Office of the Mayor
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7100 ● TDD: (510) 981-6903 ● Fax: (510) 981-7199 E-Mail: [email protected]
CONSENT CALENDAR
September 19, 2023
To: Members of the City Council
From: Mayor Arreguin (Author), Councilmember Harrison (Co-Sponsor), Councilmember Hahn (Co-Sponsor)
Subject: Budget Referral: Berkeley Food Network to address increased demand
RECOMMENDATION
Refer $200,000 to the November 2023 AAO #1 process to address the increased number of people experiencing food insecurity in Berkeley including people in danger of eviction due to the COVID-19 eviction moratorium expiration and rent debt due to inflation and rental increases. The proposed funding source is FY 2023-2024 Measure P tax receipts.
BACKGROUND
The Berkeley Food Network (BFN) has become the hub organization in the City of Berkeley addressing food insecurity serving 6,500 people per week through its programs, up from 1,600 per week in February 2020 at the onset of the COVID-19 pandemic. Over 3,000 people per week are served through Direct Programs including the onsite pantry, 14 mobile pantries, home delivery and grocery bagging program through Head Start at BUSD. An additional 3,500 people are currently fed through 29 partner agencies with an additional 6 partners in the queue. Since starting food distribution at the West Berkeley Family Wellness Center in April 2023 the demand at that location has increased 6 fold. In the span of just one month April - May 2023 there was a 28% increase in visits to the pantry and a 60% increase in new panty member registrations.
Funding for this program will support the many low-income households that remain in massive debt that has accrued over the course of the pandemic and have lost their Cal- Fresh benefits. As the Statewide, County and Berkeley’s eviction moratorium have ended, the Eviction Defense Center has been referring clients to the pantry in order to offset food costs and prevent evictions which has been a factor in the significant increase in pantry demand.
The purpose of this $200,000 request is to provide stop-gap funding to BFN while it recruits a new Executive Director and ramps up grant applications and fund raising.
FINANCIAL IMPLICATIONS
Total allocation of $200,000 from Measure P tax receipts. Over 350 homeless
Budget Referral: Berkeley Food Network to address increased demand CONSENT CALENDAR September 19, 2023
(approximately 1/3 of the Berkeley homeless population) are direct recipients of the pantry and BFN provides food to Dorothy Day House and Insight Housing (formerly Berkeley Food and Housing Project) for their daily meals
ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the subject of this report.
CONTACT PERSON
Mayor Jesse Arreguín 510-981-7100
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/
PUBLIC HEARING
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Supplemental Material: Revised Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) and Repeal of Chapter 12.99 to Conform to State Law and Respond to Guidance from the California Department of Housing and Community Development
In addition to the staff report and ordinance that were included in the July 25, 2023 City Council meeting agenda packet, staff are submitting supplemental material for City Council’s consideration:
1. A revised recommended draft ordinance (Attachment 1);
2. Four policy alternatives related to: New Construction ADUs within the front setback; Building separation; Time limit for accessory structure conversions; and Neighbor Noticing Procedure (Attachment 2); and
3. A table outlining the sources of proposed ADU ordinance amendments (Attachment 3).
Revisions to the Recommended Draft Ordinance
Staff propose revisions to the recommended ADU ordinance, and are providing additional reference materials, which are based on further discussions with City Councilmembers, Building and Safety Division staff, and Fire Department staff, as well as additional staff analysis. Staff have also added General and Specific Findings (Sections 1 and 2) to the adoptive ordinance to demonstrate the rationale for making these revisions to the zoning ordinance, elaborate upon the City’s lack of adequate public transit, and to reinforce the City’s concern of fire and safety hazards, particularly within the Hillside Overlay. The revisions are highlighted in the revised recommended draft ordinance in grey (Attachment 1).
1. Building Separation Measurement. Staff revised the definition of building separation measurement to include ADUs and clarify that the measurement applies between a main building or ADU and the closest neighboring building.
ADU Amendments, Supplemental Material PUBLIC HEARING
September 19, 2023
2. Building Height, Maximum, Detached, New Construction. Staff revised the measurement for the maximum height of detached, new construction ADUs to match state law. SB 897 permits lots within a 0.5 mile of a major transit stop or high-quality transit corridor1 to build up to 18 feet, with an additional 2 feet to align with the existing roof pitch of the primary dwelling. It also permits lots outside of a 0.5 mile radius of a major transit stop or high-quality transit corridor to go up to 16 feet for single family dwellings, or single-story duplexes or multi-family dwellings, and up to 18 feet for multistory duplexes or multi-family dwellings.
3. Building Separation for Detached ADU, Minimum. Staff revised the building separation distance from 3 ft. to 5 ft. after conferring further with the Building and Safety Division and the Fire Department.
4. Accessory Building or Accessory Structure Conversion. Staff revised the language in Berkeley Municipal Code (BMC) 23.306.030(A)(3) to clarify that a conversion of an existing, legally established accessory building or accessory structure is allowed provided that the converted ADU maintains the same location and dimensions and meets fire and safety standards, consistent with Government Code (GOV) 65852.2(a)(D)(vii). Staff also removed the minimum 3-year time limit based on when the structure was created, consistent with HCD guidance.2
5. Front Setback, New Construction. Staff revised the language in BMC 23.306.030(A)(4).
This language was originally added to be compliant with AB 2221, which adds front setbacks to the list of development standards that may not preclude the construction of at least an 800 square foot ADU.3 Staff have revised the language to clarify that ADUs may not occupy front setbacks, except in the case that the front setback requirements precludes an 800 square foot ADU.
6. Attached ADU. Staff added BMC 23.306.030(A)(5) to establish a clear distinction between attached and detached for the purposes of ADUs, given that attached ADUs 1 PRC 21155(b): For the purposes of this section, a high-quality transit corridor means a corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours. A project shall be considered to be within one-half mile of a major transit stop or high-quality transit corridor if all parcels within the project have no more than 25 percent of their area farther than one-half mile from the stop or corridor and if not more than 10 percent of the residential units or 100 units, whichever is less, in the project are farther than one-half mile from the stop or corridor. 2 HCD ADU Handbook, July 2022. https://www.hcd.ca.gov/sites/default/files/2022-07/ADUHandbookUpdate.pdf pg. 21 3 GOV 65852.2(c)(2)(C): “Any requirement for a zoning clearance or separate zoning review or any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.”
ADU Amendments, Supplemental Material PUBLIC HEARING
September 19, 2023
are now permitted a maximum height of 25 feet per SB 897. ADUs are now considered attached if sharing a common wall with a primary dwelling.
7. ADU Noticing. Staff revised the language for Noticing procedures in BMC
23.306.040(B), removing the term “Neighbor” from the header and changing the term “tenants” to “occupants.” These changes have been made to better reflect the intent of the proposed subsection: to provide a courtesy notice to all non-owner occupants of the subject property. Staff are unable to obtain tenant names or contact information from the Rent Board’s Rent Registry and rely on unit and occupant data from the County tax assessor records).
8. Minimum Parking Required in the Hillside Overlay. Staff revised the requirements to use the Public Resource Code (PRC) Section 21155 definition of a major public transit or high-quality transit corridor, instead of subdivision (d)(1)4 and (j)(11)5 of Government Code Section 65852.2, as proposed in the July 25th recommended draft ordinance. This change relies on a different interpretation of the definition of “public transit” in Government Code 65852.2, supported by the use of the phrase “including, but not limited to,” which may allow for use of the PRC definition in the parking context, in addition to the height context. Staff are unclear whether or not HCD would support this interpretation.
Various bus service lines throughout Berkeley that qualify as “public transit” per subdivision (d)(1) and (j)(11) of Government Code Section 65852.2 have limitations that should be considered, including no weekend service and 30 minute headways. The broader GOV 65852.2 definition exempts almost all of the HO from providing one off- street parking space per ADU (Figure 1). The PRC definition would require a significant portion of the HO to provide one off-street parking space per ADU (Figure 2).
Policy Alternatives
Staff prepared additional policy alternatives for standards and procedures where the City has discretion from state law. The policy alternatives are listed in Attachment 2. Staff have also prepared a table (Attachment 3) comparing the recommended ordinance revisions (July 2023 vs. September 2023) to their source(s)—state law, HCD guidance, HCD October 2022 letter, Planning Commission, and Planning staff. 4 GOV 65852.2(d): Notwithstanding any other law, and whether or not the local agency has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), all of the following shall apply: (1) The local agency shall not impose any parking standards for an accessory dwelling unit in any of the following instances: (A) Where the accessory dwelling unit is located within one-half mile walking distance of public transit. 5 GOV 65852.2(j)(11) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
ADU Amendments, Supplemental Material PUBLIC HEARING
September 19, 2023
1. Policy Alternative 1: New Construction ADUs within the front setback. The first policy alternative proposes adding additional prescriptive standards to ensure that ADUs that require area in the front setback are sited as far from the from the front lot line as possible. This would both allow for as minimal encroachment possible into the front of the lot; however, it also has the potential to obscure more of the primary dwelling unit as applicants attempt to maximize space in the front setback in accordance with these additional prescriptive standards.
2. Policy Alternative 2: Building Separation. The second policy alternative proposes adding an additional building separation standard for Detached ADUs within the Hillside Overlay to Table 23.306-2. This standard, which would increase the building separation required in the Hillside Overlay only from 5 ft. to 8 ft., matches the existing required minimum building separation between buildings on adjacent parcels and is intended to address fire safety concerns. It also would effectively limit the allowable area where ADUs are permitted on a property and could potentially push ADUs closer to front, side, or rear lot lines.
3. Policy Alternative 3: Converted ADUs – Time Limits. The third policy alternative proposes maintaining the existing provision that a legally established accessory building or structure can be converted to an ADU only after three years has elapsed. Staff removed the minimum time limit in the recommended draft ordinance, consistent with HCD guidance, because the conversion of a legally established building or structure is ultimately allowed. However, state law is unclear on this issue and HCD’s interpretation is not determinative.
4. Policy Alternative 4: Neighbor Noticing. The fourth policy alternative proposes keeping the neighbor noticing procedures as-is, with the exception of removing owner(s) of the subject property from the list of required noticing recipients. The recommended draft ordinance reflects the Planning Commission’s recommendation to only notice “tenants” of the subject property. The Planning Commission made this recommendation to address neighbor expectation, which is explained in page 10 of the staff report published as part of the July 25, 2023 City Council Agenda packet.
ADU Amendments, Supplemental Material PUBLIC HEARING
September 19, 2023
Figure 1: Areas within 1/2 mile of "Public Transit"
Figure 2: Areas within 1/2 mile of "Major Transit Stops" and "High Quality Transit Corridors"
ORDINANCE NO. -N.S.
REPEAL OF THE WILDFIRE HAZARD EVACUATION RISK MITIGATION ORDINANCE (BMC 12.99), AND AMENDMENTS TO THE RULES OF
MEASUREMENT (BMC 23.106), ACCESSORY DWELLING UNIT (ADU) ORDINANCE (BMC 23.306), PARKING AND LOADING (BMC 23.322), EXEMPTIONS TO NONCONFORMING USES, STRUCTURES, AND BUILDINGS (BMC 23.324.060), AND DEFINED TERMS (BMC 23.502.020) RELATING TO ADUS
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. General Findings
A. California Government Code Sections 65852.1, 65852.2 and 65852.22 provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily dwelling residential use.
1. California Government Code Section 65852.2(d)(1)(A) and (j)(11) finds that a local agency shall not impose any parking standards for an accessory dwelling unit where the accessory dwelling unit is located within one half-mile walking distance of public transit.
2. California Government Code Section 65852.2(c)(2)(D)(ii) uses the proximity of parcels to major transit stops and high quality transit corridors as defined in Section 21155 of the California Public Resources Code.
B. Accessory dwelling units are statutorily exempt from the California Environmental Quality Act by Guidelines Section 15282(h).
C. Policy H-18 of the City of Berkeley’s 2023-2031 Housing Element encourages the addition of accessory dwelling units on properties with single-family and multi-unit homes.
On May 3, 2023, the Planning Commission held a public hearing to consider proposed amendments to Title 23 relating to ADUs and unanimously recommended staff’s proposal with three modifications, which were incorporated with modifications into the proposed amendments: (1) Regulating bay window and balcony projections using setback requirements; (2) Revising Neighbor Noticing requirements to subject property tenants; (3) Permitting ADUs to reach maximum allowable height without requiring an Administrative Use Permit.
Section 2. Specific Findings
A. On October 17, 2022, the City received a letter from the State Department of Housing and Community Development (HCD) stating that the City’s current ADU ordinances (BMC Sections 23.306 and 12.99, the “Ordinances”) do not comply with Government Code Section 65852.2.
1. HCD found a discrepancy between the definition of “Efficiency Kitchen” contained within Ordinance No. 7,797-N.S. (Chapter 23.306) and Government Code §65852.22(a)(6)(A) and requested that the City remove the sink requirement from its zoning definition, as well as the reference to a working refrigerator in the definition of a “Junior Accessory Dwelling Unit.”
2. Regarding Ordinance No. 7,799-N.S (Chapter 12.99), HCD found that the City did not make adequate findings with respect to ADU and Junior ADU development impacts on traffic flow and public safety when the City adopted limitations on ADU and Junior ADU development in the Hillside Overlay zoning district.
B. Berkeley’s Hillside Overlay is comprised of Berkeley’s Very-High Fire Hazard Severity Zones and Wildland-Urban Interface (WUI) Fire Areas. The Hillside Overlay has unique conditions, including limited transit access, and hazards, including wildfires, earthquakes, and landslides, that put residents of the Hillside Overlay at greater risk:
1. The Hayward Fault bisects the Hillside Overlay, traversing the full length of these zones, with violent (Level 9 of 10) shaking predicted in the US Geologic Services Hayward Fault earthquake scenario (HayWired).
2. A majority of streets in the Hillside Overlay are less than 26 feet in width, and include conditions such as steep slopes, sharp curves and acute- angled corners. These factors compromise the emergency access egress and accessibility for emergency responders.
The majority of transit within the Hillside Overlay does not meet the definition of major transit stops and high quality transit corridors as defined in Section 21155. Bus service (Line 65) runs at 30-minute headways and does not offer weekend service. By applying the broader California Government Code Section 65852.2(d)(1)(A) and (j)(11) for minimum parking requirements, and increasing density and intensity in the Hillside Overlay, exacerbates the hazardous conditions that currently exist with respect to traffic flow and public safety in the likely event of a catastrophic wildfire or earthquake, necessitating reasonable limitations that reduce exposure to hazardous conditions.
3. The 2014 Working Group on California Earthquake Probabilities calculated that there is a 33-percent likelihood of a large (magnitude 6.7 or greater) earthquake occurring on the Hayward Fault within three decades.
On March 9, 2015, a report published by the U.S. Geological Survey found that the Bay Area has a 72% chance of having at least a magnitude 6.7 earthquake in the same time period.
4. On December 10, 2019, the City adopted a Hazard Mitigation Plan that identifies Earthquake and Wildland-Urban Interface Fire as "Likely" and "Catastrophic" events.
5. On June 10, 2021, a study published by UC Berkeley researchers concluded that continued development in the WUI will make California’s supply of housing more vulnerable, undermine state efforts to curb carbon emissions, further degrade the state’s wildland habitats, and create fiscal challenges for state and local governments in the event of post-disaster recovery. Furthermore, the insurance impacts of continued development in high-risk areas of the WUI threaten to impose high costs on homeowners and destabilize the insurance industry.
6. On August 10, 2021, a study published by UC Berkeley researchers concluded that in the best-case scenario, if each household evacuated from the Berkeley hills with one vehicle, estimated evacuation time would be two hours and 245 vehicles would be exposed to immediate fire danger. However, if each household evacuated with 1.7 vehicles, evacuation time would increase to three hours and 782 vehicles would be exposed to immediate fire danger.
Section 3. That Berkeley Municipal Code Chapter 12.99 is hereby repealed.
Section 4. That Berkeley Municipal Code 23.106.020(B) is amended to read:
B. Exclusions. The lot coverage calculation excludes:
1. Uncovered porches, landings and stairs;
2. Uncovered decks, except that a deck on the roof of a building or accessory structure or over an enclosed space or paved ground area is included in the lot coverage calculation; and
3. The area of the roof of a subterranean structure, when such a structure is not more than 3 feet above finished grade.
4. The area of any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot. See 23.306 Accessory Dwelling Units.
Section 5. That Berkeley Municipal Code 23.106.030(D) is amended to read:
D. Excluded Areas. The following areas are excluded from gross floor area calculation:
1. Covered or uncovered areas used for off-street parking or loading spaces.
2. Driveways ramps between floors and maneuvering aisles of a multi-level parking garage.
3. Mechanical, electrical, and telephone equipment rooms below finished grade.
4. Areas which qualify as usable open space.
5. Arcades, porticoes, and similar open areas for non-residential uses which are:
(a) Located at or near street level;
(b) Accessible to the general public; and
(c) Are not designed or used as sales, display, storage, service, or production areas.
6. The floor area associated with any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot. See 23.306 Accessory Dwelling Units.
Section 6. That Berkeley Municipal Code 23.106.080(A) is amended to read:
A. Measurement. Building separation is measured as the distance between the surface of a main building or ADU’s outer wall and the outer wall surface of the closest neighboring main building.
Section 7. That Berkeley Municipal Code 23.106.090(A)(1) through (3) is amended to read:
A. Average Building Height.
1. Average Building Height: The vertical distance from the average level of the highest and lowest point of that portion of the lot covered by the building (or, in the case of residential additions, that portion of the lot covered by the addition) to the roof features shown in Table 23.106-1: Average Building Height Measurement. See Figure 23.106-4: Average Building Height.
2. Figure 23.106-4: Average Building Height.
2. Dormers are not included in the average building height calculation.
3. Attached accessory dwelling units are not included in the average building height calculation.
Section 8. That Berkeley Municipal Code 23.306 is amended to read:
Sections:
23.306.010– Purposes
23.306.020– Applicability and Definitions
23.306.030– Development StandardsPermit Procedures
23.306.040– Permit ProceduresDevelopment Standards
23.306.050– Deed Restrictions
23.306.060– Neighbor Noticing
23.306.070– Rooftop Decks and Balconies
23.306.010 Purposes.
The purposes of this Chapter are toThis Chapter establishes accessory dwelling unit (ADU) and junior accessory dwelling unit (Junior ADU) standards that:
A. Implement California Government Code Section 65852.1, 65852.2 and 65852.22.
B. Increase overall supply and range of housing options in Berkeley.
C. Expedite small-scale infill development.
D. Support Housing Element goals of facilitating construction of accessory dwelling units and increasing the number of housing units that are more affordable to Berkeley residents.
E. Encourage development of accessory dwelling units in zoning districts with compatible land uses and infrastructure.
F. Reduce potential impacts of new development in Very-High Fire Hazard Severity Zones and Wildland-Urban Interface Fire Areas as designated in the BMC Chapter
19.48 and as may be amended from time to time, and the Hillside Overlay District (HOD) due to unique conditions and hazards within these areas that require additional restrictions on ADUs and JADUs because of impacts of traffic flow and public safety consistent with Government Code 65852.2, subdivision (a)(1)(A), which allows local agencies to regulate ADUs based on "adequacy of water and sewer service, and the impacts of traffic flow and public safety."
23.306.020 Applicability and Definitions.
A. The provisions of this chapter apply to zoning districts where residential uses are permitted, on lots that have at least one existing or proposed Dwelling Unit or Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.
B. For purposes of this Chapter the Hillside Overlay District (HOD) includes all lots within Berkeley’s designated Very-High Fire Hazard Severity Zones and Wildland- Urban Interface Fire Areas that are zoned R-1H (Single-Family Residential— Hillside Overlay), R-2H (Restricted Two-Family Residential— Hillside Overlay), R- 2AH (Restricted Multiple-Family Residential—Hillside Overlay), or ES-R (Environmental Safety-Residential).
B. Number of ADUs and JADUs Permitted Per Lot. See Table 23.306-1—ADU and Junior ADU Maximum Number of Units per Lot.Except as expressly modified by
Chapter 12.99, the following number of ADUs and JADUs shall be the maximum number of accessory units permitted on lots subject to this Chapter.
C. Density Exemption. ADUs and Junior ADUs are not included in the minimum or maximum density established by the underlying zoning district.
TABLE 23.306-1—ADU AND JUNIOR ADU MAXIMUM NUMBER OF UNITS PER LOT Use, Primary ADU and Junior ADU, Maximum Per Lot
Single Family Dwelling, one unit on lot 1 ADU and 1 Junior ADU, both are permitted Single Family Dwelling, more than one
unit on lot
1 ADU
Duplex or Multi-Family Dwelling 2 detached ADUs and at least one interior ADU up to 25% of the total number of existing duplex or
multi-family dwelling units on the lot
Group Living Accommodation 1 ADU
1. Lot with one Single Family Dwelling: One ADU and/or one JADU.
2. Lot with more than one Single Family Dwelling: One ADU.
3. Lot with a Duplex or Multiple-Family Dwelling, either:
(a) Up to two detached ADUs; or
(b) At least one ADU converted from non-habitable portions of the existing Main Building that are not within the living space of a Dwelling Unit (e.g. basement, attic, garages storage room). The maximum number of ADUs converted from portions of the existing Main Building that are not within the living space of a Dwelling Unit shall not exceed 25% of the total number of existing Dwelling Units on the lot.
4. Lot with a Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory: One ADU
23.306.030 Permit Procedures.
A. Zoning Certificate. An application for an ADU or JADU shall be allowed with a Zoning Certificate. Review must be completed within 60 days of submission of a completed application. A completed application must include evidence of compliance with this Chapter, including Development Standards, Deed Restrictions, and Neighborhood Noticing.
1. If an application to create an ADU or JADU is submitted as part of a project that requires discretionary review, a Zoning Certificate for a Building Permit shall not be issued for the ADU or JADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired.
2. Issuance of a Zoning Certificate shall not be denied for the construction or conversion of an ADU or JADU that complies with the requirements of Government Code Section 65852.2(e)(1).
3. Issuance of a Zoning Certificate for the construction or conversion of an ADU or JADU shall not be denied based on the failure of an applicant to correct a nonconforming zoning condition.
23.306.0340Development Standards.
A. Basic Standards. See Table 23.306-21: ADU and JADU Development Standards.
TABLE 23.306-21. ADU AND JADU DEVELOPMENT STANDARDS
Basic Standards Supplemental Standards
Gross Floor Area, Maximum
Studio or 1 bedroom 850 sq. ft.
2+ bedrooms 1,000 sq. ft.
23.306.030(A)(1);
23.306.030(A)(2);
23.306.030(A)(3)
Building Height, Maximum
Conversion Same as existing structure 23.306.030(A)(1);
23.306.030(A)(3)
Detached, New Construction See Table 23.306-3
Attached, New Construction 25 ft. 23.306.030(A)(5);
23.306.030(A)(7)
Lot Line Setbacks, Minimum
Front of Interior Lot Same as underlying district
Front of Through Lot Same as underlying district or 10
ft. on the secondary frontage as
determined by the Zoning Officer
Rear 4 ft.
Interior Side 4 ft.
Street Side 4 ft.
23.306.030(A)(3);
23.306.030(A)(4);
23.306.030(A)(6)
Building Separation for
Detached ADU, Minimum
5 ft.
Required Off-Street Parking
Spaces
See 23.322.030– Required
Parking Spaces
TABLE 23.306-3. ADU BUILDING HEIGHT – DETACHED NEW CONSTRUCTION Lot Consists of Existing Or
Proposed:
Within 0.5 mile of a major
transit stop or a high
quality transit corridor [1]
Not within 0.5 mile of a
major transit stop or a high
quality transit corridor [1]
Single-Family Dwelling(s),
one or more unit on a lot,
one or more stories
18 ft., with additional 2 ft. if
needed to align roof pitch of
ADU with the existing roof
16 ft.
Duplex or Multi-Family
Dwelling, single-story 16 ft.
Duplex or Multi-Family
Dwelling, multistory
pitch of the primary
dwelling(s)
18 ft.
Note:
[1] Major transit stop or a high-quality transit corridor as defined in Public Resources Code Section 21155.
1. Existing Building Conversion. An ADU created entirely through conversion with no modifications to the existing building envelope that exceeds the development standards for maximum gross floor area in Table 23.306-2. ADU Development Standards is allowed a physical addition of no more than 150 square feet. The addition must comply with maximum height and setback requirements.
2. Duplex or Multi-Family Dwelling Conversion. Interior ADU(s) must be created entirely through non-habitable residential portions of the existing main building that are not within the living space of a dwelling unit (e.g. basement, attic, garages, storage room).
3. Accessory Building or Accessory Structure Conversion. An ADU converted from a legally established accessory building or accessory structure is allowed to maintain non-conformity to the same location and dimensions of the existing accessory building or accessory structure, provided that the ADU meets fire and safety standards set forth in the California Building Standards Code adopted in BMC Title 19. Any physical additions to the existing accessory building or accessory structure shall comply with the development standards in Table
23.306-2 ADU Development Standards.
4. Front Setback, New Construction. An ADU shall not occupy area within the front setback, unless the requirement would preclude an ADU of 800 square feet.
5. Attached ADU. An ADU shall be considered attached if sharing a common wall with a primary dwelling.
6. Detached ADU Setback Exceptions. If there is a lesser setback allowed in
23.304.060-Accessory Buildings and Enclosed Accessory Structures for a comparable accessory building or accessory structure in the underlying zoning district, that setback shall apply.
1.7. Attached ADU, New Construction Height. Attached ADUs with height greater than 14 ft. and up to 25 ft. allowed with a Zoning Certificate.
ADU1 JADU
Maximum Size Outside of HOD2 500 sf
Studio or 1 bedroom 850 sf N/A
ADU1 JADU
2 + bedrooms 1000 sf
Maximum Size Within HOD 800 sf 500 sf
Maximum Height Outside of HOD 20 ft.
Maximum Height Within HOD 16 ft.
Front Yard Setback Same as underlying district
Rear Setback 4 ft3
Side Setback 4 ft3
N/A
Required Off-Street Parking
Outside of HOD None4
Required Off-Street Parking
Within HOD
The lesser of 1 space per
bedroom or ADU5, 6 None6
[1] An ADU converted from an Accessory Building or Accessory Structure legally established at least three years prior to submission of an ADU application that does not comply with the Maximum Height, Size, and/or Rear and Side Setback requirements is allowed to maintain non-conformity to the same dimensions of the existing Accessory Building or Accessory Structure, provided that the existing side and rear setbacks are sufficient for fire and safety as set forth in California Building Standards Code adopted in BMC Title 19. Any physical additions to the existing Accessory Building or Accessory Structure shall comply with the development standards in this table. [2] An ADU created entirely through conversion with no modifications to the existing building envelope that exceeds the development standards for Maximum Size in this table is allowed a physical addition of no more than 150 square feet. The addition must comply with Maximum Height and Setback requirements in this table.
[3] If there is a lesser setback allowed for a comparable Accessory Building or Accessory Structure in the underlying zoning district, that setback shall apply. [4] Replacement parking is not required. Replacement of off-street parking for the Main Building is allowed and does not need to comply with Parking Maximums (BMC 23.322.070) nor Parking Layout and Design (BMC 23.322.080).
[5] No off-street parking shall be required for ADUs that satisfy the criteria defined in subdivision (d) of California Government Code section 65852.2 or any successor provision thereto. [6] If an applicant provides off-street parking for an ADU or a JADU in the HOD, parking shall be allowed in any configuration on the lot, including within the front yard setback.
B. Junior ADUs.
1. Basic Standards. A Junior ADU shall be contained entirely within an existing or proposed single family dwelling or its attached garage, and have no more than 500 square feet in floor area.
2. Shared Sanitation Facility. If a Junior ADU shares a sanitary facility with a single- family dwelling, an internal connection between the Junior ADU and the main living area of the single family dwelling is required.
3. Junior ADU Floor Area. The Junior ADU gross floor area calculation excludes any shared sanitation facility with the single family dwelling.
B. Projections.
C.
Except as limited by Paragraph B.2 of this Section, architectural features (Outside of the Hillside Overlay.
1. Attached ADU. Chimneys, wWater hHeater eEnclosures, fFlues, hHeating and cCooling eEquipment, eEaves, cCornices, cCanopies, aAwnings, bay windows, and balconies) may project two feet into the required front and side setbacks, so long as there remains at least a two-foot setback from property lines. Bay windows and balconies may not project into a required rear ADU setback.
2. Within the Hillside Overlay. No projections shall be allowed within athe required setback on lots that are within the Hillside Overlay District.
C.D. Rooftop Decks within the Hillside Overlay. Roofs on ADUs within the Hillside Overlay may not be designed, converted, or used as usable open space.
23.306.0450Permit ProceduresDeed Restrictions.
A. Zoning Certificate. An application for an ADU or Junior ADU shall be allowed with a Zoning Certificate. Review must be completed within 60 days of submission of a completed application. A completed application must include evidence of compliance with this Chapter, including development standards, deed restrictions, and neighborhood noticing.
1. If an application to create an ADU or Junior ADU is submitted as part of a project that requires discretionary review, a Zoning Certificate for a building permit shall not be issued for the ADU or Junior ADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired. See
23.404.060(A) Post-Decision Provisions (Effective Dates).
2. Issuance of a Zoning Certificate shall not be denied for the construction or conversion of an ADU or Junior ADU that complies with the requirements of Government Code Section 65852.2(e)(1).
3. Issuance of a Zoning Certificate for the construction or conversion of an ADU or Junior ADU shall not be denied based on the failure of an applicant to correct a nonconforming zoning condition.
B. Noticing.
1. Scope and Timing of Notice. Notice of an ADU application shall be mailed to all occupants of owners and tenants of the subject, adjacent, confronting and abutting propertiesthe subject property, excepting the property owner(s), within ten working days of submission of the building permit application to the Planning DepartmentCity.
2. Content of Notice. Notice shall provide the address of the project and include allowable hours of construction, a link to the City’s ADU webpage identifying permit and construction resources, and contact information for a Rent Board Housing Counselor.
1.3. Mailing Fees. The applicant shall be responsible for the cost of materials, postage, and staff time necessary to process and mail the notices.
D.C. Deed Restriction. The property owner shall file a deed restriction with the Alameda County Recorder which states:
1. The Junior ADU shall not be sold separately from the main building;
2. The ADU shall not be sold separately from the main building unless the conditions of BMC 23.306.0450(D) ADUs Developed by a Qualified Nonprofit Developer B are met;
3. The ADU and/or Junior ADU shall not be rented for a term that is shorter than 30 days; and
4. If the property includes a Junior ADU, the Junior ADU, or the Single Family Dwelling in which the Junior ADU is located, shall be owner-occupied.
E.D. ADUs Developed by a Qualified Nonprofit Developer. An ADU built or developed by a "qualified nonprofit corporation" may be sold or conveyed separately from the mMain bBuilding to a "qualified buyer," as such terms are defined in subdivision (b) of Section 65852.26 of the California Government Code. The ADU must be held pursuant to a recorded tenancy in common agreement recorded on or after December 31, 2021 that includes the following elements:
1. Delineation of all areas of the property that are for the exclusive use of a cotenant;
2. Delineation of each cotenant’s responsibility for the costs of taxes, insurance, utilities, general maintenance and repair, and improvements associated with the property;
3. Procedures for dispute resolution among cotenants before resorting to legal action;
4. Allocates to each qualified buyer an undivided, unequal interest in the property based on the size of the dwelling each qualified buyer occupies;
5. A repurchase option that requires the qualified buyer to first offer the qualified nonprofit corporation to buy the ADU or primary dwelling if the buyer desires to sell or convey the property;
6. A requirement that the qualified buyer occupy the ADU or primary dwelling as the buyer’s principal residence; and
7. Affordability restrictions on the sale and conveyance of the ADU or primary dwelling that ensure the ADU and primary dwelling will be preserved for low- income housing for 45 years for owner-occupied housing units and will be sold or resold to a qualified buyer.
8. If requested by a utility providing service to the primary residence, the ADU shall have a separate water, sewer, or electrical connection to that utility.
23.306.060 Neighbor Noticing.
A. Scope and Timing of Notice. Notice of an ADU application shall be mailed to owners and tenants of the subject, adjacent, confronting and abutting properties within ten working days of submission to the Planning Department.
B. Content of Notice. Notice shall provide the address of the project, allowable hours of construction, a link to the City’s ADU webpage, and information for tenants of the subject property on how to contact a Rent Board Housing Counselor by e-mail or phone and any other resource information deemed relevant.
C. Mailing Fees. The applicant shall be responsible for the cost of materials, postage and staff time necessary to process and mail notices.
23.306.070 Rooftop Decks and Balconies.
A. Notwithstanding any provisions of this Title to the contrary, roofs on lots within the Hillside Overlay District may not be designed, converted or used as Usable Open Space.
Section 9. That Berkeley Municipal Code 23.322.020(C) is amended to read:
C. Changes of Use.
1. Commercial Districts. In the Commercial Districts, off-street parking is required for a change in use only when the structure is expanded to include new floor area.
2. Manufacturing and R-SMU Districts.
(a) In the Manufacturing and R-SMU districts, off-street parking is required for a change in use only when:
i. The structure is expanded to include new floor area; and/or ii. The use is changed to one with a numerical parking standard greater than the district minimum.
(b) If the new use is changed to one with a higher numerical parking standard than the district minimum, the new use must provide the incremental difference between the two numerical parking standards. A higher numerical parking standard may be reduced to the district minimum as provided in Section 23.322.050(.A)(.2) (Change of Use).
(c) As used in this section, the “district minimum” parking requirement is:
iii. 2 spaces per 1,000 square feet of floor area in the Manufacturing Districts; and
iv. 1 space per 1,000 square feet of floor area in the R-SMU district.
3. All Other Residential Districts. In all Residential Districts except for R-SMU, off- street parking spaces are required for all changes in use.
D. Location Exemption. Off-street parking spaces are not required for new uses or buildings, or an enlargement or intensification of an existing use or structure, that is located within 0.5 miles of a major transit stop, as defined by Section 21155 of the California Public Resources Code, unless otherwise authorized by Government Code Section 65863.2.
Section 10. That the section named; Residential Uses; in Berkeley Municipal Code Table 23.322-1, Required Off Street Parking in Residential Districts, within Berkeley Municipal Code 23.322.030, Required Parking Spaces, is amended to read:
TABLE 23.322-1: REQUIRED OFF-STREET PARKING IN RESIDENTIAL DISTRICTS Land Use Number of Required Off-street Parking Spaces
Residential Uses
Accessory Dwelling
Unit
Junior ADU: None required
ADU outside of Hillside Overlay: None required
ADU within Hillside Overlay: 1 per ADU unless the parcel is located within 0.5 mile of a major transit stop or a high-quality transit corridor as defined in Public Resources Code Section 21155. See Chapter 23.306
Land Use Number of Required Off-street Parking Spaces
Dwellings, including
Group Living
Accommodations
R-3, R-4, and R-5 Districts (1-9 units): If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per unit.
R-3, R-4, and R-5 District (10 or more units): If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per 1,000 sq. ft. of gross floor area
All Other Districts: If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per unit
All Other Locations: None required
Dormitories, Fraternity
and Sorority Houses,
Rooming & Boarding
Houses, Senior
Congregate Housing
If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per each 5 residents, plus 1 for manager.
All Other Locations: None required.
Rental of Rooms
If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per each two roomers
All Other Locations: None required
Section 11. That Berkeley Municipal Code Table 23.322-2 is amended to read:
TABLE 23.322-2: REQUIRED OFF-STREET PARKING REQUIREMENTS IN COMMERCIAL
DISTRICTS (EXCLUDING C-T)
Land Use Required Parking Spaces
Residential Uses
Accessory Dwelling
Unit See Chapter 23.306None required
Dwellings, including
Group Living
Accommodations
If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per unit
All Other Locations: None required
Hotel, Residential None required
Mixed-Use Residential
(residential use only) None required
Senior Congregate
Housing None required
Non-Residential Uses
All non-residential
uses except uses
listed below
C-DMU District: 1.5 per 1,000 sq. ft.
All Other Commercial Districts: 2 per 1,000 sq. ft.
Land Use Required Parking Spaces
Hospital 1 per each 4 beds plus 1 per each 3 employees
Library
C-DMU District: 1.5 per 1,000 sq. ft.
All Other Commercial Districts: 1 per 500 sq. ft. of publicly accessible floor area
Nursing Home 1 per 3 employees
Medical Practitioners C-DMU District: 1.5 per 1,000 sq. ft.
All Other Commercial Districts: 1 per 300 sq. ft.
Hotels, Tourist
C-DMU District: 1 per 3 guest/sleeping rooms or suites
C-C, C-U, C-W Districts: 1 per 3 guest/sleeping rooms or suites plus 1 per 3 employees
All Other Commercial Districts: 2 per 1,000 sq. ft.
Motels, Tourist
C-DMU District: 1 per 3 guest/sleeping rooms or suites
C-C, C-U, C-W Districts: 1 per guest/sleeping room plus 1 for owner or manager [1]
All Other Commercial Districts: 2 per 1,000 sq. ft.
Large Vehicle Sales
and Rental
C-DMU District: 1.5 per 1,000 sq. ft.
C-SA District: 1 per 1,000 sq. ft.
All Other Commercial Districts: 2 per 1,000 sq. ft.
Small Vehicle Sales
and Service
C-DMU District: 1.5 per 1,000 sq. ft.
C-SA District: 1 per 1,000 sq. ft.
All Other Commercial Districts: 2 per 1,000 sq. ft.
Manufacturing
C-DMU District: 1.5 per 1,000 sq. ft.
C-W District: 1 per 1,000 sq. ft [1]
All Other Commercial Districts: 2 per 1,000 sq. ft.
Wholesale Trade
C-DMU District: 1.5 per 1,000 sq. ft.
C-W District: 1 per 1,000 sq. ft
All Other Commercial Districts: 2 per 1,000 sq. ft.
Live/Work
If workers/clients are permitted in work area, 1 per first 1,000 sq. ft. of work area and 1 per each additional 750 sq. ft. of work area
Notes:
[1] Spaces must be on the same lot as building it serves Section 12. That the section named; Residential Uses; in Table 23.322-4, Required Off Street Parking in Manufacturing Districts, within Berkeley Municipal Code 23.322.030, Required Parking Spaces, is amended to read:
TABLE 23.322-4: REQUIRED OFF-STREET PARKING IN MANUFACTURING DISTRICTS Land Use Required Parking Spaces
Residential Uses
Accessory Dwelling
Unit See Chapter 23.306None required
Dwellings None required
Group Living
Accommodation None required
Section 13. That Berkeley Municipal Code 23.322.080 is amended to read:
23.322.080– Parking Layout and Design
A. Traffic Engineering Requirements.
1. All off-street parking spaces, access driveways, circulation patterns, and ingress and egress connections to the public right-of-way must conform to the City of Berkeley’s Traffic Engineering requirements.
2. The Traffic Engineer shall determine whether the size, arrangement, and design of off-street parking spaces, access driveways, circulation patterns, and ingress and egress connections to the public right-of-way are adequate to create usable, functional, accessible, and safe parking areas, and are adequately integrated with Berkeley’s overall street pattern and traffic flows.
B. Dimensional Standards. Dimensional requirements and standards for off-street parking spaces, driveways, and other access improvements, and maneuvering aisles shall be incorporated in administrative regulations, subject to the review and approval by the City Manager and ZAB.
C. Access Orientation in Non-Residential Districts. Access to new parking areas in a Non-Residential District that serve commercial uses shall be oriented in such a way as to minimize the use of streets serving primarily residential uses.
D. Residential Parking Lots in Non-Residential Districts. Parking lots in a non- residential district used exclusively for residential parking must comply with standards in Section 23.322.080 that apply in Residential Districts.
D.E. Placement--Residential Districts.
1. Side Setback Areas.
(a) One new off-street parking space in a required side setback area, where none exists, is allowed by right.
(b) The space must be constructed of a permeable surface unless the Public Works Department or Office of Transportation determines it is infeasible. (c) The space must be screened as required by 23.322.080.HG (Screening). (d) The location of the space shall minimize impact on usable open space.
2. Other Setback Areas. No portion of an off-street parking space may be located in a required front, street side, or rear setback area unless:
(a) The parking space location is authorized by Chapter 23.306 (Accessory Dwelling Units); or
(b) The Zoning Officer approves an AUP, in consultation with the Traffic Engineer, and the space meets all applicable requirements in this section.
3. Multifamily Buildings.
(a) An off-street parking space may not be located closer than 10 feet in horizontal distance from a door or a window of a building with three or more dwelling units where the space is on the same or approximately the same level as the building.
(b) For the purposes of this section, a window whose bottom edge or point is more than 6 feet in vertical height from the level of the subject off-street parking space is not considered on the same or approximately the same level.
(c) The Zoning Officer may approve and AUP to grant an exception to this requirement.
E.F. Placement--Non-Residential Districts.
1. Where Prohibited. Except when otherwise allowed by this chapter, ground-level off-street parking spaces are not permitted within 20 feet of the lot’s street frontage unless the parking is entirely within a building with walls.
2. Corner Lots. For a corner lot, the ZAB may approve a Use Permit to allow the parking within 20 feet of the street frontage facing the secondary street.
3. C-W District.
(a) Off-street automobile parking in the C-W district is not permitted between the front lot line and a main structure within a designated node. (b) Outside of a designated node, off-street automobile parking may be allowed between the front lot line and a main structure with a Use Permit or AUP. If the project requires ZAB approval, a Use Permit is required. An AUP is required for all other projects.
(c) To approve the AUP or Use Permit, the review authority must find that one or more of the following is true:
i. Parking in the rear or on the side of the property is impractical because of the lot’s depth and/or width.
ii. Parking in the rear of the property would result in adverse impacts on abutting residential or other uses.
iii. Parking in the rear or on the side of the property would result in the placement of a driveway in an unsafe location.
iv. Continuation or re-establishment of parking in front of the building is necessary for the reuse of an existing structure which is substantially set back from the front lot line.
G. Placement--ADU.
1. On a lot with an existing or proposed ADU, replacement of required off-street parking for the main building or required off-street parking for an ADU is allowed in any configuration on the lot, including within the front setback; or
2. Within the Hillside Overlay on a lot with an existing or proposed ADU, where no legal off-street parking exists for the main building, required parking provided for the main building is allowed in any configuration on the lot, including within the front yard setback.
F.H. Grade Change. This subsection applies to off-street parking spaces in all districts, except for parking decks in Residential Districts.
1. The difference in elevation between a parking space and the finished grade on adjacent areas of the lot may not exceed 5 feet at any point.
2. Where there is a difference in elevation between a parking space and adjacent finished grade, the parking space shall be setback from a lot line as shown in Table 23.322-7.
TABLE 23.322-7. REQUIRED SETBACKS FOR PARKING SPACES WITH ADJACENT
GRADE CHANGES
DIFFERENCE IN ELEVATION MINIMUM SETBACK
Parking space lower than finished grade
3 to 5 ft 4 ft.
Less than 3 ft No min. setback
Parking space higher than finished grade 6 ft.
G.I. Screening.
1. Table 23.322-8 shows required parking space screening. Screening must effectively screen parked vehicles from view from buildings and uses on adjacent, abutting, and confronting lots. Screening may not interfere with pedestrian safety.
TABLE 23.322-8. REQUIRED PARKING SPACE SCREENING
DISTRICTS WHEN REQUIRED REQUIRED SCREENING
FEATURE
SCREENING
FEATURE HEIGHT
All Residential
Districts
2 or more parking
spaces, or any
parking space partly
or entirely within a
required rear setback
area
Continuous view-obscuring
wood fence, masonry wall,
or evergreen hedge which
may be broken only for
access driveways and
walkways
4 ft. min and 6 ft.
max.
All Commercial
and
Manufacturing
Districts
2 or more parking
spaces
Wall, fence, or evergreen
shrubbery hedge in a
landscape strip
Parking adjacent to
public right-of-way
or front lot line: 3 ft.
min. and 4 ft. max.
Parking adjacent to
rear or side lot line:
4 ft. min and 6 ft.
max.
2. In the C-W, M, MM, MU-LI districts, screening and landscape buffers are not required for any portion of a parking lot adjacent to Third Street (Southern Pacific Railroad).
H.J. Landscape Buffers.
1. All paved areas for off-street parking spaces, driveways, and any other vehicle- related paving must be separated from adjacent lot lines and the public right-of- way by a landscaped strip as shown in Table 23.322-9.
TABLE 23.322-9. REQUIRED LANDSCAPE BUFFERS
MINIMUM WIDTH OF LANDSCAPE STRIP
DISTRICT/NUMBER OF SPACES AREAS ADJACENT TO SIDE
OR REAR LOT LINES
AREAS ADJACENT TO PUBLIC RIGHT-
OF-WAY OR FRONT LOT LINE
Residential Districts
1-3 spaces 2 ft. 2 ft.
4 spaces or more 4 ft. [1] 4 ft. [1]
Commercial and
Manufacturing Districts
1 space None required None required
2-3 spaces 2 ft. 3 ft.
4 spaces or more 4 ft. [1] 4 ft. [1]
Note:
[1] Calculated as average width along the full length of landscape strip.
2. In all districts, this landscape buffer requirement does not apply to driveways that serve two adjacent lots when adjacent to a side lot line.
3. In the Residential Districts, this landscape buffer requirement also does not apply to pedestrian walkways that are separated from such areas by a landscaped strip at least two feet wide.
I.K. Paved Setback Areas. In Residential Districts, the total area of pavement devoted to off-street parking spaces, driveways, and other vehicle-related paving may not exceed 50 percent of any required setback area that runs parallel to and abuts a street.
J.L. Driveway Width.
1. A driveway may not exceed 20 feet in width at any lot line abutting a street or one-half of the width of the street frontage of the lot, whichever is less.
2. In a Non-Residential district, the Zoning Officer may modify this requirement with an AUP.
K.M. Driveway Separation. On a single lot in a Residential District, driveways must be spaced at least 75 feet from one another, as measured along any continuous lot line abutting a street.
L.N. Tandem Parking. Tandem spaces that provide required off-street parking require an AUP, except when allowed by right by Chapter 23.306 (Accessory Dwelling Units).
M. Residential Parking Lots in Non-Residential Districts. Parking lots in a non- residential district used exclusively for residential parking must comply with standards in this section that apply in Residential Districts.
N.O. Carports. A carport shall meet the minimum horizontal and vertical dimensions specified by the City’s Traffic Engineer to be used for one or more legal parking spaces required under this chapter.
Section 14. That Berkeley Municipal Code is amended to add a new Section
23.324.060(C) to read:
C. Accessory Dwelling Units. The following alterations of a lawful nonconforming existing structure or building that is an existing ADU or proposed to be converted to an ADU are permitted with a Zoning Certificate:
1. New windows, doors, or other openings to a portion of a building or structure within a minimum required setback.
2. New windows, doors, or other openings to a portion of a building or structure exceeding the height limit.
Section 15. That Berkeley Municipal Code 23.502.020(A)(4) is amended to read:
4. Accessory Dwelling Unit (ADU). An attached or detached secondary dwelling unit that is located on the samea lot as a proposed or existing single family dwelling, duplex, multi-family dwelling use, or group living accommodation in a zoning district where residential uses are permitted and provides independent living facilities for one or more persons. An ADU must comply with local building, housing, safety and other code requirements, except as expressly modified in Chapter 23.306, and provide the following features independent of other dwelling units on the lot: Exterior or independent access to the ADU, living and sleeping quarters, a full kitchen, and a full bathroom. An ADU also includes the following:
(a) An efficiency unit, as defined in Section 17958.1 of the Health and Safety Code, or (b) A manufactured home, as defined in Section 18007 of the Health and Safety Code.
Junior Accessory Dwelling Unit (Junior ADU). A unit that is contained entirely within the walls of an existing or proposed single family dwelling, or a single family dwelling unit’s attached garage. A Junior ADU must include a separate exterior entrance and, at minimum, an efficiency kitchen with a working refrigerator. A Junior ADU may include separate sanitation facilities or may share sanitary facilities with a single family dwelling. The property-owner must reside in either the Single Family Dwelling or the JADU. (a) with a proposed or existing Single Family Dwelling, Duplex, Multi-Family Dwelling Use or Group Living Accommodation. An Accessory Dwelling Unit must comply with local building, housing, safety and other code requirements, except as expressly modified in Chapter 23.306, and provide the following features independent of other dwelling units on the lot: 1) exterior or independent access to the Accessory Dwelling Unit; 2) living and sleeping quarters; 3) a full kitchen; and 4) a full bathroom. An Accessory Dwelling Unit also includes the following:
(b)(a) An efficiency unit, as defined in Section 17958.1 of the Health and Safety Code.
Section 16. That Berkeley Municipal Code 23.502.020(A)(8) is amended to read:
8. Addition, Residential. The creation of any new portion of a main building which results in a vertical or horizontal extension of the building, or results in additional residential gross floor area to an existing main building, as long as such new gross floor area does not exceed 15 percent of the lot area or 600 square feet, whichever is less. For purposes of this definition gross floor area does not include:
(a) Additions of gross floor area devoted to required off-street parking spaces, creation of mezzanines or lofts within the building’s shell;
(b) Making previously unusable attics into habitable floor area (except where new areas with vertical clearance of 6 feet or greater are created through expansions of the building shell);
(c) Excavations of earth within the existing building footprint (i.e. expansion of existing basements or new basements), or
(d) Replacement of existing floor area that was lawfully constructed and is located entirely within the addition’s shell.
(d)(e) The floor area associated with any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot.
Section 17. That Berkeley Municipal Code 23.502.020(A)(9) is amended to read:
9. Addition, Major Residential.
(a) A residential addition greater than 15 percent of the lot area or 600 square feet. Floor area from all residential additions since October 31, 1991, with the exception of:
i. Additions that are entirely subsumed within previously existing floor area; and
ii. The floor area associated with any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot.
(b) The floor area of subsequent stories where the addition does not exceed the district residential addition height limit, shall count towards the calculation of gross floor area for the purposes of this definition.
(c) Any new floor area, except as exempted under (9)(a), shall be treated as a new major residential addition for the purpose of permit processing, when the cumulative square footage exceeds 15 percent of the lot area or 600 square feet, whichever is less.
Section 18. That Berkeley Municipal Code 23.502.020(E)(1) is amended to read:
1. Efficiency Kitchen. A kitchen that includes a sink, a cooking facility with appliances (e.g. microwave, toaster, oven, hot plate), and food preparation counter space and cabinets.
Section 19. That Berkeley Municipal Code 23.502.020(J) is amended to read:
J. "J" Terms.
Junior Accessory Dwelling Unit (JADU). A unit that is contained entirely within the walls of a Single Family Dwelling. A JADU must include a separate exterior entrance and an Efficiency Kitchen with a working refrigerator. A JADU may include separate sanitation facilities or may share sanitary facilities with a Single Family Dwelling. The property-owner must reside in either the Single Family Dwelling or the JADU.
Section 20. That Berkeley Municipal Code 23.502.020(N)(1) is amended to read:
N. "N" Terms.
1. New Construction. Construction of a new main building or accessory dwelling unit.
Section 18. Severability.
If any provision or clause of this Ordinance or any application thereof to any person or circumstance is held to be unconstitutional or otherwise invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions or clauses or applications of this Ordinance. To this end the provisions and applications of this Ordinance are severable, and the Council of the City of Berkeley hereby declares that it would have passed this Ordinance and each provision or clause without regard to whether any other portion of this Ordinance or application thereof would be subsequently declared invalid or unconstitutional.
Section 19.
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 filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
Attachment 2
ADU POLICY ALTERNATIVES
Policy Alternative 1. Additional prescriptive standards for New Construction ADUs within the front setback (Section 8 of the Recommended Draft Ordinance)
4. Front Setback, New Construction. An ADU shall not occupy area within the front setback, unless the requirement would preclude an ADU of 800 square feet. comply with the same front setback that is required for the underlying district, unless the requirement would preclude an ADU of no more than 800 square feet on the parcel. Should an ADU require area—either partially or fully—within the front setback, both of the following shall apply:
(a) The ADU shall be sited no farther from the main building than the minimum required building separation.
(b) The ADU shall maintain a minimum 10-foot setback from the front lot line, unless such reduced setback would preclude an ADU of no more than 800 square feet on the parcel. If a 10-foot setback would preclude an ADU of 800 square feet, the ADU shall maintain a 5-foot setback from the front lot line. If a 5-foot setback from the front lot line would preclude an ADU of 800 square feet on the parcel, the ADU may be sited up to the front lot line.
Policy Alternative 2. Different building separation requirements for detached ADUs within versus outside of the Hillside Overlay (Section 8 of the Recommended Draft Ordinance)
TABLE 23.306-2. ADU DEVELOPMENT STANDARDS
BASIC STANDARDS SUPPLEMENTAL STANDARDS
Gross Floor Area, Maximum
Studio or 1 bedroom 850 sq. ft.
2+ bedrooms 1,000 sq. ft.
23.306.030(A)(1);
23.306.030(A)(2);
23.306.030(A)(3)
Building Height, Maximum
Conversion Same as existing structure 23.306.030(A)(1);
23.306.030(A)(3)
Detached, New Construction See Table 23.306-3
Attached, New Construction 25 ft. 23.306.030(A)(5);
23.306.030(A)(7)
Lot Line Setbacks, Minimum
Front of Interior Lot Same as underlying district
Front of Through Lot Same as underlying district or 10
ft. on the secondary frontage as
determined by the Zoning Officer
Rear 4 ft.
Interior Side 4 ft.
23.306.030(A)(3);
23.306.030(A)(4);
23.306.030(A)(6)
Key
Black Text: Recommended Draft Ordinance dated September 19, 2023 Red Text: Policy Alternative
Street Side 4 ft.
Building Separation for Detached ADU, Minimum
In the Hillside Overlay 8 ft.
All Other LocationsBuilding
Separation for Detached
ADU, Minimum
5 ft.
Required Off-Street Parking
Spaces
See 23.322.030– Required
Parking Spaces
Policy Alternative 3. Converted ADUs: Maintain time limit based on when the accessory building or structure was created (Section 8 of Recommended Draft Ordinance)
23.306.030 Development Standards.
3. Accessory Building or Accessory Structure Conversion. An ADU converted from an legally established accessory building or accessory structure legally established at least three years prior to submission of an ADU application that does not comply with the maximum height, size, and/or rear and side setback requirements is allowed to maintain non-conformity to the same location and dimensions of the existing accessory building or accessory structure, provided that the ADU meets fire and safety standards set forth in the California Building Standards Code adopted in BMC Title 19. Any physical additions to the existing accessory building or accessory structure shall comply with the development standards in Table 23.306-2 ADU Development Standards.
Policy Alternative 4. Keep Neighbor Noticing Procedures as-is except removing noticing to owner(s) of subject property (Section 8 of Recommended Draft Ordinance)
23.306.040 Permit Procedures
B. Neighbor Noticing.
1. Scope and Timing of Notice. Notice of an ADU application shall be mailed to tenants of the subject property, and all occupantsowners and tenants of the subjectadjacent, confronting and abutting properties, y, excepting the property owner(s), within ten working days of submission of the building permit to the Planning DepartmentCity.
2. Content of Notice. Notice shall provide the address of the project, and include allowable hours of construction, a link to the City’s ADU webpage, and
Key
Black Text: Recommended Draft Ordinance dated September 19, 2023 Red Text: Policy Alternative
information for tenants of the subject property on how to contact identifying permit and construction resources, and contact information for a Rent Board Housing Counselor by e-mail or phone and any other resource information deemed relevant.
3. Mailing Fees. The applicant shall be responsible for the cost of materials, postage, and staff time necessary to process and mail the notices.
Attachment 3
Table 1. Current and Proposed ADU Ordinances and Source Comparison Section/
Standard
Current ordinance
(BMC Ch. 23.306)
July 2023 Recommended
Ordinance
September 2023
Recommended Ordinance
(Ordinance Section(s))
Source(s) for
September 2023
Recommendation
Ch. 12.99 Wildfire
Hazard
Evacuation Risk
Mitigation
Ordinance
No more than one ADU or JADU shall be
permitted per lot in the HOD.
Repeal and remove references No change from July 2023.
(Sections 3, 8)
HCD Letter dated
October 17, 2022 (pg. 2)
Lot coverage and
gross floor area
calculations
Not specified. Exempt up to 800 sf from lot
coverage and gross floor area
calculations associated with ADU
No change from July 2023.
(Sections 4, 5, 16, 17)
State law.
GOV 65852.2(c)(2)(C)
Building
separation
measurement
definition
A. Measurement. Building separation is
measured as the distance between the
surface of a main building’s outer wall
and the outer wall surface of the closest
neighboring main building.
Not included Revised to include ADUs and
changed “neighboring main
building” to “neighboring
building.” (Section 6)
Staff recommendation
based on Fire, Building
and Safety.
ADU building
height calculations
Not specified. Specify that attached ADUs are
not included in average building
height calculations.
No change from July 2023.
(Section 7)
Staff recommendation
Density exemption Not specified. Exclude ADUs and Junior ADUs from density established by the
underlying zoning district
No change from July 2023.
(Section 8)
State law.
GOV 65852.2(a)(10)
Quantity of ADU–
Single Family
Dwellings
1 ADU or 1 Junior ADU 1 ADU and 1 Junior ADU
citywide
No change from July 2023.
(Section 8)
HCD Letter dated
October 17, 2022 (pg. 3)
Quantity of ADU–
Duplex or Multi-
Family Dwellings
a. Up to two detached ADUs; or
b. At least one ADU converted from non-
habitable portions of the existing Main
Building that are not within the living
space of a Dwelling Unit (e.g. basement,
attic, garages storage room). The
maximum number of ADUs converted
from portions of the existing Main
Building that are not within the living
space of a Dwelling Unit shall not exceed
25% of the total number of existing
Dwelling Units on the lot.
2 detached ADUs and at least 1
interior ADU up to 25% of the
total number of existing duplex or
multi-family dwelling units on the
lot.
No change from July 2023.
(Section 8)
HCD ADU Handbook
dated July 2022 (pg. 20)
Gross floor area,
maximum
Outside of HOD:
- Studio or 1-bed: 850 sf
- 2+ bed: 1000 sf
Citywide:
- Studio or 1-bed: 850 sf
- 2+ bed: 1000 sf
No change from July 2023.
(Section 8)
HCD Letter dated
October 17, 2022 (pg. 2)
Section/
Standard
Current ordinance
(BMC Ch. 23.306)
July 2023 Recommended
Ordinance
September 2023
Recommended Ordinance
(Ordinance Section(s))
Source(s) for
September 2023
Recommendation
- Junior ADU: 500 sf
Within HOD:
- ADU: 800 sf
- Junior ADU: 500 sf
- Junior ADU: 500 sf in combination with state
law.
GOV 65852.2(c)(2)(B);
GOV 65852.22(i)(1)
Building height,
maximum
Outside of HOD: 20 ft.
Within HOD: 16 ft.
Citywide:
Attached: 25 ft.
Detached: 20 ft.
Revised to match state law.
See Tables 23.306-2 and
230.306-3. (Section 8)
State law.
GOV 65852.2(c)(2)(D)
Building
separation for
detached ADU,
minimum
Not specified. 3-foot 5-foot (Section 8)
See Policy Alternative 2
Staff recommendation
based on Fire, Building
and Safety
Accessory
Building or
Accessory
Structure
Conversion
- Must be legally established at least
three years prior to submission of an
ADU
- Allowed to maintain nonconforming
Maximum Height, Size, and/or Rear
and Side Setback to the same
dimensions of the existing Accessory
Building or Accessory Structure
- Existing side and rear setbacks meet
fire and safety as set forth in
California Building Standards Code
adopted in BMC Title 19.
No change from current
ordinance
Allowed to maintain non-
conformity to the same
location and dimensions of the
existing legal nonconforming
accessory building or
accessory structure, without
minimum time limits based on
when the structure was
created. (Section 8)
See Policy Alternative 3
Location and dimensions
- State law GOV
65852.2(a)(D)(vii)
No limits based on when
the structure was
created - HCD ADU
Handbook dated July
2022 (pg. 21)
Lot line setbacks,
minimum
Front: Same as underlying zoning district
Rear: 4 ft.
Side: 4 ft.
Exception: If there is a lesser setback
allowed for a comparable Accessory
Building or Accessory Structure in the
underlying zoning district, that setback
shall apply.
Front (no change): Same as
underlying zoning district
Front of Through Lot: Same as
underlying district or 10 ft. on the
secondary frontage as
determined by the Zoning Officer
Rear (no change): 4 ft.
Interior side (no change): 4 ft.
Street side: 4 ft.
Added supplemental standard:
(Section 8)
(4) Front Setback, New
Construction. An ADU shall
not occupy area within the
front setback, unless the
requirement would preclude
an ADU of 800 square feet.
See Policy Alternative 1
Staff recommendation
based on state law.
GOV 65852.2(c)(2)(C)Attached ADU,
standard
Not specified. Less than 3-foot building
separation
Sharing common wall (Section
8)
5. Attached ADU. An ADU
shall be considered attached if
sharing a common wall with a
primary dwelling.
Staff recommendation
based on state law GOV
65852.2(c)(2)(D)(iv)
Section/
Standard
Current ordinance
(BMC Ch. 23.306)
July 2023 Recommended
Ordinance
September 2023
Recommended Ordinance
(Ordinance Section(s))
Source(s) for
September 2023
Recommendation
Attached ADU,
New Construction
Height
An ADU proposed as an addition with a
maximum height exceeding 14 ft.
requires an AUP.
Attached ADUs with height
greater than 14 ft. and up to 25
ft. allowed with a Zoning
Certificate.
No change from July 2023.
(Section 8)
State law
GOV 65852.2(c)(2)(D)
Junior ADUs
Shared Sanitation
Facilities
Not specified. If a Junior ADU shares a sanitary
facility with a single-family
dwelling, an internal connection
between the Junior ADU and the
main living area of the single
family dwelling is required.
No change from July 2023.
(Section 8)
Staff recommendation
based on state law GOV
65852.22(i)(1)
Projections Architectural features may project two
feet into the required setbacks, so long
as there remains at least a two-foot
setback from property lines. Bay windows
may not project into a setback. Bay
windows and balconies shall not project
into a setback.
No projections shall be allowed within the
required setbacks on lots that are within
the Hillside Overlay District.
Added bay windows and
balconies may not project into a
required rear ADU setback.
No change from July 2023.
(Section 8)
Planning Commission
recommendation, May
2023Noticing, Scope Mail to owners and tenants of the subject, adjacent, confronting and abutting
properties within ten working days of
submission to the Planning Department.
Mail to all tenants of subject
property, excluding property
owner(s).
Revised Header to read
“Noticing” instead of “Neighbor
Noticing” and “tenant” to read
“occupant” (Section 8)
See Policy Alternative 4
Staff recommendation
based on Planning
Commission
recommendation, May
2023, while addressing
implementation concerns
Off-Street Parking
requirement,
minimum
JADU: None.
Outside of HOD: None.
Within HOD: The lesser of 1 space per
bedroom or ADU.
No off-street parking shall be required for
ADUs that satisfy the criteria defined in
subdivision (d) of California Government
Code section 65852.2 or any successor
provision thereto.
-
JADU: None
Outside of HOD: None
Within HOD: 1 per ADU unless
satisfies the criteria in
subdivision (d) of Government
Code Section 65852.2.
JADU: None
Outside of HOD: None
Within HOD: 1 per ADU
unless the parcel is located
with 0.5 mile of a major transit
stop or a high-quality transit
corridor as defined in Public
Resource Code Section
21155.
(Section 10)
State law
GOV
65852.2(c)(2)(D)(ii);
GOV 65852.2(d)(1),
PUB. RES. 21155
Replacement
Parking
requirement
Replacement parking is not required.
Replacement of off-street parking for the
Main Building is allowed and does not
need to comply with Parking Maximums
No change from current
ordinance.
No change from July 2023.
(Section 13)
State law
GOV
65852.2(a)(1)(D)(xi)
Section/
Standard
Current ordinance
(BMC Ch. 23.306)
July 2023 Recommended
Ordinance
September 2023
Recommended Ordinance
(Ordinance Section(s))
Source(s) for
September 2023
Recommendation
(BMC 23.322.070) nor Parking Layout
and Design (BMC 23.322.080).
Parking Placement
for ADUs
If an applicant provides off-street parking
for an ADU or a JADU in the HOD,
parking shall be allowed in any
configuration on the lot, including within
the front yard setback.
1. On a lot with an existing or
proposed ADU, replacement
of required off-street parking
for the main building or
required off-street parking for
an ADU is allowed in any
configuration on the lot,
including within the front
setback; or
2. Within the Hillside Overlay
on a lot with an existing or
proposed ADU, where no
legal off-street parking exists
for the main building,
required parking provided for
the main building is allowed
in any configuration on the
lot, including within the front
yard setback.
No change from July 2023.
(Section 13)
Staff recommendation
based on state law GOV
65852.2(a)(1)(D)(xi)
Alterations of
lawful
nonconforming
existing structures
or buildings to
ADUs
Not specified. The following alterations are
permitted with a Zoning
Certificate:
1. New windows, doors, or
other openings to a portion of
a building or structure within
a minimum required setback.
2. New windows, doors, or
other openings to a portion of
a building or structure
exceeding the height limit.
No change from July 2023.
(Section 14)
Staff recommendation
“Junior ADU”,
definition
Requires a working refrigerator Removes this requirement No change from July 2023. (Section 15)
HCD Letter dated
October 17, 2022 (pg. 1)
“Efficiency
Kitchen”, definition
Requires a sink Removes this requirement No change from July 2023. (Section 18)
HCD Letter dated
October 17, 2022 (pg. 1)
Office of the City Manager
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
PUBLIC HEARING
September 19, 2023
(Continued from July 25, 2023)
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Subject: Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) and Repeal of Chapter 12.99 to Conform to State Law and Respond to Guidance from the California Department of Housing and Community Development
RECOMMENDATION
Conduct a public hearing and, upon conclusion, adopt the first reading of an Ordinance amending Berkeley Municipal Code (BMC) Title 23, and repealing BMC Chapter 12.99, relating to Accessory Dwelling Units and Junior Accessory Dwelling Units.
SUMMARY
Staff have prepared amendments to Title 23 (Zoning) of the BMC in response to: (a) recent changes in state laws pertaining to Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (Junior ADUs) that took effect on January 1, 2023, and (b) feedback from the California Department of Housing and Community Development (HCD) finding that the City of Berkeley’s current ADU Ordinance does not comply with state law.
The proposed Zoning Ordinance amendments (Attachment 1) and the repeal of Chapter
12.99 (Wildfire Hazard Evacuation Risk Mitigation Ordinance) per HCD guidance will bring the City’s ADU Ordinance into compliance with current state law and address concerns raised in HCD’s letter to the City, dated October 17, 2022.
FISCAL IMPACTS OF RECOMMENDATION
The proposed amendments are intended to simplify the planning review process and facilitate the development of ADUs and Junior ADUs in accordance with state law. The proposed amendments may result in a modest decrease in staffing-related expenditures due to streamlined review.
CURRENT SITUATION AND ITS EFFECTS
A local ADU ordinance supports the City’s Strategic Plan goal to create affordable housing and housing support services for our most vulnerable community members.
Over the past five years, Berkeley has adopted four comprehensive ADU Ordinance amendments in order to maintain compliance with changing State ADU law. Between
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
2018 and 2022, the City issued 528 building permits for ADUs and Junior ADUs, and entitled an average of 78 ADU permits per year.
On October 17, 2022, the City received a letter from HCD (Attachment 2) stating that it had reviewed the City’s current ADU Ordinances (BMC Sections 23.306 and 12.99, the “Ordinances”) and found that the Ordinances do not comply with Government Code Section 65852.2.
Efficiency Kitchen Definition
HCD found a discrepancy between the definition of “Efficiency Kitchen” contained within Ordinance No. 7,797-N.S. (Chapter 23.306) and Government Code §65852.22(a)(6)(A) and requested that the City remove the sink requirement from its zoning definition, as well as the reference to a working refrigerator in the definition of a “Junior Accessory Dwelling Unit.”
Wildfire Hazard Evacuation Risk Mitigation Ordinance
Regarding Ordinance No. 7,799-N.S (Chapter 12.99), HCD found that the City did not make adequate findings with respect to ADU and Junior ADU development impacts on traffic flow and public safety when the City adopted limitations on ADU and Junior ADU development in the Hillside Overlay zoning district.
HCD asserts that the traffic simulation study referenced in Chapter 12.99 is not specific to ADUs and Junior ADUs and therefore cannot be used to justify the restriction on the number of ADUs in the Hillside Overlay. Additionally, the traffic simulation study does not provide data on how many lots are likely to add ADUs and Junior ADUs, does not identify specific impacts new ADUs and Junior ADUs may have on evacuations, and does not account for the potential for ADUs and Junior ADUs to be excluded from requiring a parking space given the availability of public transit in the Hillside Overlay.
Furthermore, HCD adds that even if the City adequately justified the restriction of ADUs and Junior ADUs, it may not justify restrictions on ADUs or Junior ADUs that fall under subdivision (e) of Government Code section 65852.2, because local development standards do not apply to ADUs created under that subdivision. Government code section 65852.2, subdivision (e) requires local agencies to ministerially approve building permit applications for the creation of ADUs and Junior ADUs within any residential or mixed-use zone, subject only to specific limitations.
Regarding BMC Section 12.99.030 – Total Number of Units Permitted, HCD asserts that the City’s decision to limit the number of units allowed per lot in the Hillside Overlay to one ADU or one Junior ADU conflicts with Government Code Section 65852.2, subdivisions (e)(1)(A), (B), (C), and (D), which requires a local agency to ministerially approve an application for a building permit within a residential or mixed-use zone to create one ADU and one Junior ADU per lot. Lines (A) through (D) of subdivision (e) identify the following ADU categories:
(A) One ADU and one Junior ADU within the proposed space of a single-family dwelling, or existing space of a single-family dwelling or accessory structure
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
(B) One detached, new construction ADU
(C) Multiple ADUs within the portions of existing multifamily dwelling structures that are not used as livable space
(D) Not more than two ADUs that are located on a lot that has an existing or proposed multifamily dwelling, but are detached from that multifamily dwelling State Law Updates
In addition to HCD’s letter, on January 1, 2023, the most recent round of state ADU regulations came into effect, impacting maximum height limits, prohibiting front setback standards that would preclude at least an 800 square foot ADU, and requiring internal connections between Junior ADUs and main dwelling units.
Staff recommend making the following amendments to Title 23 of the BMC:
1. Remove standards that provide a distinction between parcels within and outside of the Hillside Overlay, and apply non-Hillside Overlay ADU standards citywide where residential uses are permitted;
2. Bring the City’s zoning code into compliance with current State ADU law, including SB 897, AB 2221, and AB 2097, and respond to HCD’s letter; and
3. Clarify and/or correct minor technical edits associated with the related Ordinance sections, and edit for consistency with the existing BMC.
Public safety remains a significant concern regarding increasing density in the Hillside Overlay. To address these concerns, staff are working with the Fire Department to collect additional data on the health and safety impacts of increased development in the Hillside Overlay.
On March 14, 2023, the Fire Department was authorized by the City Manager to execute a contract with KLD Engineering, P.C., for Evacuation and Response Time Modeling from April 1, 2023 through June 30, 2024 as part of an effort to collect data and forecast the number of vehicles and people that may need to be evacuated during a wildfire or other emergency.1 The study will also be analyzing how major evacuation routes will operate under emergency conditions, and whether there would be any public safety impacts resulting from projected development of new ADUs and Junior ADUs, including parking and additional vehicular travel in the Very High Fire Hazard Severity Zone.
In addition to this study, the City is in the process of updating the Local Hazard and Mitigation Plan and Disaster Preparedness and Safety Element, which will similarly provide an opportunity to collect data and engage community members.
Together, the data collected from the evacuation study as well as input received from community members could enable the City Council to make the findings to support the 1 https://berkeleyca.gov/sites/default/files/documents/2023-03-14%20Item%2004%20Contract%20KLD%20Engineering.pdf
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
reinstitution of controls on ADU development in the Hillside Overlay. Staff plan to bring the Fire Department’s study findings, as well as other research and community engagement findings, back to Planning Commission and City Council by Summer 2024.
Proposed Ordinance
The Ordinance recommended by the Planning Commission would amend Title 23 of the BMC as follows:
23.106 Rules of Measurement
Consistent with the provisions of Subdivision (c) in Government Code 65852.2, staff propose amending 23.106.020(B) and 23.106.030(D) to exclude up to 800 square feet of area associated with an existing or proposed ADU or Junior ADU from lot coverage and gross floor area calculations. Presently, once an ADU is built, it counts towards lot coverage and gross floor area, which can mean that even minor future additions to the main dwelling would require an Administrative Use Permit (AUP). By amending
23.106.020(B) and 23.106.030(D) to exclude up to 800 square feet of ADU area, the regulation is consistent with state law, removes a barrier to development, and aligns with the State’s goal of streamlining the development of ADUs.
In addition, staff propose amending 23.106.090(A) to exempt attached ADUs from inclusion in average building height calculations. This would allow for residences, in particular those on a slope, to add an attached ADU without technically increasing the average building height and thereby limiting the ability to make other structural changes in the future.
23.306 Accessory Dwelling Units (Organization)
The proposed Ordinance simplifies the ADU chapter by consolidating seven sections into four, maintaining consistency with other chapters of Title 23 (see Table 1).2 Table 1: Chapter 23.306 - Existing and Proposed Sections Existing Sections Proposed Sections
23.306.010– Purposes 23.306.010– Purpose
23.306.020– Applicability and Definitions 23.306.020– Applicability
23.306.030– Permit Procedures 23.306.030– Development Standards
23.306.040– Development Standards
23.306.050– Deed Restrictions
23.306.060– Neighbor Noticing
23.306.070– Rooftop Decks and Balconies
23.306.040– Permit Procedures
The proposed Ordinance adds a reference to the latest California Government Code Section 65852.1 and removes subsection (f) which states that the purpose of the chapter is to reduce potential impacts of new development in the Very High Fire Hazard 2 The proposed ordinance includes Deed Restrictions and Neighbor Noticing under Section 23.306.040 (Permit Procedures), and Rooftop Decks and Balconies under Section 23.396.030 (Development Standards).
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
Severity Zones (VHFHSZ), Wildland-Urban Interface Fire Areas, and Hillside Overlay.
This complies with HCD’s finding that the current Ordinances do not meet the requirements of state law.
23.306.020 Accessory Dwelling Units (Applicability)
The proposed Ordinance removes subsection (b), which defines the Hillside Overlay for the purposes of the ADU chapter, and removes the reference to Chapter 12.99 to comply with HCD’s finding that the City does not sufficiently justify the creation of a separate set of regulations for the Hillside Overlay.
The proposed amendment includes a new subsection clarifying that ADUs and Junior ADUs do not count towards density calculations established by the underlying zoning districts. This is consistent with HCD guidance in the HCD ADU Handbook Update3.
Staff also propose amending the maximum number of units permitted on a lot with a duplex or multi-family dwelling to allow for two detached ADUs and at least one interior ADU (see Table 2). In 2022, HCD changed its interpretation regarding the total number of ADUs that "must" be allowed by local governments on any given parcel. Whereas in the 2020 ADU Handbook, HCD wrote that "local governments are not required to allow (A) and (B) together or (C) and (D) together," in the July 2022 ADU Handbook, HCD rewrote that "local governments must allow (A) and (B) together or (C) and (D) together." Although this change in HCD's interpretation is not supported by any corresponding change in state law, the proposed Ordinance is drafted to be consistent with HCD's new interpretation for lots with a duplex or multi-family dwelling.
Table 2: Existing and Proposed Maximum Density Standards on a Lot with a Duplex or Multi-Family Dwelling
Existing Maximum Density Proposed Maximum Density
Either:
a. Up to two detached ADUs; or
b. At least one ADU converted from non-
habitable portions of the existing Main Building
that are not within the living space of a Dwelling
Unit (e.g. basement, attic, garages storage
room). The maximum number of ADUs
converted from portions of the existing Main
Building that are not within the living space of
a Dwelling Unit shall not exceed 25% of the
total number of existing Dwelling Units on the
lot.
Two detached ADUs and at least one interior
ADU up to 25% of the total number of existing
duplex or multi-family dwelling units on the lot
3 July 2022 HCD ADU Handbook. https://www.hcd.ca.gov/sites/default/files/2022-07/ADUHandbookUpdate.pdf.
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
23.306.030 Accessory Dwelling Units (Development Standards) In response to HCD’s letter and to bring the development standards section into compliance with state law, staff propose removing standards that are specific to parcels located in the Hillside Overlay. Instead, the development standards will apply to ADUs and Junior ADUs citywide.
Staff also recommend a number of technical revisions to the development standards section, including removing Junior ADU standards from the development standards table and including all relevant information in subsection (B), and replacing footnotes from the development table with a subsection for supplemental standards.
Within subsection (C), staff propose technical edits to amend the provisions pertaining to building projections into yards to align with other sections of the code and in response to Planning Commission’s recommendation. This includes permitting bay windows and balconies to project two feet into the required setbacks so long as there remains at least a two-foot setback from front and side property lines, and does not permit bay windows and balconies to project into the required rear ADU setback, which is four feet. This would allow for ADUs to benefit from the same projection allowances as single-family homes of the same size, while still ensuring that the projections are a reasonable distance from the property lines.
In addition to these technical revisions, a number of the standards have been changed to match state law. Tables 3 and 4 provide the proposed development standards and the rationale informing the recommended changes. This table does not include all ADU development standards; it only includes the standards that are proposed to be amended.
Table 3: Proposed Revisions to ADU Development Standards & Rationale Basic Standard Proposed Standards Rationale/Intent
Detached, New Construction –
20 ft.
Building Height,
Maximum Attached, New Construction – 25
ft.
Increase the maximum building height for
Attached, New Construction from 20 ft. to 25 ft.
to match state law (SB 897). The current 20 ft.
maximum building height for Detached, New
Construction already exceeds the 18 ft. and 2
ft. roof pitch accommodation required by state
law.
Front of Interior Lot – Same as
underlying district
Lot Line
Setbacks,
Minimum
Front of Through Lot - Same as
underlying district or 10 ft. on
the secondary frontage as
determined by the Zoning
Officer
Add a standard for front setbacks on through
lots to ensure that there are standards for such
parcels, consistent with existing regulations for
accessory buildings.
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
Building
Separation for
Detached ADU,
Minimum
3 ft.
Add a minimum building separation standard
(in addition to below “Detached or Attached
ADU” supplemental standard) for consistency
with standards for Accessory Buildings.
Required Off-
Street Parking
Spaces
See 23.322.030 – Required
Parking Spaces
Move to BMC 23.322 – Parking and Loading to
be consistent with other parking standards.
Table 4: Proposed Revisions to ADU Development Supplemental Standards & Rationale Supplemental
Standard
Proposed Standards Rationale/Intent
State Exemption
ADU
No lot coverage, floor area ratio, open
space, front setback, or minimum lot
size standard in the underlying district
shall preclude at least an 800 square
foot ADU.
Match state law.
Junior ADU
Shared
Sanitation
Facility
If a Junior ADU shares a sanitary
facility with a single-family dwelling,
an internal connection between the
Junior ADU and the main living area
of the single-family dwelling is
required.
Match state law.
Junior ADU
Floor Area
The Junior ADU gross floor area
calculation excludes any shared
sanitation facility with the single-family
dwelling.
Clarify the rules of measurement for gross
floor area if a sanitation facility is shared.
Detached or
Attached ADU
If an ADU is located within 3 feet of
an exterior wall of a main building, it is
considered attached.
Establish a Building Separation standard
for Detached ADU, Minimum (see also
“Building Separation for Detached ADU,
Minimum” above).
Attached ADU,
New
Construction
Attached ADUs with height up to 25
feet are permitted with a Zoning
Certificate.
Eliminate the requirement for AUP
approval for ADUs to achieve maximum
permitted height to conform with state law
and in response to Planning Commission
recommendation. (GOV 65852.2(c)(2)(D).
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
Figure 1 – Examples of Additions Over 14 ft. Containing Attached ADUs
23.306.040 Accessory Dwelling Units (Permit Procedures) Currently it is required that notice of an ADU application shall be mailed to owners and tenants of the subject, adjacent, confronting and abutting properties within ten working days of submission of a building permit to the Planning Department, and shall include
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
the project address, allowable hours of construction, a link to the City’s ADU webpage, and information for tenants of the subject property on how to contact a Rent Board Housing Counselor. The cost of materials, postage, and staff time is paid for by the applicant – currently a fixed fee of $460.
Figure 2 – Existing ADU Notice (Front and Back)
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
The requirement for neighbor noticing presents a number of challenges for applicants and members of the public. ADU permits are building permits, and plans associated with building permit applications are protected under copyright law, and cannot be printed out or shared online with members of the public (unlike plans associated with zoning permits). For neighbors interested in seeing proposed ADU plans, this means that they must visit the Permit Service Center in-person and look at the plans accompanied by a staff member. Additionally, ADU permits are non-discretionary permits, so members of the public cannot appeal a conforming proposed ADU. The noticing procedure can create an expectation that there is a discretionary review process involved, and there is not.
In order to address these concerns, Planning Commission recommended amendments to the neighbor noticing requirements as follows:
1. Require mailing a notice to tenants of the subject property only. The Planning Commission recommended amending the Ordinance to provide notice only to tenants of the subject property. Staff propose requiring project applicants to attest to whether any tenants live on site as part of the project application. The presence of tenants would trigger the mailing of a notice to tenants of the subject property.
2. Increase clarity of the notice. The Planning Commission recommended more clearly indicating the non-discretionary nature of the permit and noting that permit and construction information and resources can be found on the City’s ADU webpage.
23.322.020 Parking and Loading (Applicability)
Staff propose amending BMC Tables 23.322-1, 23.322-2, and 23.322-4 to relocate off- street parking standards for ADUs in Residential, Commercial, and Manufacturing Districts into the Parking and Loading chapter of the BMC (previously specified in Chapter 23.306). Required parking for ADUs within the Hillside Overlay remains one parking space per ADU unless it is located within 0.5 miles of a transit stop as defined in Government Code Section 65852.24 or otherwise satisfies subdivision (d) of the same section.
23.322.080 Parking Layout and Design (Placement)
Staff propose the creation of a new subsection (G) in BMC 23.322.080 to provide guidance on parking placement for ADUs, and includes the following parking placement exceptions:
4 “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public. https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=65852.2&lawCode=GOV
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
a. On a lot with an existing or proposed ADU, replacement of required off- street parking for the main building or required off-street parking for an ADU, is allowed in any configuration on the lot, including within the front yard setback; or
b. Within the Hillside Overlay on a lot with an existing or proposed ADU, where no legal off-street parking exists for the main building, required parking provided for the main building is allowed in any configuration on the lot, including within the front yard setback.
Currently, parking flexibility only applies to replacement parking for main dwelling units and new parking provided for an ADU. To account for ADU projects seeking to provide new parking spaces for both the main dwelling and the ADU, staff propose allowing for the same flexibility in lot configuration for the main dwelling unit’s proposed new parking space as is allowed for the ADU’s parking space. Encouraging off-street parking in the Hillside Overlay can partially mitigate safety and evacuation access concerns.
23.324.060 Exemptions to Nonconforming Uses, Structures, and Buildings In the current zoning code, minor alterations of nonconforming structures within required setbacks, such as for windows and doors, require an AUP. To reduce the administrative costs associated with providing new openings for ADUs, staff propose allowing by right openings to lawful nonconforming existing structures or buildings that are proposed to be converted to an ADU. Staff proposes to add BMC 23.324.060(C) to include the following standards:
C. Accessory Dwelling Units. The following alterations of a lawful nonconforming existing structure or building that is an existing ADU or proposed to be converted to an ADU are permitted with a Zoning Certificate:
1. New windows, doors, or other openings to a portion of a building or structure within a minimum required setback.
2. New windows, doors, or other openings to a portion of a building or structure exceeding the height limit.
23.502.020 Defined Terms
Junior ADU. Staff propose relocating the definition for “Junior Accessory Dwelling Unit” within the definition of “Accessory Dwelling Unit” and striking out the reference to a working refrigerator in response to HCD’s findings.
Addition, Major Residential. Staff propose amending the definition for “Addition, Major Residential” to add a subsection that exempts the floor area associated with an existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet. This would eliminate the requirement for an AUP to add an ADU or Junior ADU to a house, thus matching the State’s intent of streamlining the processing of ADU development.
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
Efficiency Kitchen. Staff propose amending the definition of an “Efficiency Kitchen” by removing the requirement for a sink to match the State’s definition and in response to HCD’s findings.5 Note that while kitchen sinks are required in dwelling units, Junior ADUs are not required to have a sink because they do not meet the definition of a “dwelling unit” in California Building Code Section 202.6 New Construction. Staff propose amending the definition of “New Construction” to include ADUs, in addition to new main buildings.
BACKGROUND
On May 3, 2023, the Planning Commission held a public hearing to consider proposed amendments to Title 23 developed by staff (Attachment 3). Following public comment and a discussion, the Planning Commission unanimously recommended staff’s proposal with three modifications, which were incorporated into the proposed amendments as follows:
1. Regulating bay window and balcony projections using setback requirements. The Commission recommended a technical edit to permit bay windows and balconies on all ADUs outside the Hillside Overlay, with projections measured by setback distance from the property line. Staff previously recommended separate standards for attached versus detached ADUs, with attached ADUs permitted to project two feet into the required setbacks as long as there remains at least a two-foot setback from property lines. In this recommendation, detached ADUs were not permitted to have projections.
However, the Commission found that the goal of allowing for more flexibility with projections while also limiting proximity of a dwelling unit to the property line could be achieved more simply by regulating projections for all ADUs using property setbacks.
2. Revising Neighbor Noticing requirements for clarity and efficiency. The Commission recommended revising the neighbor noticing requirement so that public notices for ADUs link to the City’s ADU webpage and identify additional permit and construction information, and only need to go to tenants on the subject property. Staff amended the noticing requirements accordingly. Staff plan to further revise the existing ADU notice to clearly communicate the non- discretionary nature of the permit, in accordance with the Commission’s recommendations.
3. Removing the AUP requirement for attached ADUs proposed as additions to streamline ADU building permit applications. Planning Commission recommended allowing for attached ADUs to reach maximum allowable height 5 The only other reference to an “efficiency kitchen” in the Berkeley Municipal Code pertains to the definition of a Junior ADU. 6 California Building Code Section 202, https://codes.iccsafe.org/content/CARC2022P1/chapter-2-definitions.
Amendments to Title 23 Relating to Accessory Dwelling Units (ADUs) PUBLIC HEARING and Repeal of Chapter 12.99 September 19, 2023
without requiring an AUP to match the State’s goal of streamlining the ADU development process.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
ADUs are generally low impact infill development that have the potential to decrease vehicles miles traveled and greenhouse gas emissions and increase availability of housing near various community amenities, the university campus, transit services and employment opportunities.
Environmental Determination. The project is statutorily exempt from the California Environmental Quality Act by Guidelines Section 15282(h), the adoption of an ordinance regarding second units in a single-family or multifamily residential zone by a city or county to implement the provisions of Sections 65852.1 and 65852.2 of the Government Code as set forth in Section 21080.17 of the Public Resources Code.
RATIONALE FOR RECOMMENDATION
The proposed Zoning Ordinance amendments to Title 23 relating to ADUs are required to ensure that the Zoning Ordinance conforms to all applicable state laws and addresses HCD’s letter to the City, dated October 17, 2022.
ALTERNATIVE ACTIONS CONSIDERED
The Planning Commission considered a range of amendments and recommended modifications in response to feedback and deliberations, as discussed above.
CONTACT PERSON
Zoe Covello, Assistant Planner, Planning and Development Department, 510-981-7418 Grace Wu, Principal Planner, Planning and Development Department, 510-981-7484 Attachments:
1: Zoning Ordinance
2: HCD’s Letter, dated October 17, 2022
3: Staff Report from May 3, 2023 Planning Commission Meeting 4: Notice of Public Hearing
ORDINANCE NO. -N.S.
REPEAL OF THE WILDFIRE HAZARD EVACUATION RISK MITIGATION ORDINANCE (BMC 12.99), AND AMENDMENTS TO THE RULES OF MEASUREMENT (BMC
23.106), ACCESSORY DWELLING UNIT (ADU) ORDINANCE (BMC 23.306), PARKING AND LOADING (BMC 23.322), EXEMPTIONS TO NONCONFORMING USES, STRUCTURES, AND BUILDINGS (BMC 23.324.060), AND DEFINED TERMS (BMC
23.502.020) RELATING TO ADUS
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That Berkeley Municipal Code Chapter 12.99 is hereby repealed.
Section 2. That Berkeley Municipal Code 23.106.020(B) is amended to read as follows:
B. Exclusions. The lot coverage calculation excludes:
1. Uncovered porches, landings and stairs;
2. Uncovered decks, except that a deck on the roof of a building or accessory structure or over an enclosed space or paved ground area is included in the lot coverage calculation; and
3. The area of the roof of a subterranean structure, when such a structure is not more than 3 feet above finished grade.
4. The area of any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot. See 23.306 Accessory Dwelling Units.
Section 3. That Berkeley Municipal Code 23.106.030(D) is amended to read as follows:
D. Excluded Areas. The following areas are excluded from gross floor area calculation:
1. Covered or uncovered areas used for off-street parking or loading spaces.
2. Driveways ramps between floors and maneuvering aisles of a multi-level parking garage.
3. Mechanical, electrical, and telephone equipment rooms below finished grade.
4. Areas which qualify as usable open space.
5. Arcades, porticoes, and similar open areas for non-residential uses which are:
(a) Located at or near street level;
(b) Accessible to the general public; and
(c) Are not designed or used as sales, display, storage, service, or production areas.
6. The floor area associated with any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot. See 23.306 Accessory Dwelling Units.
Section 4. That Berkeley Municipal Code 23.106.090(A)(1) through (3) is amended to read as follows:
A. Average Building Height.
1. Average Building Height: The vertical distance from the average level of the highest and lowest point of that portion of the lot covered by the building (or, in the case of residential additions, that portion of the lot covered by the addition) to the roof features shown in Table 23.106-1: Average Building Height Measurement. See Figure 23.106-4: Average Building Height.
2. Figure 23.106-4: Average Building Height.
2. Dormers are not included in the average building height calculation.
3. Attached accessory dwelling units are not included in the average building height calculation.
Section 5. That Berkeley Municipal Code 23.306 is amended to read as follows:
Sections:
23.306.010– Purposes
23.306.020– Applicability and Definitions
23.306.030– Development StandardsPermit Procedures
23.306.040– Permit ProceduresDevelopment Standards
23.306.050– Deed Restrictions
23.306.060– Neighbor Noticing
23.306.070– Rooftop Decks and Balconies
23.306.010 Purposes.
The purposes of this Chapter are toThis Chapter establishes accessory dwelling unit (ADU) and junior accessory dwelling unit (Junior ADU) standards that:
A. Implement California Government Code Section 65852.1, 65852.2 and 65852.22.
B. Increase overall supply and range of housing options in Berkeley.
C. Expedite small-scale infill development.
D. Support Housing Element goals of facilitating construction of accessory dwelling units and increasing the number of housing units that are more affordable to Berkeley residents.
E. Encourage development of accessory dwelling units in zoning districts with compatible land uses and infrastructure.
F. Reduce potential impacts of new development in Very-High Fire Hazard Severity Zones and Wildland-Urban Interface Fire Areas as designated in the BMC Chapter
19.48 and as may be amended from time to time, and the Hillside Overlay District (HOD) due to unique conditions and hazards within these areas that require additional restrictions on ADUs and JADUs because of impacts of traffic flow and public safety consistent with Government Code 65852.2, subdivision (a)(1)(A), which allows local agencies to regulate ADUs based on "adequacy of water and sewer service, and the impacts of traffic flow and public safety."
23.306.020 Applicability and Definitions.
A. The provisions of this chapter apply to zoning districts where residential uses are permitted, on lots that have at least one existing or proposed Dwelling Unit or Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.
B. For purposes of this Chapter the Hillside Overlay District (HOD) includes all lots within Berkeley’s designated Very-High Fire Hazard Severity Zones and Wildland- Urban Interface Fire Areas that are zoned R-1H (Single-Family Residential— Hillside Overlay), R-2H (Restricted Two-Family Residential— Hillside Overlay), R- 2AH (Restricted Multiple-Family Residential—Hillside Overlay), or ES-R (Environmental Safety-Residential).
B. Number of ADUs and JADUs Permitted Per Lot. See Table 23.306-1—ADU and Junior ADU Maximum Number of Units per Lot.Except as expressly modified by Chapter 12.99, the following number of ADUs and JADUs shall be the maximum number of accessory units permitted on lots subject to this Chapter.
C. Density Exemption. ADUs and Junior ADUs are not included in the minimum or maximum density established by the underlying zoning district.
TABLE 23.306-1—ADU AND JUNIOR ADU MAXIMUM NUMBER OF UNITS PER LOT Use, Primary ADU and Junior ADU, Maximum Per Lot
Single Family Dwelling, one unit on lot 1 ADU and 1 Junior ADU, both are permitted Single Family Dwelling, more than one
unit on lot
1 ADU
Duplex or Multi-Family Dwelling 2 detached ADUs and at least one interior ADU up to 25% of the total number of existing duplex or
multi-family dwelling units on the lot
Group Living Accommodation 1 ADU
1. Lot with one Single Family Dwelling: One ADU and/or one JADU.
2. Lot with more than one Single Family Dwelling: One ADU.
3. Lot with a Duplex or Multiple-Family Dwelling, either:
(a) Up to two detached ADUs; or
(b) At least one ADU converted from non-habitable portions of the existing Main Building that are not within the living space of a Dwelling Unit (e.g. basement, attic, garages storage room). The maximum number of ADUs converted from portions of the existing Main Building that are not within the living space of a Dwelling Unit shall not exceed 25% of the total number of existing Dwelling Units on the lot.
4. Lot with a Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory: One ADU
23.306.030 Permit Procedures.
A. Zoning Certificate. An application for an ADU or JADU shall be allowed with a Zoning Certificate. Review must be completed within 60 days of submission of a completed application. A completed application must include evidence of compliance with this Chapter, including Development Standards, Deed Restrictions, and Neighborhood Noticing.
1. If an application to create an ADU or JADU is submitted as part of a project that requires discretionary review, a Zoning Certificate for a Building Permit shall not be issued for the ADU or JADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired.
2. Issuance of a Zoning Certificate shall not be denied for the construction or conversion of an ADU or JADU that complies with the requirements of Government Code Section 65852.2(e)(1).
3. Issuance of a Zoning Certificate for the construction or conversion of an ADU or JADU shall not be denied based on the failure of an applicant to correct a nonconforming zoning condition.
23.306.0340Development Standards.
A. Basic Standards. See Table 23.306-21: ADU and JADU Development Standards.
TABLE 23.306-21. ADU AND JADU DEVELOPMENT STANDARDS
BASIC STANDARDS SUPPLEMENTAL STANDARDS
Gross Floor Area, Maximum 23.306.030(A)(1);
Studio or 1 bedroom 850 sq. ft.
2+ bedrooms 1,000 sq. ft.
23.306.030(A)(2);
23.306.030(A)(3);
23.306.030(A)(4)
Building Height, Maximum
Conversion Same as existing structure 23.306.030(A)(2);
23.306.030(A)(4)
Detached, New Construction 20 ft. 23.306.030(A)(5)
Attached, New Construction 25 ft. 23.306.030(A)(5);
23.306.030(A)(7)
Lot Line Setbacks, Minimum
Front of Interior Lot Same as underlying district 23.306.030(A)(1) Front of Through Lot Same as underlying district or 10
ft. on the secondary frontage as
determined by the Zoning Officer
Rear 4 ft.
Interior Side 4 ft.
Street Side 4 ft.
23.306.030(A)(6)
Building Separation for
Detached ADU, Minimum
3 ft. 23.306.030(A)(5)
Required Off-Street Parking
Spaces
See 23.322.030– Required
Parking Spaces
1. State Exemption ADU. No lot coverage, floor area ratio, open space, front setback, or minimum lot size standard in the underlying district shall preclude at least an 800 square foot accessory dwelling unit.
2. Existing Building Conversion. An ADU created entirely through conversion with no modifications to the existing building envelope that exceeds the development standards for maximum gross floor area in Table 23.306-2. ADU Development Standards is allowed a physical addition of no more than 150 square feet. The addition must comply with maximum height and setback requirements.
3. Duplex or Multi-Family Dwelling Conversion. Interior ADU(s) must be created entirely through non-habitable residential portions of the existing main building that are not within the living space of a dwelling unit (e.g. basement, attic, garages, storage room).
4. Accessory Building or Accessory Structure Conversion. An ADU converted from an accessory building or accessory structure legally established at least three years prior to submission of an ADU application that does not comply with the maximum height, size, and/or rear and side setback requirements is allowed to maintain non-conformity to the same dimensions of the existing accessory building or accessory structure, provided that the existing side and rear setbacks are sufficient for fire and safety as set forth in California Building Standards Code adopted in BMC Title 19. Any physical additions to the existing accessory
building or accessory structure shall comply with the development standards in Table 23.306-2 ADU Development Standards.
5. Detached or Attached ADU. Detached ADUs shall maintain a minimum 3-foot separation from other buildings on the lot. If an ADU is located within 3 feet of an exterior wall of a main building, it is considered attached for the purposes of applying the development standards in Table 23.306-2 ADU Development Standards.
6. Detached ADU Setback Exceptions. If there is a lesser setback allowed in
23.304.060-Accessory Buildings and Enclosed Accessory Structures for a comparable accessory building or accessory structure in the underlying zoning district, that setback shall apply.
1.7. Attached ADU, New Construction Height. Attached ADUs with height greater than 14 ft. and up to 25 ft. allowed with a Zoning Certificate.
ADU1 JADU
Maximum Size Outside of HOD2 500 sf
Studio or 1 bedroom 850 sf
2 + bedrooms 1000 sf
N/A
Maximum Size Within HOD 800 sf 500 sf
Maximum Height Outside of HOD 20 ft.
Maximum Height Within HOD 16 ft.
Front Yard Setback Same as underlying district
Rear Setback 4 ft3
Side Setback 4 ft3
N/A
Required Off-Street Parking
Outside of HOD None4
Required Off-Street Parking
Within HOD
The lesser of 1 space per
bedroom or ADU5, 6 None6
[1] An ADU converted from an Accessory Building or Accessory Structure legally established at least three years prior to submission of an ADU application that does not comply with the Maximum Height, Size, and/or Rear and Side Setback requirements is allowed to maintain non-conformity to the same dimensions of the existing Accessory Building or Accessory Structure, provided that the existing side and rear setbacks are sufficient for fire and safety as set forth in California Building Standards Code adopted in BMC Title 19. Any physical additions to the existing Accessory Building or Accessory Structure shall comply with the development standards in this table. [2] An ADU created entirely through conversion with no modifications to the existing building envelope that exceeds the development standards for Maximum Size in this table is allowed a
physical addition of no more than 150 square feet. The addition must comply with Maximum Height and Setback requirements in this table.
[3] If there is a lesser setback allowed for a comparable Accessory Building or Accessory Structure in the underlying zoning district, that setback shall apply. [4] Replacement parking is not required. Replacement of off-street parking for the Main Building is allowed and does not need to comply with Parking Maximums (BMC 23.322.070) nor Parking Layout and Design (BMC 23.322.080).
[5] No off-street parking shall be required for ADUs that satisfy the criteria defined in subdivision (d) of California Government Code section 65852.2 or any successor provision thereto. [6] If an applicant provides off-street parking for an ADU or a JADU in the HOD, parking shall be allowed in any configuration on the lot, including within the front yard setback.
B. Junior ADUs.
1. Basic Standards. A Junior ADU shall be contained entirely within an existing or proposed single family dwelling or its attached garage, and have no more than 500 square feet in floor area.
2. Shared Sanitation Facility. If a Junior ADU shares a sanitary facility with a single family dwelling, an internal connection between the Junior ADU and the main living area of the single family dwelling is required.
3. Junior ADU Floor Area. The Junior ADU gross floor area calculation excludes any shared sanitation facility with the single family dwelling.
B. Projections.
C.
Except as limited by Paragraph B.2 of this Section, architectural features (Outside of the Hillside Overlay.
1. Attached ADU. Chimneys, wWater hHeater eEnclosures, fFlues, hHeating and cCooling eEquipment, eEaves, cCornices, cCanopies, aAwnings, bay windows, and balconies) may project two feet into the required front and side setbacks, so long as there remains at least a two-foot setback from property lines. Bay windows and balconies may not project into a required rear ADU setback.
2. Within the Hillside Overlay. No projections shall be allowed within athe required setback on lots that are within the Hillside Overlay District.
C.D. Rooftop Decks within the Hillside Overlay. Roofs on detached ADUs within the Hillside Overlay may not be designed, converted, or used as usable open space.
23.306.0450Permit ProceduresDeed Restrictions.
A. Zoning Certificate. An application for an ADU or Junior ADU shall be allowed with a Zoning Certificate. Review must be completed within 60 days of submission of a completed application. A completed application must include evidence of compliance with this Chapter, including development standards, deed restrictions, and neighborhood noticing.
1. If an application to create an ADU or Junior ADU is submitted as part of a project that requires discretionary review, a Zoning Certificate for a building permit shall not be issued for the ADU or Junior ADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired. See
23.404.060(A) Post-Decision Provisions (Effective Dates).
2. Issuance of a Zoning Certificate shall not be denied for the construction or conversion of an ADU or Junior ADU that complies with the requirements of Government Code Section 65852.2(e)(1).
3. Issuance of a Zoning Certificate for the construction or conversion of an ADU or Junior ADU shall not be denied based on the failure of an applicant to correct a nonconforming zoning condition.
B. Neighbor Noticing.
1. Scope and Timing of Notice. Notice of an ADU application shall be mailed to tenants of owners and tenants of the subject, adjacent, confronting and abutting propertiesthe subject property within ten working days of submission of the building permit to the Planning DepartmentCity.
2. Content of Notice. Notice shall provide the address of the project and include allowable hours of construction, a link to the City’s ADU webpage identifying permit and construction resources, and contact information for a Rent Board Housing Counselor.
1.3. Mailing Fees. The applicant shall be responsible for the cost of materials, postage, and staff time necessary to process and mail the notices.
D.C. Deed Restriction. The property owner shall file a deed restriction with the Alameda County Recorder which states:
1. The Junior ADU shall not be sold separately from the main building;
2. The ADU shall not be sold separately from the main building unless the conditions of BMC 23.306.0450(D) ADUs Developed by a Qualified Nonprofit Developer B are met;
3. The ADU and/or Junior ADU shall not be rented for a term that is shorter than 30 days; and
4. If the property includes a Junior ADU, the Junior ADU, or the Single Family Dwelling in which the Junior ADU is located, shall be owner-occupied.
E.D. ADUs Developed by a Qualified Nonprofit Developer. An ADU built or developed by a "qualified nonprofit corporation" may be sold or conveyed separately from the mMain bBuilding to a "qualified buyer," as such terms are defined in subdivision (b) of Section 65852.26 of the California Government Code. The ADU must be held pursuant to a recorded tenancy in common agreement recorded on or after December 31, 2021 that includes the following elements:
1. Delineation of all areas of the property that are for the exclusive use of a cotenant;
2. Delineation of each cotenant’s responsibility for the costs of taxes, insurance, utilities, general maintenance and repair, and improvements associated with the property;
3. Procedures for dispute resolution among cotenants before resorting to legal action;
4. Allocates to each qualified buyer an undivided, unequal interest in the property based on the size of the dwelling each qualified buyer occupies;
5. A repurchase option that requires the qualified buyer to first offer the qualified nonprofit corporation to buy the ADU or primary dwelling if the buyer desires to sell or convey the property;
6. A requirement that the qualified buyer occupy the ADU or primary dwelling as the buyer’s principal residence; and
7. Affordability restrictions on the sale and conveyance of the ADU or primary dwelling that ensure the ADU and primary dwelling will be preserved for low- income housing for 45 years for owner-occupied housing units and will be sold or resold to a qualified buyer.
8. If requested by a utility providing service to the primary residence, the ADU shall have a separate water, sewer, or electrical connection to that utility.
9. 23.306.060 Neighbor Noticing.
10.Scope and Timing of Notice. Notice of an ADU application shall be mailed to owners and tenants of the subject, adjacent, confronting and abutting properties within ten working days of submission to the Planning Department.
11.Content of Notice. Notice shall provide the address of the project, allowable hours of construction, a link to the City’s ADU webpage, and information for tenants of the subject property on how to contact a Rent Board Housing Counselor by e-mail or phone and any other resource information deemed relevant.
12.Mailing Fees. The applicant shall be responsible for the cost of materials, postage and staff time necessary to process and mail notices.
13.23.306.070 Rooftop Decks and Balconies.
14.Notwithstanding any provisions of this Title to the contrary, roofs on lots within the Hillside Overlay District may not be designed, converted or used as Usable Open Space.
Section 6. That Berkeley Municipal Code 23.322.020(C) is amended to read as follows:
C. Changes of Use.
1. Commercial Districts. In the Commercial Districts, off-street parking is required for a change in use only when the structure is expanded to include new floor area.
2. Manufacturing and R-SMU Districts.
(a) In the Manufacturing and R-SMU districts, off-street parking is required for a change in use only when:
i. The structure is expanded to include new floor area; and/or ii. The use is changed to one with a numerical parking standard greater than the district minimum.
(b) If the new use is changed to one with a higher numerical parking standard than the district minimum, the new use must provide the incremental difference between the two numerical parking standards. A higher numerical parking standard may be reduced to the district minimum as provided in Section 23.322.050(.A)(.2) (Change of Use).
(c) As used in this section, the “district minimum” parking requirement is:
iii. 2 spaces per 1,000 square feet of floor area in the Manufacturing Districts; and
iv. 1 space per 1,000 square feet of floor area in the R-SMU district.
3. All Other Residential Districts. In all Residential Districts except for R-SMU, off- street parking spaces are required for all changes in use.
Section 7. That the section named; Residential Uses; in Berkeley Municipal Code Table 23.322-1, Required Off Street Parking in Residential Districts, within Berkeley Municipal Code 23.322.030, Required Parking Spaces, is amended to read as follows:
TABLE 23.322-1: REQUIRED OFF-STREET PARKING IN RESIDENTIAL DISTRICTS Land Use Number of Required Off-street Parking Spaces
Residential Uses
Accessory Dwelling
Unit
Junior ADU: None required
ADU outside of Hillside Overlay: None required
ADU within Hillside Overlay: 1 per ADU unless satisfies the criteria in subdivision (d) of Government Code Section
65852.2.See Chapter 23.306
Dwellings, including
Group Living
Accommodations
R-3, R-4, and R-5 Districts (1-9 units): If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per unit.
R-3, R-4, and R-5 District (10 or more units): If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per 1,000 sq. ft. of gross floor area
All Other Districts: If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per unit
All Other Locations: None required
Dormitories, Fraternity
and Sorority Houses,
Rooming & Boarding
Houses, Senior
Congregate Housing
If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per each 5 residents, plus 1 for manager.
All Other Locations: None required.
Rental of Rooms
If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per each two roomers
All Other Locations: None required
Section 8. That Berkeley Municipal Code Table 23.322-2 is amended to read as follows:
TABLE 23.322-2: REQUIRED OFF-STREET PARKING REQUIREMENTS IN COMMERCIAL
DISTRICTS (EXCLUDING C-T)
Land Use Required Parking Spaces
Residential Uses
Accessory Dwelling
Unit See Chapter 23.306None required
Dwellings, including
Group Living
Accommodations
If located on a roadway less than 26 feet. in width in the Hillside Overlay: 1 per unit
All Other Locations: None required
Hotel, Residential None required
Mixed-Use Residential None required
Land Use Required Parking Spaces
(residential use only)
Senior Congregate
Housing None required
Non-Residential Uses
All non-residential
uses except uses
listed below
C-DMU District: 1.5 per 1,000 sq. ft.
All Other Commercial Districts: 2 per 1,000 sq. ft.
Hospital 1 per each 4 beds plus 1 per each 3 employees
Library
C-DMU District: 1.5 per 1,000 sq. ft.
All Other Commercial Districts: 1 per 500 sq. ft. of publicly accessible floor area
Nursing Home 1 per 3 employees
Medical Practitioners C-DMU District: 1.5 per 1,000 sq. ft.
All Other Commercial Districts: 1 per 300 sq. ft.
Hotels, Tourist
C-DMU District: 1 per 3 guest/sleeping rooms or suites
C-C, C-U, C-W Districts: 1 per 3 guest/sleeping rooms or suites plus 1 per 3 employees
All Other Commercial Districts: 2 per 1,000 sq. ft.
Motels, Tourist
C-DMU District: 1 per 3 guest/sleeping rooms or suites
C-C, C-U, C-W Districts: 1 per guest/sleeping room plus 1 for owner or manager [1]
All Other Commercial Districts: 2 per 1,000 sq. ft.
Large Vehicle Sales
and Rental
C-DMU District: 1.5 per 1,000 sq. ft.
C-SA District: 1 per 1,000 sq. ft.
All Other Commercial Districts: 2 per 1,000 sq. ft.
Small Vehicle Sales
and Service
C-DMU District: 1.5 per 1,000 sq. ft.
C-SA District: 1 per 1,000 sq. ft.
All Other Commercial Districts: 2 per 1,000 sq. ft.
Manufacturing
C-DMU District: 1.5 per 1,000 sq. ft.
C-W District: 1 per 1,000 sq. ft [1]
All Other Commercial Districts: 2 per 1,000 sq. ft.
Wholesale Trade
C-DMU District: 1.5 per 1,000 sq. ft.
C-W District: 1 per 1,000 sq. ft
All Other Commercial Districts: 2 per 1,000 sq. ft.
Live/Work
If workers/clients are permitted in work area, 1 per first 1,000 sq. ft. of work area and 1 per each additional 750 sq. ft. of work area
Notes:
[1] Spaces must be on the same lot as building it serves
Section 9. That the section named; Residential Uses; in Table 23.322-4, Required Off Street Parking in Manufacturing Districts, within Berkeley Municipal Code
23.322.030, Required Parking Spaces, is amended to read as follows:
TABLE 23.322-4: REQUIRED OFF-STREET PARKING IN MANUFACTURING DISTRICTS Land Use Required Parking Spaces
Residential Uses
Accessory Dwelling
Unit
See Chapter 23.306None required
Dwellings None required
Group Living
Accommodation
None required
Section 10. That Berkeley Municipal Code 23.322.080 is amended to read as follows:
23.322.080– Parking Layout and Design
A. Traffic Engineering Requirements.
1. All off-street parking spaces, access driveways, circulation patterns, and ingress and egress connections to the public right-of-way must conform to the City of Berkeley’s Traffic Engineering requirements.
2. The Traffic Engineer shall determine whether the size, arrangement, and design of off-street parking spaces, access driveways, circulation patterns, and ingress and egress connections to the public right-of-way are adequate to create usable, functional, accessible, and safe parking areas, and are adequately integrated with Berkeley’s overall street pattern and traffic flows.
B. Dimensional Standards. Dimensional requirements and standards for off-street parking spaces, driveways, and other access improvements, and maneuvering aisles shall be incorporated in administrative regulations, subject to the review and approval by the City Manager and ZAB.
C. Access Orientation in Non-Residential Districts. Access to new parking areas in a Non-Residential District that serve commercial uses shall be oriented in such a way as to minimize the use of streets serving primarily residential uses.
D. Residential Parking Lots in Non-Residential Districts. Parking lots in a non- residential district used exclusively for residential parking must comply with standards in Section 23.322.080 that apply in Residential Districts.
D.E. Placement--Residential Districts.
1. Side Setback Areas.
(a) One new off-street parking space in a required side setback area, where none exists, is allowed by right.
(b) The space must be constructed of a permeable surface unless the Public Works Department or Office of Transportation determines it is infeasible. (c) The space must be screened as required by 23.322.080.HG (Screening). (d) The location of the space shall minimize impact on usable open space.
2. Other Setback Areas. No portion of an off-street parking space may be located in a required front, street side, or rear setback area unless:
(a) The parking space location is authorized by Chapter 23.306 (Accessory Dwelling Units); or
(b) The Zoning Officer approves an AUP, in consultation with the Traffic Engineer, and the space meets all applicable requirements in this section.
3. Multifamily Buildings.
(a) An off-street parking space may not be located closer than 10 feet in horizontal distance from a door or a window of a building with three or more dwelling units where the space is on the same or approximately the same level as the building.
(b) For the purposes of this section, a window whose bottom edge or point is more than 6 feet in vertical height from the level of the subject off-street parking space is not considered on the same or approximately the same level.
(c) The Zoning Officer may approve and AUP to grant an exception to this requirement.
E.F. Placement--Non-Residential Districts.
1. Where Prohibited. Except when otherwise allowed by this chapter, ground-level off-street parking spaces are not permitted within 20 feet of the lot’s street frontage unless the parking is entirely within a building with walls.
2. Corner Lots. For a corner lot, the ZAB may approve a Use Permit to allow the parking within 20 feet of the street frontage facing the secondary street.
3. C-W District.
(a) Off-street automobile parking in the C-W district is not permitted between the front lot line and a main structure within a designated node. (b) Outside of a designated node, off-street automobile parking may be allowed between the front lot line and a main structure with a Use Permit or AUP. If
the project requires ZAB approval, a Use Permit is required. An AUP is required for all other projects.
(c) To approve the AUP or Use Permit, the review authority must find that one or more of the following is true:
i. Parking in the rear or on the side of the property is impractical because of the lot’s depth and/or width.
ii. Parking in the rear of the property would result in adverse impacts on abutting residential or other uses.
iii. Parking in the rear or on the side of the property would result in the placement of a driveway in an unsafe location.
iv. Continuation or re-establishment of parking in front of the building is necessary for the reuse of an existing structure which is substantially set back from the front lot line.
G. Placement--ADU.
(a) On a lot with an existing or proposed ADU, replacement of required off-street parking for the main building or required off-street parking for an ADU is allowed in any configuration on the lot, including within the front setback; or (b) Within the Hillside Overlay on a lot with an existing or proposed ADU, where no legal off-street parking exists for the main building, required parking provided for the main building is allowed in any configuration on the lot, including within the front yard setback.
F.H. Grade Change. This subsection applies to off-street parking spaces in all districts, except for parking decks in Residential Districts.
1. The difference in elevation between a parking space and the finished grade on adjacent areas of the lot may not exceed 5 feet at any point.
2. Where there is a difference in elevation between a parking space and adjacent finished grade, the parking space shall be setback from a lot line as shown in Table 23.322-7.
TABLE 23.322-7. REQUIRED SETBACKS FOR PARKING SPACES WITH ADJACENT
GRADE CHANGES
DIFFERENCE IN ELEVATION MINIMUM SETBACK
Parking space lower than finished grade
3 to 5 ft 4 ft.
Less than 3 ft No min. setback
Parking space higher than finished grade 6 ft.
G.I. Screening.
1. Table 23.322-8 shows required parking space screening. Screening must effectively screen parked vehicles from view from buildings and uses on adjacent, abutting, and confronting lots. Screening may not interfere with pedestrian safety.
TABLE 23.322-8. REQUIRED PARKING SPACE SCREENING
DISTRICTS WHEN REQUIRED REQUIRED SCREENING
FEATURE
SCREENING
FEATURE HEIGHT
All Residential
Districts
2 or more parking
spaces, or any
parking space partly
or entirely within a
required rear setback
area
Continuous view-obscuring
wood fence, masonry wall,
or evergreen hedge which
may be broken only for
access driveways and
walkways
4 ft. min and 6 ft.
max.
All Commercial
and
Manufacturing
Districts
2 or more parking
spaces
Wall, fence, or evergreen
shrubbery hedge in a
landscape strip
Parking adjacent to
public right-of-way
or front lot line: 3 ft.
min. and 4 ft. max.
Parking adjacent to
rear or side lot line:
4 ft. min and 6 ft.
max.
2. In the C-W, M, MM, MU-LI districts, screening and landscape buffers are not required for any portion of a parking lot adjacent to Third Street (Southern Pacific Railroad).
H.J. Landscape Buffers.
1. All paved areas for off-street parking spaces, driveways, and any other vehicle- related paving must be separated from adjacent lot lines and the public right-of- way by a landscaped strip as shown in Table 23.322-9.
TABLE 23.322-9. REQUIRED LANDSCAPE BUFFERS
MINIMUM WIDTH OF LANDSCAPE STRIP
DISTRICT/NUMBER OF SPACES AREAS ADJACENT TO SIDE
OR REAR LOT LINES
AREAS ADJACENT TO PUBLIC RIGHT-
OF-WAY OR FRONT LOT LINE
Residential Districts
1-3 spaces 2 ft. 2 ft.
4 spaces or more 4 ft. [1] 4 ft. [1]
Commercial and
Manufacturing Districts
1 space None required None required
2-3 spaces 2 ft. 3 ft.
4 spaces or more 4 ft. [1] 4 ft. [1]
Note:
[1] Calculated as average width along the full length of landscape strip.
2. In all districts, this landscape buffer requirement does not apply to driveways that serve two adjacent lots when adjacent to a side lot line.
3. In the Residential Districts, this landscape buffer requirement also does not apply to pedestrian walkways that are separated from such areas by a landscaped strip at least two feet wide.
I.K. Paved Setback Areas. In Residential Districts, the total area of pavement devoted to off-street parking spaces, driveways, and other vehicle-related paving may not exceed 50 percent of any required setback area that runs parallel to and abuts a street.
J.L. Driveway Width.
1. A driveway may not exceed 20 feet in width at any lot line abutting a street or one-half of the width of the street frontage of the lot, whichever is less.
2. In a Non-Residential district, the Zoning Officer may modify this requirement with an AUP.
K.M. Driveway Separation. On a single lot in a Residential District, driveways must be spaced at least 75 feet from one another, as measured along any continuous lot line abutting a street.
L.N. Tandem Parking. Tandem spaces that provide required off-street parking require an AUP, except when allowed by right by Chapter 23.306 (Accessory Dwelling Units).
M. Residential Parking Lots in Non-Residential Districts. Parking lots in a non- residential district used exclusively for residential parking must comply with standards in this section that apply in Residential Districts.
N.O. Carports. A carport shall meet the minimum horizontal and vertical dimensions specified by the City’s Traffic Engineer to be used for one or more legal parking spaces required under this chapter.
Section 11. That Berkeley Municipal Code is amended to add a new Section
23.324.060(C) to read as follows:
C. Accessory Dwelling Units. The following alterations of a lawful nonconforming existing structure or building that is an existing ADU or proposed to be converted to an ADU are permitted with a Zoning Certificate:
1. New windows, doors, or other openings to a portion of a building or structure within a minimum required setback.
2. New windows, doors, or other openings to a portion of a building or structure exceeding the height limit.
Section 12. That Berkeley Municipal Code 23.502.020(A)(4) is amended to read as follows:
4. Accessory Dwelling Unit (ADU). An attached or detached secondary dwelling unit that is located on the samea lot as a proposed or existing single family dwelling, duplex, multi-family dwelling use, or group living accommodation in a zoning district where residential uses are permitted and provides independent living facilities for one or more persons. An ADU must comply with local building, housing, safety and other code requirements, except as expressly modified in Chapter 23.306, and provide the following features independent of other dwelling units on the lot: Exterior or independent access to the ADU, living and sleeping quarters, a full kitchen, and a full bathroom. An ADU also includes the following:
(a) An efficiency unit, as defined in Section 17958.1 of the Health and Safety Code, or (b) A manufactured home, as defined in Section 18007 of the Health and Safety Code.
Junior Accessory Dwelling Unit (Junior ADU). A unit that is contained entirely within the walls of an existing or proposed single family dwelling, or a single family dwelling unit’s attached garage. A Junior ADU must include a separate exterior entrance and, at minimum, an efficiency kitchen with a working refrigerator. A Junior ADU may include separate sanitation facilities or may share sanitary facilities with a single family dwelling. The property-owner must reside in either the Single Family Dwelling or the JADU. (a) with a proposed or existing Single Family Dwelling, Duplex, Multi-Family Dwelling Use or Group Living Accommodation. An Accessory Dwelling Unit must comply with local building, housing, safety and other code requirements, except as expressly modified in Chapter 23.306, and provide the following features independent of other dwelling units on the lot: 1) exterior or independent access to the Accessory Dwelling Unit; 2) living and sleeping quarters; 3) a full kitchen; and 4) a full bathroom. An Accessory Dwelling Unit also includes the following:
(b)(a) An efficiency unit, as defined in Section 17958.1 of the Health and Safety Code.
Section 13. That Berkeley Municipal Code 23.502.020(A)(8) is amended to read as follows:
8. Addition, Residential. The creation of any new portion of a main building which results in a vertical or horizontal extension of the building, or results in additional
residential gross floor area to an existing main building, as long as such new gross floor area does not exceed 15 percent of the lot area or 600 square feet, whichever is less. For purposes of this definition gross floor area does not include:
(a) Additions of gross floor area devoted to required off-street parking spaces, creation of mezzanines or lofts within the building’s shell; (b) Making previously unusable attics into habitable floor area (except where new areas with vertical clearance of 6 feet or greater are created through expansions of the building shell);
(c) Excavations of earth within the existing building footprint (i.e. expansion of existing basements or new basements), or
(d) Replacement of existing floor area that was lawfully constructed and is located entirely within the addition’s shell.
(d)(e) The floor area associated with any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot.
Section 14. That Berkeley Municipal Code 23.502.020(A)(9) is amended to read as follows:
9. Addition, Major Residential.
(a) A residential addition greater than 15 percent of the lot area or 600 square feet. Floor area from all residential additions since October 31, 1991, with the exception of:
i. Additions that are entirely subsumed within previously existing floor area; and
ii. The floor area associated with any existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet per lot.
(b) The floor area of subsequent stories where the addition does not exceed the district residential addition height limit, shall count towards the calculation of gross floor area for the purposes of this definition.
(c) Any new floor area, except as exempted under (9)(a), shall be treated as a new major residential addition for the purpose of permit processing, when the cumulative square footage exceeds 15 percent of the lot area or 600 square feet, whichever is less.
Section 15. That Berkeley Municipal Code 23.502.020(E)(1) is amended to read as follows:
1. Efficiency Kitchen. A kitchen that includes a sink, a cooking facility with appliances (e.g. microwave, toaster, oven, hot plate), and food preparation counter space and cabinets.
Section 16. That Berkeley Municipal Code 23.502.020(J) is amended to read as follows:
J. "J" Terms.
Junior Accessory Dwelling Unit (JADU). A unit that is contained entirely within the walls of a Single Family Dwelling. A JADU must include a separate exterior entrance and an Efficiency Kitchen with a working refrigerator. A JADU may include separate sanitation facilities or may share sanitary facilities with a Single Family Dwelling. The property-owner must reside in either the Single Family Dwelling or the JADU.
Section 17. That Berkeley Municipal Code 23.502.020(N)(1) is amended to read as follows:
N. "N" Terms.
1. New Construction. Construction of a new main building or accessory dwelling unit.
Section 18. Severability.
If any provision or clause of this Ordinance or any application thereof to any person or circumstance is held to be unconstitutional or otherwise invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions or clauses or applications of this Ordinance. To this end the provisions and applications of this Ordinance are severable, and the Council of the City of Berkeley hereby declares that it would have passed this Ordinance and each provision or clause without regard to whether any other portion of this Ordinance or application thereof would be subsequently declared invalid or unconstitutional.
Section 19. 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
filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
October 17, 2022
Jordan Klein, Director
Planning and Development Department
1947 Center Street, 3rd Floor
City of Berkeley, CA 94704
Dear Jordan Klein:
RE: Review of Ber
keley’s Accessory Dwelling Unit (ADU) Ordinance under State ADU Law (Gov. Code, § 65852.2)
Thank you for submitting the City
of Berkeley’s (City) accessory dwelling unit (ADU)
Ordinance Nos. 7,797-N.S. and 7,799-N.S. (collectively, Ordinances), both adopted on February 8, 2022, to the California Department of Housing and Community Development (HCD). The Ordinances were received on February 23, 2022. HCD has reviewed the Ordinances and submits these written findings pursuant to Government Code section 65852.2, subdivision (h). HCD finds that the Ordinances do not comply with section 65852.2 in the manner noted below. Under that statute, the City has up to 30 days to respond to these findings. Accordingly, the City must provide a written response to these findings no later than November 17, 2022.
The Ordinances ad
dress many statutory requirements; however, HCD finds that the Ordinances do not comply with State ADU Law in the following respects:
Ordinance No. 7,797-N.S.
• Section 23.502.020.E.1and J.1 – Efficiency Kitchen – The Ordinance def ines
efficiency kitchen as including a sink and having a working refrigerator.
However, the sink requirement, previously specified in Government Code section 65862.22, subdivision (a)(6), was removed and statute does not specify any type of appliances, thereby creating more options to satisfy the appliance requirement. Efficiency kitchen is now defined as “[a] cooking facility with appliances.” (Gov. Code, § 65852.22, subd. (a)(6)(A).) It shall include “[a] food preparation counter and storage cabinets that are in reasonable size in relation to the size of the junior accessory dwelling unit.” (Gov. Code, § 65852.22, subd. (a)(6)(B).) The City must remove the sink requirement as well as the reference to a working refrigerator to comply with existing statute.
ATTACHMENT 2
Jordan Klein, Director
Ordinance No. 7,799-N.S.
• Section 12.99 – Wildfire Hazard Evacuation Risk Mitigation Ordinance – To restrict ADUs and Junior Accessory Dwelling Units (JADUs) in the Hillside Overlay District, the Ordinance relies on a local agency’s ability to designate areas where ADUs may be permitted based on the impact on traffic flow and public safety per Government Code 65852.2, subdivision (a)(1)(A). The Ordinance provides general information regarding the Hillside Overlay District and its topography and location within Berkeley’s Very High Fire Hazard Severity Zone (VHFHSZ). In addition, the Ordinance refers to a study published by UC Berkeley, and upon further communication by HCD with the City on March 4, 2022, the City provided information regarding a traffic simulation study (Developing Transportation Response Strategies for Wildfire Evacuations via an Empirically Supported Traffic Simulation of Berkeley, California, Wong, 2021) conducted within the Hillside Overlay District.
However, while HCD is sympathetic to concerns about fire safety and the need to ensure adequate evacuation in the event of a fire, the City has not adequately demonstrated that new ADUs will actually impact public safety in the VHFHSZ. The traffic simulation study is not specific to ADUs and JADUs, and therefore its information and conclusions do not adequately justify the restriction of ADUs in the Hillside Overlay District per Government Code 65852.2, subdivision (a)(1)(A). Specifically, the City relies on the study, which looks at total vehicular use, to conclude that additional ADUs will create an evacuation hazard. This study, however, does not provide data on how many lots are likely to add ADUs or what specific impact new ADUs might have on evacuations. Moreover, the City does not account for the potential for ADUs to be excluded from requiring a parking space given the availability of public transit in the Hillside Overlay District. HCD is aware that AC Transit serves the Berkeley Hills location, exempting many, if not all, potential lots from parking space requirements for new ADUs.
Furthermore, even if the City would provide adequate justification for this restriction on ADUs under this subdivision, the City may not justify such a restriction on ADUs that fall under subdivision (e), as local development standards (such as an area restriction based on VHFHSZ designation) provided by the Ordinance pursuant to Government Code section 65852.2, subdivisions (a) through (d), do not apply to ADUs created under Government Code section 65852.2, subdivision (e).
In summary, the City must remove these restrictions and permit applications pursuant to Government Code 65852.2, subdivisions (a) and (e).
Jordan Klein, Director
• Section 12.99.030 – Total Number of Units Permitted – The Ordinance limits the number of units allowed per lot in the Hillside Overlay District to one ADU or JADU. However, this limitation conflicts with the Government Code section 65852.2, subdivisions (e)(1)(A) and (B), requirement to allow for both an ADU and JADU on a lot with a proposed or existing single-family dwelling, should certain conditions be met. In addition, this limitation conflicts with Government Code section 65852.2, subdivisions (e)(1)(C) and (D), for lots with existing multifamily structures. The City must amend this prohibition to explicitly permit applications per Government Code 65852.2, subdivision (e).
In response to the findings in this letter, and pursuant to Government Code section 65852.2, subdivision (h)(2)(B), the City must either amend the Ordinances to comply with State ADU Law or adopt the Ordinances without changes. Should the City choose to adopt the Ordinances without the changes specified by HCD, the City must include findings in its resolution that explain the reasons the City finds that the Ordinances comply with State ADU Law despite the findings made by HCD. Accordingly, the City’s response should provide a plan and timeline to bring the Ordinances into compliance.
Please note that, pursuant to Government Code section 65852.2, subdivision (h)(3)(A), if the City fails to take either course of action and bring the Ordinances into compliance with State ADU Law, HCD may notify the City and the California Office of the Attorney General that the City is in violation of State ADU Law.
HCD appreciates the City’s efforts in the preparation and adoption of the Ordinances and welcomes the opportunity to assist the City in fully complying with State ADU Law.
Please feel free to contact Mike Van Gorder, of our staff, at (916) 916-776-7541 or at [email protected].
Sincerely,
David Zisser
Assistant Deputy Director
Local Government Relations and Accountability
Planning and Development Department
Land Use Planning Division
STAFF REPORT
DATE: May 3, 2023
TO: Members of the Planning Commission
FROM: Zoe Covello, Assistant Planner
Grace Wu, Principal Planner
SUBJECT: Amendments to Title 23 Relating to Ac
cessory Dwelling Units (ADUs) to
Conform to Current State Law and Guidance from the California Department of Housing and Community Development
RECOMMENDATION
Planning Commission is asked to hold a public hearing, receive and provide comment on the
proposed Zoning Ordinance amen
dments pertaining to Accessory Dwelling Units
and Junior Accessory Dwelling Units, and make a recommendation for consideration by the City Council.
SUMMARY
City staff have prepared amendments to Title 23 (Zoning Ordinance) o f the Berkeley
Municipal Code (BMC) in response to: (a) recent changes in State laws pertaining to Accessory Dwelling Unit (ADU) and Junior Accessory Dwelling Unit (Junior ADU) that took effect on January 1, 2023, and (b) feedback from the California Department of Housing and Community Development (HCD) finding that the City of Berkeley’s current ADU ordinance does not comply with State law.
These amendments will serve to bri
ng the City’s ADU ordinance into compliance with
current State law and HCD guidance.
This report provides:
1. Background on Berkeley’s existing ADU ordinance and
fire safety concerns;
2. A summary of new State ADU Law;
3. A summary of HCD’s finding of noncompliance and staff’s proposed response for addressing the issues raised; and
4. Proposed Z oning Ordinance amendments and rationale.
BACKGROUND
ATTACHMENT 3
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
ADU Regulations in the City of Berkeley
The City of Berkeley’s current ADU Ordinance was amended in accordance with the State of California law (Government Code Sections 65852.21 and 65852.222) and took effect on March 17, 2022. The primary ordinance regulating ADU development in the City is Berkeley Municipal Code (BMC), Chapter 23.306: Accessory Dwelling Units. This chapter allows ADUs on properties located in a zoning district that permits residential use, and provides development standards based on the location of the property. The ordinance currently includes separate development standards for properties that are located in certain zoning districts within the Hillside Overlay [R-1(H), R-2(H), R-2A(H)] and the ES-R district.
In addition to Chapter 23.306, the City adopted Chapter 12.99: Wildfire Hazard Evacuation Risk Mitigation Ordinance, which serves to “permit and promote the construction of accessory dwelling units and junior accessory dwelling units while protecting human life and health, promoting the public health, safety, and general welfare, and minimizing public and private losses due to dangerous conditions in specific areas” in accordance with Government Code 65852.2, subdivision (a)(1)(A), which allows local agencies to regulate ADUs based on "adequacy of water and sewer service, and the impacts of traffic flow and public safety." 3 Chapter 12.99 was adopted in response to a short-term Council referral in January 2021. The referral provided direction to amend the local ADU zoning ordinance and Berkeley’s Fire Code, requesting that a set of ordinance amendments and implementation programs be evaluated and recommended to Council to address emergency access and egress. The referral also requested parking and objective development standards to address the constraints presented by the high fire hazard conditions and narrow and curving roadways in Fire Zones 2 and 3.
In response to the January 2021 referral, Planning and Development Department staff proposed revisions to development standards to limit allowable ADU size and increase front yard setbacks in the City’s Very High Fire Hazard Severity Zone, which encompasses a significant portion of the Hillside Overlay.
On April 7, 2021, the Planning Commission held a public hearing and recommended staff’s proposed amendments to City Council, adding that the maximum height for ADUs be increased from 16 feet to 18 feet. City Council adopted Chapter 23.306 (Accessory Dwelling Unit Ordinance) as submitted by the City Manager with amendments from
1 Government Code Section 65852.2,
https://leginfo.legislature.ca.gov/faces/selectFromMultiples.xhtml?lawCode=GOV§ionNum=65852.2 2 Government Code Section 65852.22,
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=65852.22 3 Prior to adopting Chapters 23.306 and 12.99, the City had previously prohibited the construction of ADUs in the ES-R district (Zone 3) and on any lot with frontage on a roadway of less than 26 feet width in the Hillside Overlay, subject to discretionary review. After the ADU ordinance adopted in December 2019 expired on December 4, 2020, the City had been operating without any local provisions for ADUs; all ADUs in residential districts were regulated only by State law, allowing their development without regard to street width or parking.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Councilmember Kesarwani.4 City Council further amended the ordinance with regards to the three-year rolling date for ADU conversions and the addition of balconies to prohibited projections.
On October 26, 2021, City Council referred to the City Manager a request to develop a set of public safety regulations that address public safety issues stemming from new development in fire-prone areas. Those safety regulations resulted in the adoption of Chapter 12.99 (Wildfire Hazard Evacuation Risk Mitigation Ordinance) on January 25, 2022.
2022 State ADU Law Updates - SB 897, AB 2221, and AB 2097
Three new State ADU laws took effect January 1, 2023, codified in Government Code section 65852.2 pertaining to ADUs, necessitating an update to the City of Berkeley’s ADU ordinance. These new State ADU laws relate to:
1. Maximum height limits. SB 897
5 increases ADU height standards for both
attached and detached ADUs in the following circumstances:
o An attached ADU on a lot in any permissible zoning district shall have a height limitation no less than 25 feet.
o A detached ADU that is located either on a lot in any permissible zoning district that is within a 0.5 mile of a major transit stop or high-quality transit corridor as defined in Public Resources Code (PRC) Section 21155 or on a lot with an existing or proposed duplex or multi-family, multi-story (two or more stories) building shall have a height limitation of no less than 18 feet.
An additional two feet (totaling 20 feet maximum height) is allowed for a detached ADU on a lot in any permissible zoning district that is within 0.5 miles of a transit stop or high-quality transit corridor as defined in PRC Section 21155 to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit.
2. Prohibiting development standards that preclude 800 square foot ADUs.
Under AB 22216, local agencies are prohibited from establishing lot coverage, floor area ratio, open space, or minimum lot size standards that would physically preclude construction of an 800 square foot ADU, including a minimum front setback.
3. Required connections between a Junior ADU and the main dwelling unit.
SB 897 requires both a separate entrance to the Junior ADU from the main entrance to the structure and an interior connection to the main living area of the
4 Councilmember Kesarwani’s amendments included protection for non-habitable space in multi-family buildings, clarified rules that apply to Accessory Structures being converted into ADUs, clarified owner occupancy requirements for JADUs, and modified noticing requirements for tenants and neighbors. https://berkeleyca.gov/sites/default/files/city-council-meetings/2022-01- 18%20Agenda%20Packet%20-%20Council%20-%20WEB.pdf
5 Senate Bill 897, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB897. 6 Assembly Bill 2221, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB2221.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
single family dwelling if a Junior ADU shares sanitation facilities with the primary dwelling unit.
4. Changes to off-street parking related to ADUs. While parking may be provided voluntarily, per AB 20977 no off-street parking may be required for an ADU or a Junior ADU if the lot is located within a 0.5 mile of public transit, as defined in PRC Section 21155. Note, the existing ADU ordinance already has provisions for reduced parking requirements within a 0.5 mile walking distance of public transit.8
The proposed revisions to the zoning ordinance reflect these changes, which can be found in the Discussion section below.
2022 Letter from HCD Requesting Amendments to the City’s ADU Ordinance
On October 17, 2022, the City received a letter from HCD stating that they had reviewed the City’s current ADU ordinances (BMC Sections 23.306 and 12.99, the “Ordinances”) and found that the Ordinances do not comply with Government Code Section 65852.2 (see Attachment 4).
Efficiency Kitchen Definition
HCD found a discrepancy between the definition of “Efficiency Kitchen” contained within Ordinance No. 7,797-N.S. (Chapter 23.306) and Government Code §65852.22(a)(6)(A) and requested that the City remove the sink requirement from its zoning definition, as well as the reference to a working refrigerator in the definition of a “Junior Accessory Dwelling Unit.”
Wildfire Hazard Evacuation Risk Mitigation Ordinance
Regarding Ordinance No. 7,799-N.S (Chapter 12.99), HCD found that the City did not make adequate findings with respect to ADU development impacts on traffic flow and public safety when the City adopted limitations on the quantity and size of ADU development in the Hillside Overlay.
HCD asserts that the traffic simulation study referenced in Chapter 12.99 is not specific to ADUs and Junior ADUs and therefore cannot be used to justify the restriction on the number of ADUs in the Hillside Overlay. Additionally, the traffic simulation study does not provide data on how many lots are likely to add ADUs, does not identify specific impacts new ADUs may have on evacuations, and does not account for the potential for ADUs to be excluded from requiring a parking space given the availability of public transit in the Hillside Overlay. Furthermore, HCD adds that even if the City adequately justified the restriction of ADUs under this subdivision, it may not justify restrictions on ADUs that fall under subdivision (e) because local development standards do not apply to ADUs created under Government Code section 65852.2, subdivision (e).
7 Assembly Bill 2097, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2097. 8 GOV 65852.2(j)(11) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Government code section 65852.2, subdivision (e) requires local agencies to ministerially approve building permit applications for the creation of ADUs within a residential or mixed-use zone.
Regarding Section 12.99.030 – Total Number of Units Permitted, HCD asserts that the City’s decision to limit the number of units allowed per lot in the Hillside Overlay to one ADU or one Junior ADU conflicts with Government Code Section 65852.2, subdivisions (e)(1)(A), (B), (C), and (D), which requires a local agency to ministerially approve an application for a building permit within a residential or mixed-use zone to create one ADU and one Junior ADU per lot.
DISCUSSION
To conform to State ADU law and respond to HCD’s letter, staff recommend amendments to Title 23 of the BMC that achieve the following purposes:
1. Remove standards that provide a distinction between parcels within and outside of the Hillside Overlay, and apply non-Hillside Overlay ADU standards citywide where residential uses are permitted
9;
2. Bring the City’s zoning code into compliance with current State ADU law and guidance, including SB 897, AB 2221, and AB 2097; and
3. Clarify and/or correct minor technical edits associated with the related ordinance sections, and edit for consistency with existing BMC style guidelines.
23.106 Rules of Measurement
Consistent with the State Exemption ADU provisions of Subdivision (c) in Government Code 65852.2, staff propose amending 23.106.020(B) and 23.106.030(D) to exclude up to 800 square feet of area associated with an existing or proposed ADU or Junior ADU from lot coverage and gross floor area calculations. Presently, once an ADU is built, it counts towards lot coverage, which can mean that even minor future additions would require a Use Permit. By amending 23.106.020(B) and 23.106.030(D) to exclude up to 800 square feet of area, the regulation is consistent with State law, removes a barrier to development, and aligns with the State’s goal of incentivizing the development of ADUs.
23.306 Accessory Dwelling Units (Organization)
The proposed ordinance simplifies the ADU Chapter by consolidating seven sections into four, maintaining consistency with other Chapters of Title 23 (see Table 1).
9 Staff will also recommend to City Council to repeal BMC Section 12.99. However, as this public hearing is only pertaining to Title 23 of the BMC, this action is not up for discussion this evening.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Table 1: Chapter 23.306 - Existing and Proposed Sections Existing Sections Proposed Sections
23.306.010– Purposes 23.306.010– Purpose
23.306.020– Applicability and Definitions 23.306.020– Applicability
23.306.030– Permit Procedures 23.306.030– Development Standards
23.306.040– Development Standards 23.306.040– Permit Procedures
23.306.050– Deed Restrictions
23.306.060– Neighbor Noticing
23.306.070– Rooftop Decks and Balconies
23.3 06.010 Accessory Dwelling Units (Purpose)
The proposed ordinance adds a reference to the latest California Government Code Section 65852.1 and removes subsection (f) which states that the purpose of the chapter is to reduce potential impacts of new development in the Very High Fire Hazard Severity Zones (VHFHSZ), Wildland-Urban Interface Fire Areas, and Hillside Overlay.
This allows for compliance with HCD’s finding that the current ordinances do not meet the exceptions included in State law that allow for the creation of a separate set of regulations in the Hillside Overlay.
23.306.020 Accessory Dwelling Units (Applicability)
The proposed ordinance removes subsection (b), which defines the Hillside Overlay for the purposes of this chapter, and removes the reference to Chapter 12.99, to comply with HCD’s finding that the City does not sufficiently justify the creation of a separate set of regulations in the Hillside Overlay.
The proposed amendment includes a new subsection clarifying that ADUs and Junior ADUs do not count towards density calculations established by the underlying zoning districts. This is consistent with HCD guidance in the HCD ADU Handbook Update. 10 Staff also propose amending the maximum number of units permitted on a lot with a duplex or multi-family dwelling to allow for two detached ADUs and at least one interior ADU (see Table 2). In 2022 HCD changed its interpretation regarding the total number of ADUs that "must" be allowed by local governments on any given parcel. Whereas in the 2020 ADU Handbook, HCD wrote that "local governments are not required to allow (a) and (b) together or (c) and (d) together," in the 2022 ADU Handbook HCD rewrote that "local governments must allow (a) and (b) together or (c) and (d) together." Although this change in HCD's interpretation is not supported by any corresponding change in state law, the proposed ordinance is drafted to be consistent with HCD's new interpretation.
10 HCD Accessory Dwelling Unit Handbook, https://www.hcd.ca.gov/sites/default/files/2022-07/ADUHandbookUpdate.pdf.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Table 2: Existing and Proposed Maximum Density Standards on a Lot with a Duplex or Multi-Family Dwelling
Existing Maximum Density Proposed Maximum Density
Either:
a. Up to two detached ADUs; or
b. At least one ADU converted from non-
habitable portions of the existing Main
Building that are not within the living space of
a Dwelling Unit (e.g. basement, attic, garages
storage room). The maximum number of
ADUs converted from portions of the existing
Main Building that are not within the living
space of a Dwelling Unit shall not exceed
25% of the total number of existing Dwelling
Units on the lot.
Two detached ADUs and at least one interior
ADU up to 25% of the total number of existing
duplex or multi-family dwelling units on the lot
23.306.030 Accessory Dwelling Units (Development Standards) In response to HCD’s letter and to bring the development standards section into compliance with State law, staff propose removing standards that are specific to parcels located in the Hillside Overlay. Instead, the development standards apply to ADUs and Junior ADUs citywide.
Staff also recommend a number of technical revisions to the development standards section, including: removing Junior ADU standards from the development standards table and including all relevant information in subsection (B), as well as replacing footnotes from the development table with a subsection for supplemental standards.
Within subsection (C), staff propose technical edits to amend the provisions related to projections to align with other sections of the code, including permitting bay windows and balconies on attached ADUs outside of the Hillside Overlay as long as there remains at least a two-foot setback from property lines, as the code allows for non- ADUs of the same placement and size to have both. However, because detached ADUs are permitted to be built much closer to the property line than primary dwelling units (and attached ADUs), staff propose continuing to prohibit the projections of bay windows and balconies into setbacks for those types of ADUs citywide.
In addition to these technical revisions, a number of the standards have been changed to match State law. Table 3 provides the proposed development standards and the rationale informing the recommended changes. This table does not include all ADU development standards; it only includes the standards that are proposed to be amended.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Table 3: Proposed Revisions to ADU Development Standards & Rationale Basic Standard Proposed Standards Rationale/Intent
Building Height,
Maximum
Detached, New Construction – 20 ft.
The maximum building height for
Attached, New Construction has
been increased from 20 ft. to 25 ft.
to match State law (SB 897). The
current maximum building height for
Detached New Construction already
exceeds the 18 ft. required by State
law.
Attached, New Construction – 25 ft.
Lot Line
Setbacks,
Minimum
Front of Interior Lot – Same as underlying
district
Staff propose adding a standard for
front setbacks on through lots to
ensure that there are standards for
such parcels, consistent with existing
regulations for Accessory Buildings.
Front of Through Lot - Same as
underlying district or 10 ft. on the
secondary frontage as determined by the
Zoning Officer
Building
Separation for
Detached ADU,
Minimum
3 ft.
To conform with Building Code’s
definition of attached versus
detached buildings, staff propose
adding a minimum building
separation standard (in addition to a
Detached ADU supplemental
standard – see below).
Required Off-
Street Parking
Spaces
See 23.322.030 – Required Parking
Spaces
Move to BMC 23.322 – Parking and
Loading to be consistent with other
parking standards.
Supplemental
Standard
State Exemption
ADU
No lot coverage, floor area ratio, open
space, front setback, or minimum lot size
standard in the underlying district shall
preclude at least an 800 square foot
accessory dwelling unit.
To match the State Law.
Junior ADU
Shared
Sanitation
Facility
If a Junior ADU shares a sanitary facility
with a single family dwelling, an internal
connection between the Junior ADU and
the main living area of the single family
dwelling is required.
To match the State Law.
Junior ADU
Floor Area
The Junior ADU gross floor area
calculation excludes any shared
sanitation facility with the single family
dwelling.
To clarify the rules of measurement
for gross floor area if a sanitation
facility is shared.
Detached or
Attached ADU
If an ADU is located within 3 feet of an
exterior wall of a main building, it is
considered attached.
See the rationale/intent for
establishing a Building Separation,
Minimum (above).
AUP for Addition over 14 feet. While this section does not regulate residential additions, staff note that attached ADUs proposed as residential additions over 14 feet would be required to receive AUP approval in order to reach their maximum allowable height (they can now go up to 25 feet – see Table 3).11 Removing the AUP process would be in keeping with the State’s intent to streamline the ADU development process and further remove barriers to
11 Residential additions can go up to 14 ft., but require an AUP to go up to 28 ft.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
development. The Planning Commission is asked to consider removing the AUP requirement for residential additions for attached ADUs.
23.306.040 Accessory Dwelling Units (Per
mit Procedures)
Under the current procedure, it is required that notice of an ADU application shall be mailed to owners and tenants of the subject, adjacent, confronting and abutting properties within ten working days of submission of a building permit to the Planning Department, and shall include the project address, allowable hours of construction, a link to the City’s ADU webpage, and information for tenants of the subject property on how to contact a Rent Board Housing Counselor. The cost of materials, postage, and staff time is paid for by the applicant – currently a fixed fee of $460.
The requirement for neighbor noticing presents a number of challenges for staff, applicants, and members of the public. ADU permits are building permits, and cannot be printed out or shared online with members of the public (unlike zoning permits). For neighbors interested in seeing proposed ADU plans, this means that they must visit the Permit Service Center in-person and look at the plans accompanied by a staff member.
Additionally, ADU permits are non-discretionary permits, so members of the public ultimately do not have a means of providing feedback on or appealing a proposed ADU.
Staff have found there is often an expectation from public posting or receiving notice of a proposed ADU that there is a public review process involved, and there is not.
Neighbor Noticing. While staff made no changes to Neighbor Noticing, with the exception of moving it to the Permit Procedures section, staff are asking Planning Commission to consider removing the Neighbor Noticing requirement.
23.322.020 Parking and Loading (Applicability)
Per AB 2097, no off-street parking may be required for an ADU or a Junior ADU if the lot is located within a 0.5 mile of public transit, as defined in PRC Section 21155. The City of Berkeley’s existing ADU ordinance already has provisions for reduced parking requirements within a 0.5 mile walking distance of public transit. To comply with AB 2097, staff recommend adding a location exemption for parking, which would state that “Off-street parking spaces are not required for new uses or buildings, or an enlargement or intensification of an existing use or structure, that is located within 0.5 miles of a major transit stop, as defined by Section 21155 of the California Public Resources Code, unless otherwise authorized by Government Code Section 65863.2.” This change will also be brought as a part of the State Law Technical Edits ordinance amendments package, which is why it is shown in blue in Attachment 1.
Staff propose amending BMC Tables 23.322-1, 23.322-2, and 23.322-4 to specify off- street parking standards for ADUs in Residential, Commercial, and Manufacturing Districts (previously specified in Chapter 23.306). Staff also propose amending Table
23.322-1 to bring the residential off-street parking standards into compliance with State law by allowing for one parking space per ADU unless it is located within 0.5 miles of
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
public transit as defined in Section 21155 of the Public Resources Code or it satisfies the criteria defined in subdivision (d) of Government Code Section 65852.2.
BMC 23.322.080(E)(2) Other Setback Areas
This section, formerly referred as BMC 23.322.080(D)(2), is recommended to be amended to include the following standards:
a. On a lot with an existing or proposed ADU, replacement of off-street parking for the main building or required off-street parking for an ADU, is allowed in any configuration on the lot, including within the front yard setback; or b. Within the Hillside Overlay on a lot with an existing or proposed ADU, where no legal off-street parking exists for the main building, required parking provided for the main building is allowed in any configuration on the lot, including within the front yard setback.
Currently, parking flexibility only applies to replacement parking for main dwelling units and new parking provided for an ADU. To account for ADU projects seeking to provide new parking spaces for both the main dwelling and the ADU, staff propose allowing for the same flexibility in lot configuration for the main dwelling unit’s proposed new parking space as is allowed for the ADU’s parking space. Encouraging off-street parking in the Hillside Overlay can mitigate safety and evacuation access concerns.
23.324.060 Exemptions to Nonconforming Uses, Structures, and Buildings
Notably, in the current ADU ordinance, minor alterations in nonconforming setbacks, such as for windows and doors, as well as minor excavations, require an AUP. To reduce the amount of process, time, and money for staff and applicants seeking to make minor alterations to their ADUs, staff propose allowing “by-right” alterations to nonconforming existing structures or buildings that are proposed to be converted to an ADU. Staff proposes to add BMC 23.324.060(C) to include the following standards:
C. Accessory Dwelling Units. The following additions or enlargements of a lawful nonconforming existing structure or building that is an existing ADU or proposed to be converted to an ADU are permitted with a Zoning Certificate:
1. Alterations of a portion of a building or structure (including windows and other openings) within a minimum required setback.
2. Alterations of a portion of a building or structure (including windows and other openings) exceeding the height limit.
23.502.020 Defined Terms
Junior ADU. Staff proposes relocating the definition for “Junior Accessory Dwelling Unit” within the definition of “Accessory Dwelling Unit” and striking out the reference to a working refrigerator in response to HCD’s findings.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Addition, Major Residential. The definition for “Addition, Major Residential” is recommended to be amended to add a subsection that exempts the floor area associated with an existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet, from qualifying. This would eliminate the requirement for an AUP to add an ADU or Junior ADU to a house, thus matching the State’s intent of streamlining the processing of ADU development locally.
Efficiency Kitchen. The proposed ordinance amends the definition of an “Efficiency Kitchen” by removing the requirement for a sink in response to HCD’s findings.
ENVIRONMENTAL REVIEW
The project is statutorily exempt from the California Environmental Quality Act by Guidelines Section 15282(h).
NEXT STEPS
Staff recommend that Planning Commission adopt the proposed revisions. The next step will be to advance these proposed revisions – as well as repeal of Chapter 12.99 – to City Council.
Public safety remains a significant concern regarding increasing density in the Hillside Overlay. As stated in California Government Code Section 51175, the Legislature has found that wildfires pose a serious threat to the preservation of the public peace, health and safety. The legislature has determined that it is necessary that all levels of government work to implement preventive measures to ensure the preservation of the public peace, health, and safety.
Due to these state- and locally-recognized safety concerns, staff are working with the Fire Department to collect additional data on the health and safety impacts of increased development in the Hillside Overlay. On March 14, 2022, the Fire Department was authorized by the City Manager to execute a contract with KLD Engineering, P.C., for Evacuation and Response Time Modeling from April 1, 2023 through June 30, 2024 as part of an effort to collect data and forecast the number of vehicles and people that may need to be evacuated during a wildfire or other emergency. 12 The study will also be
analyzing how major evacuation routes will operate under emergency conditions, and whether there would be any public safety impacts resulting from projected development of new ADUs, Junior ADUs, and their associated extra vehicles in the Very High Fire Hazard Severity Zone.
In addition to this study, the City is in the process of updating the Disaster and Safety Plan, which will similarly provide an opportunity to collect data and engage community
12 Revised Agenda, Berkeley City Council Meeting, March 14, 2023. Item 4: Contract: KLD Engineering, P.C. for Evacuation and Response Time Modeling From: City Manager. https://berkeleyca.gov/sites/default/files/city-council-meetings/2023-03- 14%20REVISED%20Agenda%20Packet%20-%20Council%20%28WEB%29.pdf
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
members, which could inform the making of findings to support the reinstitution of provisions or other controls on ADU production in the hills.
Staff plan to bring the Fire Department’s study findings, as well as other potential research and community engagement findings, back to Planning Commission and City Council by summer 2024.
ATTACHMENTS
1. Draft Amended Ordinance
2. Ordinance No. 7,797-N.S. (Chapter 23.306), dated January 18, 2022.
3. Ordinance No. 7,799-N.S. (Chapter 12.99), dated January 25, 2022.
4. Letter from HCD - Review of Berkeley’s Accessory Dwelling Unit (ADU) Ordinance under State ADU Law (Gov. Code, § 65852.2), dated October 17, 2022.
5. Public Hearing Notice
Attachment 4
NOTICE OF PUBLIC HEARING – BERKELEY CITY COUNCIL
Adoption of Zoning Ordinance Amendments to Title 23 and Repeal of Chapter
12.99 of the Berkeley Municipal Code to bring the Accessory Dwelling Unit (ADU) Ordinance into Compliance with State Law & Guidance
The Department of Planning and Development is proposing Zoning Ordinance Amendments to Title 23 and the repeal of Chapter 12.99 of the Berkeley Municipal Code to respond to recent changes in Accessory Dwelling Unit (ADU) and Junior Accessory Dwelling Unit (Junior ADU) State laws that took effect on January 1, 2023 and a letter from the California Department of Housing and Community Development (HCD) requiring the City of Berkeley take action to bring its Ordinance into compliance with State ADU Law. The amendments would modify the following sections: BMC Chapter 12.99 and Sections 23.106 (Rules of Measurement), 23.306 (Accessory Dwelling Unit (ADU) Ordinance), 23.322 (Parking and Loading), 23.324.060 (Exemptions to Nonconforming Uses, Structures, and Buildings), and 23.502.020 (Defined Terms) relating to ADUs. The proposed amendments also include conforming technical edits to the BMC (for example, renumbering of tables and figures).
The project is statutorily exempt from the California Environmental Quality Act by Guidelines Section 15282(h), the adoption of an ordinance regarding second units in a single-family or multifamily residential zone by a city or county to implement the provisions of Sections 65852.1 and 65852.2 of the Government Code as set forth in Section 21080.17 of the Public Resources Code.
The hearing will be held on Tuesday, July 25, 2023 at 6:00 PM. in the Berkeley Unified School District Board Room located at 1231 Addison Street, Berkeley CA 94702.
A copy of the agenda material for this hearing will be available on the City’s website at www.berkeleyca.gov as of July 13, 2023. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology, as well as any health and safety requirements for in-person attendance.
For further information, please contact Zoe Covello, Assistant Planner, at 510-981- 7418.
Written comments should be mailed or delivered directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or e-mailed 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
or in person to the City Clerk. 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: July 14, 2023 – The Berkeley Voice
Public Hearing required by BMC 23.412.050 and Govt Code 65853; notice provided according to Govt Code 65090 and BMC 23.404.040.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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 July 13, 2023.
__________________________________
Mark Numainville, City Clerk
Internal
Office of the Mayor
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7100 ● TDD: (510) 981-6903 ● Fax: (510) 981-7199 E-Mail: [email protected]
ACTION CALENDAR
September 19, 2023
To: Honorable Members of the City Council
From: Mayor Arreguin (Author), Councilmember Robinson (Author), Councilmember Wengraf (Co-Sponsor)
Subject: Authorizing the City Attorney to Submit an Amicus Brief in Support of the UC Regents in Make UC a Good Neighbor v. Regents of University of California
RECOMMENDATION
Adopt a Resolution Authorizing the City Attorney to submit an amicus brief in support of the University of California Regents’ in Make UC a Good Neighbor v. The Regents of University of California, currently before the California State Supreme Court on appeal.
BACKGROUND
In 2021, Make UC a Good Neighbor filed a lawsuit against the Regents of University of California, arguing that the Environmental Impact Report (EIR) for the University’s planned development at People’s Park and its 2021 Long Range Development Plan violates the California Environmental Quality Act (CEQA). In August 2022, the Alameda County Superior Court ruled that construction could proceed, and that the proposed development does not violate CEQA. However, construction was placed on pause, and shortly following an appeal by the plaintiff, the State Court of Appeals issued a stay order pausing construction.
On February 24, 2023, the California Court of Appeals in the First District issued a ruling that effectively halted the proposed project at People’s Park by noting that student residents generate negative external impacts due to noise, and that these impacts must be mitigated by the University. Such noise is argued to have the potential to disrupt neighboring residential areas, despite the fact that such concerns are already addressed through the City of Berkeley’s Noise Ordinance and UC Berkeley’s Residential Code of Conduct. In addition, the decision ruled that the University did not conduct a thorough review of alternative sites in addition to People’s Park for the planned housing project. Shortly after the ruling, the University announced its intent to appeal the decision to the California Supreme Court. The ruling received widespread condemnation, including from the Governor and Lieutenant Governor.
On March 21, 2023, the Berkeley City Council authorized the City Attorney to file an amicus curiae letter in support of UC’s petition for review in the California State Supreme Court, a copy of the filed amicus letter is attached. The University appealed the decision
Internal
Authorizing Amicus Brief in Support of the UC Regents ACTION CALENDAR September 19, 2023
to the Supreme Court in April, and the court granted review shortly thereafter. The case is currently pending before the State Supreme Court for adjudication.
On August 28, 2023, the California State Legislature approved Assembly Bill (AB) 1307, which amends the Public Resources Code to clarify that the noise generated by the occupants or guests of a housing project is not a significant impact required to be studied under CEQA. The bill also provides that an EIR need not consider alternatives to the project if specific conditions are met. Senate amendments provide that a public university need not study alternative locations for a residential or mixed-use project if it is on a site of no more than 5 acres and surrounded by urban uses and the project has been evaluated in a recent EIR for the campus long-range development plan. The bill is now on Governor Newsom’s desk for signature. If signed, the bill would take effect immediately.
Despite the passage of AB 1307 which amended CEQA to clarify two key findings in the case, the issue still needs to be adjudicated in the Supreme Court before construction of the People’s Park housing project can commence.
The Supreme Court must apply the new statute to this case and determine that the EIR for the project met legal requirements. The trial court determined that the EIR was legally adequate, and the city’s contention is that the EIR meets legal requirements and adequately studies and mitigates any impacts.
Resolution of this case is critical to advance an important project providing over 1,000 beds of needed student housing and 125 units of permanent supportive housing. The City has committed $14.5 million in housing funds to support the construction of the 125 unit supportive housing project at People’s Park. It is in the city’s interest to intervene in this case and file an amicus brief in support of UC’s position.
Rationale for recommendation
The construction of this development is essential to reducing strain on our housing market and providing needed housing for our unhoused residents. The City has partnered with the University to ensure that its development of the People’s Park site serves the interests of students, of the Berkeley community, and especially of unhoused residents. The University’s development plans for the site will provide over 1,000 units of urgently needed housing for students and over 100 units of permanent supportive housing for unhoused residents.
A portion of the planned development on People’s Park will be set aside for the construction of a permanent supportive housing development that will end homelessness for dozens of unhoused residents by providing over 100 units of badly needed permanent supportive housing (PSH). The City has already committed $14.5 million 1 to the construction of this planned permanent supportive housing. Permanent supportive 1 2021 Housing Trust Fund Request for Proposals Funding Reservations
Internal
Authorizing Amicus Brief in Support of the UC Regents ACTION CALENDAR September 19, 2023
housing has been proven to end homelessness by combining wraparound services with stable, permanent housing for unhoused people.2
In addition to committing funding to the permanent supportive housing project that will be built on-site, the City is working in partnership with the University to provide temporary housing at the former Rodeway Inn for unhoused residents who previously resided at People’s Park.
The City has committed millions of dollars to providing housing to the unhoused residents who previously resided at People’s Park — both by committing to fund the permanent supportive housing development the University is planning on-site and by partnering with the University to make the Rodeway Inn available as temporary housing and, now, potentially as permanent supportive housing.
In addition to the impact this decision has on the People’s Park project, this new interpretation of CEQA concluding that the noise impacts of the residents of a housing project must be studied and mitigated has the potential to delay or derail the construction of student housing off-campus in the city’s jurisdiction. The City is currently developing new zoning in the Southside area immediately adjacent to the UC Berkeley campus. This decision could enable parties who oppose student housing, affordable housing or any kind of residential or commercial development to delay projects arguing that noisy occupants are an environmental impact.
FINANCIAL IMPLICATIONS
This resolution has no direct financial implications. However, further delay of the University’s development project at People’s Park may cause the City to incur costs to continue temporarily housing unhoused residents, in addition to additional staff time.
ENVIRONMENTAL SUSTAINABILITY
None.
CONTACT PERSON
Mayor Jesse Arreguín 510-981-7100
Councilmember Rigel Robinson 510-981-7170
Attachments:
1: Resolution
2: April 20, 2023 Amicus Curiae Letter in Support of Petition for Review in Make UC a Good Neighbor et al. v. The Regents of the University of California (Resources for Community Development)
2 Permanent Supportive Housing - National Alliance to End Homelessness
Internal
RESOLUTION NO. ##,###-N.S.
RESOLUTION AUTHORIZING THE CITY ATTORNEY TO FILE AN AMICUS BRIEF IN
SUPPORT OF THE UC REGENTS PETITION FOR REVIEW IN MAKE UC A GOOD NEIGHBOR V. THE REGENTS OF UNIVERSITY OF CALIFORNIA
WHEREAS, students are an essential part of the community of the City of Berkeley; and WHEREAS, the City of Berkeley has committed $14.5 million to the construction of permanent supportive housing units to provide essential permanent housing to unhoused community members in the University’s planned housing development at People’s Park; and
WHEREAS, The University of California has demonstrated through a thorough environmental impact report its commitment to identifying and mitigating any impacts caused by the housing development at People’s Park; and WHEREAS, the February 23, 2023 decision by the Court of Appeals of the State of California states that the Regents of University of California ought to have considered alternative sites in their CEQA analysis; and
WHEREAS, the February 23, 2023 decision also interprets student noise to be an admissible negative impact under the California Environmental Quality Act; and WHEREAS, on March 21, 2023, the Berkeley City Council authorized the City Attorney to file a letter in support of the UC Regents’ petition for review in the California Supreme Court. The city’s amicus letter was filed on April 20, 2023; and WHEREAS, the California State Supreme Court granted review of the case in April and it is pending hearing in the court; and
WHEREAS, the court concluded that the noise impacts of the residents of a housing project must be studied and mitigated has the potential to delay or derail the construction of student housing off-campus in the city’s jurisdiction; and WHEREAS, the City is currently developing new zoning in the Southside area immediately adjacent to the UC Berkeley campus; and
WHEREAS, this decision could enable parties who oppose certain student housing, affordable housing or residential or commercial developments to delay projects arguing that noisy occupants are an environmental impact; and
Internal
[Title of Report] ACTION CALENDAR
September 19, 2023
WHEREAS, on August 28, 2023, the California Legislature gave final passage to Assembly Bill 1307 (Wicks) which amends the Public Resources Code to clarify that the noise generated by occupants or guests of a residential housing project is not an impact under CEQA. The bill also clarifies that if a university has studied a residential project in an EIR for a long-range development plan, analysis of additional project locations is not needed; and
WHEREAS, the bill is currently on Governor Newsom’s desk for signature. If adopted, it would take effect immediately; and
WHEREAS, Given the adoption of AB 1307, the Supreme Court must apply the new law to this case, if the bill is signed by the Governor. The Court must also find that the project EIR is legally adequate; and
WHEREAS, the City’s contention is that the project EIR is legally adequate and is the result of several years of public input including written comments by the City and verbal comments by the City Council; and
WHEREAS, given the critical shortage of student housing and affordable housing, it is in the City’s interest to intervene in this case in support of the UC Regents in order to ensure that the People’s Park housing project can proceed to construction.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Attorney is hereby authorized to submit an amicus brief in support of the UC Regents in the Supreme Court of the State of California in Make UC a Good Neighbor v. The Regents of University of California.
2180 Milvia St., 4th Flr., Berkeley, CA 94704 Tel: 510.981.6998 TDD: 510.981.6903 Fax: 510.981.6960 E-mail: [email protected]
Office of the City Attorney
April 20, 2023
Chief Justice Patricia Guerrero and
Associate Justices
Supreme Court of California
350 McAllister Street
San Francisco, CA 94102-4783
Re: Supreme Court Case No. S279242: Amicus Curiae Letter in Support of Petition for Review in Make UC a Good Neighbor et al. v. The Regents of the University of California (Resources for Community Development)
Dear Honorable Chief Justice Patricia Guerrero and Associate Justices:
Pursuant to Rule 8.500(g) of the California Rules of Court, the City of Berkeley respectfully requests that the Supreme Court grant the Petition for Review of filed in Make UC a Good Neighbor et al. v. The Regents of the University of California (Resources for Community Development), Supreme Court Case No. S279142.
The Petition seeks review of the published opinion of the Court of Appeal, First District, Division Five, which held that Petitioner The Regents of the University of California (“the Regents”) violated the California Environmental Quality Act (“CEQA”) by not analyzing the potential noise impacts of constructing urgently needed student housing at the University of California, Berkeley (“UC Berkeley”). As the Petition states, this holding could set new and dangerous precedent that public agencies must analyze and mitigate not just environmental impacts of projects, but also perceived social impacts that may be caused by their intended occupants as well. This added layer of analysis, coupled with the potential for stereotypes and biases to affect it, finds no basis in CEQA—the State’s principal environmental protection law—and could significantly disrupt and delay much-needed housing development across the state. For this reason, the City of Berkeley urges the Court to grant the Petition for Review.
I. Statement of Interest of Amicus Curiae
The City of Berkeley is a charter city duly organized and existing under Government Code sections 34000, et seq. It is also the home of UC Berkeley. As such, Supreme Court of California
Jorge E. Navarrete, Clerk and Executive Officer of the Court Electronically RECEIVED on 4/20/2023 1:39:08 PM
Supreme Court of California
Jorge E. Navarrete, Clerk and Executive Officer of the Court Electronically RECEIVED on 4/20/2023 1:39:08 PM
Chief Justice Patricia Guerrero
and Associate Justices
April 20, 2023
the City is keenly aware of the need for additional, on-campus student housing. The lack of such student housing at UC Berkeley has had ripple effects throughout the community for years. Not only does it lead to significant disadvantages for UC Berkeley students— ranging from unaffordable housing to overcrowded living conditions off-campus to student homelessness—but it also places significant strain on the City’s housing market for other residents, increasing housing prices and displacing long-time members of the community. According to the Terner Center for Housing Innovation at UC Berkeley, “Racial disparities in the region’s migration patterns are pronounced: Hispanics and Blacks make up a disproportionately large share of low-income out-movers, and are more likely than others to move to the more affordable parts of California.” available at:
https://ternercenter.berkeley.edu/wp-content/uploads/pdfs/Disparity_in_Departure.pdf).
The impacts of this housing strain are felt most acutely by the City’s historically disadvantaged, minority communities.
The City is also aware of the desperate need for supportive housing for the region’s unhoused residents. According to recent counts, there are nearly 1,000 people living without shelter in the City of Berkeley. City of Berkeley Homeless Count and Survey Comprehensive Report 2019 at 13 (available at https://everyonehome.org/wp- content/uploads/2019/09/2019HIRDReport_Berkeley_2019-Final.pdf). When asked, approximately 42% of these unhoused residents indicated that they suffered from “psychiatric or emotional conditions,” while over 30% indicated they had drug or alcohol abuse issues and/or PTSD. Id. at 34. To address these issues, the City has prioritized “[c]reat[ion of] affordable housing and housing support services for our most vulnerable community members” in its long-term planning. (See City of Berkeley Strategic Plan, summarized at https://berkeleyca.gov/your-government/our-work/strategic-plan.) Given this backdrop, the City strongly supported the Regents’ plan to build more than 1,000 units of student housing and more than 100 units of permanent supportive housing for unhoused residents on the UC Berkeley campus. The City worked with the Regents to ensure that this development would serve the interests of students and the community, especially its unhoused members.
In fact, the City committed $14.5 million to the construction of the supportive housing project. Permanent supportive housing has been proven to end homelessness by combining wraparound services with stable, permanent housing for unhoused people. The City is also working in partnership with the Regents to provide temporary housing for unhoused residents who previously resided on the project site, which is known as People’s Park.
Because of the City’s geographic, historic, and financial connection to the project at issue in this case, it submits this letter in support of granting review.
Chief Justice Patricia Guerrero
and Associate Justices
April 20, 2023
II. Review by this Court is necessary to ensure that CEQA analysis remains focused on environmental impacts, not social impacts perceived to be associated with particular groups of people.
The Supreme Court may grant review of an appellate decision to secure uniformity of the law and to settle important legal questions. (California Rules of Court, rule 8.500, subd. (b)(1).) Here, the legal question at issue is whether the CEQA (Public Resources Code sections 21100 et seq.) requires public agencies to consider, analyze and mitigate potential project impacts caused by perceived social traits of the people who will ultimately inhabit the project. The court of appeal answered this question in the affirmative, opening the door to an entirely new realm of analysis—and entirely new bases for legal challenge under CEQA.
As the Petition notes, requiring this new analysis could dramatically impact the process for approving not only the project at issue in this case, but all projects designed to house groups of people that have historically been excluded from our communities due to racism, classism, and other prejudice. It does not require much imagination to envision the comment letters the City and others will face when processing future affordable housing projects, group homes, senior facilities, daycare centers, rehabilitation facilities, etc., if this ruling is allowed to stand. Not only could these comments slow down the development process substantially, but they may also require special “mitigation” for such impacts, making these much needed projects ever more expensive to develop.
CEQA does not require this result. The purpose of CEQA is to require public agencies to consider, minimize, and mitigate the environmental impacts of their actions. (See, e.g., Pub. Resources Code, §§ 21100 [EIRs are required for projects that “may have a significant effect on the environment”], 21151.) Economic and social changes, on the other hand, are not required to be addressed under this statute. (See, e.g., CEQA Guidelines §§ 15064, subdivision (e) [“[e]conomic and social changes resulting from a project shall not be treated as significant effects on the environment”], 15382 [“[a]n economic or social change by itself shall not be considered a significant effect on the environment”]; Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 577 [CEQA does not require analysis of a project’s impacts on “community character”].) The court of appeal’s decision to expand CEQA’s focus in this case and require analysis of impacts associated with student parties is especially misguided here, given that the purpose of the project is to alleviate overcrowding in student housing and reduce the need for students to live off-campus in Berkeley’s residential neighborhoods, where many of the noise complaints cited by the Court of Appeal occur. (See, e.g., Make UC a Good Neighbor v. Regents of the University of California (2023) 88 Cal.App.5th 656, 686 [“noise from student parties is a problem in Berkeley’s residential neighborhoods near the campus”]; id. [“In 2007, the City of Berkeley found that parties in residential
Chief Justice Patricia Guerrero
and Associate Justices
April 20, 2023
areas “frequently become loud and unruly,” cause “excessive noise,” and constitute a public nuisance].) The City is directly involved with the issues of off-campus “mini- dorms,” which include large, single family homes in residential neighborhoods rented to numerous students with no oversight from the University, and adopted an ordinance regulating them due to their potential neighborhood impacts. (See generally Berkeley Municipal Code Chapter 13.42)
But the project at issue in this case is designed to address the reason why these problematic “mini-dorms” have sprung up in residential neighborhoods in the first place:
the lack of sufficient on-campus student housing. (See Berkeley Municipal Code § 13.42.010(A).) The student housing proposed for People’s Park would be supervised, unlike these “mini-dorms,” with on-site Resident Assistants, Resident Directors, and a Residential Code of Conduct and a formal Residential Conduct Process. Thus, in addition to being inconsistent with the purpose of CEQA, the court of appeal’s decision also appears to mistake the remedy for the cause of the neighborhood impacts alleged in the case.
For all of these reasons, the City supports the Regents’ Petition for Review. Thank you for your consideration of our views.
Very truly yours,
Farimah Faiz Brown
City Attorney
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]
Rashi Kesarwani
Councilmember, District 1
ACTION CALENDAR
September 19, 2023
TO: Honorable Mayor and Members of the City Council
FROM: Councilmember Kesarwani (Author), Councilmember Taplin (Co- Sponsor), Councilmember Robinson (Co-Sponsor), Councilmember Wengraf (Co-Sponsor)
SUBJECT: Referral to Rezone Gilman Street to Maximize Revenue Productivity Per Acre
RECOMMENDATION
Refer to the City Manager and Planning Commission to rezone Gilman Street—a major thoroughfare for entering and exiting the City—from San Pablo Avenue to Interstate 80 to maximize revenue-generating and job-creating uses. Specifically, the rezoning of Gilman Street should consider the following:
● Potential for applying the Manufacturing, Research and Development (M-RD) zoning district currently planned for the Pacific Steel Casting site to a portion of Gilman Street. The M-RD zoning district seeks to better align with development interest by: allowing research and development, office, laboratory, and light manufacturing uses currently not permitted by the existing Manufacturing (M) zoning; and removing protections for existing manufacturing uses and constraints associated with certain development standards; and/or
● Consider a new zoning designation for a portion of Gilman Street west of San Pablo Avenue to I-80 that maximizes revenue productivity per acre via permitted uses and associated development standards; and ● Extend West Berkeley Commercial District (C-W) zoning on Gilman Street from Ninth Street further west for a certain number of blocks and enhance the flexibility of C-W development standards to increase the likelihood of redevelopment—in coordination with “Keep Innovation in Berkeley” Council referral (passed on Sept. 13, 2022) that seeks to allow research and development uses in C zones.1
1 Robinson, Rigel, Item #30 Referral: Keep Innovation in Berkeley, https://berkeleyca.gov/sites/default/files/documents/2022-09-
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]
Refer $250,000 to the FY 2024-25 budget process for consulting services to assist with the planning process and associated environmental review and economic analyses.
CURRENT SITUATION AND ITS EFFECTS
Current Gilman Street Zoning Not Aligned to Development Interest. Gilman Street is a major thoroughfare connecting North Berkeley to I-80. Currently, Manufacturing (M) zoning covers four blocks from I-80 to the west side of Fifth Street. Mixed Use Light Industrial (MU-LI) spans four blocks from the east side of Fifth Street to the west side of Ninth Street. West Berkeley Commercial District (C- W) applies to two blocks from the east side of Ninth Street to the east side of San Pablo Avenue. The current M zoning encourages heavy manufacturing uses that are misaligned with growing innovation sectors in need of biotechnology laboratories, warehouse and commercial uses, and office space.2 The new Manufacturing, Research and Development (M-RD) zoning for the Pacific Steel Casting site is proposed to align to growing economic sectors and expand the City’s tax base, with the following key features:
● Support a mix of uses, such as light manufacturing and research and development (R&D), particularly those which retain a diversity of employment opportunities in West Berkeley and can provide high-quality employment for people at all educational levels and add significantly to the tax base; ● Allow office and laboratory uses that support light industrial and R&D uses, and provide for high employment density;
● Provide opportunities for an urban campus-like environment with high-quality design and site planning that includes amenities for employees and visitors; and
● Support the development of industrial uses which satisfy performance standards that protect the environment.3
City’s Office of Economic Development 2023 Report Cites Unmet Demand to Locate in West Berkeley Among Innovation Sector Industries. A City of Berkeley Office of Economic Development (OED) report from February 2023 notes that innovation companies spin out of University of California, Berkeley and the Lawrence Berkeley National Lab, fueled by campus-based accelerators like Berkeley SkyDeck, Bakar Labs, and CITRIS Foundry or the Berkeley Lab’s science-based entrepreneur 13%20Item%2030%20Referral%20Keep%20Innovation%20in%20Berkeley.pdf, Sept. 13, 2022 Regular City Council Meeting
2 Planning Commission Agenda Packet, Item #12 Pacific Steel Casting Zoning and General Plan Amendments and EIR Update, https://berkeleyca.gov/sites/default/files/legislative-body-meeting- agendas/2023-03-01%20PC%20Agenda_packet-edit_0.pdf, March 1, 2023, p. 63 3 Planning Commission Agenda Packet, Item #12 Pacific Steel Casting Zoning and General Plan Amendments and EIR Scoping Session, https://berkeleyca.gov/sites/default/files/legislative-body- meeting-agendas/2023-02-01%20PC%20Agenda%20Packet_0.pdf, Feb. 1, 2023, p. 90
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]
mentorship program, Activate – Berkeley (also known as Cyclotron Road).4 Innovation sector industries—including software, life sciences, clean technology, food tech, and other science, technology, engineering and math (STEM) industries— that have grown out of Berkeley institutions often seek to locate their enterprises in the City of Berkeley, but face land-use restrictions that are hard to navigate, according to the OED report.5 Berkeley’s location in the inner Bay Area and its position as an engine of major innovation and entrepreneurship means that it is well positioned to attract a greater share of R&D and advanced manufacturing uses to West Berkeley under the right set of allowable land uses and development standards.
Significant Economic Benefits Are Associated with West Berkeley Zoning that Can Attract A Greater Share of Innovation Sector Industries. Research and development (“R&D”) refers to a land-use defined in the City’s zoning code, but also to “an industry and set of activities that companies undertake to create innovative, commercially-viable products and services,” according to the OED report. Berkeley’s R&D industry includes the following sectors: software, life sciences (biotechnology and health care), hardware, clean tech, and food and beverage. These sectors are growing, with life sciences a leading source of U.S. employment growth, according to the OED report. Average annual salaries for R&D-intensive industries are 2.2 times higher than the $62,000 average annual salary for traditional manufacturing industries in the Bay Area.6 We note additional economic benefits associated with this sector:
● Jobs for People of All Education Levels. R&D-intensive industries employ many types of technicians with associate’s or community college degrees.
Nearly half of all life sciences employees in Alameda County do not have a bachelor’s degree.7 Further, this sector can offer educational opportunities and career pathways for Berkeley Unified School District and Berkeley City College students.
● Economic Multiplier Effect. In Alameda County, every one direct job in the life science industry creates 3.18 jobs overall.8 Life sciences campuses, such as 4 Office of Economic Development, The Innovation Ecosystem in West Berkeley: An Economic Snapshot, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2023-02- 01%20PC%20Agenda%20Packet_0.pdf, Feb. 1, 2023, p. 140
5 Office of Economic Development, The Innovation Ecosystem in West Berkeley: An Economic Snapshot, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2023-02- 01%20PC%20Agenda%20Packet_0.pdf, Feb. 1, 2023, p. 141
6 Office of Economic Development, The Innovation Ecosystem in West Berkeley: An Economic Snapshot, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2023-02- 01%20PC%20Agenda%20Packet_0.pdf, Feb. 1, 2023, p. 137
7 Office of Economic Development, The Innovation Ecosystem in West Berkeley: An Economic Snapshot, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2023-02- 01%20PC%20Agenda%20Packet_0.pdf, Feb. 1, 2023, p. 138
8 Office of Economic Development, The Innovation Ecosystem in West Berkeley: An Economic Snapshot, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2023-02- 01%20PC%20Agenda%20Packet_0.pdf, Feb. 1, 2023, p. 137
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]
the one expected at the Pacific Steel Casting site, typically rely on unionized construction labor and will create hundreds of temporary construction jobs. ● Enhancing Jobs-Housing Balance Within Berkeley. Rezoning Gilman Street has the potential to create job opportunities for Berkeley residents who currently commute elsewhere for these same jobs, thereby improving Berkeley’s job-housing balance and reducing negative impacts associated with lengthy commutes.
● Neighborhood Vitality and Expanded Tax Base. Underutilized or vacant parcels in West Berkeley can become magnets for unwelcome activities, including crime, graffiti, illegal dumping and problematic street behavior that negatively impacts nearby businesses and drains City staff resources.
Rezoning Gilman Street helps to ensure that parcels turn over quickly for productive uses that generate revenue, create jobs, and grow the City’s tax base.
Pacific Steel Casting Case Study Shows Zoning Modifications Can Be Used to Attract Investment and Promote Economic Development in West Berkeley. The M-RD zoning district planned for the Pacific Steel Casting site seeks to revitalize this vacant blighted ten-acre property. In April 2021, the City Council unanimously passed a referral to rezone the Pacific Steel Casting property, citing numerous issues of public concern, including neighborhood blight, environmental contamination, and hundreds of former Pacific Steel Casting employees owed their pension benefits from the bankrupt former employer.9 This referral initiated the City’s development of the planned M-RD zoning district. In August 2023, Berkeleyside reported that the ten-acre parcel had been acquired by a development team with the goal of transforming the property into a life sciences campus, demonstrating the importance of zoning modifications to attract investment and promote economic development.10 The project is estimated to create more than 2,700 permanent life science related jobs on site, with an additional 405 jobs for supporting and service employment.11 The acquisition and redevelopment will also remediate environmental contamination and fund pensions owed to workers.
BACKGROUND
9 Kesarwani, Rashi, Item #35 Referral to the Planning Commission to Establish a Zoning Overlay at the Pacific Steel Casting Property, https://berkeleyca.gov/sites/default/files/documents/2021-04- 20%20Item%2035%20Referral%20to%20the%20Planning%20Commission.pdf, April 20, 2021 Regular City Council Meeting
10 Savidge, Nico, Pacific Steel site sold in step toward major new life sciences campus, https://www.berkeleyside.org/2023/08/02/pacific-steel-site-sold-in-step-toward-major-new-life- sciences-campus, Berkeleyside, Aug. 2, 2023
11 Office of Economic Development, The Innovation Ecosystem in West Berkeley: An Economic Snapshot, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-agendas/2023-02- 01%20PC%20Agenda%20Packet_0.pdf, Feb. 1, 2023, p. 146
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]
West Berkeley Plan Approved 30 Years Ago With Few Revisions to Date. The West Berkeley Plan was adopted by the Berkeley City Council in 1993. The plan, which created a new set of land uses and zoning districts for West Berkeley, was the first set of revisions since the Special Industrial Zone was created in 1956.12 The West Berkeley Plan, like the City’s General Plan and other neighborhood-specific area plans, states the community’s priorities and values and helps guide development within the area. Its six established elements—land use, economic development, environmental quality, transportation, physical form (urban design), housing and social services—provide a framework for policies and development within the area, with the ultimate goal of improving the quality of urban life for West Berkeley residents. The Plan Concept and Vision portion notes that the area plan and policies were developed to extend through 2005.13 While amendments to the West Berkeley Plan were adopted in 2011, no significant revisions have since been adopted.14
FISCAL IMPACT
Staff time to implement the referral, and $250,000 for consulting services to assist with the planning process and associated environmental review and economic analyses.
ENVIRONMENTAL IMPACT
Underutilized or vacant parcels in West Berkeley can become magnets for crime, graffiti, illegal dumping, and problematic street behavior that negatively impacts nearby businesses. Rezoning Gilman Street can help to ensure that parcels turn over quickly for productive uses that remediate any existing environmental hazards, generate revenue, and create jobs.
CONTACT PERSON
Councilmember Rashi Kesarwani, District 1 (510) 981-7110 12 West Berkeley Plan, https://berkeleyca.gov/sites/default/files/2022- 03/12_14_1993%3B%20CLK%20-
%20Resolution%3B%20City%20Council%3B%2057301%3B%20West%20Berkeley%20Area%20Pla n%3B.pdf, Dec. 14, 1993, p. 169
13 West Berkeley Plan, https://berkeleyca.gov/sites/default/files/2022- 03/12_14_1993%3B%20CLK%20-
%20Resolution%3B%20City%20Council%3B%2057301%3B%20West%20Berkeley%20Area%20Pla n%3B.pdf, Dec. 14, 1993, p. 164
14 Proposed Amendments to the West Berkeley Plan, https://berkeleyca.gov/sites/default/files/2022- 03/3_22_2011%3B%20CLK%20-
%20Resolution%3B%20City%20Council%3B%2065210%3B%20%3B%20West%20Berkeley%20Proj ect_%20Amending%20the%20West%20Berkeley%20Plan%20and%2C%20by%20Reference%2C%2 0the%20General%20Plan.pdf, March 22, 2011
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7110 ● Fax: (510) 981-7111 E-Mail: [email protected]
Office of the City Manager
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
INFORMATION CALENDAR
September 19, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Farimah Brown, City Attorney
Subject: Settlement with California River Watch of Notice of Intent to File Suit
INTRODUCTION
Under Berkeley Municipal Code section 2.06.120G, all settlements that are not announced at the conclusion of a closed session are provided to the Council and the public via an information report.
CURRENT SITUATION AND ITS EFFECTS
Pursuant to the Council’s authorization on July 24, 2023, the City has entered into the attached Settlement Agreement and Release.
BACKGROUND
The Berkeley Transfer Station collects and discharges stormwater, and therefore it is an industrial facility subject to certain permit requirements overseen by the State Water Resources Control Board under the federal Clean Water Act. As required by these authorities, the City has developed a Stormwater Pollution Prevention Plan (SWPPP) that includes (1) Best Management Practices (BMPs) to (a) minimize exposure of stormwater to the Transfer Station’s industrial activities, (b) control and contain stormwater to reduce discharges, and (c) provide basic treatment on site; and (2) procedures for discharge monitoring, sampling, and reporting.
On or about October 24, 2022, the City received a letter sent on behalf of California River Watch, alleging various violations of the City’s requirements to address stormwater discharges from the Berkeley Transfer Station. The letter is styled as a “Notice of Violations and Intent to File Suit Under the Federal Water Pollution Control Act (Clean Water Act)” (Notice), indicating River Watch’s intention to file suit in federal court based on its perception of violations of the Clean Water Act.
City staff and environmental consultants evaluated the Notice’s allegations and engaged with River Watch to identify specific BMPs and other SWPPP updates to address the alleged violations. On July 24, 2023, the Council agreed that these SWPPP updates and payment to River Watch of its claimed attorneys’ fees, in exchange for a release from River Watch, represented a positive and responsible resolution of the
Settlement with California River Watch of Notice of Intent to File Suit INFORMATION CALENDAR September 19, 2023
issues raised by the Notice. The attached Settlement Agreement and Release reflects the terms reached by the parties consistent with the Council’s approval.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The operational changes being implemented at the Berkeley Transfer Station can reasonably be expected to reduce the amount and increase the quality of any stormwater discharged from the facility, thereby reducing the City’s impact to local water resources.
POSSIBLE FUTURE ACTION
None considered.
FISCAL IMPACTS OF POSSIBLE FUTURE ACTION
Not applicable (no possible future actions considered).
CONTACT PERSON
Farimah Brown, City Attorney, 510-981-6950
Attachments:
1: Settlement Agreement and Release
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