the individual was involved in criminal activity.
10 The regulation restored the protections enshrined in the Fourth Amendment—that touchstone requirement for government searches to be based not on a person’s status, but on some individualized, reasonable suspicion of wrongdoing.
4 See Cal. Penal Code Ann. § 3067(a) (West 2000).
5 Samson, 547 U.S. 843 (2006).
6 W. David Ball, Mentally Ill Prisoners in the California Department of Corrections and Rehabilitation:
Strategies for Improving Treatment and Reducing Recidivism, 24 J. of Contemporary Health Law & Policy 1.2 (2007), Marvin Mentor, Supreme Court: California’s Law Permitting Suspicionless Police Search of Parolees Does Not Violate Fourth Amendment, Prison Legal News (June 15, 2007), https://www.prisonlegalnews.org/news/2007/jun/15/supreme-court-californias-law-permitting-suspicionless- police-search-of-parolees-does-not-violate-fourth-amendment/ (detailing how California prisons failed to adequately screen inmates for mental illness during intake, offer special programming or housing, provide basic treatment, and to address special needs upon release, resulting in “mentally ill prisoners get sicker, stay longer, suffer more, and wind up back in prison soon after their release.”); Opinion, California Reinvents the Wheel, N.Y.T. (Apr. 16, 2004), https://www.nytimes.com/2004/04/16/opinion/california-reinvents-the-wheel.html (noting that despite California laws requiring that people be provided remedial education while in prison, fewer than 10% of prisoners were enrolled in academic programs). 7 Marvin Mentor, Supreme Court: California’s Law Permitting Suspicionless Police Search of Parolees Does Not Violate Fourth Amendment, Prison Legal News (June 15, 2007), https://www.prisonlegalnews.org/news/2007/jun/15/supreme-court-californias-law-permitting-suspicionless- police-search-of-parolees-does-not-violate-fourth-amendment/;; see also Criminal: How Lockup Quotas and “Low-Crime Taxes” Guarantee Profits for Private Prison Companies, In the Public Interest (Sept. 2013), https://www.inthepublicinterest.org/wp-content/uploads/Criminal-Lockup-Quota-Report.pdf 8 Mentor, supra note 7.
9 California Dept. of Corrections and Rehabilitation, Several Poor Administrative Practices Have Hindered Reductions in Recidivism and Denied Inmates Access to In‑Prison Rehabilitation Programs, Report 2018-113 (Jan 2019), https://www.bsa.ca.gov/pdfs/reports/2018-113.pdf. 10 Berkeley Police Department Law Enforcement Service Manual § 311.6
In passing these reforms, City Council acknowledged that California’s authorization of suspicionless searches aggravated racial disparities endemic to the criminal legal system.
Black, Latinx and other people of color are disproportionately policed and prosecuted, and therefore—predictably—more likely to end up on supervised release. Although Black Californians make up less than 8% of the general population, they represent 22.9% of those on state supervised release.
11 Black people who often live in heavily policed neighborhoods are also more likely to be stopped by law enforcement. The Berkeley Police Department’s own data reveals that Black residents are not only more likely to be stopped than white residents, but also four times more likely to be searched following a traffic stop. 12 By restoring law
enforcement authority to search Berkeley residents on the sole basis of their supervision status, the contemplated rollbacks invite gratuitous and discriminatory police contact, which in turn threatens to compound these stark racial disparities and undermines community well-being.
Restoring Fourth Amendment protections to people on supervised release made Berkeley stand out as a beacon committed to advancing racial equity and civil rights. Rolling back this progress would be a grave step in the wrong direction.
Sincerely,
Vincent Southerland
Assistant Professor of Clinical Law
Director, Criminal Defense and Reentry Clinic
Co-Faculty Director, Center on Race, Inequality, and the Law New York University School of Law
245 Sullivan Street, 629
New York, NY 10012
Tel.: (212) 998-6882
[email protected]
cc: Mayor Jesse Arreguín
11 Mia Bird, Justin Goss, Viet Nguyen, Recidivism of Felony Offenders in California, Public Policy Institute of California, (June 2019), https://www.ppic.org/wp-content/uploads/recidivism-of-felony-offenders-in- california.pdf.
12 Malini Ramaiyer, Berkeley police stop and search Black residents more often, Police Review Commission finds, THE DAILY CALIFORNIAN (March 12, 2018), https://www.dailycal.org/2018/03/12/berkeley-police-stop- search-black-residents-often-police-review-commission-finds/.
ERWIN CHEMERINSKY
Dean and Jesse H. Choper
Distinguished Professor of Law
University of California, Berkeley
School of Law
215 Law Building
Berkeley, CA 94720-7200
Tel 510.642.6483
Fax 510.642.9893
[email protected]
www.law.berkeley.edu
May 22, 2022
Mayor Jesse Arreguin
Members of the Berkeley City Council
[email protected]
[email protected]
[email protected].
Re: Proposal to revise Berkeley Police Department Policy 311, Section 311.6
Dear Mayor Arreguin and Members of the Berkeley City Council,
I understand that the Berkeley City Council is scheduled to consider, at its meeting on May 24, a proposal to revise Berkeley Police Department Policy 311, Section 311.6, Warrantless Searches of Individuals on Supervised Release Search Conditions. I am writing to urge that you retain the current policy, which requires “reasonable suspicion” for individuals on probation and parole.
I am Dean of the University of California, Berkeley School of Law and the Jesse H.
Choper Distinguished Professor of Law. I regularly teach a course on policing and the Fourth Amendment, Criminal Procedure: Investigations. My most recent book – Presumed Guilty:
How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright 2021) – focuses on this topic.
The current Berkeley policy requires that the police have reasonable suspicion before searching those who are on probation and parole. This is not a demanding standard, but it is one that requires some basis before a police officer can stop and search a person who is on probation or parole. The Supreme Court has explained that reasonable suspicion requires more than a hunch, but less than probable cause.
Every police search is degrading and stressful. Each has the possibility of escalating.
Moreover, countless studies have shown the danger of allowing police to stop individuals without at least having reasonable suspicion: the power often is used in a racially discriminatory manner. In the case of probation and parole searches, this is inevitable since the vast majority of those on probation or parole in California arepeople of color.
Nor is there any evidence that allowing suspicionless stops enhances effective law enforcement. Indeed, many studies conclude that intensive probation and parole searches are not correlated with a decrease in crime.
California is one of the few states that allows police to search individuals on community supervision without a requirement for reasonable suspicion. I believe that this likely violates the Fourth Amendment, despite the Supreme Court’s finding in Samson v. California.
Therefore, I urge the City Council to retain the current policy. The police only should be able to search a person if there is at least reasonable suspicion. Eliminating this requirement will do little to enhance public safety, but it will cause great harms and is likely unconstitutional.
Thank you for considering my views.
Sincerely,
s/
Erwin Chemerinsky
Lori Droste
Councilmember, District 8
Action Calendar
July 12, 2022
(Continued from May 24, 2022)
To: Honorable Mayor and Members of the City Council
From: Councilmembers Lori Droste and Terry Taplin
Subject: Revisions to Section 311.6 Warrantless Searches of Individuals on Supervised Release Search Conditions of the Berkeley Police Department Law Enforcement Services Manual
Recommendation
Revise Section 311.6 Warrantless Searches of Individuals on Supervised Release Search Conditions of the Berkeley Police Department (BPD) Law Enforcement Services Manual to enable officers of the Berkeley Police Department to conduct detentions and warrantless searches individuals on parole/probation consistent with and supportive of the provisions in the probationer’s/parolee’s release conditions. The proposed revisions are shown in strikethrough and double-underline below:
Officers shall not detain and search a person on probation or parole solely because the officer is aware of that person's probation or parole status. The decision to detain a person and conduct a probation or parole search, or otherwise enforce probation or parole conditions, should be based upon articulable facts that support a need to enforce and/or confirm compliance with probation or parole conditions.should be made, at a minimum, in connection with articulable facts that create a reasonable suspicion that a person may have committed a crime, be committing a crime, or be about to commit a crime. In the conduct of all such detentions and searches, officers shall consciously avoid the application of bias, shall not use such detentions or searches as a means to harass or annoy, and shall not conduct such detentions and searches in a manner that targets or is discriminatory toward any protected class.
Policy Committee Recommendation
On April 18, 2022, the Public Safety Committee adopted the following action: M/S/C (Taplin/Wengraf) to send the item with a qualified positive recommendation, as revised by the committee and subject to legal review. Section 311.6 was revised to read: In accordance with
California law, individuals on probation, parole, Post Release Community Supervision, or other supervised release status may be subject to warrantless search as a condition of their probation. Officers shall only conduct probation or parole searches to further a legitimate law enforcement or rehabilitative purpose. Searches shall not be conducted in an arbitrary, capricious, or harassing fashion. In the conduct of all such detentions and searches, officers shall consciously avoid the application of bias, shall not use such detentions or searches as a means to harass or annoy, and shall not conduct such detentions and searches in a manner that targets or is discriminatory toward any protected class. Vote: All Ayes.
Problem or Summary Statement
Existing provisions of the BPD Law Enforcement Services Manual do not permit BPD officers to conduct warrantless searches and seizures of probationers/parolees in a manner that would be consistent with the conditions of their release. The restrictiveness of these provisions places those on probation/parole on nearly equal footing with respect to Fourth Amendment rights as those not on probation/parole. Not only is this circumstance at odds with the nature and purpose of probation/parole, it also prevents officers from effectively implementing the conditions of release imposed by sentencing judges. This limits officers’ ability to proactively address recidivism and therefore presents a potentially significant risk to public safety.
Background
Probation/parole is a prison/jail sentence that is suspended on the condition that the offender follow certain prescribed rules and commit no further crimes. As part of these terms, individuals released on probation/parole are often required to waive all or a portion of their Fourth Amendment rights (which would otherwise normally guard against unreasonable search and seizure) in order to secure their release.
Fundamentally, these waivers reflect the fact that for a probationer/parolee, the full term of what would otherwise have been an incarceration is not yet complete. More practically, courts often impose these waivers as a condition of probation/parole because they recognize that both in general and for the individual in question, there may be a higher likelihood of recidivism or additional crimes, which must be guarded against.
When determining the extensiveness/intrusiveness of such Fourth Amendment waivers, sentencing justices will usually consider the nature and severity of the crime. Probation is typically issued with terms that allow for an individual’s: 1) person; 2) property; 3) residence; and/or 4) vehicle to be searched at any time. Allowing only for a search of the person only would constitute a “one-way” search clause, whereas allowing for all four would constitute a “four-way” search clause. In extreme cases, an offender’s terms may include these terms and an additional term allowing for the search of any/all of the individual’s electronic devices, resulting in a “five-way” search clause. This is considered the most complete and intrusive of search terms.
Current Situation and Its Effects
Currently, an individual on probation or parole in Berkeley would be on nearly equal footing as someone who is not on probation or parole when it comes to search and seizure. This would, for example, mean that someone with a history of crimes involving firearms could not have their person or vehicle searched by BPD officers unless there were “articulable facts” that could be given to indicate that the individual had committed, was committing, or would commit a crime. In the case of a crime involving a firearm, such articulable facts would likely come only after a serious threat to public safety had already manifested. Although such risks would rightly not normally be sufficient to justify a search and seizure, in the case of probation and parole, courts typically recognize both a heightened risk and a diminution of Constitutional rights associated with a provisional release.
To give another particularly disturbing example, there is currently a sex offender residing in Berkeley whose crimes were so sever that the judge deemed that a “five-way” search clause was necessary in the offenders probation/parole conditions. Moreover, the court imposed a number of heightened restrictions on the individual in recognition of the seriousness of their offense, including prohibitions on the possession of images of children and on sleeping in any dwelling where children were present. Under current section 311 policies, BPD would generally not be permitted to search the individuals’ electronic devices to ensure that the judge’s order was being followed.
Criteria Considered
Effectiveness
This policy would apply only to searches and seizures involving individuals on probation or parole; the Fourth Amendment rights of others would not be affected. With regard to individuals on probation or parole, however, BPD would be able to more easily and effectively enforce the conditions of those individuals release, and guard against recidivism.
Fiscal Impacts
By potentially averting crimes, this policy change could serve to reduce policing costs since crime prevention is typically less costly than after-the-fact investigation, remediation, etc.
Additionally, by serving to reduce recidivism, this policy could reduce overall costs to the criminal justice system.
Environmental Sustainability
The proposed policy would not result in any appreciable impacts with respect to environmental sustainability.
Equity
Regardless of whether this policy change is adopted, it will remain incumbent upon the Berkeley Police Department to respect the Fourth Amendment rights of individuals who are not on probation or parole; and for those on probation or parole, to limit such intrusions to those that are explicitly noted in the conditions of their release. BPD will also remain responsible for exercising its authority and responsibilities in a manner free of discrimination or bias. Since the practice of this revised policy would be no more or less likely than the existing policy to suffer from the effects of bias, this proposal is not anticipated to have any appreciable negative impacts on equity as it relates to BPD conduct. Additionally, impacts from crime tend to fall disproportionately on lower-income communities and people of color. If the fuller use of court- ordered avenues for search and seizure succeed in averting crimes, this proposed policy change could have the effect of promoting greater equity with respect to impacts from crime.
Attachments
Current Berkeley Police Department Law Enforcement Services Manual
Policy Berkeley Police Department
311
Law Enforcement Services Manua l
Search and Seizure
311.1 PURPOSE AND SCOPE
Both the federal and state Constitutions provide every individual with the right to be free from unreasonab le searches and seizures. This policy provides general guidelines for Berkeley Police Department personne l to consider when deali ng with search and seizure issues. 311.2 POLICY
It is the policy of the Berkeley Police Department to respect the fundamenta l privacy rights of individua ls. Members of this department will conduct searches in strict observance of the constitut ional rights of persons being searched . All seizures by this department will comply with relevant federa l and state law governing the seizure of persons and property.
The Department will provide relevant and current training to officers as guidance for the application of current law, local community standards and prosecutor ial considerations regarding specific search and seizure situations, as appropriate .
311 .3 SEARCHES
The U.S. Constitution generally provides that a valid warrant is required in order for a search to be valid. There are, however , severa l exceptions that permit a warrantless search .
Examples of law enforcement activities that are exceptions to the genera l warrant requirement include, but are not limited to, searches pursuant to the following:
• Valid consent
• Incident to a lawful arrest
• Legitimate community caretaking interests
• Vehicle searches under certain circumstances
• Exigent circumstances
Certain other activities are recognized by federal and state courts and by certain statutes as legitimate law enforce ment activities that also do not require a warrant. Such activities may include seizure and examination of abandoned property, and observations of activities and property located on open public areas.
Because case law regarding search and seizure is constant ly changing and subject to interpretation by the courts, each member of this departmen t is expected to act in each situation according to current training and his/her familiarity with clearly established rights as determined by case law.
Wheneve r practicable , officers are encouraged to contact a supervisor to resolve questions regarding search and seizure issues prior to electing a course of action .
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Berkeley Police Department
Law Enforcement Services Manual
Search and Seizure
311.4 SEARCH PROTOCOL
Although conditions will vary and officer safety and other exigencies must be considered in every search situation , the following guidelines should be followed whenever circumstances permit:
(a) Members of this department will strive to conduct searches with dignity and courtesy. (b) Officers should explain to the person being searched the reason for the search. (c) Searches should be carried out with due regard and respect for private property interests and in a manner that minimizes damage. Property should be left in a condition as close as reasonably possible to its pre-search condition. (d) In order to minimize the need for forcible entry, an attempt should be made to obtain keys, combinations or access codes when a search of locked property is anticipated. (e) When the person to be searched is of the opposite sex as the searching officer, a reasonable effort should be made to summon an officer of the same sex as the subject to conduct the search. When it is not practicable to summon an officer of the same sex as the subject, the following guidelines should be followed:
1. Another officer or a supervisor should witness the search .
2. The officer should not search areas of the body covered by tight-fitting clothing, sheer clothing or clothing that could not reasonably conceal a weapon . 311.5 ASKING IF A PERSON IS ON PROBATION OR PAROLE
In an effort to foster community trust, officers should not ask if a person is on probation or parole when a person has satisfactorily identified themselves, either verbally or by presenting identification documents .
Officers may determine probation or parole status through standard records checks conducted in the course of a traffic safety or investigative stop. Officers should only ask when necessary to:
(a) Protect the safety of others, the person detained, or officers; (b) Further a specific law enforcement investigative purpose (for example, sorting out multiple computer returns on a common name);
(c) To confirm probation and parole status subsequent to a records check.
If an officer needs to ask the question, "Are you on probation or parole?" the officer should do so while treating the person with dignity and respect, and being mindful that people may take offense at the question.
311.6 WARRANTLESS SEARCHES OF INDIVIDUALS ON SUPERVISED RELEASE
SEARCH CONDITIONS
In accordance with California law, individuals on probation, parole, Post Release Community Supervision, or other supervised release status may be subject to warrantless search as a condition of their probation. Officers shall only conduct probation or parole searches to further a Copyright Lexipol, LLC 2021102/10, All Rights Reserved.
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Berkeley Police Departme nt
Law Enforcemen t Services Manual
Search and Seizure
legitimate law enforeement purpose. Searches shall not be conducted in an arbitrary, capricious, or harassing fashion.
Officers shall not detain and search a person on probation or parole solely because the officer is aware of that person's probation or parole status. The decision to detain a person and conduct a probation or parole search , or otherwise enforce probation or parole conditions, should be made, at a minimum, in connect ion with articulable facts that create a reasonab le suspicion that a person may have committed a crime, be committing a crime, or be about to commit a crime . 311 .7 DOCUMENTATION
Officers shall document , via MDT disposition, Field Interview, Incident or Case Report, any search of a person , vehicle or location . Officers should consider document ing, as applicable, the following:
• Reason for the search
• Any efforts used to minimize the intrusiveness of any search (e.g., asking for consent or keys)
• What, if any, injuries or damage occurred
• All steps taken to secure property
• The results of the search , including a description of any property or contraband seized • If the person searched is the opposite sex, any efforts to summon an officer of the same sex as the person being searched and the identification of any witness officer Supervisors shall review reports to ensure the reports are accurate, that actions are properly documented and that current legal requirements and department policy have been met.
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Sophie Hahn
Councilmember
District 5
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7150 ● TDD: (510) 981-6903 E-Mail: [email protected]
ACTION CALENDAR
July 12, 2022
(Continued from June 14, 2022)
To: Honorable Mayor and Members of the City Council
From: Councilmember Sophie Hahn (Author), Councilmembers Terry Taplin, Ben Bartlett and Kate Harrison (Co-Sponsors)
Subject: Restoring and Improving Access to City of Berkeley Website and Archival Materials
RECOMMENDATION
Direct the City Manager to:
1. Restore at previous URLs all PDF documents previously hosted on the City of Berkeley website.
2. Create a publicly accessible archival copy of the City’s previous website, CityofBerkeley.info, that can be accessed without logins and via internet search engines. Include a prominent disclaimer noting the date the website, page, or document was archived, with links redirecting to the active website or other responsive resource.
3. On the new website, update Commission pages to include a minimum of 2 years of historic agendas and other materials and update City Council and Council Committee pages to include at least 3 years of complete materials.
4. By July 15, 2022 develop and make available to all City staff and to the public training at beginner to expert levels on use of the City’s Records Online search function and create more extensive and less technical self-help resources covering basic and expert use.
5. In recognition of increased public traffic, update the Records Online homepage to explain how the portal works and link to more robust self-help resources and alternative search functions.
6. Coordinate with agency staff to include all relevant records (agendas, minutes, etc.) from Rent Board and Housing Authority in Records Online Portal.
ACTION
July 12, 2022
7. Update any remaining 404 pages to explain that the City’s website has been moved/updated, and provide links to helpful pages, search functions and/or pathways to access responsive materials. As quickly as possible, consider implementing redirects with wildcards to direct as many old links to relevant new website pages in lieu of the standard 404 page. E.g. cityofberkeley.info/planning* to the Planning Department site map/homepage, or Department Specific 404 page explaining new navigation.
Refer to the City Manager the following additional improvements to Records Online:
1. Within Records Online, provide unique archival/search categories for each City Commission, Board, Committee and Rent Board, and consider other useful categories, to assist users in narrowing results and identifying responsive materials.
2. Allow Records Online search results to be sorted by date and by other searchable factors. Consider means to integrate records online into default site search bar.
3. Explore and report back to Council options for improving the scope of Records Online, improving search options and sorting, and making all materials – or materials from January 1, 2000 (or an earlier recommended date) forward, searchable using internet search engines.
BACKGROUND
The recently launched new City Website has brought many important improvements, in particular with respect to customer/resident services. It’s much easier for users to find help with important functions such as requesting a service, reporting a pothole, or paying a bill, and to learn about public-facing services and facilities. It also includes well-organized foundational information about City departments and special projects. All of this represents a huge improvement for these users and uses.
The new website’s utility as a resource and archive for specialized or in-depth records and materials, however, has been severely hobbled. Staff has reported that over 15,000 pages were consolidated into 500, in an attempt to focus the website on a particular and important user experience. Unfortunately, other functionalities were severely reduced and users who have long relied on the website to access a broad range of important materials have limited opportunities to search for and find responsive documents.
Another consequence of removing the City’s “old” website is that all links in plans such as the Bicycle, Pedestrian, and Vision Zero Plans, Area Plans, the SOSIP Plan, the Climate Action Plan, Electric Mobility Plan - and all other Plans generated prior to launch of the new website - are broken. Links in every item, memorandum, study,
ACTION
July 12, 2022
regulation, footnote, press release, health order, or other document or statement generated by the City prior to launch of the new website are also dead.
Materials previously accessible via simple search engine queries are no longer accessible, except via an “old school” portal that requires time and expertise to navigate. Unlike 21st Century search engines, Records Online works best when a user knows exactly what they are looking for, including the title and date a document or topic was generated, severely limiting its utility. Broader searches generate voluminous results that cannot be easily browsed, adding significant time to locate materials that previously could be identified instantaneously. For members of the public curious about a City topic or policy, and in particular for staff and Council Members involved in research or writing memos, policies, programs, plans, and other in depth items, the extra time involved searching for responsive documents can add up to hours, and important documents are likely to be missed.
Compounding this problem, website pages that previously linked to years’ worth of archived documents, press releases, memos, regulations, plans and similar materials either no longer exist, or contain only shallow archives. As a result, a veritable trove of documents and reports important to understanding the history and current status of the City and its programs and policies, while technically still available via expert use of Records Online, are functionally beyond reach.
Addressing the loss of critical transparency and functionality with closure of the City’s previous website requires urgent action. This item requires both interim and long term solutions to be implemented on an expedited basis.
FINANCIAL IMPLICATIONS
Significant reduction in staff time across the organization chasing broken links and searching for materials in Records Online. Staff time to implement requested changes and research additional solutions.
CURRENT SITUATION AND ITS EFFECTS
The updated website presents significant challenges for important users and uses.
Members of the public, staff, and elected officials are no longer able to reliably locate or navigate current and historic materials. Critical transparency is vastly decreased, and user time across the City and among members of the public is increased, rendering both work and public participation more difficult and time consuming.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
ACTION
July 12, 2022
N/A
CONTACT PERSON
Councilmember Sophie Hahn Council District 5 510-981-7150
1 Rent Stabilization Board
Office of the Executive Director
ACTION CALENDAR
July 12, 2022
TO: Honorable Mayor and Members of the City Council
FROM: 4 x 4 Joint Committee on Housing City Council/Rent Board SUBMITTED BY: Matt Brown, General Counsel, Rent Stabilization Board SUBJECT: Placing a Measure on the November 8, 2022 Ballot Amending the Rent Stabilization and Eviction for Good Cause Ordinance (B.M.C. 13.76)
RECOMMENDATION
1. Adopt a Resolution placing the proposed amendments to the Rent Stabilization and Eviction for Good Cause Ordinance on the ballot of the November 8, 2022 General Municipal Election.
2. Designate, by motion, specific members of the Council to file ballot measure arguments on this measure as provided for in Elections Code Section 9282.
SUMMARY
The Rent Stabilization Board and 4 x 4 Committee on Housing City Council/Rent Board has recommended a set of amendments to the Rent Stabilization and Eviction for Good Cause Ordinance (B.M.C. Chapter 13.76). These amendments set forth the following changes:
1. Amend the Rent Stabilization and Eviction for Good Cause Ordinance to allow for rent control to attach to all residential rental units where state law does not prohibit it, and specifically allow Council to designate new units as rent-controlled when they are created pursuant to demolition projects as allowed by Senate Bill 330;
2. Eliminate the good cause for Eviction that allows landlords to evict tenants who have exceeded previously established occupancy limits unless the number of occupants
2 currently in the rental unit exceeds the maximum number of occupants legally allowed under Section 503(b)(2) of the Uniform Housing Code as incorporated by California Health & Safety Code Section 17922;
3. Eliminate B.M.C. Section 13.76.060Q. which allows Council, upon request by the Board, to decontrol rental units in the event the annual average vacancy rate for all rental units in the City of Berkeley exceeds five percent over a six-month period;
4. Add eviction protections for certain units that do not currently have them.
FISCAL IMPACTS OF RECOMMENDATION
There will be a financial cost to the City limited to the costs associated with placing the measure on the ballot. Each additional measure added to the ballot increases the costs to the city.
If more rental units are fully covered by the Ordinance, Registration fees currently mandated by B.M.C. 13.76.080 for fully covered rental units may decrease as a result of economies of scale to provide services to all fully-covered units.
CURRENT SITUATION AND ITS EFFECTS
Berkeley voters passed Measure D in June 1980, establishing the current Berkeley Rent Stabilization and Eviction for Good Cause Ordinance as codified in Berkeley Municipal Code Chapter 13.76. Berkeley City Council has, periodically, placed measures on the general ballot for the voters to decide when the Board recommends amendments.
1. Expansion of Rent Control to Cover Units Created as the Result of Demolition Pursuant to SB 330 and make clear that Rent Control Applies to all Units unless Specifically Prohibited by State Law
The Rent Ordinance currently defines “new construction” as a rental unit that was created after June 30, 1980. The date a unit was created is based upon the date of issuance of the first certificate of occupancy. While newly constructed units are partially covered by the Rent Ordinance (Registration, Security Deposit Interest, and Good Cause Eviction Protections), they are not covered by rent control.
2. Allow for Increased Occupancy of Rental Units Without Threat of Eviction The Ordinance specifically provides a ground for eviction when any subletting by the tenant household results in an increase above the base occupancy level. A tenant household may also be evicted from their rental unit if they substantially violate a material term of the rental agreement, and a landlord may argue that households that exceed the base occupancy level may be evicted
3 for this reason.
3. Eliminate “Decontrol” Clause from the Ordinance
The elected Board may request that Council decontrol rental units if the annual average vacancy rate for all rental units in the city of Berkeley exceeds five percent over a six-month period.
4. Add Eviction Protections to Rental Units that do not Currently Receive Them The Rent Ordinance fully exempts a subset of owner-occupied duplexes from the Rent Ordinance. These “golden duplexes” are ones that are currently owner-occupied as a principal residence and were owner-occupied (not necessarily by the same owner) on December 31, 1979.
The Rent Ordinance also fully exempts rental units on properties with a permitted Accessory Dwelling Unit where one unit on the property is owner-occupied as a principal residence and the tenancy was created after November 7, 2018.
Tenant occupied units on these properties do not have eviction protections articulated in the Rent Ordinance when the property owner occupies a unit on the property as their principal residence.
BACKGROUND
1. Expansion of Rent Control to Cover Units Created as the Result of Demolition Pursuant to SB 330 and make clear that Rent Control Applies to all Units unless Specifically Prohibited by State Law
SB 330 allows cities to impose rent control protections on units that are built as the result of demolition of previously-controlled units. The Housing Crisis Act of 2019 requires all housing projects that demolish existing residential units to create as least as many residential units as are being demolished. Projects that contain "protected units," which include residential units that have been subject to a local rent control program within the previous five years, are required to provide replacement units at an affordable rent (or sales price) with the same number of bedrooms as the demolished unit. The affordability level of a replacement unit is based on the income level of the last household occupying the demolished unit and must be rented (or sold) at a rate that is affordable to occupants of the same income category or lower. If a "protected unit" was last occupied by persons or families above the low-income category, the affected city has the option to require that the housing project provide: 1) a replacement unit affordable to low- income households for a period of at least 55 years, or 2) a replacement unit that complies with the jurisdiction's rent or price control ordinance.
Currently, the Rent Control Ordinance expressly exempts newly constructed units from Chapters 10 (Establishment of Base Rent Ceiling and Posting), 11 (Annual General Adjustment of Rent
4 Ceilings) and 12 (Individual Adjustments of Rent Ceilings) of Ordinance. These residential units are subject to the registration requirements of Measure MM, are covered by good cause for eviction, and are entitled to annual security deposit interest, but they are not subject to local rent controls. SB 330 would allow for these new units created as the result of demolition to be fully covered by the rent control provisions of the ordinance should the City choose that option when approving new construction that was the result of demolition of existing qualifying units.
The 4 x 4 Committee also directed staff to draft language that would amend the Rent Ordinance to make clear that all newly constructed units are fully rent-controlled unless otherwise prohibited by state law.
The Board voted unanimously to support this proposal on March 17, 2022, and the 4 x 4 Committee voted on May 3, 2022, to support this proposal. The approved language is set forth in Attachment A, in subsections 13.76.040 and 13.76.050.
2. Allow for Increased Occupancy of Rental Units Without Threat of Eviction The 4 x 4 Committee also recommended that the Ordinance be amended to prohibit evictions based on the addition of occupants if the landlord has unreasonably refused the tenant’s written request, including a refusal based on the number of occupants allowed by the rental agreement or lease.
Tenants’ ability to add additional occupants to their household can be a precarious proposition given that a good cause for eviction lies when a tenant household substantially violates a material term of the rental agreement. While tenants are currently protected from eviction when there is one-for-one replacement of tenants, the Ordinance specifically provides a ground for eviction when any subletting by the tenant household results in an increase above the base occupancy level (B.M.C. 13.76.130A.2.(c)).
While the Board has express authority to regulate the manner and grounds for which rents may be increased or decreased,1 the grounds for eviction are hard-coded in the Ordinance (B.M.C.
13.76.130.). One such basis for eviction is when the “…tenant has continued…to substantially violate any of the material terms of the rental agreement…”(B.M.C. 13.76.130A.2.). Thus, while Board Regulation 1270 can be amended to allow for an increase in the base occupancy level of a unit without a corresponding rent increase, the regulation cannot override the good cause for eviction based on a lease violation, such as when a household has more occupants than those allowed pursuant to the initial agreement between the landlord and tenant.
The current proposal would allow tenants to exceed the base occupancy limits without risk of eviction unless the number of occupants exceeds the maximum number of occupants legally 1 See B.M.C. Section 13.76.120C.
5 allowed under 503(b)(2) of the Uniform Housing Code as incorporated by California Health & Safety Code Section 17922. Landlords would still have the ability to deny occupancy to a tenant if the proposed subtenant does not meet the landlord’s customary occupancy qualifications or if the proposed subtenant presents a direct threat to the health, safety, or security of other residents of the property.
The Board voted unanimously to support this proposal on March 17, 2022, and the 4 x 4 Committee voted on May 3, 2022, to support this proposal. The approved language is set forth in Attachment A, in subsection 13.76.130.
3. Eliminate “Decontrol” Clause from the Ordinance
The Rent Ordinance has a section that allows the Berkeley City Council (upon request by the Board) to exempt units from rent control should vacancy rates reach 5% over a six-month period.2 While Council has the discretion to eliminate rent controls for units (it is not mandatory), this clause is inconsistent with the Charter and most all of the Rent Ordinance which establishes the Board’s separate authority to regulate rents and administer the law independent of any other elected or appointed body.
Moreover, given that both the Charter and Rent Ordinance are voter-adopted initiatives, it follows that the issue of decontrol would be put before the voters in the event that the community decides to eliminate local rent control. Council has no other authority to interfere either substantively or procedurally in the Board’s administration, so removing this clause will be consistent with the overall operation of the rent program and the law the Board and staff administer.
The proposal would be to simply eliminate this paragraph from the Rent Ordinance.
The Board voted unanimously to support this proposal on March 17, 2022, and the 4 x 4 Committee voted on May 3, 2022, to support this proposal. The approved language is set forth in Attachment A, in subsection 13.76.060.
4. Add Eviction Protections to Rental Units that do not Currently Receive Them The 4 x 4 Committee voted on a proposal that would protect more tenants from eviction. The Committee particularly expressed concern regarding vulnerable tenants who may lose their homes following the expiration of the eviction moratorium associated with the COVID-19 Pandemic (B.M.C. Section 13.110).
2 BMC Section 13.76.060Q.
6 The Committee requested that good cause for eviction protections articulated in B.M.C. Section
13.76.130 be extended to tenants in properties that are currently fully exempt from the Ordinance; namely the Accessory Dwelling Unit exemption as defined in B.M.C. Section
13.76.050N. and the “golden duplex” exemption as defined in B.M.C. Sections 13.76.050F. and
13.76.050H. Both of these properties are fully exempt when the property owner principally resides in a unit on the property. The proposal would only add good cause eviction protections pursuant to B.M.C. Section 13.76.130; it would not remove any other exemptions from the Ordinance for these properties.
The 4 x 4 Committee voted on May 3, 2022, to support this proposal. The approved language is set forth in Attachment A, in subsection 13.76.050.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects, climate impacts, or sustainability opportunities associated with the subject of this report.
RATIONALE FOR RECOMMENDATION
This report and its recommendations are the result of direction from the 4 x 4 Committee, which voted on May 3, 2022 to recommend to the City Council to place the proposed amendments on the ballot for November 8, 2022. The Rent Stabilization Board also voted on March 17, 2020, to support the first three proposals.
ALTERNATIVE ACTIONS CONSIDERED
There was some discussion at both the Board and the 4 x 4 Committee of including a clause that makes explicit that California Civil Code Section 1954.52(b) allows Council to attach rent control to units that would otherwise qualify as new construction in the event that projects allowed for certain density bonuses, but this ultimately did not gain sufficient traction and is not a part of the proposed amendments. The Committee discussed at some length that they thought this was already allowed by the current amendments included in B.M.C. 13.76.040R. which make explicit that all new construction is fully covered by the Ordinance in the event that state law does not specifically prohibit it. In any event, the City will need to make more sweeping changes to the Planning/Zoning Ordinances in order to implement these changes should Council wish to do so in the future.
CONTACT PERSON
Matt Brown, General Counsel, Rent Stabilization Board, (510) 981-4905
7 Attachments:
1. Resolution
Exhibit A: Ordinance as Amended
2. May 3, 2022 Staff Report to 4 x 4 Committee
8 Attachment 1
RESOLUTION NO. ##,###-N.S.
SUBMITTING TO THE BERKELEY ELECTORATE A MEASURE TO AMEND BERKELEY MUNICIPAL CODE CHAPTER 13.76 TO ALLOW, TO THE EXTENT THAT
STATE OR LOCAL LAW PERMITS, FOR THE REGULATION OF NEWLY
CONSTRUCTED UNITS, INCLUDING BUT NOT LIMITED TO, UNITS CREATED PURSUANT TO SENATE BILL 330 (HOUSING CRISIS ACT OF 2019); TO ADD
EVICTION PROTECTIONS FOR RENTAL UNITS IN A RESIDENTIAL PROPERTY
CONSISTING OF TWO UNITS WHERE ONE OF THE UNITS IS OCCUPIED BY A
LANDLORD AS THEIR PRINCIPAL PLACE OF RESIDENCE AND WHERE ONE OF THE TWO UNITS WAS OWNER-OCCUPIED AS OF DECEMBER 31, 1979 AND
EVICTION PROTECTIONS TO TENANTS IN RENTAL UNITS CONTAINING A
SINGLE FAMILY DWELLING AND ONE LAWFULLY ESTABLISHED ACESSORY
DWELLING UNIT WHERE THE LANDLORD OCCUPIES A UNIT IN THE SAME PROPERTY; TO PROHIBIT EVICTIONS BASED ON THE ADDITION OF OCCUPANTS IF THE LANLDORD HAS UNREASONABLY REFUSED THE TENANT’S REQUEST; AND TO ELIMINATE SECTION 13.76.060 (DECONTROL).
WHEREAS, the purposes of the Berkeley Rent Stabilization and Eviction for Good Cause Ordinance are to regulate residential rent increases in the City of Berkeley and to protect tenants from unwarranted rent increases and arbitrary, discriminatory, or retaliatory evictions, in order to help maintain the diversity of the Berkeley community and to ensure compliance with legal obligations relating to the rental of housing. This legislation is designed to address the City of Berkeley's housing crisis, preserve the public peace, health and safety, and advance the housing policies of the city with regard to low and fixed income persons, minorities, students, handicapped, and the aged; and WHEREAS, the Berkeley Rent Stabilization Board will be able to provide greater protections to tenants in newly constructed units; and
WHEREAS, the Berkeley Rent Stabilization Board will be able to provide greater eviction protections for tenants in units that previously did not have such protections; and WHEREAS, eviction protections will be increased for tenant households that add additional occupants if a landlord has unreasonably refused a tenant’s written request; and
WHEREAS, Section 13.76.060 (Decontrol) is to be eliminated; and WHEREAS, these enumerated amendments to the Rent Stabilization and Eviction for Good Cause Ordinance will prevent displacement of tenants by extending additional
9 protections and services to tenants who do not enjoy such protections under existing law; and
WHEREAS, the Berkeley City Council has elected to submit to the voters at the November 8, 2022 General Municipal Election, a measure to amend Berkeley Municipal Code Chapter 13.76 to allow for the regulation of newly constructed units if permissible under state or local law; to provide eviction protections under the Ordinance for tenants in properties consisting of two units where one unit is a landlord’s principal place of residence and one unit was a landlord’s principal place of residence as of December 31, 1979 and eviction protections to tenants residing on a property containing a single family dwelling and a lawfully established Accessory Dwelling Unit where the landlord occupies a unit at the property; to provide eviction protections for tenants that add additional occupants to their household after the landlord has unreasonably refused a written request to do so; and to eliminate Section 13.76.060 (Decontrol) from the Ordinance; and
WHEREAS, in accordance with the provisions of Section 10002 and 10403 of the Elections Code of the State of California, the Alameda County Board of Supervisors is requested to consolidate the City of Berkeley General Municipal Election with the Statewide General Election to be held November 8, 2022; and WHEREAS, the City of Berkeley hereby requests that the Alameda County Board of Supervisors permit the Registrar of Voters of Alameda County to perform services in connection with said election at the request of the City Clerk. These services to include all necessary services related to official ballot creation, sample ballot and voter information pamphlet preparation, vote-by-mail, polling places, poll workers, voter registration, voting machines, canvass operations, and any and all other services necessary for the conduct of the consolidated election; and WHEREAS, the Council desires to submit this measure to be placed upon the ballot at said consolidated election.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Board of Supervisors of Alameda County is hereby requested to include on the ballots and sample ballots the measure enumerated above to be voted on by the voters of the qualified electors of the City of Berkeley.
BE IT FURTHER RESOLVED that the full text of the measure shall be printed in the Voter Information Pamphlet mailed to all voters in the City of Berkeley.
BE IT FURTHER RESOLVED that the above enumerated measure requires a majority vote threshold for passage.
10 BE IT FURTHER RESOLVED that the City Clerk is hereby directed to cause the posting, publication and printing of notices, pursuant to the requirements of the Charter of the City of Berkeley, the Government Code and the Elections Code of the State of California.
BE IT FURTHER RESOLVED that the City Clerk is hereby directed to obtain printing, supplies and services as required.
BE IT FURTHER RESOLVED that the City Clerk is hereby authorized to enter into any contracts necessary for election consulting services, temporary employment services, printing services, and any such other supplies and services as may be required by the statutes of the State of California and the Charter of the City of Berkeley for the conduct of the November General Municipal Election.
BE IT FURTHER RESOLVED that Pursuant to Elections Code Section 9285 (b), the City Council hereby adopts the provisions of Elections Code Section 9285 (a) providing for the filing of rebuttal arguments for city ballot measures.
BE IT FURTHER RESOLVED that the City will reimburse the Registrar of Voters for the costs associated with placing the measure on the ballot.
BE IT FURTHER RESOLVED that said proposed Ordinance measure shall appear and be printed upon the ballots to be used at said election as follows:
CITY OF BERKELEY ORDINANCE
YES
Shall the measure amending the Rent Stabilization and Eviction for Good Cause Ordinance to: allow, to the extent that state or local permits, for the regulation of newly-constructed units; to provide eviction protections to tenants in certain two-unit properties where such eviction protections previously did not apply; to provide eviction protections to tenants who add additional occupants after the landlord has unreasonably denied such a request; and to eliminate Section 13.76.060 be adopted? NO
BE IT FURTHER RESOLVED that the text of the measure be shown as Exhibit A, attached hereto and made a part hereof.
Exhibits
A: Text of Measure
11 Exhibit A
ORDINANCE NO. ##,###–N.S.
AN ORDINANCE OF THE CITY OF BERKELEY AMENDING BERKELEY MUNICIPAL CODE CHAPTER 13.76 TO ALLOW, TO THE EXTENT THAT STATE OR LOCAL LAW
PERMITS, FOR THE REGULATION OF NEWLY CONSTRUCTED UNITS, INCLUDING BUT NOT LIMITED TO, UNITS CREATED PURSUANT TO SENATE BILL 330 (HOUSING CRISIS ACT OF 2019); TO ADD EVICTION PROTECTIONS FOR RENTAL
UNITS IN A RESIDENTIAL PROPERTY CONSISTING OF TWO UNITS WHERE ONE
OF THE UNITS IS OCCUPIED BY A LANDLORD AS THEIR PRINCIPAL PLACE OF
RESIDENCE AND WHERE ONE OF THE TWO UNITS WAS OWNER-OCCUPIED AS OF DECEMBER 31, 1979 AND EVICTION PROTECTIONS TO TENANTS IN RENTAL
UNITS CONTAINING A SINGLE FAMILY DWELLING AND ONE LAWFULLY
ESTABLISHED ACESSORY DWELLING UNIT WHERE THE LANDLORD OCCUPIES A UNIT IN THE SAME PROPERTY; TO PROHIBIT EVICTIONS BASED ON THE
ADDITION OF OCCUPANTS IF THE LANLDORD HAS UNREASONABLY REFUSED THE TENANT’S REQUEST; AND TO ELIMINATE SECTION 13.76.060 (DECONTROL) The People of the City of Berkeley do ordain as follows:
Section 1. Section 13.76.040 of the Berkeley Municipal Code is amended to read as follows:
13.76.040 Definitions.
A. "Board" refers to the elected Rent Stabilization Board established by this chapter and Article XVII of the Charter of the City of Berkeley.
B. "Commissioners" means the members of the board who are denominated commissioners.
C. "Housing services" include but are not limited to repairs, maintenance, painting, providing light, hot and cold water, elevator service, window shades and screens, storage, kitchen, bath and laundry facilities and privileges, janitor services, refuse removal, furnishing, telephone, parking and any other benefit, privilege or facility
12 connected with the use or occupancy of any rental unit. Services to a rental unit shall include a proportionate part of services provided to common facilities of the building in which the rental unit is contained.
D. "Landlord" means an owner of record, lessor, sublessor or any other person or entity entitled to receive rent for the use or occupancy of any rental unit, or an agent, representative or successor of any of the foregoing.
E. "Rent" means the consideration, including any deposit, bonus, benefit or gratuity demanded or received for or in connection with the use or occupancy of rental units and housing services. Such consideration shall include, but not be limited to, monies and fair market value of goods or services rendered to or for the benefit of the landlord under the rental agreement.
F. "Rental agreement" means an agreement, oral, written or implied, between a landlord and a tenant for use or occupancy of a rental unit and for housing services.
G. "Rental unit" means any unit in any real property, including the land appurtenant thereto, rented or available for rent for residential use or occupancy (including units covered by the Berkeley Live/Work Ordinance No. 5217-NS), located in the City of Berkeley, together with all housing services connected with use or occupancy of such property such as common areas and recreational facilities held out for use by the tenant.
H. "Property" means a parcel of real property which is assessed and taxed as an undivided whole.
I. "Tenant" means any renter, tenant, subtenant, lessee, or sublessee of a rental unit, or successor to a renter’s interest, or any group of tenants, subtenants, lessees, or sublessees of any rental unit, or any other person entitled to the use or occupancy of such rental unit.
J. "Skilled nursing facility" means a health facility or a distinct part of a hospital which provides the following basic services: skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. It provides 24-hour inpatient care and, as a minimum, includes medical, nursing,
13 dietary, pharmaceutical services and an activity program. The facility shall have effective arrangements, confirmed in writing, through which services required by the patients, but not regularly provided within the facility, can be obtained promptly when needed.
K. "Health facility" means any facility, place or building which is organized, maintained and operated for the diagnosis, care and treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which such persons are admitted for a 24-hour stay or longer.
L. "Recognized tenant organization" means any group of tenants, residing in rental units in the same building or in different buildings operated by the same management company, agent or landlord, which requests to be so designated.
M. "Rent ceiling" means the maximum allowable rent which a landlord may charge on any rental unit covered by this chapter.
N. "Base rent ceiling" means the maximum allowable rent established under Section 13.76.100 of this chapter.
O. "Fees" means for the purpose of this chapter, a charge fixed by law for services of public officers or for use of a privilege under control of government.
P. "Nonprofit, accredited institution of higher education" means a post secondary educational institution whose legal status under the California Education Code is verified by an annual validation receipt from the California State Department of Education, and which is accredited by the Western Association of Schools and Colleges or the Association of Theological Schools and which is exempt from taxation under Section 501 (c)(3) of the United States Internal Revenue Code and under Section 23701(d) of the Revenue and Taxation Code, and which, if otherwise required by law to do so, has obtained a valid unrevoked letter or ruling from the United States Internal Revenue Service or from the Franchise Tax Board which states that the organization so qualifies for exemption from taxation.
14 Q. "Newly Constructed" means a rental unit created after June 30, 1980. For purposes of this definition, the date a unit was created is based upon the date of the first certificate of occupancy issued for the subject unit. However, in the event of the repeal or amendment of Civil Code Section 1954.52, such that "certificate of occupancy" is no longer the operative standard set forth under state law, the date a unit was created shall be determined by the final inspection approval by the City.
R. Notwithstanding any other provision in this ordinance, and to the extent that state or local law does not prohibit a local jurisdiction from regulating the rent on a residential rental unit, such units shall not be exempt as “newly constructed units” and, unless otherwise exempt, shall be covered by all provisions of this chapter. This includes, but is not limited to, any residential rental units created as a result of demolition or replacement where such demolition or replacement is affected via the creation of a “housing development project” as defined in the Housing Crisis Act of 2019 (Senate Bill 330).
Section 2: Section 13.76.050 of the Berkeley Municipal Code is amended to read as follows:
13.76.050 Applicability
This chapter shall apply to all real property that is being rented or is available for rent for residential use in whole or in part, except for the following:
A. Rental units which are owned by any government agency. However, the exemption of units owned by the Berkeley Housing Authority from the terms of this chapter shall be limited to their exemption from the terms of Section 13.76.080, Rent Registration; Section 13.76.100, Establishment of Base Rent Ceiling and Posting; Section 13.76.110, Annual General Adjustment of Rent Ceilings; and Section 13.76.120, Individual Adjustments of Rent Ceilings, of this chapter.
B. Rental units which are rented primarily to transient guests for use or occupancy less than fourteen consecutive days in establishments such as hotels, motels, inns, tourist homes, and rooming and boarding houses. However, the payment of rent every fourteen days or less shall not by itself exempt any unit from coverage by this chapter.
15 C. Rental units in nonprofit cooperatives owned and controlled by a majority of the residents.
D. Rental units leased to tenants assisted under the Section 8 program (42 U.S.C.
Section 1437f) or the Shelter Plus Care Program (42 U.S.C. 11403 et. seq.) or similar federally funded rent subsidy program. Except as may be preempted by state or federal law, the exemption of such rental units from the terms of this chapter shall be limited to Section 13.76.080, Rent Registration; Section 13.76.100, Establishment of Base Rent Ceiling and Posting; Section 13.76.110, Annual General Adjustment of Rent Ceilings and Section 13.76.120, Individual Adjustments of Rent Ceilings, of this chapter.
However, the exemption from Sections 13.76.080, 13.76.110 and 13.76.120 shall apply only for so long as the rent demanded does not exceed the authorized Payment Standard, which, for purposes of this subsection, is the maximum monthly rental assistance potentially available to an assisted household before deducting the household share of income paid for rent and utilities as established by the Berkeley Housing Authority or successor agency. For units where the rent demanded exceeds the Payment Standard, the Payment Standard or an initial rent above the Payment Standard if approved by the Berkeley Housing Authority, as reported to the board by the Berkeley Housing Authority or successor agency, shall become the unit’s base rent ceiling and the reference point from which the rent ceiling shall be adjusted in accordance with Sections 13.76.110 and 13.76.120.
E. Rental units in any hospital, skilled nursing facility, health facility, asylum, or non- profit home for the aged.
F. Rental units in a residential property which is divided into a maximum of four units where one of such units is occupied by the landlord as his/her principal residence. Any exemption of rental units established under this subsection (13.76.050 F.) shall be limited to rental units that would have been exempt under the provisions of this chapter had this chapter been in effect on December 31, 1979. After July 1, 1982, this exemption shall no longer apply to rental units in a residential property which is divided into three or four units. It shall continue to apply to rental units in a residential property which is divided into two units, and which meet all the other requirements of this subsection (13.76.050F). However, the exemption of such rental units shall be limited to
16 their exemption from the terms of Section 13.76.100, Establishment of Base Rent Ceiling and Posting; Section 13.76.110, Annual General Adjustment of Rent Ceilings; and Section 13.76.120, Individual Adjustments of Rent Ceilings, of this chapter. Rental units which become non-exempt under this provision shall have the provisions of Subsections 13.76.080I and 13.76.100C. applied to them.
G. A rental unit in a residential property where the landlord shares kitchen or bath facilities with the tenant(s) of such rental unit and where the landlord also occupies a unit in the same property as his/her principal residence.
H. For the purposes of Subsections 13.76.050 F. and G., the term landlord shall be defined only as the owner of record holding at least 50% interest in the property.
I. Newly constructed rental units, as defined in Section 13.76.040Q. However, the exemption of such newly constructed units shall be limited to their exemption from the terms of Section 13.76.100, Establishment of Base Rent Ceiling and Posting:
Section 13.76.110, Annual General Adjustment of Rent Ceilings; and Section 13.76.120, Individual Adjustments of Rent Ceilings, of this chapter. To the extent that state law permits, the exemption of such newly constructed units shall be limited to the first 20 years after completion of construction.
J. A rental unit which is rented by a nonprofit, accredited institution of higher education to a tenant or tenants who are student(s), faculty, or staff of the institution or of a member school of the Graduate Theological Union, provided, however, that the institution owned the unit as of January 1, 1988.
K. A rental unit in a residential property owned by an organization exempt from federal income taxes under Section 501(c)(3) of the Internal Revenue Code that is rented to a low income tenant and subject to a regulatory agreement with a governmental agency that controls the unit’s rent levels. However, the exemption for such rental units from the terms of this chapter shall be limited to Section 13.76.080, Rent Registration; Section 13.76.100, Establishment of Base Rent Ceiling and Posting; Section 13.76.110, Annual General Adjustment of Rent Ceilings; and Section 13.76.120, Individual Adjustments of Rent Ceilings of this chapter and shall apply only for so long as the regulatory agreement is in effect. This exemption shall not apply to rental units at the
17 property that are not subject to a regulatory agreement with a governmental agency or that are rented by a tenant who occupied the unit prior to the property’s acquisition by the tax-exempt organization.
L. Rental units in a facility owned or leased by an organization exempt from federal income taxes under Section 501(c)(3) of the Internal Revenue Code that has the primary purpose of operating a treatment, recovery, therapy, sanctuary or shelter program for qualified clients, where such rental units are provided incident to the client’s participation in the primary program and where the client has been informed in writing of the temporary or transitional nature of the housing at the inception of his or her participation in the program. However, except as may be preempted by the Transitional Housing Participant Misconduct Act (California Health and Safety Code Sections 50580 et. seq.) or other state or federal law, such rental units shall not be exempted from the terms of Section 13.76.130, Good Cause Required for Eviction. For purposes of Section 13.76.130.A.2, the client’s continued eligibility for participation in the treatment, recovery, therapy, sanctuary or shelter program shall be deemed a material term of the client’s rental agreement with the program’s operator.
M. A rental unit or room which is rented by an active member of a fraternity or sorority recognized by the University of California Berkeley, or a rental unit or room which is rented by an active member of a fraternity or sorority identified by Rent Board Resolution. To qualify for the exemption, the rental unit must be owned by the fraternity or sorority or by an entity whose sole purpose is the maintenance and operation of the fraternity or sorority’s rental units for the benefit of the members in order to provide housing to said members at cost.
N. A rental unit in a residential property containing only a Single Family Dwelling (as defined in Subtitle 23F.04 of the Zoning Ordinance) and one lawfully established and fully permitted Accessory Dwelling Unit where the landlord also occupies a unit in the same property as his/her principal residence. This subsection (13.76.050N) shall only apply to properties containing a single Accessory Dwelling Unit, shall only apply to units compliant with all applicable requirements of Chapter 23C.24 ("Accessory Dwelling Units"), and shall only apply to tenancies created after November 7, 2018. However, the exemption of such rental units shall be limited to their exemption from the terms of
18 Section 13.76.100, Establishment of Base Rent Ceiling and Posting; Section 13.76.110, Annual General Adjustment of Rent Ceilings; and Section 13.76.120, Individual Adjustments of Rent Ceilings, of this chapter.
O. A dwelling or a unit alienable separate from the title to any other dwelling unit unless the tenancy commenced before January 1, 1996. However, the exemption of such units shall be limited to their exemption from the terms of Section 13.76.100, Establishment of Base Rent Ceiling and Posting: Section 13.76.110, Annual General Adjustment of Rent Ceilings; and Section 13.76.120, Individual Adjustments of Rent Ceilings, of this chapter. A property owner who owns only one residential unit in the City of Berkeley, and occupied that residential unit for 365 consecutive days as their principal residence immediately prior to renting the unit, and is absent from the unit for a period not to exceed 24 months, and such period is specified in the lease, shall also be exempt from the terms of Section 13.76.080, Rent Registration, of this Chapter. The exemptions provided in this Section shall apply only as long as the pertinent provisions of California Civil Code Section 1954.50 et. seq. ("Costa-Hawkins") remain in effect and require such an exemption.
Section 3: Section 13.76.060 of the Berkeley Municipal Code is amended to read as follows:
13.76.060 Rent Stabilization Board
A. Composition. There shall be in the city of Berkeley an elected rent stabilization board; the board shall consist of nine commissioners. The board shall elect annually as chairperson one of its members to serve in that capacity.
B. Eligibility. Residents who are duly qualified electors of the city of Berkeley are eligible to serve as commissioners on the board.
C. Full disclosure of holdings. Candidates for the position of commissioner shall fulfill the requirements as set forth in the City Charter in Article III, Section 6 1/2.
19 In addition, when filing nomination papers, candidates shall submit a verified statement of their interests and dealings in real property, including but not limited to its ownership, sale or management and investment in and association with partnerships, corporations, joint ventures and syndicates engaged in its ownership, sale or management during the previous three years.
D. Election of commissioners. Commissioners shall be elected at the statewide general election held in November of even numbered years.
E. Terms of office. Commissioners’ terms of office shall be as set forth in Article XVII of the Berkeley City Charter.
F. Powers and duties. The elected rent stabilization board shall have the power to determine, to arbitrate and to set rent levels, whether through general or individual adjustments, of any unit which has controlled rents under any Berkeley Ordinance, and to administer any Berkeley program which regulates rents and evictions. The board shall have the following powers and duties:
1. Set the rent ceilings for all rental units.
2. Require registration of all rental units under Section 13.76.080.
3. Publicize the manner in which the base rent ceiling is established under Section 13.76.100.
4. To make adjustments in the rent ceiling in accordance with Sections 13.76.110 and 13.76.120.
5. Set rents at fair and equitable levels in view of and in order to achieve the purposes of this chapter.
6. To issue orders, rules and regulations, conduct hearings and charge fees as set below.
7. Make such studies, surveys and investigations, conduct such hearings, and obtain such information as is necessary to carry out its powers and duties.
20 8. Report annually to the city council of the city of Berkeley on the status of rental housing units covered by this chapter.
9. Request the City Council to remove rent controls under Section
13.76.060Q.
10. Administer oaths and affirmations and subpoena witnesses and relevant documents.
11. Establish rules and regulations for settling civil claims under Section 13.76.150.
12. Seek injunctive relief under Section 13.76.150.
13. Pursue civil remedies in courts of appropriate jurisdiction.
14. Intervene as an interested party in any litigation brought before a court of appropriate jurisdiction by a landlord or tenant with respect to rental units covered by this chapter.
15. Hold public hearings.
16. Charge and collect registration fees, including penalties for late payments.
17. Other powers necessary to carry out the purposes of this chapter which are not inconsistent with the terms of this chapter.
18. Except as provided in Section 13.76.060N of this chapter, the board shall finance its reasonable and necessary expenses for its operation without the use of general fund monies of the city of Berkeley.
G. Rules and Regulations: The board shall issue and follow such rules and regulations, including those which are contained in this Chapter, as will further the purposes of this Chapter. The board shall publicize its rules and regulations prior to promulgation in at least one newspaper of general circulation in the city of Berkeley.
21 All rules and regulations and relevant documents explaining the decisions, orders, and policies of the board shall be kept in the board’s office and shall be available to the public for inspection and copying.
The board shall publicize this Chapter so that all residents of Berkeley will have the opportunity to become informed about their legal rights and duties under this Chapter.
The board shall prepare a brochure which fully describes the legal rights and duties of landlords and tenants under this Chapter. The brochure shall be made available to the public.
H. Meetings: The board shall hold regularly scheduled meetings. Special meetings shall be called at the request of at least a majority of the commissioners of the board.
The board shall hold its initial meeting no later than July 15, 1980.
I. Quorum: Five commissioners shall constitute a quorum for the board.
J. Voting: The affirmative vote of five commissioners of the board is required for a decision, including all motions, rules, regulations, and orders of the board.
K. Compensation: The rent stabilization board shall be a working board.
Commissioners shall be paid compensation and benefits in an amount set by the board in order to compensate commissioners for their time and work performed as required by this chapter and the city charter.
L. Dockets: The board shall maintain and keep in its office all hearing dockets, which shall be available for public inspection.
M. Vacancies: If a vacancy shall occur on the board, a qualified person to fill such vacancy shall be selected in accordance with the procedures set forth in Article V of the City Charter.
N. Financing: The board shall finance its reasonable and necessary expenses by charging landlords annual registration fees in amounts deemed reasonable by the board. The registration fee for partially-exempt units shall reasonably approximate the cost of registration and counseling services for such units, and shall not include the cost of services from which such units are exempt. Such registration fees shall not be
22 passed on to tenants in the form of rent increases except with the express prior approval of the board. The board is also empowered to request and receive funding, when and if necessary, from the city of Berkeley and/or any other available source for its reasonable and necessary expenses, including expenses incurred at the request of the City.
O. Staff: The board shall be a working board and shall employ such staff as may be necessary to perform its functions efficiently and as provided by Berkeley Ordinance.
P. Registration: The board shall require the registration of all rental units covered by this chapter as provided for in Section 13.76.080. The board may also require landlords to provide current information supplementing their registration statements.
Q. Decontrol: If the annual average vacancy rate for all rental units in the city of Berkeley exceeds five percent over a six month period, the city council is empowered, upon request by the board, at its discretion and in order to achieve the purposes of this chapter, to exempt rental units covered by this chapter from Sections 13.76.080, 13.76.100, 13.76.110 and 13.76.120 of this chapter. In determining the vacancy rate for the city of Berkeley the board and the city council shall consider all available data and may conduct their own survey. If units are exempted pursuant to this Subsection Q coverage shall be reimposed if the city council finds that the average annual vacancy rate has thereafter fallen below five percent. Prior to any decision to exempt or renew coverage for rental units under this Subsection Q the board shall hold at least two public hearings.
R. Q. Conflict of Interest: Commissioners shall be subject to the requirements of the California Political Reform Act and other applicable state and local conflict of interest codes. Commissioners shall not necessarily be disqualified from exercising any of their powers and duties on the grounds of a conflict of interest solely on the basis of their status as a landlord or tenant. However, a commissioner shall be disqualified from ruling on a petition for an individual adjustment of a rent ceiling under Section 13.76.120, where the commissioner is either the landlord of the property or a tenant residing in the property that is involved in the petition.
23 Section 4: Section 13.76.130 of the Berkeley Municipal Code is amended to read as follows
13.76.130 Good cause required for eviction
A. No landlord shall be entitled to recover possession of a rental unit covered by the terms of this chapter unless said landlord shows the existence of one of the following grounds:
1. The tenant has failed to pay rent to which the landlord is legally entitled pursuant to the lease or rental agreement and under the provisions of state or local law, unless the tenant has withheld rent pursuant to applicable law; and said failure has continued after service on the tenant of a written notice setting forth the amount of rent then due and requiring it to be paid, within a period, specified in the notice, of not less than three days. Rent that is lawfully withheld pursuant to emergency legislation that authorizes rent withholding during the effective period of a state of emergency applicable in Berkeley shall not constitute grounds for recovery of possession except as expressly provided in the applicable emergency legislation. Emergency legislation adopted during the emergency may prohibit recovery of possession for lawfully withheld rent even after the expiration of a state or local emergency.
2. The tenant has continued, after written notice to cease, to substantially violate any of the material terms of the rental agreement, except the obligation to surrender possession on proper notice as required by law, and provided that such terms are reasonable and legal and have been accepted in writing by the tenant or made part of the rental agreement; and provided further that, where such terms have been accepted by the tenant or made part of the rental agreement subsequent to the initial creation of the tenancy, the landlord shall have first notified the tenant in writing that he or she need not accept such terms or agree to their being made part of the rental agreement. Notwithstanding any contrary provision in this chapter or in the rental agreement, a landlord is not entitled to recover possession of a
24 rental unit under this subsection where a tenant permits his or her rental unit to be occupied by a subtenant, provided:
a. The landlord has unreasonably withheld consent to the subtenancy; and
b. The tenant remains an actual occupant of the rental unit; and c. The number of tenants and subtenants actually occupying the rental unit does not exceed the number of occupants originally allowed by the rental agreement or the board's regulations, whichever is greater the maximum number of occupants legally allowed under Section 503(b)(2) of the Uniform Housing Code as incorporated by California Health & Safety Code Section 17922, except where prohibited by law. d. Withholding of consent by the landlord shall be deemed to be unreasonable where:
(i) The tenant’s written request for consent was given at least two weeks prior to commencement of the subtenancy; tenant has made a written request to the landlord to either sublet the unit and/or add additional occupants, and the landlord has failed to respond in writing within fourteen (14) days of the tenant’s request; or
(ii) The proposed new subtenant has, upon the landlord’s written request, completed the landlord’s standard form application or provided sufficient information to allow the landlord to conduct a standard background check, including references and credit, income and other reasonable background information, and the proposed new subtenant or additional occupant meets the landlord’s customary occupancy qualifications and has not refused the landlord’s request to be bound by the terms of the current rental agreement between the landlord and the tenant; and or
(iii) The proposed new subtenant meets the landlord’s customary occupancy qualifications and has not refused the landlord’s request to be bound by the terms of the current rental agreement between the landlord and the tenant; and
25 (iii iv) The landlord has not articulated in writing a well-founded reason for refusing consent. A landlord’s reasonable denial may not be based on the proposed occupant’s lack of credit worthiness or income if that occupant will not be legally obligated to pay some or all of the rent to the landlord.
e. Where a landlord can establish that the proposed additional occupant presents a direct threat to the health, safety, or security of other residents of the property, the landlord shall have the right to deny the proposed tenant’s occupancy.
f. Before initiating an action to recover possession based on the violation of a lawful obligation or covenant of tenancy regarding subletting or limits on the number of occupants in the rental unit, the landlord shall serve the tenant a written notice of the violation that provides the tenant with a minimum of fourteen (14) days to cure the violation. The notice must also inform the tenant(s) of their right to add subtenants and/or add additional occupants pursuant to this section.
3. The tenant has willfully caused or allowed substantial damage to the premises beyond normal wear and tear and has refused, after written notice, to pay the reasonable costs of repairing such damage and cease damaging said premises.
4. The tenant has refused to agree to a new rental agreement upon expiration of a prior rental agreement, but only where the new rental agreement contains provisions that are substantially identical to the prior rental agreement, and is not inconsistent with local, state and federal laws.
5. The tenant has continued, following written notice to cease, to be so disorderly as to destroy the peace and quiet of other tenants or occupants of the premises or the tenant is otherwise subject to eviction pursuant to subdivision 4 of Code of Civil Procedure Section 1161.
6. The tenant has, after written notice to cease, refused the landlord access to the unit as required by state or local law.
26 7. a. The landlord, after having obtained all necessary permits from the City of Berkeley, seeks in good faith to undertake substantial repairs which are necessary to bring the property into compliance with applicable codes and laws affecting the health and safety of tenants of the building or where necessary under an outstanding notice of code violations affecting the health and safety of tenants of the building, and where such repairs cannot be completed while the tenant resides on the premises. b. Where such repairs can be completed in a period of 60 or fewer days, and the tenant, within 30 days after the service of a notice of termination of his or her tenancy, agrees in writing to vacate the premises during the period required to complete the repairs at no charge to the landlord, other than abatement of the obligation to pay rent for the premises during the period required to complete the repairs, the landlord may not recover possession pursuant to this subsection (13.76.130A.7.) unless the tenant shall fail or refuse to vacate the premises in accordance with such agreement.
c. Where the landlord owns any other residential rental units in the City of Berkeley, and any such unit is vacant and available at the time of premises or the entry of a judgment by a court of competent jurisdiction awarding possession of the premises to the landlord, the landlord shall, as a condition of obtaining possession pursuant to this subsection (13.76.130A.7.), notify tenant in writing of the existence and address of each such vacant rental unit and offer tenant the right, at the tenant’s option:
(i) To enter into a rental agreement (to be designated as a "temporary rental agreement") on any available rental unit which the tenant may choose, at a rent not to exceed the lesser of the lawful rent which may be charged for such available rental unit or the lawful rent in effect, at the time of the notice of termination of tenancy, on the unit being vacated, said rental agreement to be for a term of the lesser of ninety days or until completion of repairs on the rental unit being vacated by tenant; or
27 (ii) To enter into a new rental agreement or lease for such available rental unit at a rent not to exceed the lawful rent which may be charged for such available rental unit.
d. Where the landlord recovers possession under this subsection (13.76.130A.7.), the tenant must be given the right of first refusal to re- occupy the unit upon completion of the required work. In the event the landlord files an application for an individual rent adjustment within six months following the completion of the work, the tenant shall be a party to such proceeding the same as if he or she were still in possession, unless the landlord shall submit, with such application, a written waiver by the tenant of his or her right to re-occupy the premises pursuant to this subsection.
8. The landlord, after having obtained all necessary permits from the City of Berkeley, seeks in good faith to recover possession of the rental unit, in order to remove the rental unit from the market by demolition.
9. Owner Move-in Evictions.
a. The landlord seeks in good faith with honest intent and without ulterior motive to recover possession for his/her own use and occupancy as his/her principal residence for a period of at least 36 consecutive months; or
b. For the use and occupancy as the principal residence by the landlord’s spouse or by the landlord’s child, or parent for a period of at least 36 consecutive months.
c. For the purposes of this subsection (13.76.130A.9.), the term landlord shall be defined as the owner of record, as of the time of giving of a notice terminating tenancy, and at all times thereafter to and including the earlier of the tenant’s surrender of possession of the premises or the entry of a judgment of a court of competent jurisdiction awarding possession of the premises to the landlord, holding at least a
28 50% interest in the property and shall not include a lessor, sublessor, or agent of the owner of record.
d. All notices terminating tenancy pursuant to
subsection 13.76.130.A.9 shall include the following: the existence and potential availability of relocation assistance under subsection
13.76.130A.9.g; the existence of tenant protections for families with minor children as defined in subsection 13.76.130A.9.k; the name and relationship of any qualified relative for purposes of subsection
13.76.130A.9b; and the landlord’s ownership interest in any residential properties in the City of Berkeley where such interest, in any form whatsoever, is ten percent (10%) or greater. The landlord shall, within ten days of giving notice, file a copy of the notice terminating tenancy with the Rent Board.
e. The landlord may not recover possession under this subsection (13.76.130A.9.) if a comparable unit, owned by the landlord in the City of Berkeley, was, at the time of the landlord’s decision to seek to recover possession of the rental unit, already vacant and available, or if a comparable unit, owned by the landlord in the City of Berkeley, thereafter becomes vacant at any time until the earlier of the tenant’s surrender of possession of the premises or the entry of a judgment of a court of competent jurisdiction awarding possession of the premises to the landlord. In an action by or against the tenant, evidence that a comparable unit was vacant and available within ninety days prior to the date of a notice terminating the tenant’s tenancy shall create a presumption that such unit was vacant and available at the time of the landlord’s decision to seek to recover possession of the premises. "Presumption" means that the court must find the existence of the presumed fact unless and until the contrary is proven by a preponderance of the evidence.
f. The landlord shall offer any non-comparable unit owned by the landlord to the tenant if a non-comparable unit becomes available
29 before the recovery of possession of the tenant’s unit at a rate based on the rent the tenant is paying with an upward or downward adjustment based on the condition, size, and other amenities of the replacement unit. Disputes concerning the initial rent for the replacement unit shall be determined by the Rent Board. g. Where a landlord recovers possession of a unit under subsection
13.76.130A.9, the landlord is required to provide standard relocation assistance to tenant households where at least one occupant has resided in the unit for one year or more in the amount of $15,000. The landlord is required to provide an additional $5,000 relocation assistance to tenant households that qualify as low-income; or include disabled or elderly tenants; minor children; or tenancies which began prior to January 1, 1999. The relocation fees set forth above shall be increased in accordance with the rules set forth in subsection
13.76.130A.9.h below. The procedures for payment of this relocation assistance are set forth below in subsection 13.76.130A.9.p.(i) through (iv). The following definitions apply for any tenant households evicted for owner move-in under subsection 13.76.130A.9:
(i) "Low-income tenants" means persons and families whose income does not exceed the qualifying limits for lower income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, or as otherwise defined in Health and Safety Code Section 50079.5.
(ii) A person is "disabled" if he/she has a physical or mental impairment that limits one or more of a person’s major life activities within the meaning of the California Fair Housing and Employment Act (Government Code § 12926).
(iii) "Elderly" is defined as sixty (60) years of age or older. (iv) "Minor child" means a person who is under 18 years of age.
30 (v) "Tenancy began prior to January 1, 1999" is a tenancy where an "original occupant" (as defined by Berkeley Rent Board Regulation) still permanently resides in the rental unit.
h. Effective January 1 of each year beginning in 2018, the fees set forth above in subsection 13.76.130A.9.g., may be increased in an amount based on the Consumer Price Index - All Urban Consumers in the San Francisco-Oakland-San Jose Region averaged for the 12- month period ending June 30, of each year, as determined and published by United States Department of Labor. Any increase shall be published by the Board on or before October 31st of each year. i. It shall be evidence that the landlord has acted in bad faith if the landlord or the landlord’s qualified relative for whom the tenant was evicted does not move into the rental unit within three months from the date of the tenant’s surrender of possession of the premises or occupy said unit as his/her principal residence for a period of at least 36 consecutive months.
j. Once a landlord has successfully recovered possession of a rental unit pursuant to subsection 13.76.130A.9.a., then no other current or future landlords may recover possession of any other rental unit on the property pursuant to subsection 13.76.130A.9.a. It is the intention of this subsection that only one specific unit per property may be used for such occupancy under subsection 13.76.130A.9.a and that once a unit is used for such occupancy, all future occupancies under subsection
13.76.130A.9.a must be of that same unit.
k. A landlord may not recover possession of a unit from a tenant under subsection 13.76.130A.9 if any tenant in the rental unit has a custodial or family relationship with a minor child who is residing in the unit, the tenant with the custodial or family relationship has resided in the unit for 12 months or more, and the effective date of the notice of termination of tenancy falls during the school year. The term "school year" as used in this subsection means the first day of instruction for
31 the Fall Semester through the first day of the month following the last day of instruction for the Spring Semester, as posted on the Berkeley Unified School District website for each year.
(i) For purposes of subsection 13.76.130A.9.k, the term "custodial relationship" means that the person is a legal guardian of the child, or has a caregiver’s authorization affidavit for the child as defined by Section 6550 of the California Family Code, or that the person has provided full-time custodial care of the child pursuant to an agreement with the child’s legal guardian or court-recognized caregiver and has been providing that care for at least one year or half of the child’s lifetime, whichever is less. The term "family relationship" means that the person is the biological or adoptive parent, grandparent, brother, sister, aunt or uncle of the child, or the spouse or domestic partner of such relations.
l. A landlord may not recover possession of a unit from a tenant under subsection 13.76.130A.9 if any tenant in the rental unit:
(i) Is 60 years of age or older and has been residing on the property for five years or more; or
(ii) Is disabled and has been residing on the property for five years or more; or
(iii) Has resided on the property for five years or more and the landlord has a ten percent (10%) or greater ownership interest, in any form whatsoever, in five or more residential rental units in the City of Berkeley. m. A tenant who claims to be a member of one of the classes protected by subsection 13.76.130A.9.l must submit a statement, with supporting evidence, to the landlord. A tenant’s failure to submit a statement at any point prior to the trial date of an unlawful detainer action for possession of the tenant’s unit shall be deemed an admission that the tenant is not protected by subsection 13.76.130A.9.l. A landlord may challenge a tenant’s claim of protected status by raising it as an
32 issue at trial in an unlawful detainer action for possession of the tenant’s unit.
n. The provisions of subsection 13.76.130A.9.l shall not apply to the following situations:
(i) Where a person is the owner of three or fewer residential units in the City of Berkeley and has no greater than a nine percent (9%) ownership interest in any other residential unit in the City of Berkeley; or (ii) Where each residential rental unit in Berkeley in which the landlord holds an ownership interest of ten percent (10%) or greater is occupied by a tenant otherwise protected from eviction by subsection 13.76.130A.9.I and the landlord’s qualified relative who is seeking possession of a unit subject to subsection 13.76.130A.9.b is 60 years of age or older or is disabled as defined in subsection 13.76.130A.9.l.(ii) above; or
(iii) Where each residential rental unit in Berkeley in which the landlord holds an ownership interest of ten percent (10%) or greater is occupied by a tenant otherwise protected from eviction by subsection 13.76.130A.9.I, the landlord has owned the unit for which possession is being sought subject to subsection 13.76.130A.9.a for five years or more and is 60 years of age or older or is disabled as defined in subsection 13.76.130A.9.l.(ii). o. Where a landlord recovers possession under Subsection
13.76.130A.9, the tenant must be given the right of first refusal to re- occupy the unit upon its next vacancy.
p. When a landlord is required to provide a relocation assistance payment subject to subsection 13.76.130A.9.g, the payment shall be divided among the tenants occupying the rental unit at the time of service of the notice to terminate tenancy.
(i) Within ten days of service of a notice terminating tenancy under subsection 13.76.130A.9, the landlord shall deposit the standard relocation assistance (for households where an occupant has resided one year or
33 more) with the City or its designated agent to be held in escrow. Within ten days after the funds are deposited into escrow, the City shall release the standard relocation assistance to the tenant household, unless the landlord notifies the Rent Stabilization Program in writing that he/she disputes the tenant’s eligibility to receive such assistance.
(ii) In order to claim entitlement to additional relocation assistance under subsection 13.76.130A.9.g, a tenant must notify the landlord and the Rent Stabilization Program in writing that he/she is claiming low-income, disabled, elderly, tenant with minor child status, or a claim that the tenancy began prior to January 1, 1999 (hereinafter "entitlement to additional relocation assistance") per subsection 13.76.130A.9.g within 30 days of filing of notice of termination of tenancy with the Rent Stabilization Program.
The landlord shall deposit the additional relocation payment with the Rent Stabilization Program or its designated agent to be held in escrow for any tenant household who claims entitlement to additional relocation assistance within ten days after such notice claiming entitlement to additional relocation assistance is mailed. Within ten days after the funds are deposited into escrow, the Rent Stabilization Program shall authorize release of the relocation assistance to the tenant household that claims entitlement to additional relocation assistance, unless the landlord notifies the Rent Stabilization Program in writing that he/she disputes the tenant’s eligibility to receive such assistance.
(iii) When a tenant household’s eligibility to receive standard or additional relocation assistance as described in subsection 13.76.130A.9.g is disputed, either party may file a Rent Board petition requesting a determination of eligibility or file a claim in a court of competent jurisdiction.
The Rent Stabilization Program shall release disputed relocation assistance funds to either the tenant or the landlord upon receipt of either a written agreement by both the landlord and the affected tenant, an order of a court of competent jurisdiction, or an order of a City or Rent Board hearing examiner issued pursuant to a petition process conducted in accordance with applicable Rent Board Regulations.
34 (iv) The landlord may rescind the notice of termination of tenancy prior to any release of relocation payment to the tenants by serving written notice stating such rescission on the tenants. In such instance, the relocation payment shall be released to the landlord. Subsequent to the release of any relocation payment to the tenants, the landlord may rescind the notice of termination of tenancy only upon the written agreement of the tenants to remain in possession of the rental unit. If the tenants remain in possession of the rental units after service of a landlord’s written notice of rescission of the eviction, the tenants shall provide an accounting to the landlord of the amount of the relocation payment expended for moving costs, return to the landlord that portion of the relocation payment not expended for moving costs, and assign to the landlord all rights to recover the amount of relocation payment paid to third parties. If a rescission occurs under this subsection, the tenant(s) shall continue the tenancy on the same terms as before the notice was served.
(v) Where a landlord has served a notice of termination of tenancy on a tenant prior to the date that this amendment takes effect and the notice of termination of tenancy has not expired, the landlord shall deposit the full relocation payment with the City or its designated agent to be held in escrow for the tenants if the tenants have not vacated the rental unit as of the effective date of this amendment, and the landlord shall pay the full relocation payment to the tenants if the tenants have vacated the rental unit as of the effective date of this amendment. Said deposit in escrow or payment to the tenants shall be made within ten days of the effective date of this amendment.
(vi) Failure of the landlord to make any payment specified herein shall be a defense to any action to recover possession of a rental unit based upon the landlord’s termination of tenancy notice pursuant to this subsection (13.76.130A.9). In addition, if the tenants of a rental unit have vacated the unit as a result of a notice of termination of tenancy pursuant to this subsection (13.76.130.A.9), and the landlord fails to make any payment
35 specified herein, the landlord shall be liable to the tenants for three times the amount of the payment as well as reasonable attorney fees. q. A tenant who prevails in an action brought under this subsection (13.76.130A.9), in addition to any damages and/or costs awarded by the court, shall be entitled to recover all reasonable attorney’s fees incurred in bringing or defending the action.
r. At least twice annually, Rent Board staff shall report to the Rent Board regarding the occupancy status of units possession of which has been recovered pursuant to this subsection (13.76.130A.9) within the prior 36 months.
s. If any provision or clause of this subsection (13.76.130A.9) or the application thereof to any person or circumstance is held to be unconstitutional or to be otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions or clauses, and to this end the provisions and applications of this subsection are severable.
10. A landlord or lessor seeks in good faith to recover possession of the rental unit for his/her occupancy as a principal residence, where the landlord or lessor has previously occupied the rental unit as his/her principal residence and has the right to recover possession of the unit for his/her occupancy as a principal residence under an existing rental agreement with the current tenants.
11. The tenant fails to vacate a rental unit occupied under the terms of a temporary rental agreement entered into pursuant to the provisions of subsection 13.76.130A.7.c., following expiration of the term of said temporary rental agreement, and following written notice of the availability of tenant’s previous rental unit for re-occupancy by tenant (if the term of the rental agreement has expired by reason of the completion of repairs on the old rental unit), or of written notice to quit (if the term of the rental agreement has expired by reason of the expiration of a period of 90 days).
36 B. A landlord’s failure to specify good cause as listed above in subsections 1. through
11. of Section 13.76.130A. in the notice of termination or the notice to quit and in the complaint for possession shall be a defense to any action for possession of a rental unit covered by the terms of this chapter.
C. In any action to recover possession of a rental unit covered by the terms of this chapter, except an action to recover possession under subsection
13.76.130A.7., 13.76.130.A.8, or 13.76.130.A.11., a landlord shall allege, as to each rental unit on the property, substantial compliance as of the date of the notice of termination or notice to quit and as of the date of the commencement of the action for possession with the implied warranty of habitability and compliance as of the date of the notice of termination or notice to quit and as of the date of the commencement of the action for possession with Sections 13.76.100 (Rent Ceiling) and 13.76.080 (Rent Registration) of this chapter.
D. The landlord shall file with the board a copy of any notice of termination, notice to quit, and summons and complaint, within ten days after the tenant has been served with such notice or summons and complaint.
Section 5. Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable, or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable.
Youth Commission
INFORMATION CALENDAR
July 12, 2022
To: Honorable Mayor and Members of the City Council
From: Youth Commission
Submitted by: Nina Thompson, Chairperson
Subject: Youth Commission Work Plan 2022
CURRENT SITUATION AND ITS EFFECTS
At a regular meeting on May 9, 2022, the Youth Commission approved the Commission’s 2022 Work Plan, which will be used to guide the Commission’s work throughout the year.
Youth Commission Meeting Monday, May 9, 2022
Action Item: Youth Commission Work plan 2022
M/S/Thompson/Chokkalingam: Aye’s: Weisberg, Kaplan-Pettus, Chokkalingam, Schlosberg, Thompson, Powell, and Jay. Noe’s: None. Abstain: None. Absent: Sanders
BACKGROUND
See attached Work Plan.
ENVIRONMENTAL SUSTAINABILITY
No environmental impacts or opportunities were identified as a result of this recommendation.
POSSIBLE FUTURE ACTION
Based on Commission research and public input, new initiatives and recommendations to City Council may be submitted to City Council at such time deemed necessary.
FISCAL IMPACTS OF POSSIBLE FUTURE ACTION
No fiscal impacts identified at this time.
CONTACT PERSON
Nina Thompson, Chairperson
Ginsi Bryant, Secretary, Youth Commission
Attachment: Youth Commission Work Plan 2022
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
City of Berkeley Youth Commission Work Plan
Mission: Identifies the needs of youth, reviews, and recommends youth services and programs.
Activity Resources Outputs (What’s
Happened So Far)
Next Step Goal
Microgrants Members of council
School board
City staff
Discussion with council
members, school board,
city staff, and
community members.
Work with city staff to
understand the logistics of
the program.
To provide funds to youth lead
organizations to increase their
opportunities.
Mental health
(survey at BUSD)
BHS student leadership
Wellness and Support
Project BHS
BUSD administration
Existing mental health
counselors/health center
staff at BUSD
N/A Form a mental health
subcommittee in the Youth
Commission.
To increase the quality of mental
health care and resources at Berkeley
Public Schools.
Youth representation
on city commissions
Members of council
School board
City staff
Discussion with council
members.
Council recommendation to
add a youth seat to the
Environmental and Climate
Commission.
To create representation for youth on
city commissions.
Title Nine training
for students
Title IX coordinator
Principal Raygoza
Administration at BUSD
middle schools
N/A Plan a meeting with the
BUSD Title Nine
coordinator.
To increase the awareness of Title
Nine regulations and resources among
the student body.
Improving school
lunch within BUSD
Meatless Mondays Club
Meal coordinator within
BUSD
N/A Survey students about their
experience with school
lunch.
To improve lunch options at Berkeley
High.
Lengthening time for
lunch
Bell Schedule Redesign
Committee
N/A Meet with Bell Schedule
Redesign Committee to ask
to add a question about the
length of lunch.
To survey students, staff, and teachers
to address concerns about the length
of lunchtime at Berkeley High School.
Expanding access to
free meals
Meal coordinator within
BUSD
Organizers of current/past
grocery pickup in
Berkeley
N/A Meet with BUSD admin
about current and past
projects that provide meals
and groceries.
To expand free meal/grocery access to
people in Berkeley.
Communications
All communications submitted to the City Council are
public record. Communications are not published directly to the City’s website. Copies of individual communications are available for viewing at the City Clerk Department and through Records Online.
City Clerk Department
2180 Milvia Street
Berkeley, CA 94704
(510) 981-6900
Records Online
https://records.cityofberkeley.info/
To search for communications associated with a particular City Council meeting using Records Online:
1. Select Search Type = “Public – Communication Query (Keywords)”
2. From Date: Enter the date of the Council meeting
3. To Date: Enter the date of the Council meeting (this may match the From Date field)
4. Click the “Search” button
5. Communication packets matching the entered criteria will be returned
6. Click the desired file in the Results column to view the document as a PDF