Amendment to Contract No. 32400015 (California Consulting, Inc.) CONSENT CALENDAR March 26, 2024
will provide the City with high quality grant writing services to compete for these upcoming grant programs.
BACKGROUND
On July 27, 2023, the City executed contract no. 32400015 with California Consulting, Inc. for on-call grant writing services in an amount not to exceed $47,000 for the period of July 20, 2023 through July 20, 2024. For over twenty-seven years, California Consulting has provided grant writing services to cities, school districts, and other public entities throughout California. In the past five years, California Consulting has provided grant-writing assistance to the City of Berkeley for thirteen (13) competitive grants. To- date, the City has received four grant awards totaling $12.9 million, two were not awarded, and we will learn about another seven (7) grant award decisions in the next three to six months. A contract amendment with California Consulting will provide the City with the necessary capacity to submit competitive grant proposals as Notice of Funding Opportunities (NOFO’s) for grant programs are announced over the next two fiscal years.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no negative impacts to environmental sustainability and climate change associated with the contents of this report.
RATIONALE FOR RECOMMENDATION
In the past five years, California Consulting has provided grant-writing assistance to the City of Berkeley for thirteen (13) competitive grants. To-date, the City has received four grant awards totaling $12.9 million, two were not awarded, and we will learn about seven (7) grant award decisions in the next three to six months. California Consulting has a team of highly-qualified grant writers that will provide the City with the necessary capacity to submit competitive grant proposals as Notice of Funding Opportunities (NOFO’s) for grant programs are announced over the next two fiscal years.
ALTERNATIVE ACTIONS CONSIDERED
None
CONTACT PERSON
Scott Ferris, Director, Parks Recreation & Waterfront, (510) 981-6700 David Sprague, Fire Chief, (510) 981-6903
Jen Louis, Police Chief, (510) 981-5900
Carianna Arredondo, Assistant to the City Manager, City Manager’s Office, 510-981- 7655
Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
AMENDMENT TO CONTRACT NO. 32400015 WITH CALIFORNIA CONSULTING, Inc.
FOR ON-CALL GRANT WRITING SERVICES
WHEREAS, on November 15, 2021, the Bipartisan Infrastructure Law (BIL) enacted the Infrastructure Investment and Jobs Act by congress, which set up a wide variety of competitive grant programs for public agencies. These grant programs will fund billions in infrastructure projects and public safety programs across the U.S. over the next several years; and
WHEREAS, on July 27, 2023, the City executed contract no. 32400015 with California Consulting, Inc. for on-call grant writing services in an amount not to exceed $47,000 for the period of July 20, 2023 through July 20, 2024; and
WHEREAS, for over twenty-seven years, California Consulting has provided grant writing services to cities, school districts, and other public entities throughout California; and
WHEREAS, in the past five years, California Consulting has provided grant-writing assistance to the City of Berkeley for thirteen (13) competitive capital improvement grants. To-date, the City has received four grant awards totaling $12.9 million, two were not awarded, and we will learn about seven (7) grant award decisions in the next three to six months.
WHEREAS, funding for this contract amendment in the amount of $303,000 will come from the following funding sources: Reimagining Public Safety General Fund allocation ($153,000), Fire Department Measure FF allocation ($100,000), and a Parks Tax allocation ($50,000).
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute an amendment to Contract No. 32400015 with California Consulting, Inc. for grant writing services increasing the amount by $303,000 for a revised contract amount not-to-exceed $350,000, and extending the contract to June 30, 2026. A record signature copy of said contract will be on file in the Office of the City Clerk.
Office of the City Manager
1 CONSENT CALENDAR
March 26, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Andrew Murray, Interim Director of Public Works Subject: Fiscal Year 2025 Street Lighting Assessments – Initiating Proceedings
RECOMMENDATION
Adopt two Resolutions describing proposed improvements to be used to determine the annual assessments levied for Berkeley Street Lighting Assessment District No. 1982-1 and Street Lighting Assessment District No. 2018, and ordering the preparation of Engineer’s Reports.
FISCAL IMPACTS OF RECOMMENDATION
Staff will prepare the Engineer’s Reports for Berkeley Street Lighting Assessment District No. 1982-1 (1982 District) and Street Lighting Assessment District No. 2018 (2018 District). This effort to prepare the reports has been included in the budget process for the City’s operation and maintenance of the street lights. These reports will be prepared in accordance with the Landscaping and Lighting Act of 1972 (Act), promulgated in California Streets and Highways Code Section 22500 et seq., and are required to be prepared for each fiscal year (FY) for which assessments are to be levied and collected.
In FY 2025, the assessments for the 1982 District and the 2018 District will generate approximately $2.22 million in revenue for the Street Lighting program Fund 142.
CURRENT SITUATION AND ITS EFFECTS
The Act requires the City’s governing body adopt a resolution generally describing any proposed new improvements to be used to determine the annual assessments levied for the City’s street lighting districts, and order the preparation of Engineer’s Reports for the assessments. These are the first steps in allowing the City to levy and collect the assessments necessary to operate and maintain the street lighting districts. The improvements to be made in these assessment districts are generally described as maintenance and/or servicing of existing and future public lighting facilities including:
traffic signals; installation and construction of curbs, gutters, walls, sidewalks or paving; water, irrigation, or drainage related to operation of the public lighting facilities.
Collecting the street lighting fees are necessary to maintain and implement needed improvements and services to support the Strategic Plan goals of creating a resilient,
Initiating Proceedings - FY 2025 Street Lighting Assessment Districts CONSENT CALENDAR March 26, 2024
2 safe, connected, and prepared city and of providing state-of-the-art, well-maintained infrastructure, amenities, and facilities.
BACKGROUND
The 1982 District was established in accordance with the requirements of the Act on July 27, 1982 (Resolution No. 51,449-N.S.). The 2018 District was established in accordance with the requirements of the Act on June 12, 2018 (Resolution No. 68,482- N.S.). The Act requires the City prepare Engineer’s Reports for each fiscal year for which assessments are to be levied and collected. City staff and Consultants will prepare the reports in accordance with the Act.
The City’s original assessment structure for the 1982 District failed to generate sufficient revenue to sustain the long-term operations of the City’s Street Lighting Program (Program). For a period beginning in FY 2006 and running through FY2017 the City used General Funds to sustain operations necessary to the Program. To establish financial sustainability for the Program and to avoid significant reductions to service in the future, the City moved forward with the formation of the 2018 District. This district was formed separately from the 1982 District, leaving the 1982 District’s structure and rates in place. Assessments for the 2018 District were first levied in FY 2019. Allowable annual inflation adjustments of the 2018 District assessment rates are expected to raise revenues over the coming years.
The 2018 District boundaries are generally described as all accessor parcels within the City limits. A diagram is included in the Engineer’s Report filed in FY 2019. A diagram of the 1982-1 District is included in the 1983 Engineer’s Report prepared by John H.
Heindel.
ENVIRONMENTAL SUSTAINABILITY
The City exclusively uses LED (light emitting diode) street lighting. LED lights provide environmental benefits by: reducing the level of greenhouse gases emitted; reducing level of toxic materials disposed; maximizing energy cost savings; complying with the City’s illumination standards; and minimizing administration costs and staff time for street light maintenance. Assessing and levying the street lighting fees for the 1982 District and the 2018 District will allow the City to sustain environmental benefits of the LED lights.
RATIONALE FOR RECOMMENDATION
Failure to adopt Resolutions ordering the preparation of Engineer’s Reports for the City’s street lighting assessments would result in non-compliance of the requirements set forth in the Act. Failure to comply with the Act would jeopardize the City’s ability to levy and collect assessments in Fiscal Year 2025. The collection of these assessments is needed to establish financial sustainability for the Program and to avoid significant reductions in service.
Initiating Proceedings - FY 2025 Street Lighting Assessment Districts CONSENT CALENDAR March 26, 2024
3 CONTACT PERSON
Ronald A. Nevels, Manager of Engineering/City Engineer, (510) 981-6439 Srinivas Muktevi, Supervising Civil Engineer, (510) 981-6402 Ricardo Salcedo, Associate Civil Engineer, (510) 981-6407 Attachments:
1: Resolution – Initial Proceedings – Street Lighting Assessment District 1982-1 2: Resolution – Initial Proceedings – Street Lighting Assessment District 2018
RESOLUTION NO. ##,###-N.S.
INITIATE PROCEEDINGS FOR BERKELEY STREET LIGHTING ASSESSMENT DISTRICT 1982-1 FOR FISCAL YEAR 2025 AND ORDER CITY STAFF TO PREPARE AND FILE THE ENGINEER’S REPORT FOR FISCAL YEAR 2025
WHEREAS, on July 27, 1982, the Council of the City of Berkeley Adopted Resolution No. 51,449–N.S. that completed proceedings to form the Berkeley Street Lighting Assessment District No. 1982-1 pursuant to Chapter II of the Landscaping and Lighting Act of 1972 Streets and Highways Code Section 22585-22613; and
WHEREAS, Section 22622 of the Street and Highway Code requires the City Council to adopt a resolution generally describing any proposed new improvements to be used to determine the annual assessment levied for any assessment district created under the Landscaping and Lighting Act of 1972; and
WHEREAS, Section 22622 further requires that the City Council order the preparation of an Engineer’s Report prior to initiating proceedings to set the annual levy and collection of assessments for such assessment districts.
NOW THEREFORE, BE IT RESOLVED, by the Council of the City of Berkeley that improvements to be included in Berkeley Street Lighting Assessment District No. 1982-1 for assessing Fiscal Year 2025 fees are generally described as maintenance or servicing, or both, of existing and future public lighting facilities, including, but not limited to, traffic signals and the installation and construction of public lighting or the maintenance or servicing thereof, including but not limited to grading, clearing, removal of debris, installation and construction of curbs, gutters, walls, sidewalk or paving, or water, irrigation, or drainage related to operation of the public lighting facilities.
BE IT FURTHER RESOLVED, Pursuant to Street and Highways Code Section 22622, that City Engineer is hereby directed to prepare the annual Engineer’s Report prior to initiating proceedings to levy and collect the annual assessment for Berkeley Street Lighting Assessment District No. 1982-1 in Fiscal Year 2025.
Internal
RESOLUTION NO. ##,###-N.S.
INITIATE PROCEEDINGS FOR STREET LIGHTING ASSESSMENT DISTRICT 2018 FOR FISCAL YEAR 2025 AND ORDER CITY STAFF TO PREPARE AND FILE THE ENGINEER’S REPORT FOR FISCAL YEAR 2025
WHEREAS, on June 12, 2018, the Council of the City of Berkeley Adopted Resolution No. 68,432–N.S. that completed proceedings to form the Street Lighting Assessment District 2018 pursuant to Chapter II of the Landscaping and Lighting Act of 1972 (Act) Streets and Highways Code Section 22585-22613; and
WHEREAS, Section 22622 of the Street and Highway Code requires the City Council to adopt a resolution generally describing any proposed new improvements to be used to determine the annual assessment levied for any assessment district created under the Act; and
WHEREAS, Section 22622 further requires that the City Council order the preparation of an Engineer’s Report prior to initiating proceedings to set the annual levy and collection of assessments for such assessment districts.
NOW THEREFORE, BE IT RESOLVED, by the Council of the City of Berkeley that improvements to be included in Street Lighting Assessment District 2018 for assessing Fiscal Year 2025 fees are generally described as maintenance or servicing, or both, of existing and future public lighting facilities, including, but not limited to, traffic signals and the installation and construction of public lighting or the maintenance or servicing thereof, including but not limited to grading, clearing, removal of debris, installation and construction of curbs, gutters, walls, sidewalk or paving, or water or irrigation, drainage related to operation of the public lighting facilities.
BE IT FURTHER RESOLVED, by the Council of the City of Berkeley that SCI Consulting Group is hereby designated as Engineer of Work for purposes of these proceedings and is hereby ordered to prepare an Engineer’s Report in accordance with Street and Highways Code Section 22622. Upon completion, the Engineer shall file the Engineer’s Report with the City for submission to the City Council.
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/
CONSENT CALENDAR
March 26, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Andrew Murray, Interim Director of Public Works Subject: Purchase Order Extension Authorizations for Critical Vendors of Equipment Maintenance Parts and Services for Multiple Departments
RECOMMENDATION
Adopt fourteen Resolutions authorizing the City Manager to execute extensions of existing multi-year purchase orders for Equipment Maintenance Parts and Services as described below through June 30, 2025:
1. Purchase Order with Golden State Emergency Vehicle for Fire vehicle repairs increased by $500,000 to a new total Purchase Order amount not to exceed $800,437.50.
2. Purchase Order with Pape Machinery, Inc. for heavy equipment parts and repairs increased by $375,000 to a new total Purchase Order amount not to exceed $666,697.50.
3. Purchase Order with City Auto Supply for ongoing vehicle parts increased by $250,000 to a new total Purchase Order amount not to exceed $432,447.50.
4. Purchase Order with Fleetwash, Inc. for vehicle washing increased by $200,000 to a total Purchase Order amount not to exceed $372,615.
5. Purchase Order with Coast Counties Truck & Equipment Co. for heavy equipment parts increased by $225,000 to a new total Purchase Order amount not to exceed $351,730.
6. Purchase Order with Arata Equipment Company for Zero Waste vehicle parts and repairs increased by $210,000 to a new total Purchase Order amount not to exceed $320,180.
7. Purchase Order with TEC of California, Inc. for vehicle parts and accessories increased by $200,000 to a new total Purchase Order amount not to exceed $305,000.
8. Purchase Order with Future Ford of Concord for auto/truck parts and service increased by $205,000 to a new total Purchase Order amount not to exceed $300,000.
9. Purchase Order with Acme Rigging & Supply Company, Inc. for wheel loader and heavy equipment parts increased by $200,000 to a new total Purchase Order amount not to exceed $285,995.
Purchase Order Extension Authorizations for Critical Vendors CONSENT CALENDAR of Equipment Maintenance Parts and Services for Multiple Departments March 26, 2024
10.Purchase Order with Western Truck Center in an amount not to exceed $260,000.
11.Purchase Order with Southern Counties Lubricants LLC for vehicle lubricants increased by $175,000 to a new total Purchase Order amount not to exceed $238,500.
12.Purchase Order with McNeilus Truck and Manufacturing Company for Zero Waste truck parts increased by $150,000 to a new total Purchase Order amount not to exceed $200,000.
13.Purchase Order with California Covers for upholstery services increased by $60,000 to a new total Purchase Order amount not to exceed $110,881.01.
14.Purchase Order with Berry Brothers for towing services increased by $15,000 to a new total Purchase Order amount not to exceed $50,000.
FISCAL IMPACTS OF RECOMMENDATION
See table on next page
Vendor
Department
Served /
Description of
Goods/Service
Purchase
Order
Number
Amount
Currently
Spent
Amount
Encumbered
Additional
Amount Needed
FY 2024
(03/01/2024 –
06/30/2024)
Amount Needed
FY 2025
(07/01/2024 –
06/30/2025)
Total Purchase Order
Authorization Amount
Golden State
Emergency
Vehicle
Fire/specialized
repairs to fire
vehicles
22400219 $272,339.81 $300,437.50 $100,000.00 $400,000.00 $800,437.50 Pape Machinery,
Inc.
Public Works/
heavy equipment
parts & repairs
22400272 $240,312.88 $291,697.50 $75,000.00 $300,000.00 $666,697.50 City Auto Supply Fire/vehicle parts 22400278 $165,065.80 $182,447.50 $50,000.00 $200,000.00 $432,447.50 Fleetwash, Inc.
Zero Waste
(PW)/cleaning of
garbage trucks
22400283 $131,294.70 $172,615.00 $50,000.00 $150,000.00 $372,615.00 Coast Counties
Truck &
Equipment Co
Public Works/
heavy equipment
parts & repairs
22400196 $122,294.98 $126,730.00 $50,000.00 $175,000.00 $351,730.00 Arata Equipment
Company
Zero Waste (PW)/
specialized repairs
& parts
22400212 $65,653.91 $110,180.00 $50,000.00 $160,000.00 $320,180.00 TEC of California,
Inc.
Public Works/
vehicle parts 22400309 $70,723.82 $105,000.00 $50,000.00 $150,000.00 $305,000.00 Future Ford of
Concord
Police/Parts &
Repairs 22400281 $65,401.26 $95,000.00 $55,000.00 $150,000.00 $300,000.00 Acme Rigging &
Supply Company,
Inc.
Public Works/
Wheel loader and
heavy equipment
parts
22400070 $57,127.00 $85,995.00 $50,000.00 $150,000.00 $285,995.00 Western Truck
Center
Zero Waste(PW)/
specialized parts
and repairs
22403341 $63,686.15 $85,000.00 $50,000.00 $125,000.00 $260,000.00 Southern Counties
Lubricants LLC
Public Works/
vehicle lubricants 22400319 $67.759.17 $83,500.00 $25,000.00 $130,000.00 $238,500.00 McNeilus Truck
and Manufacturing
Company
Zero Waste(PW)/
vehicle parts 22400281 $41,808.55 $50,000.00 $50,000.00 $100,000.00 $200,000.00 California Covers Public Works/
upholstery services 22400080 $26,580.12 $50,881.01 $0.00 $60,000.00 $110,881.01 Berry Brothers
Public Works/
towing large fleet
vehicles and
equipment
22403742 $0.00 $35,000.00 $0.00 $15,000.00 $50,000.00
Total Amount FY24
$655,000
FY25
$2,265,000 $4,694,483.51
Purchase Order Extension Authorizations for Critical Vendors CONSENT CALENDAR of Equipment Maintenance Parts and Services for Multiple Departments March 26, 2024
The amounts requested above will be funded by Equipment Maintenance Fund 672 which bills customer departments based on usage and services to be cost recoverable.
Funding for FY 2025 in the amount of $2,265,000 will be appropriated as part of the annual budget process. Funding for FY 2024 is available in the Equipment Maintenance Fund budget subject to appropriation in the Second Amendment to the Annual Appropriations Ordinance.
CURRENT SITUATION AND ITS EFFECTS
Due to evolving purchasing process improvements, Public Works administrative staff plan to transition away from single year purchase orders to multiyear contracts or multiyear purchase orders with vendors selected through a competitive process or with validation of sole source agreements. Public Works is continuing to implement best management practices in the procurement of goods and services. This approval by City Council will give staff the needed time to continue maintaining critical vehicles such as fire engines, ambulances, Police vehicles, garbage trucks, and other essential first responder and maintenance vehicles until new contracts or multiyear purchase orders are in place for each selected vendor prior to July 1, 2025.
Additionally, due to unforeseen increases in pricing for parts and services, the Equipment Maintenance Division needs additional purchasing authority to continue operating. Due to mechanic vacancies, repair services by outside vendors have been necessary, which increased Equipment Maintenance expenditures over the last several years. Without this authorization, the Equipment Maintenance Division will be unable to perform needed repairs and service. Public Works is rapidly approaching purchasing limits for specific vendors and anticipate that the Equipment Maintenance Division will reach their purchase order limits for all the above vendors by the end of this fiscal year.
Public Works has recently hired additional administrate staff and assigned them the responsibility of implementing best practices to ensure that procurement process is well managed.
Authorization of these purchase orders is a Strategic Plan Priority advancing our goal to provide state-of-the-art, well-maintained infrastructure, amenities, and facilities.
BACKGROUND
Equipment Maintenance has utilized these fourteen vendors through existing purchase orders in previous years to provide required parts and services that City staff need in order to keep equipment in service.
In many cases, these vendors are the sole authorized repair and parts centers in Northern California for fleet vehicle parts required by the City’s Equipment Maintenance Division.
Purchase Order Extension Authorizations for Critical Vendors CONSENT CALENDAR of Equipment Maintenance Parts and Services for Multiple Departments March 26, 2024
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental or climate impacts with this action aside from ensuring vehicles are in their best operating condition.
RATIONALE FOR RECOMMENDATION
Authorizing the Resolutions to increase existing purchase order authority allows the Equipment Maintenance Division to continue to provide critical equipment maintenance repairs to Police, Fire, Zero Waste, Forestry, and Public Works vehicles which service the City.
ALTERNATIVE ACTIONS CONSIDERED
Without authorization for purchase order extensions, the City’s ability to repair vehicles that provide critical services, such as fire engines, garbage trucks, ambulances, backhoes, etc., will be jeopardized. Public Works staff is actively working through the process of procuring new competitive solicitations and identifying recommendations for sole source agreements for these critical vendors.
CONTACT PERSON
Joy Brown, Operations Manager 510-981-6629
Attachments:
1: Resolution – Purchase Orders Extension: Golden State Emergency Vehicle for Fire Vehicle Repairs
2: Resolution – Purchase Orders Extension: Pape Machinery Inc. for Heavy Equipment Parts and Repairs
3: Resolution – Purchase Orders Extension: City Auto Supply for Ongoing Vehicle Parts 4: Resolution – Purchase Orders Extension: Fleetwash, Inc. for Vehicle Washing of Police and Zero Waste Vehicles
5: Resolution – Purchase Orders Extension: Coast Counties Truck & Equipment Co. for Zero Waste Heavy Equipment Parts
6: Resolution – Purchase Orders Extension: Arata Equipment Company for Zero Waste Vehicle Parts and Repairs
7: Resolution – Purchase Orders Extension: TEC of California, Inc. for Vehicle Parts and Accessories
8: Resolution – Purchase Orders Extension: Future Ford of Concord for Auto/Truck Parts and Service
9: Resolution – Purchase Orders Extension: Acme Rigging & Supply Company, Inc. for Zero Waste Wheel Loader and Heavy Equipment Parts
10: Resolution – Purchase Orders Extension: Western Truck Center for Specialized Parts and Repairs
11: Resolution – Purchase Orders Extension: Southern Counties Lubricants LLC for Vehicle Lubricants
12: Resolution – Purchase Orders Extension: McNeilus Truck and Manufacturing for Zero Waste Truck Parts
Purchase Order Extension Authorizations for Critical Vendors CONSENT CALENDAR of Equipment Maintenance Parts and Services for Multiple Departments March 26, 2024
13: Resolution – Purchase Orders Extension: California Covers for Upholstery Services 14: Resolution – Purchase Orders Extension: Berry Brothers for Towing Services
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: GOLDEN STATE EMERGENCY VEHICLE FOR
FIRE VEHICLE REPAIRS
WHEREAS, the specialized services of Golden State Emergency Vehicle are needed for Fire vehicle repairs; and
WHEREAS, the Equipment Maintenance Division needs additional mechanic capacity due to vacancies, fire apparatus warranty work and repairs to specialty equipment that Equipment Maintenance does not provide; and
WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with Golden State Emergency Vehicle for Fire vehicle repair, increasing the combined amount by $500,000 for a total not-to-exceed amount of $800,437.50.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: PAPE MACHINERY INC. FOR HEAVY
EQUIPMENT PARTS AND REPAIRS
WHEREAS, the specialized services of Pape Machinery Inc. are needed for heavy equipment parts and vehicle repairs; and
WHEREAS, the Equipment Maintenance Division needs to be able to purchase the specific parts for the heavy equipment and provide repairs that staff are not able to perform; and
WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with Pape Machinery Inc. for heavy equipment parts and repairs, increasing the combined amount by $375,000 for a total not-to-exceed amount of $666,697.50.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: CITY AUTO SUPPLY FOR ONGOING VEHICLE PARTS
WHEREAS, the specialized services of City Auto Supply are needed for ongoing vehicle parts; and
WHEREAS, the Equipment Maintenance Division needs to purchase a variety of dealer original equipment manufacturer parts at a discount to support repairs; and WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with City Auto Supply for ongoing vehicle parts, increasing the combined amount by $250,000 for a total not-to-exceed amount of $432,447.50.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: FLEETWASH, INC. FOR VEHICLE WASHING WHEREAS, the specialized services of Fleetwash, Inc. are needed for vehicle washing; and
WHEREAS, the Equipment Maintenance Division needs to keep vehicles clean to support the life span of the vehicle; and
WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and funding will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with Fleetwash, Inc. for vehicle washing, increasing the combined amount by $200,000 for a total not-to-exceed amount of $372,615.00.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: COAST COUNTIES TRUCK & EQUIPMENT CO.
FOR HEAVY EQUIPMENT PARTS
WHEREAS, the specialized services of Coast Counties Truck & Equipment Co. are needed for heavy equipment parts and service repairs; and WHEREAS, the Equipment Maintenance Division needs to be able to purchase specific parts to support repairs on heavy equipment, and provide repairs that staff are not able to perform; and
WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with Coast Counties Truck & Equipment Co. for heavy equipment parts, increasing the combined amount by $225,000 for a total not-to-exceed amount of $351,730.00.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: ARATA EQUIPMENT COMPANY FOR ZERO
WASTE VEHICLE PARTS AND REPAIRS
WHEREAS, the specialized services of Arata Equipment Company are needed for Zero Waste vehicle parts and repairs; and
WHEREAS, the Equipment Maintenance Division needs be able to purchase specific parts and needs additional repairs support for specialized heavy equipment; and WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with of Arata Equipment Company for Zero Waste vehicle parts and repairs, increasing the combined amount by $210,000 for a total not-to-exceed amount of $320,180.00.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: TEC OF CALIFORNIA, INC. FOR VEHICLE
PARTS AND ACCESSORIES
WHEREAS, the specialized services of TEC of California, Inc. are needed for vehicle parts and accessories; and
WHEREAS, the Equipment Maintenance Division needs to purchase a variety of vehicle parts to support repairs; and
WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with TEC of California, Inc. for vehicle parts and accessories, increasing the combined amount by $200,000 for a total not-to-exceed amount of $305,000.00.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: FUTURE FORD OF CONCORD FOR
AUTO/TRUCK PARTS AND SERVICE
WHEREAS, the specialized services of Future Ford of Concord are needed for vehicle parts and service; and
WHEREAS, the Equipment Maintenance Division needs be able to purchase specific parts and needs additional repairs support; and
WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with Future Ford of Concord for auto/truck parts and service, increasing the combined amount by $205,000 for a total not-to-exceed amount of $300,000.00.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: ACME RIGGING & SUPPLY COMPANY, INC.
FOR WHEEL LOADER AND HEAVY EQUIPMENT PARTS
WHEREAS, the specialized services of Acme Rigging & Supply Company, Inc. are needed for wheel loader and heavy equipment parts; and
WHEREAS, the Equipment Maintenance Division needs be able to purchase specific parts and needs additional repairs support; and
WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with Acme Rigging & Supply Company, Inc. for wheel loader and heavy equipment parts increasing the combined amount by $200,000 for a total not-to-exceed amount of $285,995.00.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: WESTERN TRUCK CENTER FOR
SPECIALIZED REPAIRS AND PARTS
WHEREAS, the specialized services of Western Truck Center are needed; and WHEREAS, the Equipment Maintenance Division needs additional mechanic capacity due to vacancies, specialized repairs, and heavy equipment parts; and WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with Western Truck Center, increasing the combined amount by $175,000 for a total not-to-exceed amount of $260,000.00.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: SOUTHERN COUNTIES LUBRICANTS LLC FOR
VEHICLE LUBRICANTS
WHEREAS, the specialized services of Southern Counties Lubricants LLC are needed for vehicle lubricants; and
WHEREAS, the Equipment Maintenance Division needs be able to purchase lubricants like oil, transmission fluids, coolants, and others to perform regular maintenance on its work vehicles; and
WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with Southern Counties Lubricants LLC for vehicle lubricants, increasing the combined amount by $155,000 for a total not-to-exceed amount of 238,500.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: MCNEILUS TRUCK AND MANUFACTURING
FOR ZERO WASTE TRUCK PARTS
WHEREAS, the specialized services of McNeilus Truck and Manufacturing are needed for Zero Waste truck parts; and
WHEREAS, the Equipment Maintenance Division needs be able to purchase specific parts and needs additional repairs support; and
WHEREAS, funding will be appropriated in the FY 2024 budget in Equipment Maintenance Fund 672 via amendment to the annual appropriations ordinance and will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with McNeilus Truck and Manufacturing Company for Zero Waste truck parts, increasing the combined amount by $150,000 for a total not-to-exceed amount of $200,000.00.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: CALIFORNIA COVERS FOR UPHOLSTERY
SERVICES
WHEREAS, the Equipment Maintenance Division has the need to have specialized upholstery for specific vehicles; and
WHEREAS, the Division does not have internal resources to provide this service and needs additional time to go through the procurement process; and WHEREAS, funding will be appropriated in the will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with California Covers for upholstery services, increasing the combined amount by $60,000 for a total not-to-exceed amount of $110,881.01.
March 26, 2024
RESOLUTION NO. ##,###-N.S.
PURCHASE ORDERS EXTENSION: BERRY BROTHERS FOR TOWING SERVICES WHEREAS, the services provided by Berry Brothers Towing are needed by the Department of Public Works Equipment Maintenance Division for towing large fleet equipment and vehicles; and
WHEREAS, Berry Brothers has provided towing services under contract for the Division over the last eleven years and the contract has insufficient funds; and WHEREAS, additional time is needed to do a Request for Proposals for fleet towing services; and
WHEREAS, funding will be appropriated in the will be appropriated in the FY 2025 budget through the annual budget process.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order extension through June 30, 2025 with Berry Brothers for towing services, increasing the combined amount by $15,000 for a total not-to-exceed amount of $50,000
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/
CONSENT CALENDAR
March 26, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Mary Behm-Steinberg, Chairperson, Human Welfare and Community Action Commission
Subject: Filling Vacancies Among the Elected Representatives of the Poor
RECOMMENDATION
Adopt a Resolution confirming the appointment of Cheryl Atkinson (District 1) as an elected representative of the poor on the Human Welfare and Community Action Commission (HWCAC), having been voted at the HWCAC February 7, 2024 meeting, and that their term expires November 28, 2024.
FISCAL IMPACTS OF RECOMMENDATION
None.
CURRENT SITUATION AND ITS EFFECTS
Failure to maintain full membership on the HWCAC, which also acts as the Board of the Berkeley Community Action Agency (CAA), could result in a loss of Community Services Block Grant (CSBG) funding. Vacancies on the Berkeley CAA Board were noted as a “finding” during the CY 2023 desk review of this program conducted by the State Department of Community Services and Development.
BACKGROUND
The HWCAC is made up of fifteen members, nine of whom are appointed by Berkeley City Council members and six of whom are elected representatives of the poor.
Berkeley Municipal Code Section 3.78.080 stipulates that elections of representatives of the poor are held biennially in the month of November in even numbered years. The next election will take place in November 2018. Subsection C of the code states, “…the remaining representatives of the poor…shall select a person to fill the vacancy until the next election…” and that the, “…name of the selected representatives shall be submitted to the City Council for confirmation.” BMC 3.78.030 (b) also states in part, that the remaining elected commission members shall recommend to the Council that the newly elected person fill out the term of the appointment.
There were no elected representatives of the poor at the meeting; therefore, commissioners voted (M/S/C: Behm-Steinberg, Lippman. Ayes – Behm-Steinberg,
Filling Vacancy Among the Elected Representatives of the Poor CONSENT CALENDAR March 26, 2024
Lippman; Noes – None; Abstain – None; Absent: None) to select Cheryl Atkinson to fill one of the current vacancies.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects, climate impacts, or sustainability opportunities associated with the subject of this report.
RATIONALE FOR RECOMMENDATION
Failure to maintain full membership on the HWCAC is in violation of the CSBG contract and may jeopardize future funding.
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Mary-Claire Katz, Commission Secretary, HHCS, (510) 981-5414 Attachments:
1: Resolution
RESOLUTION NO. ##,###-N.S.
FILLING A VACANCY AMONG THE ELECTED REPRESENTATIVES OF THE POOR
ON THE HWCAC
WHEREAS, Berkeley Municipal Code Section 3.78.080 stipulates that election of representatives of the poor are held biennially in the month of November in even numbered years, and the next election will take place in November 2024; and WHEREAS, Subsection C states “…the remaining representatives of the poor…shall select a person to fill the vacancy until the next election…” and that the “…name of the selected representatives shall be submitted to the City Council for confirmation”; and WHEREAS, at the February 7, 2024 HWCAC special meeting, the Commission elected Cheryl Atkinson (District 1) to fill one vacancy with her term ending November 28, 2024.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that Cheryl Atkinson (District 1) is confirmed as an elected representative of the poor serving on the Human Welfare and Community Action Commission until November 28, 2024.
Community Health Commission
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/
CONSENT CALENDAR
March 26, 2024
To: Honorable Mayor and Members of the City Council
From: Community Health Commission
Submitted by: Andy Katz, Chair, Community Health Commission Subject: Response to Council Referral: Long Term Care Facility Oversight
RECOMMENDATION
Refer to the City Manager and the budget process the (1) establishment of an enhanced Ombudsperson program for oversight of Skilled Nursing Facilities and Residential Care Facilities for the Elderly, and (2) early implementation of the Centers for Medicare & Medicaid Services (CMS) proposal for minimum nursing staffing levels ahead of the three-year period proposed by CMS.
FISCAL IMPACTS OF RECOMMENDATION
Dependent on the available resources for an ombudsperson program, and the ability to support the program with user fees. Minimal resources to draft an ordinance implementing minimum staffing levels.
SUMMARY
The Community Health Commission recommends that the City of Berkeley enact a licensure program for skilled nursing facilities that could collect modest user fees funding an enhanced ombudsperson program, and consider supporting this program from the General Fund in the range of a total 1-2 FTE, also serving Residential Care Facilities for the Elderly. The enhanced ombudsperson program should, among other activities, include regular unannounced visits to facilities and provide services of witnessing, investigating, and documenting resident/patient complaints to encourage quality patient care by ensuring accountability.
The Commission defers to the City Manager for further investigation and comment regarding whether HHCS staff should develop in-house ombudsperson staffing, perhaps in conjunction with its public health nursing services, or if services can be provided with greater care and skill through a partnership with Empowered Aging (the current service provider for Alameda County), or another organization. An enhanced ombudsperson program should also serve Residential Care Facilities for the Elderly, depending on need.
Response to Council Referral: Long Term Care Facility Oversight CONSENT CALENDAR March 26, 2024
The Commission recommends implementing the proposed Centers for Medicare & Medicaid requirement for minimum staffing for skilled nursing facilities for registered nurse hours of care 3 years ahead of the CMS regulation and recommends such early implementation within 90 days after an ordinance can be drafted and adopted.
BACKGROUND
The City Council referred to the City Manager and the Community Health Commission on December 14, 2021, an assessment of the breadth of regulatory control the City of Berkeley can exert on skilled nursing facilities, and create a process of accountability if complaints are found to be substantiated that threaten, or could potentially escalate to the point of threatening, the wellbeing of patients and/or violate federal, state, or local law; the business license of the offending facility will be suspended until the skilled nursing facility submits a report demonstrating rectification of the situation.
The referral stated that the City has received numerous grievances from concerned community members over the quality of care in certain skilled nursing facilities in Berkeley. Community members complain of neglect, indifference, and harmful, negligent behavior with sometimes tragic consequences.
The referral suggested that the City could establish a licensure enforcement program, citing to the ability for another city government in Colorado reserving the right to suspend a business license “when any activity conducted by the licensee, his or her employee or agent violates any federal, state or local rule, regulation or law.” The Berkeley Municipal Code does not have such a revocation provision but clarifies that issuance of a business license does not permit practices that would violate other local, state, or federal laws. Even if the City were to adopt such a provision, implementation would require a robust investigation and hearing procedure to ensure due process and competence of the investigators and hearing examiners, similar to the City’s labor standards enforcement and hearings under the rent stabilization program.
More specific to the subject industry, the California Department of Public Health, Center for Health Care Quality (“CHCQ”) is responsible for regulatory oversight of licensed health care facilities and health care professionals to ensure the safety and quality of health care. CHCQ operates with over 1,500 employees to license and certify over 14,000 health care facilities and professionals ranging from nurse assistants, home health aides, hemodialysis technicians, and the licensing of nursing home administrators.
The CHC Health Facilities subcommittee met with California Advocates for Nursing Home Reform (CANHR), an organization that advocates for nursing home residents, and is critical of CDPH/CHCQ’s performance as a regulator. CANHR offers the public Nursing Home Fact Sheets to educate consumers about their rights, including how to file a complaint with CDPH. CANHR urges notifying the local ombudsperson office, the Division of Medi-Cal Fraud and Abuse, and local legislators of filed complaints. CANHR
Response to Council Referral: Long Term Care Facility Oversight CONSENT CALENDAR March 26, 2024
also provides resources for referral to attorneys for seeking remedies in the civil justice system. CANHR provided anecdotes of CDPH/CHCQ failing to issue citations for violations or lowering the severity level of citations except for the most egregious.
CANHR publishes and archives a “violation of the month,” for example, a report of the inappropriate administration of psychotropic drugs to 27 residents at Palos Verdes Health Care Center to control behavior, without a documented clinical rationale, but to make “it easier to provide care,” “follow instructions better,” and make them “easier to talk to.” Despite the multiple violations affecting multiple residents, the facility was given one Class B citation and fined only $2,000. While there are other incidents of patient deaths incurring citations of $100,000 at the Class AA level, advocates assess the enforcement level as inadequate to systemically prevent and discourage violations.
The Public Health Officer Unit commented informally that creating a parallel licensing and enforcement program would be challenging and require significant resources to dedicate expertise and enforcement time. The City would also be in the same complex position of evaluating how to manage potential implications of severe remedies such as license revocation. It is also unknown to the Commission whether this area and degree of regulation is preempted by State law. Costs for nursing home residence care ranges from $4,000 to $24,000 per month, and the average resident monthly cost is $7,140.
Collecting significant user fees to provide licensing for a robust enforcement program thoroughly adjudicating complaints could also impact resident affordability, particularly for the lowest-cost facilities that are important for fixed-income seniors.
At the January 25, 2024 meeting, the commission took the following action:
Ayes: Commissioners Smart, Spigner, Katz
Noes: None.
Abstain: None.
Absent from vote: Commissioner Webber
Excused: Commissioners Bechtolsheim, Lee. .
Motion Passed.
Ombudsperson Program
However, a licensure program that could collect user fees funding an enhanced ombudsperson program could mitigate program costs, while providing services that may serve the population best – witnessing, investigating, and documenting resident/patient complaints to encourage quality patient care by ensuring accountability. It appears that a modest licensing fee providing ombudsperson user services could support approximately 1 FTE citywide in addition to funds identified in the budget process, and the CHC defers to the City Manager to identify specific funding scenarios. Alameda County Department of Social Services operates an ombudsman program that is reliant on contracting with Empowered Aging in Oakland, which also operates ombudsperson services for Contra Costa and Solano Counties. However, Empowered Aging is also
Response to Council Referral: Long Term Care Facility Oversight CONSENT CALENDAR March 26, 2024
reliant on part-time volunteers without any substantial social work or health care training. While a layperson volunteer may be capable of training how to engage residents and help document concerns, the CHC believes that such training and experience is valuable and important to quality patient advocacy services, particularly for complex cases and patients at risk of negligence or abuse. The program operated by Empowered Aging states that they make regular unannounced visits to facilities, investigate resident complaints, improve facility conditions by providing staff trainings, provide information about advanced health care directives and help execute official documents, promote community awareness through educational workshops, and field informational calls from families in distress.
The Commission defers to the City Manager for further investigation and comment regarding whether HHCS staff should develop in-house ombudsperson staffing, perhaps in conjunction with improved funding for public health nursing services, or if services can be provided with greater care and skill through a partnership with Empowered Aging or another organization. The investigation should survey whether there is existing experience within the six facilities within Berkeley, how often unannounced visits occur or can occur with sufficient funding, the quality of such visits, including the role and benefits of nursing care or social work background and expertise, the effort made to thoroughly make contact with residents, and the ability to perform diligent documentation and advocacy in response to a particular complaint. For example, an indicator of quality outreach should include the number of direct patient contacts that empower a patient to follow up with an informal complaint or request for assistance, beyond the possibility of a visit or a general outreach meeting. Patients without independent access to phone, e-mail, or family advocates should be identified and offered more frequent outreach due to this potentially vulnerable situation. Services should include taking of contemporaneous statements from the affected patient and other witnesses, and photographic evidence, to assist in regulatory or civil enforcement actions. Such evidence can make a significant difference in the ability to retain legal counsel or to encourage quality patient care, because the legal standard to show negligence in nursing home abuse cases is a “clear and convincing evidence” standard and not the ordinary “preponderance” standard. Residents should also be provided resources regarding their rights and legal services such as CANHR materials. Finally, the enhanced ombudsperson program should also provide a record to support state regulator determination of staffing adequacy for resident needs where indicated, as described below.
Services with a partner organization should be based on City ability to provide the services, and require results-based reporting based on the above-described expectations. This evaluation may occur in the near-term or may complete after City Council initial review of this approach compared to other approaches.
Inclusion of Residential Care Facilities for the Elderly
Response to Council Referral: Long Term Care Facility Oversight CONSENT CALENDAR March 26, 2024
Residential Care Facilities for the Elderly (RCFEs) are also known as “Assisted Living” and are licensed by the California Department of Social Services, Community Care Licensing. They are considered non-medical facilities that provide room, meals, housekeeping, supervision, distribution of medication, and personal care assistance with basic activities. There are five licensed facilities in Berkeley according to CDSS, and a few other facilities that may be operating under different license types.
Administrators must complete a minimal 80-hour training for certification. They do not have minimum medical staffing requirements. California law requires that facility personnel shall at all times be sufficient in numbers, qualifications, and competency to provide the services necessary to meet resident needs, and to ensure their health, safety, comfort, and supervision.1 There must be at least one administrator or designated substitute with qualifications adequate to be responsible for the management and administration of the facility on premises 24 hours per day, and the facility must also have at least one staff member trained in CPR and first aid on duty and on the premises at all times.2 While the default is that Medi-Cal will not pay for RCFE services, Alameda County residents are among the communities exempted by a waiver program and Medi-Cal pays for care services at a rate between $88 - $250 per day depending on the tier of services. The CHC recommends inclusion of RCFEs in an enhanced ombudsperson program, depending on demonstrated need, but at this time recommends that services be based on General Fund support rather than a City license and user fee program until feasibility and impacts on resident costs can be assessed.
Staffing Levels for Skilled Nursing Facilities
While many problems in patient care stem from direct abuse, other problems in the quality of care arise from the systemic understaffing of nursing homes. CMS issued a proposed rule last year that would require nursing homes to provide residents with a minimum of 0.55 hours of care from a registered nurse per resident per day, and 2.45 hours of care from a nurse aide per resident per day. In addition, nursing homes would also be required to ensure a registered nurse is on site 24 hours per day, 7 days per week, and to complete robust facility assessments on staffing needs, which may lead to higher levels of staffing above the proposed minimum standards. California already requires skilled nursing facilities to provide a minimum 3.2 hours of care per patient per day and requires a 24-hour registered nurse, with slightly higher requirements for larger facilities.3 If this staffing level is not adequate to meet resident needs, the nursing home must employ as many licensed nursing and certified nursing assistants as are needed.
In a clearly visible place, a facility must post daily, for each shift, the current number of licensed and unlicensed nursing staff directly responsible for resident care.4 A 2001 study by the Centers for Medicare & Medicaid Services (CMS) recommended a total of 1 HSC 1569.269(a)(6), 1569.618(c); CCR 87411, 87468.2(a)(4) 2 HSC 1569.618(b); HSC 1569.618(c)
3 Health and Safety Code section 1276.5
4 42 USC §1396r(b)(8) , 42 CFR §483.30(e), California Health & Safety Code §1276.65(f)
Response to Council Referral: Long Term Care Facility Oversight CONSENT CALENDAR March 26, 2024
4.1 hours of nursing care per resident per day.5 This was further enumerated in subcategories of 0.75 hours provided by a registered nurse, 0.55 hours provided by a licensed vocational nurse, and 2.8-3.0 hours provided by a certified nursing assistant.
Four skilled nursing facilities in Berkeley reported staffing levels to CMS in 2021:
Berkeley Pines Skilled Nursing Center, Chaparral House, Elmwood Care Center, and Kyakameena Care Center, with care staffing levels of 3.42, 4.18, 3.79, and 3.59 hours of nursing care per resident per day, respectively. Care by a registered nurse was 0.18,
0.38, 0.43, and 0.28 hours of care per resident per day, respectively, below the proposed CMS standard. Data was not available for Ashby Care Center. The CMS regulation would substantially increase patient access to a registered nurse, but would not affect overall staffing levels. However, the CMS regulation is phased in over three years after it is eventually adopted.
The Commission strongly supports increased staffing levels for skilled nursing facilities that would be adequate to meet the needs of the resident population, but without at this time understanding each facility’s budget, is concerned that imposing a cost burden on facilities that are more dependent on inadequate CMS reimbursement rates could impact operations or risk a facility closing when regulated at the city level, as opposed to state level regulation. The Commission does not find this risk with implementing the registered nursing hours of care 3 years ahead of the CMS regulation, and recommends such early implementation within 90 days after an ordinance can be drafted and adopted. The ombudsperson enhancement program should also provide an opportunity to review the staffing reports of each facility in light of ombudsperson site visits and patient reports and should enable ombudsperson reports to CHCQ/CDPH of site- specific inadequate staffing beyond the minimum requirements. The City may review CHCQ/CDPH responsiveness to these reports over time and later consider implementing such a needs-based staffing requirement by ordinance.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects, climate impacts, or sustainability opportunities associated with the subject of this report.
RATIONALE FOR RECOMMENDATION
Protection of vulnerable elders. See background discussion.
ALTERNATIVE ACTIONS CONSIDERED
The Commission considered the regulatory approach suggested in the referral, and more robust minimum staffing levels. See report.
CITY MANAGER
5 https://nap.nationalacademies.org/catalog/10027/crossing-the-quality-chasm-a-new-health-system-for- the
Response to Council Referral: Long Term Care Facility Oversight CONSENT CALENDAR March 26, 2024
The City Manager takes no position with the content and recommendations of the Commission’s Report.
CONTACT PERSON
Kellie Knox, Commission Secretary, HHCS, 510-981-5301
Attachments:
1: City Council Referral
2: Fact Sheet: Medicare and Medicaid Programs: Minimum Staffing Standards for Long- Term Care Facilities and Medicaid Institutional Payment Transparency Reporting
2180 Milvia Street, Floor 5, Berkeley, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 1 CONSENT CALENDAR
December 14, 2021
To: Honorable Mayor and Members of the City Council
From: Councilmember Ben Bartlett
Subject: Health Care Facility Oversight
RECOMMENDATION
Refer to the City Manager and the Community Health Commission an assessment of the breadth of regulatory control the City of Berkeley can exert on skilled nursing facilities, and create a process of accountability if complaints are found to be substantiated that threaten, or could potentially escalate to the point of threatening, the wellbeing of patients and/or violate federal, state, or local law; the business license of the offending facility will be suspended until the skilled nursing facility submits a report demonstrating rectification of the situation.
BACKGROUND
The California Department of Public Health (CDPH) mandates that skilled nursing facilities provide 3.5 hours of patient care to each patient per day.1 For instance, some care facilities in Berkeley are reported to have as few as 6 staffers serving 66 patients, meaning that even if the staff worked around the clock, at most they would be able to offer 2.1 staff hours per patient per day. In 2021 alone, the facility has received 12 complaints, but not a single one has been followed up by an enforcement action2. This is just a single example in an egregious pattern of lack of care met with lack of enforcement. In 2019, for example, skilled nursing facilities were found to violate an average of 23 federal and state laws per facility. Yet, in the 77 skilled nursing facilities across California, not a single regulation was enforced. As a result, there has been a history of negligence, mistreatment, and patient abuse within Californian care facilities.3
CURRENT SITUATION
The City has received numerous grievances from concerned community members over the quality of care in certain skilled nursing facilities in Berkeley. Community members complain of neglect, indifference, and harmful, negligent behavior with sometimes tragic consequences.
The City must address these hazards by creating internal procedures and policies designed to prevent further harmful acts. Precedence for license revocation policies can be found in other municipalities. For example, Chapter 6 Section 1.80 of Superior, Colorado Municipal Code states that business licenses can be suspended “when any activity conducted by the licensee, his or her employee or agent violates any federal, state or local rule, regulation or law.4 The City 1https://canhrnews.com/guidelines-for-3-5-direct-care-service-hours-per-patient-day-dhppd-staffing- audits/
2 https://www.cdph.ca.gov/Programs/CHCQ/LCP/CalHealthFind/Pages/SearchResult.aspx 3 https://calmatters.org/health/2021/10/nursing-homes-oversight-california-hearing/ 4 https://library.municode.com/co/superior/codes/municipal_code?nodeId=CH6BULIRE
Attachment 1Page 8 of 17
2180 Milvia Street, Floor 5, Berkeley, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 2 of Berkeley could adopt such an ordinance to shutter inept care facilities and deter improper conduct and mismanagement.
Furthermore, to ensure enforcement, the City could mandate that all complaints be forwarded to the Environmental Health Division to be reviewed in a timely manner. This would prevent a backlog of complaints and strengthen City follow-through.
The City of Berkeley needs to enforce strict regulations over the performance and conditions of skilled nursing care facilities to ensure that patients are not stripped of their right to quality care.
As stated above, a particularly skilled nursing care facility received 12 complaints in 2021, but there was zero enforcement action taken against them. With this recommendation, there will be a strict standard that skilled nursing care facilities must meet to guarantee that issues are adequately addressed by the City of Berkeley. Furthermore, it provides safeguards to ensure that patients are not neglected by those assigned to look after them.
FINANCIAL IMPLICATIONS
Determine as part of City Manager and Commission response.
Suppose the City can regulate skilled nursing facilities (generally not a City role). In that case, there could be significant financial implications because there is currently no staff assigned to this work in the City.
COMMUNITY CONSULTATIONS
This item was informed by consultations with and complaints raised by community members.
CONTACT PERSONS
Councilmember Ben Bartlett [email protected] James Chang [email protected]
Hillary Phan 510-981-7130
Jerry Wong 510-981-7135
Attachment 1Page 9 of 17
SS ee pp 0 0 1 1 ,, 2 2 0 0 2 2 3 3
Fact sheet
Medicare and Medicaid Programs:
Minimum Staffing Standards for Long-
Term Care Facilities and Medicaid
Institutional Payment Transparency
Reporting (CMS 3442-P)
Nursing facilities, Quality, Safety
On September 1, 2023, the Centers for Medicare & Medicaid Services (CMS) issued the Minimum Staffing Standards for Long-Term Care (L TC) Facilities and Medicaid Institutional Payment Transparency Reporting proposed rule, which seeks to establish comprehensive nurse staffing requirements to hold nursing homes accountable for providing safe and high- quality care for the over 1.2 million residents receiving care in Medicare and Medicaid- certified L TC facilities each day.
Ensuring that beneficiaries receive safe, reliable, and quality nursing home care is a critical function of the Medicare and Medicaid programs and a top priority of CMS. The COVID-19 Public Health Emergency (PHE) tragically caused unprecedented illness and death among nursing home residents and workers. The PHE also exacerbated staffing challenges experienced in many facilities and further highlighted disparities in care and outcomes.
Despite existing requirements that facilities provide sufficient levels of staffing in L TC facilities, chronic understaffing remains a significant concern.
The proposed rule consists of three core staffing proposals: 1) minimum nurse staffing standards of 0.55 hours per resident day (HPRD) for Registered Nurses (RNs) and 2.45 HPRD for Nurse Aides (NAs); 2) a requirement to have an RN onsite 24 hours a day, seven days a week; and 3) enhanced facility assessment requirements. The proposed rule also includes a staggered implementation approach and possible hardship exemptions for select facilities. This proposed rule results from a multi-faceted approach aimed at determining the minimum level and type of staffing needed to enable safe and quality care in L TC facilities. This effort included issuing a Request for Information (RFI) in the FY 2023 Skilled Nurse Facility Prospective Payment System Proposed Rule, hosting listening sessions and extensive engagement with various interested parties, conducting a 2022 Nursing Home Staffing Study, which builds on existing evidence and research studies using multiple data Attachment 2
sources, and reviewing recent years of Payroll-Based Journal System staffing data. CMS also considered how the proposed minimum staffing requirements would align or interact with ongoing CMS initiatives and programs that impact the L TC community. Information gathered from each of these facets was used by CMS in the development of the proposed requirements that would ensure all nursing home residents are provided safe, quality care.
This proposed rule would also promote public transparency related to the percentage of Medicaid payments for services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities that are spent on compensation to direct care workers and support staff. The Medicaid institutional payment transparency provision is intended to align with a similar transparency provision focused on specific Medicaid home and community-based services in the Ensuring Access to Medicaid Services proposed rule (CMS-2442-P), published in the May 3, 2023, issue of the Federal Register.
Additionally, CMS announced a national campaign to support staffing in nursing homes.
CMS will work with the Health Resources and Services Administration (HRSA) and other partners to make it easier for individuals to enter careers in nursing homes, investing over $75 million in financial incentives such as scholarships and tuition reimbursement. This staffing campaign builds on other actions through the HHS Health Workforce Initiative, including the recent announcement that HRSA awarded more than $100 million to train more nurses and grow the nursing workforce.
EE ss t t aa bb l l i i ss hh i i nn gg M M i i nn i i m m uu m m N N uu r r ss ee SS t t aa f ffifinn gg SS t t aa nn dd aa r r dd ss Staffing in L TC facilities has remained a persistent concern, especially among low- performing facilities that are at most risk for providing unsafe care. CMS believes that national minimum nurse staffing standards in L TC facilities, the adoption of a 24/7 RN requirement, and enhanced facility assessment requirement (as discussed later in this fact sheet) are necessary at this time to protect resident health and safety and ensure their needs are met.
Therefore, CMS proposes individual minimum nurse staffing standards for L TC facilities of
0.55 HPRD for RNs and 2.45 HPRD for NAs. However, these thresholds are minimums; while these proposed minimum standards, if finalized, would be applied across all L TC facilities, CMS also expects facilities to staff above these minimum baseline levels to address the specific needs of their unique resident population based on the facility assessment and resident acuity levels.
CMS is soliciting comments on alternative policy options that should be considered for establishing minimum nurse staffing standards. Based on the proposed policy presented in this rule, CMS is seeking feedback regarding whether alternative policy options would be Attachment 2
better suited to meet and maintain acceptable quality and safety within L TC facilities, with consideration for external factors affecting staffing.
Specifically, CMS is seeking comment on an alternative total nurse staffing standard of 3.48 HPRD, among other alternatives, within which there would still be 0.55 RN HPRD and 2.45 NA HPRD minimums. Facilities would have to meet the individual standards for RNs and NAs, i.e., 0.55 and 2.45 HPRD, respectively, as well as the 3.48 HPRD, for total nurse staffing to be considered in compliance. Lastly, we seek comments on the benefits and tradeoffs of different standards, evidence, or methodologies states use to establish minimum staffing standards and other key considerations.
II m m p p rr o o v v ii n n g g tt h h e e R R N N O O n n - - S S ii tt e e R R e e q q u u ii rr e e m m e e n n tt L TC facilities provide care for residents with increasing medical complexity and acuity of health conditions who require substantial resources and care provided or supervised by an RN. While the minimum staffing standard proposal described above seeks to build on existing requirements by creating consistent and broadly applicable standards that significantly reduce the risk of unsafe and low-quality care across L TC facilities, the current minimum nurse standards do not reduce the risk of avoidable resident safety events when there is no RN on site, particularly during evenings, nights, weekends, and holidays.
Therefore, CMS proposes that L TC facilities must have an RN onsite 24 hours a day, seven days a week, who is available to provide direct resident care. This proposal aims to address these challenges and ensure that residents are receiving safe, quality care by an RN, at all times when needed.
CMS is interested in comments regarding the feasibility of our proposed requirements for each L TC facility to have an RN on site 24 hours a day, seven days a week, including possible alternatives to this proposal.
SS t t r r ee nn gg t t hh ee nn i i nn gg t t hh ee FF aa c c i i l l i i t t yy AA s s s s ee s s s s m m ee nn t t RR ee qq uu i i r r ee m m ee nn t t To help improve the safety of residents, a comprehensive approach to establishing staffing standards is necessary to ensure that facilities are making thoughtful, informed staffing plans and decisions focused on meeting resident needs. As part of that approach, L TC facilities are already required to conduct, document, and review annually and, as necessary, a facility-wide assessment to determine what resources are necessary to care for residents competently during both day-to-day operations and emergencies.
To ensure that facilities are utilizing the facility assessment as intended by making thoughtful, person-centered staffing plans and decisions focused on meeting resident needs, including staffing at levels above the proposed minimums as indicated by resident Attachment 2
acuity, CMS is proposing several updates to the facility assessment as a means of strengthening these requirements, including:
• Clarifying that facilities must use evidence-based methods when care planning for their residents, including consideration for those residents with behavioral health needs; • Requiring that facilities use the facility assessment to assess the specific needs of each resident in the facility and to adjust as necessary based on any significant changes in the resident population;
• Requiring that facilities include the input of facility staff, including, but not limited to, nursing home leadership, management, direct care staff (i.e., nurse staff), representatives of direct care staff, and staff who provide other services; and, • Requiring facilities to develop a staffing plan to maximize recruitment and retention of staff consistent with what was described in the President’s April Executive Order on Increasing Access to Higher Quality Care and Supporting Caregivers.
PP ee r r m m i i t t t t i i nn gg RR ee gg uu l l aa t t oo r r yy FF l l ee xx i i bb i i l l i i t t yy CMS aims to hold nursing homes accountable for ensuring that residents receive safe and high-quality care. While we fully expect that L TC facilities will be able to meet our proposed minimum staffing standards, we recognize that in some instances, external circumstances may temporarily prevent a facility from achieving compliance despite the facility’s demonstrated best efforts. Moreover, some L TC facilities are still experiencing challenges in hiring and retaining certain nursing staff because of local workforce unavailability, which was exacerbated by the COVID-19 pandemic. Therefore, CMS proposes to allow for a hardship exemption in limited circumstances. L TC facilities may qualify for a temporary hardship exemption from the minimum nurse staffing HPRD standards only if they are able to meet specific criteria demonstrating the following:
• Workforce unavailability based on their location, as evidenced by either a medium (that is, 20 percent below the national average) or low (that is, 40 percent below national average) provider-to-population ratio for the nursing workforce, as calculated by CMS, by using the Bureau of Labor Statistics and Census Bureau data, or the facility is located at least 20 miles away from another L TC facility (as determined by CMS); and • Good faith efforts to hire and retain staff through the development and implementation of a recruitment and retention plan; by documenting job postings, and job vacancies, including the number and duration of vacancies, job offers made, and competitive wage offerings, and
• A financial commitment to staffing by documenting the total annual amount spent on direct care staff.
Attachment 2
Prior to being considered, the L TC facility must be surveyed to assess the health and safety of the residents. Suppose an L TC facility is found noncompliant with the minimum staffing requirements while not meeting the exclusionary criteria (as outlined below). In that case, CMS will determine if the facility is in a workforce unavailability area. If CMS determines the facility is in a workforce unavailability area, the L TC facility’s documentation of a good faith effort to hire and retain staff and the L TC facility’s documentation of a financial commitment must be submitted to the State or CMS. CMS will then determine if the facility will be granted an exemption from enforcement. CMS will indicate if a facility has obtained an exemption on the Medicare.gov Care Compare website to ensure current and prospective residents and their families are aware that a facility has levels of staffing lower than the standard.
Facilities would not be eligible for an exemption if:
• They have failed to submit their data to the Payroll-Based Journal System; • They have been identified as a special focus facility (SFF) or • They have been identified within the preceding 12 months as having widespread insufficient staffing with resultant resident actual harm or a pattern of insufficient staffing with resultant resident actual harm or have been cited at the immediate jeopardy level of severity with respect to insufficient staffing as determined by CMS.
Given the complex health needs of residents living in L TC facilities and to protect resident health and safety, CMS believes that it is important for exempted facilities to continue to maintain compliance with existing requirements to provide services by a sufficient number of staff on a 24-hour basis to all residents in accordance with resident care plans. These requirements are responsive to longstanding concerns related to low staffing levels in facilities on weekends and evenings; further, ongoing RN presence is needed to provide care and monitor resident health. If a facility seeks relief from the 24/7 RN requirement, it would have to follow the applicable existing waiver process, as required by statute and set out in the current regulations.
SS t t aa gg gg ee r r i i nn gg I I m m pp l l ee m m ee nn t t aa t t i i oo nn To give L TC facilities time to achieve compliance with the proposed minimum staffing requirements, CMS proposes that implementation of the final requirements will occur in three phases over a 3-year period for all non-rural facilities. Specifically, we propose for non-rural facilities:
• Phase 1 would require facilities located in urban areas to comply with the facility assessment requirements 60 days after the publication date of the final rule; Attachment 2
• Phase 2 would require facilities located in urban areas to comply with the requirement for an RN onsite 24 hours and seven days/week two years after the publication date of the final rule and
• Phase 3 would require facilities located in urban areas to comply with the minimum staffing requirements of 0.55 and 2.45 hours per resident day for RNs and NAs, respectively, three years after the publication date of the final rule.
CMS acknowledges the unique challenges that rural L TC facilities face, especially as it relates to staffing. We intend to promote safe, high-quality care for all residents regardless of location. We also recognize the need to strike an appropriate balance that considers the current challenges some L TC facilities are experiencing, particularly in rural areas.
Therefore, we are proposing a later implementation date for rural facilities. Rural facilities will have three years to meet the proposed 24/7 RN requirement and five years to meet the proposed minimum staffing requirements (HPRD) as outlined below. Specifically, we propose for rural facilities:
• Phase 1 would require facilities to comply with the facility assessment requirements 60 days after the publication date of the final rule;
• Phase 2 would require facilities to comply with the requirement for an RN onsite 24 hours and seven days/week three years after the publication date of the final rule and • Phase 3 would require facilities to comply with the minimum staffing requirement of 0.55 and 2.45 HPRD for RNs and NAs, respectively, five years after the publication date of the final rule.
MM e e d d i i c c a a i i d d I I n n s s t t i i t t u u t t i i o o n n a a l l P P a a y y mm e e n n t t T T r r a a n n s s p p a a r r e e n n c c y y Millions of Americans, including children and adults of all ages, need long-term services and supports because of disabilities, chronic illness, and other factors. Today, most people who receive Medicaid-funded long-term services and supports are served in the community.
However, about 1.5 million people receive Medicaid-funded long-term services and supports in nursing homes and intermediate care facilities for people with intellectual disabilities each year.
As the Biden-Harris Administration works to ensure that older adults, people with disabilities, and families have access to affordable, high-quality care, we recognize that workforce shortages and high rates of worker turnover in nursing facilities and intermediate care facilities for individuals with intellectual disabilities make it difficult for people with disabilities and older adults to have access to high-quality services.
Attachment 2
The proposed rule includes provisions that are intended to promote public transparency related to the percentage of Medicaid payments for services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities that are spent on compensation to direct care workers and support staff. The Medicaid institutional payment transparency reporting provisions, if adopted as proposed, would build on proposals in the Ensuring Access to Medicaid Services proposed rule in which CMS proposed to require, among other things, that states report to CMS and publicly on the percentage of Medicaid payments for certain home and community-based services that are spent on compensation for direct care workers.
Highlights from this proposed rule include:
• NN e e ww p p r r o o p p o o s s e e d d i i n n s s t t i i t t u u t t i i o o n n a a l l p p a a y y m m e e n n t t r r e e p p o o r r t t i i n n g g r r e e q q u u i i r r e e m m e e n n t t s s f f o o r r s s t t a a t t e e s s that would require states to report to CMS on the percentage of Medicaid payments for services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities that are spent on compensation for direct care workers and support staff.
These requirements would apply regardless of whether a state’s long-term services and supports delivery system is fee-for-service or managed care. • PP r r oo m m oo t t i i nn gg t t hh ee pp uu bb l l i i c c aa vv aa i i l l aa bb i i l l i i t t yy oo f f M M ee dd i i c c aa i i dd i i nn s s t t i i t t uu t t i i oo nn aa l l pp aa yy m m ee nn t t i i nn f f oo r r m m aa t t i i oo nn by proposing that both states and CMS make the institutional payment information reported by states to CMS available on public-facing websites.
The goals of these proposed requirements are to promote accountability and inform efforts to address the link between sufficient payments being received by the institutional direct care and support staff workforce and access to and, ultimately, the quality of services received by Medicaid beneficiaries.
CC oo m m m m e e nn t t SS uu bb m m i i s s s s i i oo nn There will be a 60-day comment period for the notice of proposed rulemaking, and comments must be submitted to the Federal Register no later than November 6, 2023. For more information on how to submit comments or to review the entire rule, visit the Federal Register https://www.federalregister.gov/public-inspection/current. # # #
Attachment 2
A federal government website managed and paid for by the U.S. Centers for Medicare & Medicaid Services. 7500 Security Boulevard, Baltimore, MD 21244
Attachment 2
1 Sophie Hahn
Councilmember, District 5
City of Berkeley
2180 Milvia Street
Berkeley CA 94704
CONSENT CALENDAR
March 26, 2024
To: Honorable Mayor and Members of the City Council
From: Councilmember Sophie Hahn (Author) and Councilmembers Wengraf, Taplin, and Humbert (Co-Sponsors)
Subject: Budget Referral: Funding to Protect Pedestrian Safety on Upper Marin Avenue
RECOMMENDATION
Refer to the Budget Process up to $200,000 for study and implementation of traffic control measures on upper Marin Avenue to address urgent safety needs for pedestrians.
SUMMARY STATEMENT
On February 12, 2024, Berkeley resident Julia Elkin was struck by a car in the crosswalk of Oxford at Marin. Tragically, she died of her injuries two weeks later. In recent years there have been other fatalities and serious injuries on the steep upper blocks of Marin, from The Circle to Grizzly Peak Boulevard. In 2021, an almost identical crash occurred at the Marin crossing of Shattuck Avenue, resulting in serious injuries to an elderly resident, and a driver and passenger in a vehicle that lost control and crashed near Santa Barbara Road both died of their injuries. Councilmembers Hahn and Wengraf have consulted with Public Works staff to improve visibility and safety on numerous occasions, and in 2021 they co-authored an item to have $150,000 allocated to support safety upgrades, which were implemented by Public Works staff. Despite these efforts and improvements, the crash that took Ms. Elkin’s life is a stark reminder of the need to study and implement more significant safety improvements on upper Marin.
BACKGROUND
Marin Avenue in north Berkeley climbs straight uphill with a 25% grade and is one of the steepest streets in the entire San Francisco Bay Area. Berkeley’s Vision Zero Plan identified Marin as a “high injury street,” where the most severe injuries and fatalities occurred based on data collected from 2008-2018. Over the years, this single stretch of road has resulted in numerous deaths, serious injuries, and “close calls.” Subsequent to 2018, there have been a number of serious and fatal incidents, continuing this disturbing trend.
2 On May 11, 2021, just as Cragmont Elementary students were leaving school for the day, a fatal crash on Marin claimed the lives of Ruby Edwards and Anthony Rollins.
Following this tragic accident, Councilmembers Wengraf and Hahn co-authored a budget referral for traffic control mitigations to protect pedestrian access to Cragmont Elementary. $150,000 was allocated by the City Council, and after Public Works analyzed conditions, numerous actions were taken to increase pedestrian safety on Marin and other access streets for the school.
Improvements included repainting crosswalks, refreshing white stop bars and stop legends, refreshing white shoulder lines, refreshing red curbs, installing/refreshing double yellow lines, “stop ahead” signs and legends, “crosswalk ahead” signs, “school crosswalk ahead” signs, “Speed Limit 15 MPH School” signs, newer (larger) “traffic on your left does not stop” signs, and “School Slow Xing” signs. A visual display of Marin Striping Signage Improvements is attached hereto. Additionally, Public Works installed two speed feedback signs on Marin at the San Benito crossing going east/uphill and at the Cragmont Avenue crossing going west/downhill.
Also in 2021, Councilmember Wengraf authored an item to amend the Berkeley Municipal Code to reduce the commercial vehicle weight limit from four to three tons, thereby reducing the number of large trucks travelling up and down upper Marin.
Despite these and other efforts, accidents and fatalities have continued.
On December 10, 2021, 90-year-old Jacque Ensign, a co-founder of the Berkeley Path Wanderers Association, was struck while crossing Marin at Shattuck. Just several days before the accident, a cyclist suffered serious injuries in a separate event. In the wake of these incidents, Councilmembers Hahn and Wengraf visited the sites with the Deputy City Manager, Director of Public Works, and transportation staff to consider further improvements. A number of improvements were implemented at that time as well.
Despite these additional efforts, measures to address pedestrian safety on Marin have fallen short of preventing another devastating tragedy. It’s time to consider new and more impactful solutions, beyond those already implemented. Some solutions the City Manager, Berkeley Police Department, and/or Public Works Department are requested to consider include:
● Painting a center line - or creating a crosshatched center “median” to visually restrict lane width.
● Increasing enforcement of speed limit and stop sign violations.
3 ● Removing or trimming hedges and shrubs within a certain number of feet of crosswalks to “daylight” corners from which pedestrians emerge to cross. ● Moving crosswalks inwards towards intersections or making other changes to placement and marking of crosswalks, to improve site lines for downhill traffic, without decreasing visibility/safety for vehicles traveling uphill. ● Moving or adding crosswalks at the uphill side of intersections. ● Installing additional speed feedback signs.
● Adding signage for slower recommended speeds, even if the official limit can’t be lowered.
● Scheduling refreshment of painted elements such as crosswalks, stop lines and other pavement markings at more frequent intervals to account for poor adhesion of paint markings to concrete (Marin is paved with concrete) and extreme wear and tear.
● Converting crosswalks to high visibility “zebra” crossings. ● Studying installation of hawk lights at intersections with poor visibility. ● Studying possible options to make some or all of Marin one-way uphill; most of the serious crashes have been caused by vehicles traveling downhill. ● Other possible measures to increase safety for pedestrians.
REVIEW OF EXISTING PLANS, PROGRAMS, POLICIES, AND LAWS
In 2019, Berkeley adopted the Vision Zero Action Plan to eliminate traffic deaths and severe injuries on city streets by 2028. Marin Avenue from Spruce Street to the border with the City of Albany is included as a High-Injury Street. When Councilmember Hahn was first elected in 2016, she held a community meeting and met with transportation staff to discuss dangerous conditions on Marin. Subsequent to the crash that killed two passengers in 2021, the City Council allocated $150,000 for safety improvements for Marin, and numerous upgrades were implemented (See Attachments). In the wake of the crash that injured Jacquie Ensign, Councilmembers Hahn and Wengraf and pedestrian safety advocates from the Berkeley Path Wanderers met with the Deputy City Manager, Public Works Director and transportation staff at the site, and a series of additional upgrades were implemented. The City Council also lowered the weight limit for commercial vehicles on Marin.
4 ACTIONS/ALTERNATIVES CONSIDERED
None. The City must take more decisive action to address the dangers presented by the unique features of upper Marin Avenue, which was designed for a cable car, not for vehicles. Marin has extreme and unique grade and sight line challenges that must be addressed with more impactful solutions.
CONSULTATION/OUTREACH OVERVIEW AND RESULTS
Councilmembers Hahn and Wengraf have previously conducted on-site visits and have been in contact with the City Manager, Police and Public Works Departments about potential safety improvements on upper Marin Avenue. Councilmember Hahn is meeting with City staff on Tuesday March 5 and is meeting with neighbors the following week, to review continuing challenges and discuss additional measures that can be implemented and/or studied to increase safety on upper Marin.
RATIONALE FOR RECOMMENDATION
In an average year, 2 people die and 21 are severely injured in traffic collisions in Berkeley. 91% of Berkeley’s severe and fatal collisions occurred on just 16% of City streets from 2008 to 2018, including on Marin Avenue. With additional tragic and fatal accidents since 2018, the City must work to address the unique challenges presented by upper Marin and consider broader solutions.
ENVIRONMENTAL SUSTAINABILITY
Transportation makes up the biggest share of greenhouse gas emissions in California.
As collisions disproportionately impact pedestrians and cyclists, improving traffic safety and encouraging walking is key to the City’s goal of reducing GHG emissions.
5 FISCAL IMPACTS
Up to $200,000 for improvements to safety on Marin Avenue.
CONTACT
Sophie Hahn, District 5, (510) 981-7150
Attachments:
1. Marin Cragmont Funding Item
2. Marin Commercial Weight Reduction Item
3. Marin Improvements implemented in response to Marin Cragmont Funding Item
4. Letter from Neighbors in wake of death of Julia Elkin
URGENT ITEM
AGENDA MATERIAL
Government Code Section 54954.2(b)
Rules of Procedure Chapter III.C.5
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
THIS ITEM IS NOT YET AGENDIZED AND MAY OR MAY NOT BE
ACCEPTED FOR THE AGENDA AS A LATE ITEM, SUBJECT TO THE
CITY COUNCIL’S DISCRETION ACCORDING TO BROWN ACT RULES
Meeting Date: May 25, 2021
Item Description: Budget Referral: Funding for Traffic Control Mitigations to Protect Pedestrian Access to Cragmont Elementary School
This item is submitted pursuant to the provision checked below:
Emergency Situation (54954.2(b)(1) - majority vote required) Determination by a majority vote of the legislative body that an emergency situation exists, as defined in Section 54956.5.
X Immediate Action Required (54954.2(b)(2) - two-thirds vote required) There is a need to take immediate action and the need for action came to the attention of the local agency subsequent to the agenda for this meeting being posted.
Once the item is added to the agenda (Consent or Action) it must be passed by the standard required vote threshold (majority, two-thirds, or 7/9).
Facts supporting the addition of the item to the agenda under Section 54954.2(b) and Chapter III.C.5 of the Rules of Procedure:
On May 11, 2021 a horrific collision occurred on Marin Avenue, resulting in the tragic deaths of the driver and passenger of one vehicle and moderate injuries of the driver of another vehicle. Many parents and their young children at Cragmont Elementary were present and witnessed a vehicle literally flying past the school’s Marin frontage and then crashing just below Spruce Street. They are fearful of the dangers of walking along Marin Ave and crossing at Spruce and Cragmont Streets. Had the vehicles, which flipped and hit at least one telephone pole, jumped a sidewalk or run through a crosswalk with children present, the outcome would have been even more tragic.
Immediate action is required to approve this budget referral to fund traffic control mitigations to protect pedestrian access to Cragmont Elementary School so it can be included in the upcoming budget process.
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7160 ● TDD: (510) 981-6903 ● Fax: (510) 981-7166 E-Mail: [email protected]
Susan Wengraf
Councilmember District 6
CONSENT CALENDAR
May 25, 2021
To: Honorable Mayor and Members of the City Council
From: Councilmember Wengraf (author) and Councilmember Hahn (author) Councilmember Taplin and Mayor Arreguín (co-sponsors)
Subject: Budget Referral: Funding for Traffic Control Mitigations to Protect Pedestrian Access to Cragmont Elementary School
RECOMMENDATION
Refer to the Fiscal Year 2022/2023 Budget Process an allocation of $150,000 for traffic control measures on streets surrounding Cragmont Elementary School, with an emphasis on Marin Avenue, and Spruce Ave to provide as much protection as possible to children, parents, teachers, staff and neighbors accessing the school.
FINANCIAL IMPLICATIONS
$150,000 in funding.
BACKGROUND
The Vision Zero Plan identifies Marin Ave and neighboring streets such as Spruce, Grizzly Peak, and Euclid as high injury streets. The location of Cragmont School with property spanning along various high injury streets on Marin Ave and Spruce Street creates a challenging situation where Cragmont students cross two high injury streets on their way to and from school.
Marin Avenue in north Berkeley climbs straight up a hill with a 25% grade and is the steepest street in the entire San Francisco Bay area.
On May 11, 2021, at approximately 1:40 p.m., a horrific collision occurred on this segment of Marin resulting in the tragic deaths of Ruby Edwards and Anthony Rollins.
A second vehicle was impacted in the collision. The driver was taken to the hospital with moderate injuries. Luckily, her 3-year-old child, strapped into a car seat in the rear of her vehicle, was not hurt.
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7160 ● TDD: (510) 981-6903 ● Fax: (510) 981-7166 E-Mail: [email protected]
Compounding the horror of the incident is that kindergartners at Cragmont Elementary had just been dismissed for the day. Many parents and their young children were present and witnessed a vehicle literally flying past the school’s Marin frontage and then crashing just below Spruce Street. They are fearful of the dangers of walking along Marin Ave and crossing at Spruce and Cragmont Streets. Had the vehicles, which flipped and hit at least one telephone pole, jumped a sidewalk or run through a crosswalk with children present, the outcome would have been even more tragic.
Marin Avenue is a major thoroughfare for entry and exit from I-80 to all of North Berkeley. Due to services such as Waze and Google Maps, it is also an increasingly frequent route for vehicles travelling from I-80 to communities east of the East Bay Hills, who take Marin to bypass the MacArthur Maze and Highway 24 back-ups. Despite signage prohibiting heavy trucks, vehicles that appear to be overweight or oversized are frequently seen travelling both up and down Marin.
The safety of Berkeley’s elementary schoolchildren is of paramount concern, and the location of Cragmont Elementary is unique in the steepness and configuration of surrounding streets. While the impact location for the recent tragic accident on Marin was below Spruce Street, high speeds and erratic driving, the cause of which have yet to be determined, occurred above Spruce. Reviewing safety for the entire steep portion of Marin is therefore of particular concern.
When Cragmont Elementary was rebuilt in 1999, Spruce Street was the designated drop-off and pick-up access area but accessing the school from that vantage involves climbing a steep staircase and parents do not have visibility onto the schoolyard to view their children meeting up with friends and adult supervisors. The work to identify measures to reduce risks should include outreach to BUSD and Cragmont Elementary Administration, teachers, staff and families, as enhancing safety will require partnership.
This item refers an amount adequate to cover some measures which may be taken to reduce speeds, improve crossings, and otherwise manage potential challenges on Marin Avenue and consider potential improvements to Regal Road and Spruce Street entrances to the School, as well as measures that might be taken by BUSD/Cragmont Elementary in collaboration with the City to meet our shared commitment to the safety and well-being of students, teachers, staff and neighbors.
ENVIRONMENTAL SUSTAINABILITY
Pedestrian safety is paramount to encouraging adults and children to walk to their destinations, which reduces GHG emissions and supports health.
CONTACT PERSON
Councilmember Wengraf Council District 6 510-981-7160
Susan Wengraf
Councilmember District 6
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7160 ● TDD: (510) 981-6903 ● Fax: (510) 981-7166 E-Mail: [email protected]
CONSENT CALENDAR
September 28, 2021
To: Honorable Mayor and Members of the City Council
From: Councilmember Wengraf (Author), Councilmember Hahn (Co-Sponsor), Councilmember Taplin (Co-Sponsor), Councilmember Droste (Co-Sponsor) Subject: Amending BMC Section 14.56.040 to reduce the commercial weight limit on Marin Ave
RECOMMENDATION
Adopt first reading of an Ordinance amending Berkeley Municipal Code (BMC) Section
14.56.040 to reduce the commercial vehicle weight limit from four tons gross weight to three tons gross weight on Marin Avenue between Grizzly Peak Boulevard and The Marin Fountain Circle.
FINANCIAL IMPLICATIONS
Staff time and sign replacement. Expense covered by approved FY 2022 funding allocation for “Traffic Control Mitigations to Protect Pedestrian Access to Cragmont Elementary School”.
CURRENT SITUATION AND ITS EFFECTS
Reducing the commercial vehicle weight limit on Marin Ave between Grizzly Peak Boulevard and The Marin Fountain Circle will make Marin Avenue safer to walk on, drive on and live on. Marin Avenue is the steepest street in the City of Berkeley; one of the steepest in the entire Bay Area. Accidents on Marin Ave involving failed brakes and other mechanical failures have resulted in deaths, severe injuries and property damagei.
The heavier a vehicle the greater potential for catastrophic results from an accident.
On May 11, 2021, at approximately 1:40 PM, a driver of a sedan and his passenger died in a collision with a telephone pole. A second vehicle was impacted in the collision with injuries to the driver. A parked car was also hit. The reason for the accident is still under investigation but speculated to be some sort of mechanical failure. Cragmont Elementary students and parents were traumatized by witnessing the out of control car and hearing the resulting crash. Had the car been a high tonnage commercial vehicle the results would likely have been even more disastrous.
Councilmember Wengraf and Transportation staff participated in a Community Town Hall on Marin Ave Safety, hosted by the Cragmont School PTA on May 26, 2021. This item is a result of discussion and consideration of steps to improve safety on Marin Ave.
The recent tragic deaths along with years of concern over traffic safety on Marin Ave bring this recommendation to Council.
Amending BMC Section 14.56.040 CONSENT CALENDAR
September 28, 2021
BACKGROUND
The commercial vehicle weight limit for the upper section of Marin Ave, between The Marin Fountain Circle and Grizzly Peak Blvd. was set at four tons in 1957 and has remained unchanged. Weight limits were not set again in Berkeley until 1992 (BMC
14.56.050) when five-ton vehicle weight limits were set for sections of collector streets Gilman, Hopkins, The Alameda and MLK Jr. Way. In 2000 the passage of Ordinance No. 6535 – N.S. created a designated truck route system for commercial vehicles exceeding seven tons (BMC 14.56.060). It wasn’t until 2004 that the City Council once again addressed commercial vehicle traffic on residential streets with the passage of Ordinance No. 6799 – N.S., which added BMC 14.56.070, and limited commercial vehicle weight limits to three tons on sections of 46 different streets. Marin Ave remains the only residential street in Berkeley with a four-ton weight limit.
Currently, Marin Ave remains the only residential street in Berkeley with a four-ton weight limit.
Marin Avenue is a major thoroughfare for entry and exit from I-80 to all of North Berkeley. It is also a residential street where residents walk up, down and across for exercise and pleasure. As mentioned, Cragmont Elementary School is located on Marin where students, parents and staff walk and cross the street to get to and from school, daily.
Reducing the commercial vehicle weight limit on Marin Avenue between Grizzly Peak Boulevard and The Marin Fountain Circle is consistent with the City’s Vision Zero strategy to eliminate all traffic fatalities and severe injuries while increasing safe, healthy and equitable mobility for all. Vison Zero has designated lower Marin Ave, below Spruce street, as one of the City’s “High Injury Streets” (16% of the City’s streets) where 91% of severe and fatal collisions occurred between 2008 and 2018. While the latest fatal collision on Marin Avenue occurred on lower Marin, the car’s speed began to get out of control in the steep, weight limited section of Marin, above Cragmont Elementary.
Reducing the commercial vehicle weight limit on Marin Ave by one ton will make Marin Avenue safer for all.
ENVIRONMENTAL SUSTAINABILITY
Safer streets encourage lower emission forms of transportation such as walking, biking and use of public transportation.
CONTACT PERSON
Councilmember Wengraf Council District 6 510-981-7160
Attachments:
1: Ordinance
2: Commercial Vehicle Weight Limit Map
Amending BMC Section 14.56.040 CONSENT CALENDAR
September 28, 2021
ORDINANCE NO. -N.S.
AMENDING BERKELEY MUNICIPAL CODE SECTION 14.56.040, PROHIBITING THE
OPERATION OF COMMERCIAL VEHICLES ON MARIN AVENUE BETWEEN
GRIZZLY PEAK BOULEVARD AND THE CIRCLE EXCEEDING FOUR TONS GROSS
VEHICLE WEIGHT
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That subsection A of Section 14.56.040 of the Berkeley Municipal Code is amended to read as follows:
A. It is unlawful for any person to operate any commercial vehicle over three tons gross weight on Marin Avenue between Grizzly Peak Boulevard and The Marin Fountain Circle. Provided, however, that this section shall not apply to any commercial vehicle using said street when necessary for the purpose of making pickups or deliveries of goods, wares and merchandise from or to any building or structure located on said portion of Marin Avenue or for the purpose of delivering materials to be used in the actual and bona fide repair, alteration, remodeling or construction of any building or structure upon such portion of Marin Avenue for which a building permit has previously been obtained therefore, providing the operator of said commercial vehicle enters and leaves said portion of Marin Avenue by the cross street either above or below the point of pickup or delivery. Provided, further, that this section shall not apply to any vehicle owned by a public utility while necessarily in use in the construction, installation or repair of any public utility. (Ord. 6799-NS § 1 (part), 2004: Ord. 3600-NS § 1, 1957) B. The prohibitions established herein shall not be effective until appropriate signs are erected indicating the streets affected by this section. (Ord. 6526-NS § 1, 2000: Ord. 6508-NS § 1, 1999: Ord. 6426-NS § 1, 1998: Ord. 6351-NS § 1, 1996: Ord. 6265-NS § 1, 1994: Ord. 6102-NS § 1, 1992)
Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Council Chambers, 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.
Amending BMC Section 14.56.040 CONSENT CALENDAR
September 28, 2021
i https://www.berkeleyside.org/2021/05/13/fatal-crash-revives-traffic-safety-concerns-for-berkeley-hills- neighbors
February 28, 2024
Berkeley City Council
2180 Milvia Street,
Berkeley, CA 94704
Dear Berkeley City Council and City Manager Dee Williams-Ridley,
We are a group of neighbors who live near the corner of Marin and Oxford and are writing to you in hopes that you can address the urgent need for a traffic calming on Marin Ave and Oxford and intersection improvements on the corner of Marin and Oxford. As you may know, Marin Ave is a high injury street as identified in the City's Vision Zero Action Plan. The city must calm traffic on the side streets leading up to Marin and also on Marin Avenue itself. Although we know that traffic calming on steep streets can be a challenge, we have seen cities like San Francisco add traffic calming measures on steep streets such as Clipper Street.
On February 12, 2024, many of us heard the terrible crash when a young woman named Julia Elkin was hit by a driver as she was in the crosswalk on the corner of Marin Ave and Oxford. The driver was traveling westbound, down hill on Marin Ave. We are devastated to hear that Julia passed away from her injuries.
This young woman could have been any of us. She was exercising in our neighborhood around 1:30pm.
Many of us heard her scream before she was hit and rushed to the scene to support her and call for help.
Julia’s death was a tragedy that was preventable. We are asking that you do everything in your power to ensure that we do not lose another neighbor on our streets to traffic violence.
We have seen many drivers in our neighborhood who do not stop at the stop sign on the corner of Marin and Oxford heading westbound. Furthermore, the fact that traffic traveling eastbound on Marin does not have a stop sign makes it a very confusing intersection. On a daily basis, we witness bad driver behavior including drivers speeding downhill on Marin Ave, nearly hitting anyone in the crosswalk. This bad behavior isn’t merely going to stop through education – we need physical traffic calming measures installed to create a safer environment.
We have several vulnerable populations crossing this intersection, including children traveling up and down Marin to get to school and seniors who live in the neighborhood. After speaking to several of our neighbors, we understand that there was stronger traffic enforcement on Marin Ave and specifically near the intersection of Marin and Oxford prior to the pandemic. As an interim measure, we request more traffic enforcement near this intersection while the City simultaneously works on a traffic calming study and on a plan to add intersection improvements on Marin and Oxford, such as a Rectangular Rapid Flashing Beacons at Oxford and Marin, rumble strips on the westbound side of Marin, solar powered radar speed signs heading westbound, and making the intersection an all way stop.
We request a community meeting by March 25th so we can hear about the steps that you will take to address the need for traffic calming on Marin Ave. Thank you in advance for your consideration. Please do everything in your power to help us reduce preventable traffic violence in our neighborhood.
Sincerely,
Ana & Jyotindra Vasudeo
2200 Marin Ave
Brent Blackaby & Larry Huynh
744 Grizzly Peak Blvd
Mike and Paula Rice
4 Sunset Ln.
Will Dogan & Rafael Reis
870 Grizzly Peak Blvd
Pavitra Prabhakar
755 Grizzly Peak Blvd
Christine Blanchet Aitkins & Steve Aitkins
790 Hilldale Ave
Max & Claudine Blanchet
790 Hilldale Ave
Arly Cassidy & Levon Dolbakian
1053 Oxford Street
Ellen Evers & Bart Timmers
1001 Oxford street
Victoria Kahn
Helene Silverberg
915 Oxford Street
Hope & Noah Alper
910 Oxford Street
Rose Schweig
2262 Summer St
John & Becky Pierson
2011 Marin Ave
Esta Brand
Zack Rogow
841 Oxford Street
Swati Agarwal and Vipul Garg
746 wildcat canyon road
Gertrude Weil
1028 Oxford Street
Scott and Lourdes Moore
936 Oxford st.
Sylvia Luk and Mark Smedley
920 Oxford St
Leslie Rosenfeld
1027 Oxford St.
Rena & Mordy Rosen
984 Oxford Street
Elizabeth Hawk & Fritjof Capra
1019 Oxford Street
Katy Haynes & Matt Gronniger
833 Oxford Street
Iain Clark and Amy Pickering
811 Oxford Street
Mark Cohen
825 Oxford Street
Patricia and Bob Young
850 Oxford Street
Rebecca Whitney & Perry de Valpine
807 Oxford Street
Aeryn Johnson
823 Oxford Street
Scott Willson
919 Oxford Street
Lindsay and Peter Nofelt
2031 Del Norte St.
Miriam Eisenhardt and
Edward Murphy
843 Oxford St.
Susan Scherer
1036 Oxford St
Lynanne Jacob and Lloyd Lee
812 Oxford St
Elizabeth Koller and Tom Mulvihill
808 Oxford Street
Candace Khanna
736 Grizzly Peak Blvd.
Thierry and Melissa Diagana
835 Oxford St.
Alex Schoenfeld
762 Grizzly Peak Blvd.
Ranko Yamada
2207 Marin Ave.
Shannon Mochel
1404 Oxford
Susan Wengraf
Vice Mayor and Councilmember District 6
To: Honorable Mayor and Members of the City Council
CONSENT CALENDAR
March 26, 2024
From: Vice Mayor Susan Wengraf (Author), Mayor Arreguin (Co-Sponsor), Councilmember Hahn (Co-Sponsor), Councilmember Taplin (Co- Sponsor)
Subject: Proclamation in Honor of City of Berkeley Holocaust Remembrance Day
RECOMMENDATION
Adopt the Holocaust Remembrance Day Proclamation for the City of Berkeley’s 21 ST
Annual Holocaust Remembrance Day. The program will take place virtually on Sunday, May 5th, 2024.
FINANCIAL IMPLICATIONS
An allocation of $6,000 dollars was approved in the 2023-2024 budget for this event.
BACKGROUND
For the past twenty-one years, The City of Berkeley has sponsored the Holocaust Remembrance Day program to honor survivors, and to remember those who were murdered, those who resisted, and those who rescued victims of the Holocaust.
As Estelle Laughlin, a Holocaust Survivor, states in US Holocaust Memorial Museum’s video, Why We Remember the Holocaust, “Memory is what shapes us.
Memory is what teaches us. We must understand that’s where redemption is.” Margit Meissner, a Holocaust Survivor in the Why We Remember the Holocaust video, reminds us of the context for the Holocaust. “A strong man came to power in Germany whose ideas were that Germany has to create a national community, which would include only the Aryan race, which he considered superior, and all the people who did not belong to the Aryan race could be eliminated.”
More than 11 million people were targeted for extermination by the Nazis, including 6 million Jews, Roma, Poles, people with physical disabilities, homosexuals, communists, socialists and dissenting clergy.
in January 2024 the Anti-Defamation League reported skyrocketing antisemitic incidents in the U.S., having recorded a total of 3,291 antisemitic incidents in the prior three months, a 361-percent increase compared to the same period one year prior.
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7160 ● TDD: (510) 981-6903 ● Fax: (510) 981-7166
E-Mail: [email protected]
Proclamation in Honor of Holocaust Remembrance Day 2024 CONSENT CALENDAR March 26, 2024
Holocaust Remembrance Day reminds us of the extreme dangers of letting hate go unchecked. The 2024 Program will honor Kitty Klaidman, a distinguished artist and Holocaust Survivor, who will speak about her experiences in the Holocaust. The program will also feature musical performances by Rebecca Rust on Cello and Friedrich Edelmann on Bassoon, and a unique candle lighting ceremony by survivors and family members.
ENVIRONMENTAL SUSTAINABILITY
No direct impact
CONTACT PERSON
Councilmember Wengraf Council District 6 510-981-7160
Attachments:
1: Proclamation
Proclamation in Honor of Holocaust Remembrance Day CONSENT CALENDAR March 26, 2024
BERKELEY’S 21ST ANNUAL HOLOCAUST REMEMBRANCE DAY
Whereas, the Holocaust was the state-sponsored, systematic genocide of more than six million European Jews by Nazi Germany and its collaborators between 1933 and 1945; and
Whereas, the Holocaust was a crime of shocking inhumanity, targeting for persecution and death, six million Jews and also Roma and Sinti people, those with mental illness and physical disabilities, homosexuals, Slavs, Poles, and members of anti-Nazi networks from throughout Europe; and
Whereas, Holocaust Remembrance Day reminds us of the importance of remembering: “Memory is what shapes us. Memory is what teaches us. We must understand that’s where redemption is, Holocaust Survivor, Estelle Laughlin noted; and
Whereas, false information on the Holocaust continues to deny and trivialize the truth of what took place during the Nazi regime and, for the benefit of past, present and future generations, we must never forget the appalling crimes of the Holocaust; and Whereas, in January 2024 the Anti-Defamation League reported skyrocketing antisemitic incidents in the U.S., having recorded a total of 3,291 antisemitic incidents in the prior three months, a 361-percent increase compared to the same period one year prior; and
Whereas, the purpose of Berkeley’s Holocaust Remembrance Day is to join together as a community to remember the Holocaust, to honor survivors who chose to rebuild their lives in Berkeley and the Bay Area, and to reflect on the need to respect all people.
NOW THEREFORE, BE IT RESOLVED that I, Jesse Arreguín, Mayor of the City of Berkeley, do hereby proclaim May 5, 2024 as
Holocaust Remembrance Day
In the City of Berkeley, in memory of those who perished and in honor of the survivors as well as the rescuers and liberators.
BE IT FURTHER PROCLAIMED that the City of Berkeley is committed to never forgetting the events of the Holocaust and to working actively to combat antisemitism, racism, bigotry, and hatred in all forms, and to the promotion of human rights and dignity for all.
Susan Wengraf
Vice Mayor and Councilmember District 6
To: Honorable Mayor and Members of the City Council
CONSENT CALENDAR
March 26, 2024
From: Vice Mayor Susan Wengraf (Author), Mayor Arreguin (Co-Sponsor), Councilmember Hahn (Co-Sponsor), Councilmember Taplin (Co-Sponsor) Subject: 2024 Virtual Holocaust Remembrance Day Program: Relinquishment of Council Office Budget Funds from General Funds and Grant of Such Funds
RECOMMENDATION
Adopt a Resolution approving the expenditure of an amount not to exceed $500 per Councilmember, including $500 from Vice Mayor Wengraf, to support the City’s Annual Holocaust Remembrance Day program with funds relinquished to the City’s general fund. The relinquishment of funds from Vice Mayor Wengraf’s discretionary Council Office Budget and all other Councilmembers who would like to contribute, allows the City of Berkeley to invite the community to its 21st Annual Holocaust Remembrance Day virtual program, created by the community with City Council support. This year’s program will be held virtually on May 5th, 2024. Register via Eventbrite to attend.
FINANCIAL IMPLICATIONS
No General Fund impact: up to $500 is available from contributing Councilmember’s Council Office Budget discretionary accounts.
BACKGROUND
The City of Berkeley’s Annual Holocaust Remembrance Day program has been supported by the City Council since its inception in 2002. The program has occurred annually, except in the year 2020 when the pandemic hit without enough time to pivot to a virtual program. Berkeley’s Holocaust Remembrance Day has become a treasured event for Holocaust survivors, family members and the Bay Area community as the only secular, city-sponsored program in the region. The community program invites attendees to honor those who perished in the Holocaust and those who survived. With rising hate incidents and hate crimes in our region and nation-wide, it is critical that we hear the stories of survivors of the Holocaust and re-affirm our resolve to never forget.
ENVIRONMENTAL SUSTAINABILITY
No impact
CONTACT PERSON
Councilmember Wengraf Council District 6 510-981-7160
Attachment: 1. Resolution
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7160 ● TDD: (510) 981-6903 ● Fax: (510) 981-7166 E-Mail: [email protected]
RESOLUTION NO. ##,###-N.S.
AUTHORIZING THE EXPENDITURE OF SURPLUS FUNDS FROM THE OFFICE
EXPENSE ACCOUNTS OF THE MAYOR AND COUNCILMEMBERS FOR A GRANT
TO PROVIDE PUBLIC SERVICES FOR A MUNICIPAL PUBLIC PURPOSE WHEREAS, Councilmember Wengraf has surplus funds in her office expenditure accounts and will contribute $500, and invite the Mayor and other Councilmembers to join her in contributing; and
WHEREAS, a California nonprofit tax-exempt corporation, The Jewish Community Center of the East Bay, serves as the fiscal sponsor of the Holocaust Remembrance Day program and will receive funds in an amount up to $500 per contributing Councilmember’s discretionary account; and
WHEREAS, the provision of such services would fulfill the municipal public purpose of providing a community program supporting Holocaust survivors, community recognition and education about the Holocaust and unity among Berkeley residents. The grants will provide funds to produce the virtual event.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that funds relinquished by the Mayor and Councilmembers from their Council Office Budget, up to $500 per office, shall be granted to the Jewish Community Center of the East Bay to fund the City of Berkeley’s virtual 21 st Annual Holocaust Remembrance Day program on May 5, 2024.
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
March 26, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Subject: Zoning Ordinance Amendments to Berkeley Municipal Code Chapter
23.326 Demolition and Dwelling Unit Controls
RECOMMENDATION
Conduct a public hearing and upon conclusion, adopt first reading of an Ordinance regarding amendments to Berkeley Municipal Code Chapter 23.326 Demolition and Dwelling Unit Control Ordinance.
SUMMARY
State law SB 330 (Housing Crisis Act of 2019) established new provisions related to demolition of residential units, including the rights of sitting tenants and affordability requirements for demolished units. The law provides different options to comply with these requirements.
The proposed ordinance (Attachment 1 (redlined) and Attachment 2 (clean)) includes provisions to bring the current Demolition Ordinance (Attachment 4) into conformance with SB 330, clarify replacement unit requirements, maximize tenant protections, and preserve the existing affordable housing stock. The proposed ordinance includes a number of new Berkeley-specific provisions as recommended by the 4x4 Joint Task Force Committee on Housing and the Planning Commission, and includes a number of text edits, including grammatical corrections and renumbering.
FISCAL IMPACTS OF RECOMMENDATION
The proposed ordinance is not anticipated to have a noticeable impact on staffing needs or workload, and any fiscal impacts would be minimal.
The proposed ordinance includes the removal of an option to pay a fee for affordable housing in lieu of replacing new units, as State law requires the replacement of demolished units.
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
CURRENT SITUATION AND ITS EFFECTS
Revising Berkeley Municipal Code Chapter 23.326 Demolition and Dwelling Unit Controls (“the Demolition Ordinance”) supports the City’s Strategic Plan Goal to create affordable housing and housing support services for its most vulnerable community members.
The existing Demolition Ordinance (Attachment 4) requires a Use Permit for the demolition or elimination of one or more dwelling units in Berkeley. The Zoning Adjustments Board (ZAB) may issue a Use Permit for the demolition of a dwelling unit for specific listed reasons:
A building is “hazardous or unusable and is infeasible to repair.” “Demolition is necessary to permit construction… of at least the same number of dwelling units.”
“The elimination of the dwelling units would not be materially detrimental to the housing needs and public interest of the affected neighborhood and the City.” The existing Demolition Ordinance includes provisions for unit replacement and the rights of sitting tenants, as well as additional situations such as:
When housing units are demolished and no new housing units are proposed to be developed at the site (e.g., commercial development); When tenants have been unlawfully evicted, such as forcing a tenant out of a unit without a court order; and
When units are being merged or converted within an existing building rather than physically demolished.
The existing Demolition Ordinance includes a provision whereby applicants may pay a fee rather than provide below-market-rate replacement units. However, the amount of that fee has never been established.
Demolition of dwelling units is prohibited where a residential building has been removed from the rental market under the Ellis Act during the preceding five years. Demolition is also prohibited where there have been verified cases of harassment or threatened or actual illegal eviction during the immediately preceding three years. Project applicants are generally required to provide relocation benefits, including moving expenses and differential rent payments to tenants. In addition, displaced tenants are provided a right of first refusal to rent new units after the lot has been redeveloped.
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
The existing ordinance also includes provisions related to the demolition of non- residential buildings, accessory buildings and building relocations. Changes to these provisions are not proposed.
Proposed Demolition Ordinance Provisions
The proposed ordinance includes provisions to bring the Demolition Ordinance into conformance with State law and includes a number of new Berkeley-specific provisions as recommended by the 4x4 Joint Task Force Committee on Housing. The proposed ordinance also includes a number of text edits, including grammatical corrections and renumbering.
The most significant changes are summarized in Table 1 and discussed in detail below.
The primary rationales for the proposed changes include clarifying the applicability of the ordinance, expanding tenant protections, bringing the ordinance into conformance with State law, and assigning the Rent Stabilization Board (Rent Board) to administer some aspects of the ordinance rather than the ZAB.
Applicable Unit
The existing ordinance indicates that it applies to a “dwelling unit or units.” The proposed ordinance includes clarifications that it applies to dwelling units, group living accommodations, residential hotel rooms, certain ADUs and units constructed without a building permit.
Regarding Accessory Dwelling Units (ADUs), the 4x4 Committee proposed incorporating ADUs into the ordinance, subject only to the tenant notice and relocation requirements. This means an ADU wouldn't be obligated to meet replacement or affordability requirements. The Planning Commission expressed concern that applying these requirements to ADUs would discourage their production, specifically in cases where there was one single-family home and one ADU on a lot. However, Planning Commission also determined that ADUs within larger, multi-unit rental properties should be subject to replacement requirements. As a result, the Planning Commission recommended exempting an ADU entirely on lots which include only one single-family dwelling and one ADU. All other ADUs would be treated similarly to other units.
Protected Unit
SB 330 includes a no net loss provision that requires that a residential development project that includes the demolition of existing units must result in at least as many units as are demolished. In addition, certain types of units—“protected units”—are subject to specific replacement and affordability provisions. The proposed ordinance includes a definition of protected unit consistent with SB 330, and includes units that have been:
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
Subject to a low-income deed restriction for any of the previous five years; Subject to rent control per Berkeley Municipal Code 13.76; or Rented by a household at 50% Area Median Income or lower.
Comparable Unit
The existing ordinance refers to a “comparable unit” when referring to replacement units, but does not define “comparable unit.” The proposed ordinance includes an explicit definition of “comparable unit,” indicating that it should be of a comparable size, include similar amenities, and be located in a similar area of the city as the demolished unit.
Units Built Without Proper Permits
The proposed ordinance applies to Dwelling Units, ADUs and JADUs that were created without proper zoning approvals or building permits (i.e. “illegal units”). These units, and the tenants residing in them, would be treated as properly permitted units for the purposes of the proposed ordinance, with the following distinctions:
For a unit built without proper permits to qualify as a residential unit, it would have to be registered with the Rent Stabilization, or the Rent Stabilization Board must determine that a tenant-landlord relationship existed during the previous five years.
The proposed ordinance includes a provision that allows the Building Officer, Zoning Officer or Fire Marshal to determine that the replacement of such a unit is not required when the replacement of the unit would be infeasible given existing Zoning, Building or Fire Code requirements.
Prohibited Demolitions
The existing ordinance prohibits demolition for units that have been removed from the rental stock through the Ellis Act within the past five years, or in cases where there has been substantial evidence of tenant harassment by a rental property owner, or an attempted or actual illegal eviction, within the past three years. In the latter case, the determination of whether harassment has occurred is made by the ZAB.
The proposed ordinance expands tenant protections to include any no fault eviction within the past five years, not just removal of a rental unit from the market through the Ellis Act. A “no fault eviction” is when the property owner or landlord wants to evict a tenant at no fault of the tenant, for example, when the property owner wants to move into the property.
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
The Rent Stabilization Board is proposed to be the deciding body for questions regarding harassment and illegal eviction, instead of the ZAB.
Mitigation Fee
The existing ordinance includes a requirement to pay an in-lieu mitigation fee for every unit demolished, or the option to replace a comparable affordable unit on-site.
State law (SB330) imposes a requirement that any housing development project that requires the demolition of dwelling units must create at least as many residential dwelling units as will be demolished on-site, and requires that the City condition approval on the provision of replacement units. Therefore, an option to “fee out” of the replacement requirement is a violation of State law, because it would not provide replacement units at the sizes and affordability levels required by SB 330. Accordingly, the proposed ordinance removes the mitigation fee section.
Landmarks and Structures of Merit
While the provisions of BMC Chapter 3.24 (Landmarks Preservation Commission) apply to units proposed for demolition, the existing ordinance does not explicitly refer to this chapter. Accordingly, the proposed ordinance includes specific language referring to Chapter 3.24.
Affordability of Replacement Units
The existing ordinance includes a requirement that any replacement units must be affordable units, and that the income levels of the qualifying households, and rents for the replacement units, shall be set by a resolution of the City Council. The existing ordinance also includes a requirement that the project applicant enter into a regulatory agreement with the City to provide these units.
The proposed ordinance includes more detailed provisions addressing the affordability levels of replacement units that are in concert with the requirements under State law:
The proposed ordinance requires that any demolished protected unit shall be replaced with equivalent units and comply with the applicable affordability requirements for Affordable Units included in BMC 23.328 (Affordable Housing Requirements) and BMC 23.330 (Density Bonus). Referencing these sections clarifies the appropriate affordability levels for replacement units,1 and 1 BMC Section 23.328.030 requires that development projects subject to Inclusionary Zoning requirement include at least 20% of the units as Affordable Units. At least 50% of required Affordable Units must be offered at a rent that is affordable to Very Low Income Households (50% AMI or lower); the balance of units can be offered at rents affordable to Low Income Households (80% AMI).
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
establishes consistent requirements across a number of affordable housing- related provisions in the BMC.
The proposed ordinance includes a provision that if a displaced household has an income below 50% AMI, a comparable replacement unit shall be offered at a rent that is affordable to households at 30% of AMI.
The proposed ordinance also includes a provision that in cases where the household income of a displaced tenant(s) is unknown, households would be presumed to be low income in proportion to households throughout the city, as calculated using the US Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy (CHAS) database.
Attachment 3 includes illustrations of how these provisions could be applied.
Sitting Tenants’ Rights
The existing ordinance establishes certain rights for sitting tenants. Sitting tenants in demolished units are entitled to a right of first refusal to move into the new building, have a right of first refusal for any BMR units, and retain those rights even if they have incomes that do not qualify for BMR units.
The proposed ordinance clarifies that tenants who do not qualify for BMR replacement units due to income limits above the area median income must still be provided a market-rate replacement unit at their prior rent. Additionally, the rent for the duration of that tenancy would be subject to Berkeley's rent control regulations. This section was added by the 4x4 Committee to provide additional rights to sitting tenants who may not qualify for BMR units.
The proposed ordinance includes additional provisions related to sitting tenants’ rights.
The revisions clarify that a sitting tenant’s right of first refusal extends to a comparable unit (not just any unit) in the building, and includes provisions which set the rent levels for those units. These provisions go beyond what is required under State law. The proposed ordinance also includes a specific timeline by which a displaced tenant must indicate interest in returning to a replacement unit.
Elimination of Units through Combination with Other Units The existing ordinance includes provisions regulating the elimination of dwelling units through physical combination with other units. This usually occurs in cases where two units are combined to make a single larger unit. The existing ordinance requires a Use Permit, with specific findings, to move forward with such an elimination. It also prohibits
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
such an elimination if the building was removed from the rental market through the Ellis Act in the past five years, or if there is evidence of tenant harassment or illegal eviction within the past three years, as determined by the ZAB.
The proposed ordinance permits combined units through an Administrative Use Permit (AUP) approval, if such a combination would return the building to, or move it closer towards, its permitted density. This is a provision to make it easier for units in owner- occupied buildings to be combined. The AUP requirement still includes discretionary review, the ability to set conditions, and an appeal option to the ZAB.
Elimination of a unit for a combination would not be approved if the building was vacated through any no-fault eviction, not just due to the Ellis Act, or if the tenant was subject to landlord harassment or an illegal eviction. The determination of whether landlord harassment or a real or attempted illegal eviction occurred would be made by the Rent Board Hearing Examiner, with an appeal option to the Rent Stabilization Board, instead of by the ZAB.
Demolition of Single-Family Homes
The existing ordinance requires a Use Permit to demolish a single-family home. The adopted Housing Element Update, Program 19—Middle Housing—includes a requirement that the City Council consider permitting the demolition of single-family homes with a Zoning Certificate (ZC) if the demolition is part of a middle housing project that results in a net increase in density.
The proposed ordinance includes a provision to allow the demolition of a single-family home without sitting tenants with an AUP if it is part of a project that results in a net increase in density. While the Planning Commission understood the rationale for streamlining review of projects that increase density, it concluded an AUP was the more appropriate level of discretion, and that the ordinance should specifically indicate that a single-family home with sitting tenants would not be permitted to be demolished with an AUP. The Planning Commission also acknowledged its intent to reconsider this issue later in 2024 as part of the Middle Housing legislative package.
Demolition of Accessory Buildings
The existing ordinance includes a provision that permits the demolition of an accessory building that does not contain a dwelling unit, such as garages, carports, and sheds, with a ZC. The proposed ordinance includes additional clarifying language that an accessory building that is occupied by a residential tenant shall be considered a residential unit for the purposes of this chapter.
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
Residential Hotel Rooms
The existing ordinance includes a section regulating the elimination of Residential Hotel Rooms. These provisions include requirements related to monthly and weekly charges, and permit Residential Hotel Rooms to be removed for the purpose of providing common use facilities (such as a kitchen, lounge, or recreation room) for remaining residents or to undertake seismic upgrades or meet the requirements of the Americans with Disabilities Act. They also include a provision allowing an owner to meet the replacement requirements through a payment to the Housing Trust Fund, which, as noted above, is not permitted under State law.
The proposed ordinance removes the Residential Hotel Rooms section entirely.
Residential Hotel Rooms would therefore receive the same treatment under the proposed ordinance as other residential units
Technical Edits, Reorganization and Renumbering
The proposed ordinance also includes a variety of purely technical edits, and reorganization, retitling, and renumbering of some sections and subsections.
Table 1. Summary of Revisions to Demolition Ordinance
Policy Area Current Ordinance Proposed
Ordinance
Rationale
Applicable Unit “Dwelling unit or
units.”
Dwelling Unit, GLA,
ADU, JADU, and
units built without
permits
Clarification of the
types of units
covered.
Protected Unit No definition. BMR unit, rent
controlled unit, or
unit occupied by
household at 50%
AMI.
State Law:
protected units are
subject to specific
replacement
requirements.
Comparable Unit No definition. “Similar size,
amenities and
location within the
city.”
Clarification by
providing a
definition.
Units Built
Without Proper
Permits
Not mentioned. Includes units built
without proper
permits if registered
with Rent Board or
Clarification of the
types of units
covered.
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
Policy Area Current Ordinance Proposed
Ordinance
Rationale
landlord-tenant
relationship has
existed in past five
years.
Demolition
Prohibition: Ellis
Act
Prohibition applies
to any unit removed
via Ellis Act within
the past 5 years
Prohibition applies
to any “no-fault”
eviction.
Expansion of tenant
protections beyond
just one type of no-
fault eviction (Ellis
Act).
Demolition
Prohibition:
Tenant
Harassment
Determination
made by ZAB.
Determination
made by Rent
Board.
For tenant-landlord
issues, the Rent
Board is the
subject-expert
body.
Mitigation Fee Includes mitigation
fee option.
Removes mitigation
fee option.
State Law:
Demolished units
must be replaced
(SB 330).
Landmarks and
Structures of
Merit
No reference to
Landmarks
Preservation
Commission (LPC)
procedures.
Includes reference
to LPC procedures.
Clarification that
LPC procedures
apply.
Replacement
Units --
Affordability
Replacement
unit must be
affordable in
perpetuity;
Affordability
level to be set
by Council
resolution;
Regulatory
agreement with
the City
required.
Replacement
unit must
comply with
Chapter 23.328
(Affordability
Requirements)
and 23.330
(Density Bonus);
For demolished
unit with
household at
50% AMI or
below,
replacement unit
State Law: Existing
tenant income
levels impact
type/affordability of
replacement units
(SB 330).
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
Policy Area Current Ordinance Proposed
Ordinance
Rationale
must be set at
30% AMI; and
Allows Zoning
Officer and Fire
Marshall to
waive
replacement of
illegal units for
health and
safety
Sitting Tenants
Rights
Right of first
refusal to move
into the building
Right of first
refusal for BMR
units
Income
restrictions do
not apply
Right of first
refusal for a
comparable unit
For displaced
tenants who rent
a comparable
unit, rent is
controlled for
duration of
tenancy
For households
ineligible for
BMR units, a
replacement unit
shall be offered
at prior rent,
with increases
limited
equivalent to
rent control.
State Law: Tenant
income levels
impact
type/affordability of
replacement units
(SB 330).
Additional local
requirement:
Income restrictions
do not apply to
displaced
households upon
their return to the
property after
completion of the
project.
Elimination of
Units through
Combination with
other Units
Use Permit
required in all
cases, with
findings.
AUP to combine
units when the
combination would
return the building
to, or move it closer
towards, its original
density.
Simplification: Allow
conversion of
owner-occupied
buildings with a
lesser standard.
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
Policy Area Current Ordinance Proposed
Ordinance
Rationale
Combination not
allowed if the
building was
removed via Ellis
Act within the past
5 years
Combination not
allowed if vacated
through no fault
eviction within the
past 5 years.
Expansion of tenant
protections beyond
just one type of no-
fault eviction (Ellis
Act).
Combination not
allowed if tenant
harassment.
Determination
made by ZAB
Determination
made by Rent
Board Hearing
Examiner, with
appeal to Rent
Board.
For tenant-landlord
issues, the Rent
Board is the
subject-expert
body.
Demolition of
Single Family
Homes
Requires a Use
Permit.
Would be permitted
with an AUP if the
single family home
were not tenant-
occupied and the
demolition was part
of a project that
increased density.
Provide streamlined
process to
encourage middle
housing projects.
Demolition of
Accessory
Buildings
Can be demolished
by right.
Added language to
clarify that
Accessory
Buildings that are
occupied by
residential tenants
are considered
Residential Units.
23.326.050
Expansion of
demolition controls
and tenant
protections.
Elimination of
Residential Hotel
Rooms
Section 23.326.060
provides specific
procedures for
removal of
residential hotel
rooms
Section removed. Residential Hotel
Rooms are
considered
Residential Units
for purpose of
ordinance.
23.326.010(A)(1)
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
BACKGROUND
The impetus for these revisions is recent changes in State law that provide additional requirements for new housing development projects that involve the demolition of existing residential units. These provisions of SB 330 (Housing Crisis Act of 2019), which modified Government Code sections relating to zoning and density bonus, require all new housing development projects to provide replacement units of equivalent size, defined as having the same number of bedrooms as the demolished units.
In early 2022, Planning & Development staff, in consultation with the City Attorney’s Office, drafted revisions to the Demolition Ordinance to reflect these changes to State law. The 4x4 Joint Task Force Committee on Housing considered the draft at its meetings in April 2022 and December 2022, and made recommendations pertaining primarily to replacement unit requirements and expanded tenant protections. Staff revised the draft ordinance to incorporate that feedback and advanced the ordinance to Planning Commission for review.
At its meeting of February 1, 2023, the Planning Commission scheduled a public hearing to adopt a recommendation for the City Council of changes to the Demo Ordinance. The Planning Commission deferred a final recommendation pending recommendations from the 4x4 Joint Task Force Committee on Housing. Staff returned to the 4x4 Joint Task Force Committee in September and October 2023 for discussion and recommendations. The Planning Commission conducted a public hearing at its December 6, 2023 meeting and moved to create a Subcommittee to review the proposed ordinance in detail, and to consider suggestions and recommendations made by Commissioners at that meeting. The Subcommittee met on December 20, 2023 and recommended a number of changes to the ordinance. At its meeting of January 17, 2024, the Planning Commission held a public hearing and made a recommendation to the City Council.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
California Public Resource Code Section 21065 defines a “project” under CEQA as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” The proposed ordinance amendments relate only to the requirements to demolish existing structures, and would not result in any physical changes to the environment. The proposed ordinance does not consist of a discretionary action that would permit or cause any direct or indirect change in the environment. The proposed ordinance is therefore not a project under CEQA.
Zoning Ordinance Amendments, Demolition and Dwelling Unit Controls PUBLIC HEARING MARCH 26, 2024
RATIONALE FOR RECOMMENDATION
The proposed ordinance includes changes required by state law, as well as policy changes recommended by the 4x4 Joint Committee Task Force on Housing and the Planning Commission.
ALTERNATIVE ACTIONS CONSIDERED
The December 9, 2023 and January 17, 2024 Planning Commission agenda reports include rationales for the provisions included in the proposed ordinance, and note some of the alternative policies considered. Most notable among these alternative suggestions were the treatment of ADUs similarly to any other residential unit, and permitting the demolition of single-family dwellings with a ZC.
A notable difference between the recommendations from the 4x4 Committee and the Planning Commission was the definition of Comparable Unit. The 4x4 Committee had recommended a definition which included a unit of similar size, in a similar location within the city, with similar amenities, notably private open space. The Planning Commission opted for a slightly different recommendation that included similar shared indoor amenities and did not include private open space. The Planning Commission felt that offering comparable private open space after the demolition of, for example, an existing single-family dwelling with a large back yard, could limit the redevelopment potential of single-family parcels.
CONTACT PERSON
Justin Horner, Associate Planner, Planning and Development Department, 510-981- 5754.
Attachments:
1: Proposed Ordinance, redlined version.
2: Proposed Ordinance, clean version.
3: Replacement Unit Provisions, Examples
4: Existing Demolition Ordinance (BMC 23.326)
5: Planning Commission Reports: December 9, 2023 and January 17, 2024. 6: Public Hearing Notice
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ORDINANCE NO.
AMENDING BERKELEY MUNICIPAL CODE CHAPTER 23.326, DEMOLITION
AND DWELLING UNIT CONTROLS
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That Berkeley Municipal Code Chapter 23.326 is hereby amended to read as follows:
23.326 DEMOLITION AND DWELLING UNIT CONTROL
Sections:
23.326.010– Chapter Purpose.
23.326.020– General Requirements.
23.326.030– Eliminating Dwelling Units through Demolition of Residential Units.
23.326.040– Eliminating Dwelling Units through Combination with Other Units.
Conversion and Change of Use
23.326.050—Demolition of Accessory Buildings.
23.326.0560 – Private Right of Action.
23.326.060– Elimination of Residential Hotel Rooms
23.326.070– Demolitions of Non-Residential Buildings.
23.326.080– Building Relocations.
23.326.090– Limitations.
23.326.100—Severability.
23.326.010 – Chapter Purpose
This chapter establishes demolition and dwelling unit control standards that promote the affordable housing, aesthetic, and safety goals of the City.
23.326.020 – General Requirements
A. Applicability. No dwelling unit Residential Unit(s)or units may be eliminated or demolished except as authorized by this chapter.
1. “Residential Unit” means, for purposes of this Chapter, any Dwelling Unit, any Live-Work Unit, any Residential Hotel unit, or any bedroom of a Group Living Accommodation (GLA), except a GLA in a University-recognized fraternity, sorority or co-op, or any lawfully-permitted Accessory Dwelling Unit (“ADU”) of Junior Accessory Dwelling Unit (“JADU”).
2. “Residential Unit” includes Dwelling Units, ADUs, or JADUs created without proper zoning approvals or Building Permit(s) if they have been registered
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with the Rent Stabilization Board, or the Rent Stabilization Board has otherwise determined that a tenant-landlord relationship existed during the preceding five years.
3. “Residential Unit” does not include a lawfully-permitted ADU or JADU on a residential property containing only a Single-Family Dwelling and one lawfully established and fully permitted ADU or JADU, as defined in BMC Chapter
23.306, where the landlord also occupies a unit in the same property as their principal residence. This shall only apply to properties containing a single ADU or JADU, shall only apply to units compliant with all applicable requirements of BMC Chapter 23.306 ("Accessory Dwelling Units"), and shall only apply to tenancies created after November 7, 2018.
4. “Comparable Unit” means a Residential Unit of similar size (square footage and number of bedrooms), common interior amenities, and location within the city (neighborhood and school attendance area). In the case of a Single- Family Dwelling being replaced, a Comparable Unit is not required to have the same or similar square footage or the same number of total rooms, but must provide the same number of bedrooms if the Single-Family Dwelling includes three or fewer bedrooms, or three bedrooms if the Single-Family Dwelling contains four or more bedrooms.
5. “Protected Unit” includes a Residential Unit:
a. Subject to a low-income deed restriction for any of the previous five years;
b. Subject to rent or price control under BMC Chapter 13.76; or Rented by a household at 50% Area Median Income or lower within the previous five years.
B. Findings. In addition to the requirements below, the Zoning Adjustments Board (ZAB) may approve a Use Permit to eliminate or demolish a dwelling unit only upon finding that eliminating the dwelling unit would not be materially detrimental to the housing needs and public interest of the affected neighborhood and Berkeley.
23.326.030 – Eliminating Dwelling Units through Demolition of Residential Units A. Buildings with Two or More Units Constructed Before June 1980.
1. Applicability. This subsection only applies to building with two or more units constructed before June 1980.
2. Limitation.
(a) A. Demolition is not allowed if:
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1. The building Residential Unit(s) was removed from the rental market under the Ellis Act through a no-fault eviction during the preceding five years; or
2. There have been verified casesis substantial evidence of harassment or threatened or actual illegal eviction during the immediately preceding three years. Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner, whose determination may be appealed to the Rent Stabilization Board.
(b) Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner. The Rent Board Hearing Examiner will provide an assessment of the evidence and all available documentation to the ZAB. The ZAB shall determine whether harassment or threatened or actual illegal eviction occurred.
3B. Procedure and Findings.
1. The ZAB may approve a A Use Permit is required to eliminate or demolish one or more Residential Units, except where otherwise provided by the Zoning Ordinance. a building constructed before June 1980 on a property containing two or more dwelling units The ZAB shall only approve the Use Permit if any one of the following are is true:
(a) The building containing the units Residential Unit(s) is hazardous or unusable and is infeasible to repair.
(b) The building containing the units Residential Units(s) will be moved to a different location within Berkeley with no net loss of units and no change in the affordability levels of the unit(s).
(c) The demolition is necessary to permit construction of special housing needs facilities such as, but not limited to, childcare centers and affordable housing developments that serve the greater good of the entire community. (dc) The demolition is necessary to permit construction approved pursuant to this chapter of at least the same number of dwelling units.
2. A Single-Family Dwelling without sitting tenants can be demolished with an AUP, if the demolition is part of a development project that would result in a net increase in residential density.
3. In the event of a demolition of a Protected Unit created without proper Use Permit(s) or Building Permit(s), as defined in 23.326.020(A)(2), the Building Official, Zoning Officer or Fire Marshal may determine that the replacement of such a unit is infeasible and not required under this Chapter. Such a
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determination shall include a finding that the replacement of the unit could not occur in compliance with Zoning Code, Building Code, Fire Code or other regulations related to public health and safety
C. Landmarks and Structures of Merit. Demolition of a designated landmark or structure of merit, or of a structure in a designated historical district, must be approved by the Landmarks Preservation Commission, pursuant to Chapter 3.24.
4. Fee Required.
(a) The applicant shall pay a fee for each unit demolished to mitigate the impact of the loss of affordable housing in Berkeley.
(b) The amount of the fee shall be set by resolution of the City Council. (c) In Lieu of a Fee.
1. In lieu of paying the impact fee, the applicant may provide a designated unit in the new project at a below market rate to a qualifying household in perpetuity.
2. The affordability level of the below market rent and the income level of the qualifying household shall be set by resolution of the City Council.
3. The applicant shall enter into a regulatory agreement with the City of Berkeley to provide the in lieu units.
D. Conditions of Approval. Any Protected Unit that is demolished shall be replaced with a Comparable Unit that shall comply with the affordability requirements in Chapter 23.328 [Affordable Housing Requirements] and Chapter 23.330 [Density Bonus] as they may be amended from time to time.
1. In the event that a displaced household has an income below 50% AMI, a Comparable Unit shall be offered at a rent that is affordable to households at 30% of AMI, and the displaced household shall have the first right of refusal for that unit. Such a Comparable Unit shall be counted as a Very Low-Income unit for applicable affordability requirements in Chapter 23.328.
2. In the event that a demolished Residential Unit is not a Protected Unit and the income of the displaced household is unknown, the Residential Unit shall be presumed to have been occupied by Low- or Lower-Income households in the same proportion as Residential Units throughout the City. The City shall rely upon US Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy (CHAS) data to determine the number of such Residential Units that must be replaced with Affordable Units as defined in Chapter 23.328.
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3. In the event that a Protected Unit was subject to rent or price controls under BMC Chapter 13.76, and the income level of the displaced household is unknown, the unit shall be replaced with an Affordable Unit as defined in Chapter 23.328.
E. Requirements for Occupied Units.
(a)1. Applicability. These requirements do not apply to tenants who move in after the application for demolition is submitted to the City if the owner informs each prospective tenant about the proposed demolition and that demolition constitutes good cause for eviction.
1. The requirements in this subsection apply if units to be demolished are occupied.
2. These requirements do not apply to tenants who move in after the application for demolition is submitted to the City if the owner informs each prospective tenant about the proposed demolition and that demolition constitutes good cause for eviction.
(b)2. Notice. The applicant shall provide all sitting tenants notice of the application to demolish the building no later than the date it is submitted to the City, including notice of their rights under Municipal Code Section 13.76 (Rent Stabilization and Eviction for Good Cause Program), Chapter 13.77 (Requirements, Procedures, Restrictions and Mitigations Concerning the Withdrawal of Residential Rental Accommodations from Rent or Lease),
13.79 (Tenant Protections: Automatically Renewing Leases and Buyout Agreements) and 13.84 (Relocation Services and Payments for Residential Tenant Households).
(c)3. General Requirements. The applicant shall provide moving and relocation assistance equivalent to the requirements set forth in Municipal Code Chapter
13.84 (Relocation Services and Payments for Residential Tenant Households) or Government Code section 66300.6(b)(4)(A), whichever requires greater relocation assistance to displaced tenants, and shall not be subject to the limitations in section 13.84.070.B.3(a). The applicant shall subsidize the rent differential for a comparable replacement unit, in the same neighborhood if feasible, until new units are ready for occupancy. Within five days of the issuance of the Certificate of Occupancy, tenants shall be notified in writing that the units will be ready for move-in on a date specified. Tenants shall confirm in writing their intent to lease the available unit at any time before 20 days after the issuance of the Certificate of Occupancy. Funding for the rent differential shall be guaranteed in a manner approved by City Council Resolution; provided, however, that any project that is carried out or funded by the state or federal government shall be subject to applicable provisions of the California Relocation Act (Government Code section 7260 et seq.) and/or
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the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. sections 4601- 4655).
The applicant shall provide assistance with moving expenses equivalent to in Chapter 13.84 (Relocation Services and Payments for Residential Tenant Households).
3. The applicant shall subsidize the rent differential for a comparable replacement unit, in the same neighborhood if feasible, until new units are ready for occupancy. Funding for the rent differential shall be guaranteed in a manner approved by the City.
3.(a) Exception. An applicant who proposes to construct a 100 percent affordable housing project is not required to comply with this subsection but must comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended and the California Relocation Act (Government Code sections 7260 et seq.). (b) Exception for Tenants in ADUs and Unpermitted Units that Cannot Be Replaced. Applicants are required to provide moving and relocation assistance, in an amount provided in BMC Section 13.76.130(A)(9)(g), to the following groups of tenants: (i) tenants who occupy a lawfully- permitted ADU or JADU on a residential property containing only a Single- Family Dwelling and one lawfully established and fully permitted ADU or JADU, where the landlord also occupies a unit in the same property as his/her principal residence; and (ii) tenants who occupy a unit created without proper zoning approvals that cannot be replaced for public health or safety reasons, pursuant to BMC Section 23.326.030(B)(3). However, applicants are not required to (i) provide such tenants with a temporary replacement unit while a new unit is being constructed, (ii) notify such tenants when a new unit is ready for occupancy; or (iii) provide such tenants with a right for first refusal for the new unit. (d)4. Sitting Tenants Rights.
(a) Sitting Any tenants of a Protected Unit that is permitted to be demolished under this section who are displaced as a result of demolition shall be provided have the right of first refusal to move intorent a Comparable Unit in the new buildingproject.
(b) In the event that a displaced household is ineligible for below-market rate replacement units, a market rate Comparable Unit shall be made available to that household at the same rent as had been previously charged, or a lesser rent if that is the market rate. Tenants of units that are demolished shall have the right of first refusal to rent new below- market rate units designated to replace the units that were demolished,
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at the rent that would have applied if they had remained in place, as long as their tenancy continues.
(c) Where a displaced tenant exercises the right to rent a Comparable Unit, any increase in rent for the Comparable Unit for the duration of their tenancy shall be no greater than the lesser of 65% of the increase in the Consumer Price Index for All Urban Consumers (CPI-U) in the San Francisco-Oakland-San Jose region (as reported and published by the U.S. Department of Labor, Bureau of Labor Statistics for the twelve-month period ending the previous December 31) or 65% of the corresponding increase in Area Median Income (AMI) for the same calendar year. Income restrictions do not apply to displaced tenants. (d) Exceptions.
i. An applicant who proposes to construct a 100 percent affordable housing project is not required to comply with 23.326.030.A.4.a, b, and c,the preceding requirements but must comply with the following requirement.
ii. Sitting tenants who are displaced as a result of demolition and who desire to return to the newly constructed building will be granted a right of first refusal subject to their ability to meet income qualifications and other applicable eligibility requirements when the new units are ready for occupancy.
B. Buildings with a Single Dwelling Unit.
1. Applicability. This subsection only applies to buildings with a single dwelling unit.
2. Limitation.
(a) Demolition is not allowed if:
i.The building was removed from the rental market under the Ellis Act during the preceding five years; or
ii. There have been verified cases of harassment or threatened or actual illegal eviction during the immediately preceding three years. (b) Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner. The Rent Board Hearing Examiner will provide an assessment of the evidence and all available documentation to the ZAB. The ZAB shall determine whether harassment or threatened or actual illegal eviction occurred.
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C. Accessory Buildings. Notwithstanding anything in Municipal Code Title 23 (Zoning Ordinance) to the contrary, but subject to any applicable requirements in Municipal Code Section 3.24 (Landmarks Preservation Ordinance), accessory buildings of any size, including, but not limited to, garages, carports, and sheds, but not including any structure containing a lawfully established dwelling unit, which serves and is located on the same lot as a lawful residential use, may be demolished by right.
23.326.040 – Eliminating Dwelling Units through Conversion and Change of Use Combination with Other Units
A. Process for Projects Where Density Exceeds Current Allowance General. The ZAB may approve a A Use Permit is required to eliminate one or more Residential Units by combing with another unit when the existing development exceeds currently- allowable density. for the elimination of a dwelling unit in combination with another dwelling unit used for occupancy by a single household The ZAB shall approve a Use Permit for the elimination of one or more Residential Units by combining with another unit only if it finds that:
1. The existing number of dwelling unitsResidential Units exceeds the current maximum allowed residential density in the district where the building is located; and
2. One of the following is true:
(a) One of the affected dwelling units has been owner-occupied by the applicant’s household as it’s a principal place of residence for no less than two years before the date of the application and none of the affected units are currently occupied by a tenant.
(b) All of the affected dwelling unitsResidential Units are being sold by an estate and the decedent occupied the units as their principal residence for no less than two years before the date of their death.
B. Limitations. Demolition Combination is not allowed if:
1. The building was removed from the rental market under the Ellis Actthrough a no-fault eviction during the preceding five years; or
2. There have been verified casesis substantial evidence of harassment or threatened or actual illegal eviction during the immediately preceding three years. Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner, whose determination may be appealed to the Rent Stabilization Board. The Rent Board Hearing Examiner `will provide an assessment of the evidence and all available documentation to the ZAB. The
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ZAB shall determine whether harassment or threatened or actual illegal eviction occurred.
C. Effect of Noncompliance with the Two-Year Occupancy Requirement Following Elimination.
1. In a unit eliminated under Subsection A (General)If a Residential Unit that is eliminated through combination is not owner-occupied by the applicant’s household for at least two consecutive years from the date of elimination, the affected unit Residential Unit must be restored to separate status.
2. This requirement shall be implemented by a condition of approval and a notice of limitation on the property, acceptable to the City of Berkeley.
3. The condition and notice will provide that if the owner’s household does not occupy the unit Residential Unit is not owner-occupied for at least two years from the date of elimination the affected units must either be restored as separate dwelling units and the vacant unit(s) offered for rent within six months or the owner must pay a fee of $75,000 in 2013 dollars, adjusted in May of each year according to the Consumer Price Index for the San Francisco Bay Area. The fee shall be deposited into the City of Berkeley’s Housing Trust Fund.
4. The City of Berkeley may exempt an applicant from the two-year residency requirement if of an unforeseeable life change that requires relocation.
D. Effect of Eliminating a Dwelling Unit.
1. If eliminating a dwelling unitResidential Unit reduces the number of units in a building to four or fewer, the applicant shall record a notice of limitation against the subject property that the limitation on eviction of tenants under Chapter 13 (Public Peace, Morals and Welfare) shall continue to apply until:
(a) The building is demolished; or
(b) Sufficient units are added or restored such that the building contains at least five units.
2. The Zoning Officer may issue an AUP for a building conversion which eliminates a dwelling unitResidential Unit upon finding that the conversion will restore or bring the building closer to the original number of dwelling units that was present at the time it was first constructed, provided the conversion meets the requirements 23.326.040.A.1 and 2 and 23.326.040.B and C.
E. Exceptions. The ZAB may approve a Use Permit to eliminate a dwelling unit through combination with another dwelling unit for the purpose of providing private bathrooms, kitchenettes, accessibility upgrades, and/or seismic safety upgrades, or other elements required by funding sources or programmatic needs to single-
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residential occupancy rooms in residential developments undergoing a publicly- funded rehabilitation.
1. The ZAB may approve a Use Permit for a change of use to a community care or a child care facility which eliminates a dwelling unit if it finds that such use is in conformance with the regulations of the district in which it is located.
2. The ZAB may approve a Use Permit to eliminate a dwelling unit through combination with another dwelling unit for the purpose of providing private bathrooms, kitchenettes, accessibility upgrades, and/or seismic safety upgrades to single-residential occupancy rooms in residential developments undergoing a publicly-funded rehabilitation.
3. Notwithstanding the general Use Permit requirement under 23.326.020 (General Requirements), a lawfully established accessory dwelling unit that is not a controlled rental unit may be eliminated with a Zoning Certificate if:
(a) The re-conversion restores the original single-family use of the main building or lot; and
(b) No tenant is evicted.
23.326.050 – Private Right of ActionDemolition of Accessory Buildings.
A. Notwithstanding anything in Municipal Code Title 23 (Zoning Ordinance) to the contrary, but subject to any applicable requirements in Municipal Code Section 3.24 (Landmarks Preservation Ordinance), Accessory Buildings of any size, including, but not limited to, garages, carports, and sheds may be demolished by right except where the Accessory Building is occupied by a residential tenant (regardless of whether it is lawfully permitted) or otherwise contains a lawfully established Residential Unit, which serves and is located on the same lot as a lawful residential use. Such Accessory Buildings are considered Residential Units for the purposes of this Chapter.
23.326.060 – Elimination of Residential Hotel RoomsPrivate Right of Action A. Any affected tenant may bring a private action for injunctive and/or compensatory relief against any applicant and/or owner to prevent or remedy a violation of Sections
23.326.030 (Eliminating Dwelling Units through Demolition) and 23.326.040 (Eliminating Dwelling Units through Conversion and Change of Use). In any such action a prevailing plaintiff shall recover reasonable attorney’s fees.
A. General Requirements. Before removal, the following requirements must be met for the ZAB to approve a Use Permit for the elimination of residential hotel rooms:
1. The residential hotel owner shall provide or cause to be provided standard housing of at least comparable size and quality, at comparable rents and total monthly or weekly charges to each affected tenant
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2. One of the following three requirements shall be met:
(a) The residential hotel rooms being removed are replaced by a common use facility, including, but not limited to, a shared kitchen, lounge, or recreation room, that will be available to and primarily of benefit to the existing residents of the residential hotel and that a majority of existing residents give their consent to the removal of the rooms.
(b) Before the date on which the residential hotel rooms are removed, one-for- one replacement of each room to be removed is made, with a comparable room, in one of the methods set forth in this section.
(c) Residential hotel rooms are removed because of building alterations related to seismic upgrade to the building or to improve access to meet the requirements of the American Disabilities Act (ADA).
B. Criteria for Replacement Rooms. For purposes of this section, replacement rooms must be:
1. Substantially comparable in size, location, quality, and amenities;
2. Subject to rent and eviction controls substantially equivalent to those provided by the Rent Stabilization Ordinance or those that applied to the original rooms which are being replaced; and
3. Available at comparable rents and total monthly or weekly charges to those being removed. Comparable rooms may be provided by:
(a) Offering the existing tenants of the affected rooms the right of first refusal to occupy the replacement rooms;
(b) Making available comparable rooms, which are not already classified as residential hotel rooms to replace each of the rooms to be removed; or (c) Paying to the City of Berkeley’s Housing Trust Fund an amount sufficient to provide replacement rooms.
1. The amount to be paid to the City of Berkeley shall be the difference between the replacement cost, including land cost, for the rooms and the amount which the City of Berkeley can obtain by getting a mortgage on the anticipated rents from the newly constructed rooms.
2. The calculations shall assume that rents in the newly constructed rooms shall not exceed the greater of either a level comparable to the weekly or monthly charges for the replaced rooms or the level which would be charged if no current tenant paid more than 30 percent of such tenant’s gross income for rent.
C. Exception for Non-Profit Ownership. In a residential hotel owned and operated by a non-profit organization, recognized as tax-exempt by either the Franchise Tax
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Board and/or the Internal Revenue Service, residential hotel rooms may be changed to non-residential hotel room uses if the average number of residential hotel rooms per day in each calendar year is at least 95 percent of residential hotel rooms established for that particular residential hotel.
23.326.070 – Demolitions of Non-Residential Buildings
A. Main Non-Residential Buildings. A Use Permit is required to demolish a main building used for non-residential purposes may be demolished with a Use Permiton any lot.
B. Accessory Buildings.
1. Demolishing an accessory building with less than 300 square feet of floor area is permitted as of right.
2. An accessory building with 300 square feet or more of floor area may be demolished with an AUP.
C. Landmarks Preservation Commission Review.
1. Any application for a Use Permit or AUP to demolish a non-residential building or structure which is 40 or more years old shall be forwarded to the Landmarks Preservation Commission (LPC) for review before consideration of the Use Permit or AUP.
2. The LPC may initiate a landmark or structure-of-merit designation or may choose solely to forward to the ZAB its comments on the application.
3. The ZAB or Zoning Officer shall consider the recommendations of the LPC in when acting on the application.
D. Findings. A Use Permit or an AUP for demolition of a non-residential building or structure may be approved only if the ZAB or the Zoning Officer finds that:
1. The demolition will not be materially detrimental to the commercial needs and public interest of any affected neighborhood or the City of Berkeley; and
2. The demolition:
(a) Is required to allow a proposed new building or other proposed new use; (b) Will remove a building which is unusable for activities which are compatible with the purposes of the district in which it is located or which is infeasible to modify for such uses;
(c) Will remove a structure which represents an inhabitable attractive nuisance to the public; or
(d) Is required for the furtherance of specific plans or projects sponsored by the City of Berkeley or other local district or authority upon a
Internal
demonstration that it is infeasible to obtain prior or concurrent approval for the new construction or new use which is contemplated by such specific plans or projects and that adhering to such a requirement would threaten the viability of the plan or project.
23.326.080 – Building Relocations
A. Treatment of Building Relocation.
1. Relocating a building from a lot is considered a demolition for purposes of this chapter.
2. Relocating a building to a lot is considered new construction and is subject to all requirements applicable to new construction.
3. When a building is relocated to a different lot within in Berkeley, the lot from which the building is removed shall be known as the source lot and the lot on which the building is to be sited shall be known as the receiving lot. In such cases all notification requirements apply to both the source and receiving lots.
B. Findings. The ZAB may approve a Use Permit to relocate a building upon finding that:
5. The building to be relocated is not in conflict with the architectural character, or the building scale of the neighborhood or area to which it will be relocated; and
6. The receiving lot provides adequate separation of buildings, privacy, yards, and usable open space.
23.326.090 – Limitations
A. Unsafe, Hazard, or Danger.
1. Notwithstanding anything to the contrary, if a building or structure is unsafe, presents a public hazard, and is not securable and/or is in imminent danger of collapse so as to endanger persons or property, as determined by the city’s building officialBuilding Official, it may be demolished without a Use Permit.
2. The Building Official’s determination in this matter shall be governed by the standards and criteria in the most recent edition of the California Building Code that is in effect in the City of Berkeley.
B. Ellis Act. This chapter shall be applied only to the extent permitted by state law as to buildings which have been entirely withdrawn from the rental market pursuant to the Ellis Act (California Government Code Chapter 12.75).
Internal
23.326.100 Severability.
A. If any part or provision of this Chapter, or the application of this Chapter to any person or circumstance, is held invalid, the remainder of this Chapter, including the application of such part or provision to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this Chapter are severable.
Section 2. 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
ORDINANCE NO.
AMENDING BERKELEY MUNICIPAL CODE CHAPTER 23.326, DEMOLITION AND
DWELLING UNIT CONTROLS
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That Berkeley Municipal Code Chapter 23.326 is hereby amended to read as follows:
Chapter 23.326 DEMOLITION AND DWELLING UNIT CONTROLS
Sections:
23.326.010 Chapter Purpose.
23.326.020 General Requirements.
23.326.030 Demolition of Residential Units.
23.326.040 Eliminating Dwelling Units through Combination with Other Units.
23.326.050 Demolition of Accessory Buildings.
23.326.060 Private Right of Action.
23.326.070 Demolitions of Non-Residential Buildings.
23.326.080 Building Relocations.
23.326.090 Limitations.
23.326.100 Severability
23.326.010 Chapter Purpose.
This chapter establishes demolition and dwelling unit control standards that promote the affordable housing, and safety goals of the City.
23.326.020 General Requirements.
A. No Residential Unit(s) may be eliminated or demolished except as authorized by this chapter.
1. “Residential Unit” means, for purposes of this Chapter, any Dwelling Unit, any Live-Work Unit, any Residential Hotel unit, any bedroom of a Group Living Accommodation (GLA), except a GLA in a University-
recognized fraternity, sorority or co-op, or any lawfully-permitted Accessory Dwelling Unit (“ADU”) or Junior Accessory Dwelling Unit (“JADU”).
2. “Residential Unit” includes Dwelling Units, ADUs, or JADUs created without proper zoning approvals or Building Permit(s) if they have been registered with the Rent Stabilization Board, or the Rent Stabilization Board has otherwise determined that a tenant-landlord relationship existed during the preceding five years.
3. “Residential Unit” does not include a lawfully-permitted ADU or JADU on a residential property containing only a Single-Family Dwelling and one lawfully established and fully permitted ADU or JADU, as defined in BMC Chapter 23.306, where the landlord also occupies a unit in the same property as their principal residence. This shall only apply to properties containing a single ADU or JADU, shall only apply to units compliant with all applicable requirements of BMC Chapter 23.306 ("Accessory Dwelling Units"), and shall only apply to tenancies created after November 7, 2018.
4. “Comparable Unit” means a Residential Unit of similar size (square footage and number of bedrooms), common interior amenities, and location within the city (neighborhood and school attendance area). In the case of a Single- Family Dwelling being replaced, a Comparable Unit is not required to have the same or similar square footage or the same number of total rooms, but must provide the same number of bedrooms if the Single-Family Dwelling includes three or fewer bedrooms, or at least three bedrooms if the Single- Family Dwelling contains four or more bedrooms.
5. “Protected Unit” includes a Residential Unit:
a. Subject to a low-income deed restriction for any of the previous five years;
b. Subject to rent or price control under BMC Chapter 13.76; or c. Rented by a household at 50% Area Median Income or lower within the previous five years.
23.326.030 Demolition of Residential Units.
A. Demolition is not allowed if:
1. The Residential Unit(s) was removed from the rental market through a no- fault eviction during the preceding five years; or
2. There is substantial evidence of harassment or threatened or actual illegal eviction during the immediately preceding three years. Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner, whose determination may be appealed to the Rent Stabilization Board.
B. Procedure and Findings.
1. A Use Permit is required to eliminate or demolish one or more Residential Units, except where otherwise provided by the Zoning Ordinance. The ZAB shall only approve the Use Permit if one of the following is true:
(a) The building containing the Residential Unit(s) is hazardous or unusable and is infeasible to repair.
(b) The building containing the Residential Unit(s) will be moved to a different location within Berkeley with no net loss of units and no change in the rent levels of the unit(s).
(c) The demolition is necessary to permit construction approved pursuant to this Chapter of at least the same number of Dwelling Units.
2. A Single-Family Dwelling without sitting tenants can be demolished with an AUP, if the demolition is part of a development project that would result in a net increase in residential density.
3. In the event of a demolition of a Residential Unit created without proper zoning approvals or Building Permit(s), as defined in 23.326.020(A)(2), the Building Official, Zoning Officer or Fire Marshal may determine that the replacement of such a unit is infeasible and not required under this Chapter. Such a determination shall include a finding that the replacement of the unit could not
occur in compliance with Zoning Code, Building Code, Fire Code or other regulations related to public health and safety.
C. Landmarks and Structures of Merit. Demolition of a designated landmark or structure of merit, or of a structure in a designated historic district, must be approved by the Landmarks Preservation Commission, pursuant to Chapter 3.24.
D. Conditions of Approval. Any Protected Unit that is demolished shall be replaced with a Comparable Unit that shall comply with the maximum allowable rent requirements for Affordable Units in Chapter 23.328 [Affordable Housing Requirements] and Chapter 23.330 [Density Bonus] as they may be amended from time to time.
1. In the event that a displaced household has an income below 50% AMI, a Comparable Unit shall be offered at a rent that is affordable to households at 30% of AMI, and the displaced household shall have the first right of refusal for that unit. Such a Comparable Unit shall be counted as a Very Low- Income unit for applicable affordability requirements in Chapter 23.328.
2. In the event that a demolished Residential Unit is not a Protected Unit and the income of the displaced household is unknown, the Residential Unit shall be presumed to have been occupied by Low- or Lower-Income households in the same proportion as Residential Units throughout the City. The City shall rely upon US Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy (CHAS) data to determine the number of such Residential Units that must be replaced with Affordable Units as defined in Chapter 23.328.
3. In the event that a Protected Unit was subject to rent or price controls under BMC Chapter 13.76, and the income level of the displaced household is unknown, the unit shall be replaced with an Affordable Unit as defined in Chapter 23.328.
E. Requirements for Occupied Units.
1. Applicability. The following requirements do not apply to tenants who move in after the application for demolition is submitted to the City if the owner informs each prospective tenant about the proposed demolition and that demolition constitutes good cause for eviction.
2. Notice. The applicant shall provide all sitting tenants and the Rent Stabilization Board notice of the application to demolish the Residential Unit(s) no later than the date the application is submitted to the City, including notice of their rights under Municipal Code Chapter 13.76 (Rent Stabilization and Eviction for Good Cause Program), Chapter 13.77 (Requirements, Procedures, Restrictions and Mitigations Concerning the Withdrawal of Residential Rental Accommodations from Rent or Lease), 13.79 (Tenant Protections: Automatically Renewing Leases and Buyout Agreements) and 13.84 (Relocation Services and Payments for Residential Tenant Households).
3. General Requirements. The applicant shall provide moving and relocation assistance equivalent to the requirements set forth in Municipal Code Chapter
13.84 (Relocation Services and Payments for Residential Tenant Households) or Government Code section 66300.6(b)(4)(A), whichever requires greater relocation assistance to displaced tenants, and shall not be subject to the limitations in section 13.84.070.B.3(a). The applicant shall subsidize the rent differential for a comparable replacement unit, in the same neighborhood if feasible, until new units are ready for occupancy. Within five days of the issuance of the Certificate of Occupancy, tenants shall be notified in writing that the units will be ready for move-in on a date specified. Tenants shall confirm in writing their intent to lease the available unit at any time before 20 days after the issuance of the Certificate of Occupancy. Funding for the rent differential shall be guaranteed in a manner approved by City Council Resolution; provided, however, that any project that is carried out or funded by the state or federal government shall be subject to applicable provisions of the California Relocation Act (Government Code section 7260 et seq.) and/or the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. sections 4601- 4655).
(a) Exception. An applicant who proposes to construct a 100-percent affordable housing project is not required to comply with this subsection but must comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended and the California Relocation Act (Government Code sections 7260 et seq.).
(b) Exception for Tenants in ADUs and Unpermitted Units that Cannot Be Replaced. Applicants are required to provide moving and relocation assistance, in an amount provided in BMC Section 13.76.130(A)(9)(g), to the following groups of tenants: (i) tenants who occupy a lawfully-permitted ADU or JADU on a residential property containing only a Single-Family Dwelling and one lawfully established and fully permitted ADU or JADU, where the landlord also occupies a unit in the same property as his/her principal residence; and (ii) tenants who occupy a unit created without proper zoning approvals that cannot be replaced for public health or safety reasons, pursuant to BMC Section 23.326.030(B)(3). However, applicants are not required to (i) provide such tenants with a temporary replacement unit while a new unit is being constructed, (ii) notify such tenants when a new unit is ready for occupancy; or (iii) provide such tenants with a right for first refusal for the new unit.
4. Sitting Tenants Rights.
(a) Any tenant of a Protected Unit that is permitted to be demolished under this section shall have the right of first refusal to rent a Comparable Unit in the new project.
(b) In the event that a displaced household is ineligible for below-market rate replacement units, a market rate Comparable Unit shall be made available to that household at the same rent as had been previously charged, or a lesser rent if that is the market rate.
(c) Where a displaced tenant exercises the right to rent a Comparable Unit, any increase in rent for the Comparable Unit for the duration of their tenancy shall be no greater than the lesser of 65% of the increase in the Consumer Price Index for All Urban Consumers (CPI-U) in the San
Francisco-Oakland-San Jose region (as reported and published by the U.S.
Department of Labor, Bureau of Labor Statistics for the twelve-month period ending the previous December 31) or 65% of the corresponding increase in Area Median Income (AMI) for the same calendar year.
(d) Exceptions.
i. An applicant who proposes to construct a 100 percent affordable housing project is not required to comply with the preceding requirements but must comply with the following requirement. ii. Sitting tenants who are displaced as a result of demolition and who desire to return to the newly constructed affordable housing project will be granted a right of first refusal subject to their ability to meet income qualifications and other applicable eligibility requirements.
23.326.040 Eliminating Dwelling Units through Combination with Other Units.
A. Process for Projects Where Density Exceeds Current Allowance. A Use Permit is required to eliminate one or more Residential Units by combining with another unit when the existing development exceeds currently-allowable density. The ZAB shall approve a Use Permit for the elimination of one or more Residential Units by combining with another unit only if it finds that:
1. The existing number of Residential Units exceeds the current maximum allowed residential density in the zoning district where the units are located; and
2. One of the following is true:
(a) One of the affected Residential Units has been owner-occupied as a principal place of residence for no less than two years before the date of the application and none of the affected units are currently occupied by a tenant.
(b) All of the affected Residential Units are being sold by an estate and the decedent occupied the Residential Units as their principal
residence for no less than two years before the date of their death.
B. Limitations. Combination is not allowed if:
1. The building was removed from the rental market through a no-fault eviction during the preceding five years; or
2. There is substantial evidence of harassment or threatened or actual illegal eviction during the immediately preceding three years. Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner, whose determination may be appealed to the Rent Stabilization Board.
C. Two-Year Occupancy Requirement Following Elimination
1. If a Residential Unit that is eliminated through combination is not owner- occupied for at least two consecutive years from the date of elimination, the affected Residential Unit must be restored to separate status.
2. This requirement shall be implemented by a condition of approval and a notice of limitation on the property, acceptable to the City of Berkeley.
3. The condition of approval and notice will provide that if the Residential Unit is not owner-occupied for at least two years from the date of elimination then the affected Residential Unit(s) must either be restored as separate Residential Unit(s) and the vacant Residential Unit(s) offered for rent within six months or the owner must pay a fee of $75,000 in 2013 dollars, adjusted in May of each year according to the Consumer Price Index for the San Francisco Bay Area. The fee shall be deposited into the City of Berkeley’s Housing Trust Fund.
4. The City of Berkeley may exempt an applicant from the two-year residency requirement if there is an unforeseeable life change that requires relocation.
D. Effect of Eliminating a Residential Unit.
1. If eliminating a Residential Unit reduces the number of Residential Units in a building to four or fewer, the applicant shall record a notice of limitation against the subject property that the limitation on eviction of tenants under Chapter 13 (Public Peace, Morals and Welfare) shall continue to apply until:
(a) The building is demolished; or
(b) Sufficient Residential Units are added or restored such that the building contains at least five Residential Units.
2. The Zoning Officer may issue an AUP for a building conversion which eliminates a Residential Unit upon finding that the conversion will restore or bring the building closer to the original number of Residential Units that was present at the time it was first constructed, provided the conversion meets the requirements of 23.326.040.A.1 and 2 and 23.326.040.B and C.
E. Exception. The ZAB may approve a Use Permit to eliminate a Residential Unit through combination with another Residential Unit for the purpose of providing private bathrooms, kitchenettes, accessibility upgrades, and/or seismic safety upgrades, or other elements required by funding sources or programmatic needs to single resident occupancy rooms in residential developments undergoing a publicly-funded rehabilitation.
23.326.050 Demolition of Accessory Buildings.
A. Notwithstanding anything in Municipal Code Title 23 (Zoning Ordinance) to the contrary, but subject to any applicable requirements in Municipal Code Section 3.24 (Landmarks Preservation Ordinance), Accessory Buildings of any size, including, but not limited to, garages, carports, and sheds may be demolished by right except where the Accessory Building is occupied by a residential tenant (regardless of whether it is lawfully permitted) or otherwise contains a lawfully established Residential Unit, which serves and is located on the same lot as a lawful residential use. Such Accessory Buildings are considered Residential Units for the purposes of this Chapter.
23.326.060 Private Right of Action.
A. Any affected tenant may bring a private action for injunctive and/or compensatory relief
against any applicant and/or owner to prevent or remedy a violation of Sections
23.326.030 (Eliminating Dwelling Units through Demolition) and 23.326.040 (Eliminating Dwelling Units through Conversion and Change of Use). In any such action a prevailing plaintiff shall recover reasonable attorney’s fees.
23.326.070 Demolitions of Non-Residential Buildings.
A. Main Non-Residential Buildings. A Use Permit is required to demolish a main building used for non-residential purposes on any lot.
B. Accessory Buildings. For any lot located in a non-residential zoning district, Accessory Buildings may be demolished as follows:
1. Demolishing an accessory building with less than 300 square feet of floor area is permitted as of right.
2. An accessory building with 300 square feet or more of floor area may be demolished with an AUP.
C. Landmarks Preservation Commission Review.
1. Any application for a Use Permit or AUP to demolish a non-residential building or structure that is 40 or more years old shall be forwarded to the Landmarks Preservation Commission (LPC) for review before consideration of the Use Permit or AUP.
2. The LPC may initiate a landmark or structure-of-merit designation or may choose solely to forward to the ZAB or Zoning Officer its comments on the application.
3. The ZAB or Zoning Officer shall consider the recommendations of the LPC in when acting on the application.
D. Findings. A Use Permit or an AUP for demolition of a main building used for non- residential purposes on any lot or an accessory building located on a lot in a non- residential district may be approved only if the ZAB or the Zoning Officer finds that:
1. The demolition will not be materially detrimental to the commercial needs and public interest of any affected neighborhood or the City of Berkeley;
and
2. The demolition:
(a) Is required to allow a proposed new building or other proposed new use;
(b) Will remove a building which is unusable for activities which are compatible with the purposes of the district in which it is located or which is infeasible to modify for such uses;
(c) Will remove a structure which represents an uninhabitable attractive nuisance to the public; or
(d) Is required for the furtherance of specific plans or projects sponsored by the City of Berkeley or other local district or authority upon a demonstration by the applicant that it would be infeasible to obtain prior or concurrent approval for the new construction or new use.
23.326.080 Building Relocations.
A. Treatment of Building Relocation.
1. Relocating a building from a lot is considered a demolition for purposes of this chapter.
2. Relocating a building to a lot within the city is subject to all requirements applicable to new construction.
3. When a building is relocated to a different lot within Berkeley, the lot from which the building is removed shall be known as the source lot and the lot on which the building is to be sited shall be known as the receiving lot.
4. Nothing in this subsection shall exempt Residential Units relocated to the receiving lot from the provisions of BMC Section 13.76 after a building relocation if the Residential Units located within a building were otherwise subject to BMC Chapter 13.76 in the source lot.
B. Findings. The Zoning Officer shall approve Zoning Certificate to relocate a building
upon finding that: the resulting development on the receiving lot is in conformance with applicable zoning code development standards.
23.326.090 Limitations.
A. Unsafe, Hazard, or Danger.
1. Notwithstanding anything to the contrary, if a building or structure is unsafe, presents a public hazard, and is not securable and/or is in imminent danger of collapse so as to endanger persons or property, as determined by the city’s Building Official, it may be demolished without a Use Permit.
2. The Building Official’s determination in this matter shall be governed by the standards and criteria in the most recent edition of the California Building Code that is in effect in the City of Berkeley.
B. Ellis Act. This chapter shall be applied only to the extent permitted by state law as to buildings which have been entirely withdrawn from the rental market pursuant to the Ellis Act (California Government Code Chapter 12.75).
23.326.100 Severability.
A. If any part or provision of this Chapter, or the application of this Chapter to any person or circumstance, is held invalid, the remainder of this Chapter, including the application of such part or provision to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this Chapter are severable.
Section 2. 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.
30%
AMI
BMR
Demolition of SFH for Fourplex
Market
Rate
Household
50% AMI or Below
Right of first refusal
Rent at prior rent
Rent controlled for
sitting tenancy
Right of first refusal
Permanent BMR unit
Household
Above 50% AMI
Market
Rate
Market
Rate
Market
Rate
Market
Rate
Market
Rate
Market
Rate
Affordability Requirement
• 30% AMI for each protected unit with 50% AMI household • Permanently Affordable
Attachment 3
Demolition of SFH + ADU for Fourplex
30% AMI
BMR
Right of first refusal
for SFH tenant only
Rent at prior rent
Rent controlled for
sitting tenancy
Right of first refusal
for SFH tenant only
Permanent BMR
unit
Households
Above 50% AMI
Households
50% AMI or
Below
ADUs are not replaced when there is
one SFH and one ADU on a lot Affordability Requirement
• 30% AMI for each protected unit with 50% AMI household • Permanently Affordable
Four Market Rate
Units
Three Market Rate
Units
Demolition of Fourplex for Ten Units
Four Rent
Controlled
Units
50%
AMI
BMR
50%
AMI
BMR
80%
AMI
BMR
80%
AMI
BMR
Sitting Tenants Don’t
Income Qualify
Right of first refusal
Rent at prior rent
Rent controlled for
tenancy
IZ*
Six Market Rate Units
Sitting Tenants Income
Qualify
Right of first refusal
Affordability Requirement
• 50% Very Low Income (50% AMI)
• 50% Low Income (80% AMI)
• Permanently affordable
Four Replacement UnitsFour Protected Units
(Rent Control)
* Replacement units count for
inclusionary requirements
Demolition of Rent-Controlled Fourplex for Ten Units
30%
AMI
BMR
30%
AMI
BMR
30%
AMI
BMR
30%
AMI
BMR
IZ*
All Sitting Tenants
Income Qualify
Right of first refusal
Affordability Requirement
• 30% AMI for each protected
unit with 50% AMI household
(4 units)
• Permanently Affordable
Units occupied by
household at 50% AMI or
below are protected,
whether or not they are rent
controlled.
* Replacement units count for
inclusionary requirements
Four Replacement Units
Six Market Rate Units
Four Units
Occupied by 50%
AMI or Below
Four Protected Units
(Income)
Demolition of Fourplex for Ten Units
Sitting Tenants Income
Qualify
Right of first refusal
Affordability Requirement
• 30% AMI for each protected unit with
50% AMI household (2 units)
• 50% VLI or below for all replacement
units (3 units)
• Permanently Affordable
50%
AMI
BMR
30%
AMI
BMR
80%
AMI
BMR
30%
AMI
BMR
IZ*
Sitting Tenants Don’t
Income Qualify
Right of first refusal
Rent at prior rent
Rent controlled for
tenancy* Replacement units count for
inclusionary requirements
Four Replacement Units
Six Market Rate Units
Four Rent
Controlled Units
Two Occupied by
50% AMI or Below
Four Protected Units
(Mix)
Demolition of 8 Unit Building for 75 Unit Building
Sitting Tenants Income
Qualify
Right of first refusal
Affordability Requirement
• 30% AMI for each protected unit with
50% AMI household (3 units)
• 50% AMI or lower for half of all IZ
units (8 units)
• Permanently Affordable
Sitting Tenants Don’t
Income Qualify
Right of first refusal
Rent at prior rent
Rent controlled for
tenancy
Eight Replacement Units
60 Market Rate Units
Eight Rent
Controlled
Units
Three
Occupied by
50% AMI or
Below
Eight
Protected Units
30%
AMI
BMR
30%
AMI
BMR
30%
AMI
BMR
80%
AMI
BMR
80%
AMI
BMR
50%
AMI
BMR
Seven BMR IZ Units
50%
AMI
BMR
50%
AMI
BMR
80%
AMI
BMR
80%
AMI
BMR
80%
AMI
BMR
IZ Requirement: 15 BMR Units
80%
AMI
BMR
80%
AMI
BMR
50%
AMI
BMR
50%
AMI
BMR
Attachment 4 – Existing Demolition Ordinance
Chapter 23.326
DEMOLITION AND DWELLING UNIT CONTROL
Sections:
23.326.010 Chapter Purpose.
23.326.020 General Requirements.
23.326.030 Eliminating Dwelling Units through Demolition.
23.326.040 Eliminating Dwelling Units through Conversion and Change of Use.
23.326.050 Private Right of Action.
23.326.060 Elimination of Residential Hotel Rooms.
23.326.070 Demolitions of Non-Residential Buildings.
23.326.080 Building Relocations.
23.326.090 Limitations.
23.326.010 Chapter Purpose.
This chapter establishes demolition and dwelling unit control standards that promote the affordable housing, aesthetic, and safety goals of the City.
23.326.020 General Requirements.
A. Applicability. No dwelling unit or units may be eliminated or demolished except as authorized by this chapter.
B. Findings. In addition to the requirements below, the Zoning Adjustments Board (ZAB) may approve a Use Permit to eliminate or demolish a dwelling unit only upon finding that eliminating the dwelling unit would not be materially detrimental to the housing needs and public interest of the affected neighborhood and Berkeley.
23.326.030 Eliminating Dwelling Units through Demolition.
A. Buildings with Two or More Units Constructed Before June 1980.
1. Applicability. This subsection only applies to building with two or more units constructed before June 1980.
2. Limitation.
Attachment 4 – Existing Demolition Ordinance
(a) Demolition is not allowed if:
i. The building was removed from the rental market under the Ellis Act during the preceding five years; or
ii. There have been verified cases of harassment or threatened or actual illegal eviction during the immediately preceding three years. (b) Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner. The Rent Board Hearing Examiner will provide an assessment of the evidence and all available documentation to the ZAB. The ZAB shall determine whether harassment or threatened or actual illegal eviction occurred.
3. Findings. The ZAB may approve a Use Permit to demolish a building constructed before June 1980 on a property containing two or more dwelling units if any of the following are true:
(a) The building containing the units is hazardous or unusable and is infeasible to repair.
(b) The building containing the units will be moved to a different location within Berkeley with no net loss of units and no change in the affordability levels of the units.
(c) The demolition is necessary to permit construction of special housing needs facilities such as, but not limited to, childcare centers and affordable housing developments that serve the greater good of the entire community. (d) The demolition is necessary to permit construction approved pursuant to this chapter of at least the same number of dwelling units.
4. Fee Required.
(a) The applicant shall pay a fee for each unit demolished to mitigate the impact of the loss of affordable housing in Berkeley.
(b) The amount of the fee shall be set by resolution of the City Council. (c) In Lieu of a Fee.
Attachment 4 – Existing Demolition Ordinance
i. In lieu of paying the impact fee, the applicant may provide a designated unit in the new project at a below market rate to a qualifying household in perpetuity.
ii. The affordability level of the below market rent and the income level of the qualifying household shall be set by resolution of the City Council. iii. The applicant shall enter into a regulatory agreement with the City of Berkeley to provide the in lieu units.
5. Occupied Units.
(a) Applicability.
i. The requirements in this subsection apply if units to be demolished are occupied.
ii. These requirements do not apply to tenants who move in after the application for demolition is submitted to the City if the owner informs each prospective tenant about the proposed demolition and that demolition constitutes good cause for eviction.
(b) Notice. The applicant shall provide all sitting tenants notice of the application to demolish the building no later than the date it is submitted to the City, including notice of their rights under Municipal Code Section 13.76 (Rent Stabilization and Eviction for Good Cause Program).
(c) General Requirements.
i. The applicant shall provide assistance with moving expenses equivalent to in Chapter 13.84 (Relocation Services and Payments for Residential Tenant Households).
ii. The applicant shall subsidize the rent differential for a comparable replacement unit, in the same neighborhood if feasible, until new units are ready for occupancy. Funding for the rent differential shall be guaranteed in a manner approved by the City.
Attachment 4 – Existing Demolition Ordinance
iii. Exception. An applicant who proposes to construct a 100 percent affordable housing project is not required to comply with this subsection but must comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended and the California Relocation Act (Government Code sections 7260 et seq.).
(d) Sitting Tenants Rights.
i. Sitting tenants who are displaced as a result of demolition shall be provided the right of first refusal to move into the new building. ii. Tenants of units that are demolished shall have the right of first refusal to rent new below-market rate units designated to replace the units that were demolished, at the rent that would have applied if they had remained in place, as long as their tenancy continues.
iii. Income restrictions do not apply to displaced tenants. iv. Exception.
(1) An applicant who proposes to construct a 100 percent affordable housing project is not required to comply with 23.326.030.A.5.a, b, and c, but must comply with the following requirement.
(2) Sitting tenants who are displaced as a result of demolition and who desire to return to the newly constructed building will be granted a right of first refusal subject to their ability to meet income qualifications and other applicable eligibility requirements when the new units are ready for occupancy.
B. Buildings with a Single Dwelling Unit.
1. Applicability. This subsection only applies to buildings with a single dwelling unit.
2. Limitation.
(a) Demolition is not allowed if:
i. The building was removed from the rental market under the Ellis Act during the preceding five years; or
Attachment 4 – Existing Demolition Ordinance
ii. There have been verified cases of harassment or threatened or actual illegal eviction during the immediately preceding three years. (b) Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner. The Rent Board Hearing Examiner will provide an assessment of the evidence and all available documentation to the ZAB. The ZAB shall determine whether harassment or threatened or actual illegal eviction occurred.
C. Accessory Buildings. Notwithstanding anything in Municipal Code Title 23 (Zoning Ordinance) to the contrary, but subject to any applicable requirements in Municipal Code Section 3.24 (Landmarks Preservation Ordinance), accessory buildings of any size, including, but not limited to, garages, carports, and sheds, but not including any structure containing a lawfully established dwelling unit, which serves and is located on the same lot as a lawful residential use, may be demolished by right.
23.326.040 Eliminating Dwelling Units through Conversion and Change of Use.
A. General. The ZAB may approve a Use Permit for the elimination of a dwelling unit in combination with another dwelling unit used for occupancy by a single household if it finds that:
1. The existing number of dwelling units exceeds maximum residential density in the district where the building is located; and
2. One of the following is true:
(a) One of the affected dwelling units has been occupied by the applicant’s household as its principal place of residence for no less than two years before the date of the application and none of the affected units are currently occupied by a tenant.
(b) All of the affected dwelling units are being sold by an estate and the decedent occupied the units as their principal residence for no less than two years before the date of their death.
B. Limitations.
1. Demolition is not allowed if:
Attachment 4 – Existing Demolition Ordinance
(a) The building was removed from the rental market under the Ellis Act during the preceding five years; or
(b) There have been verified cases of harassment or threatened or actual illegal eviction during the immediately preceding three years.
2. Where allegations of harassment or threatened or actual illegal eviction are in dispute, either party may request a hearing before a Rent Board Hearing Examiner.
The Rent Board Hearing Examiner will provide an assessment of the evidence and all available documentation to the ZAB. The ZAB shall determine whether harassment or threatened or actual illegal eviction occurred.
C. Effect of Noncompliance with the Two-Year Requirement.
1. If a unit eliminated under Subsection A (General) is not occupied by the applicant’s household for at least two consecutive years from the date of elimination, the affected unit must be restored to separate status.
2. This requirement shall be implemented by a condition of approval and a notice of limitation on the property, acceptable to the City of Berkeley.
3. The condition and notice will provide that if the owner’s household does not occupy the unit for at least two years from the date of elimination the affected units must either be restored as separate dwelling units and the vacant unit(s) offered for rent within six months or the owner must pay a fee of $75,000 in 2013 dollars, adjusted in May of each year according to the Consumer Price Index for the San Francisco Bay Area. The fee shall be deposited into the City of Berkeley’s Housing Trust Fund.
4. The City of Berkeley may exempt an applicant from the two-year residency requirement if of an unforeseeable life change that requires relocation.
D. Effect of Eliminating a Dwelling Unit.
1. If eliminating a dwelling unit reduces the number of units in a building to four, the applicant shall record a notice of limitation against the subject property that the limitation on eviction of tenants under Chapter 13 (Public Peace, Morals and Welfare) shall continue to apply until:
Attachment 4 – Existing Demolition Ordinance
(a) The building is demolished; or
(b) Sufficient units are added or restored such that the building contains at least five units.
2. The Zoning Officer may issue an AUP for a building conversion which eliminates a dwelling unit upon finding that the conversion will restore or bring the building closer to the original number of dwelling units that was present at the time it was first constructed, provided the conversion meets the requirements 23.326.040.A.1 and 2 and 23.326.040.B and C.
E. Exceptions.
1. The ZAB may approve a Use Permit for a change of use to a community care or a child care facility which eliminates a dwelling unit if it finds that such use is in conformance with the regulations of the district in which it is located.
2. The ZAB may approve a Use Permit to eliminate a dwelling unit through combination with another dwelling unit for the purpose of providing private bathrooms, kitchenettes, accessibility upgrades, and/or seismic safety upgrades to single-residential occupancy rooms in residential developments undergoing a publicly-funded rehabilitation.
3. Notwithstanding the general Use Permit requirement under 23.326.020 (General Requirements), a lawfully established accessory dwelling unit that is not a controlled rental unit may be eliminated with a Zoning Certificate if:
(a) The re-conversion restores the original single-family use of the main building or lot; and
(b) No tenant is evicted.
23.326.050 Private Right of Action.
Any affected tenant may bring a private action for injunctive and/or compensatory relief against any applicant and/or owner to prevent or remedy a violation of Sections
23.326.030 (Eliminating Dwelling Units through Demolition) and 23.326.040 (Eliminating Dwelling Units through Conversion and Change of Use). In any such action a prevailing plaintiff may recover reasonable attorney’s fees.
Attachment 4 – Existing Demolition Ordinance
23.326.060 Elimination of Residential Hotel Rooms.
A. General Requirements. Before removal, the following requirements must be met for the ZAB to approve a Use Permit for the elimination of residential hotel rooms:
1. The residential hotel owner shall provide or cause to be provided standard housing of at least comparable size and quality, at comparable rents and total monthly or weekly charges to each affected tenant.
2. One of the following three requirements shall be met:
(a) The residential hotel rooms being removed are replaced by a common use facility, including, but not limited to, a shared kitchen, lounge, or recreation room, that will be available to and primarily of benefit to the existing residents of the residential hotel and that a majority of existing residents give their consent to the removal of the rooms.
(b) Before the date on which the residential hotel rooms are removed, one-for- one replacement of each room to be removed is made, with a comparable room, in one of the methods set forth in this section.
(c) Residential hotel rooms are removed because of building alterations related to seismic upgrade to the building or to improve access to meet the requirements of the American Disabilities Act (ADA).
B. Criteria for Replacement Rooms. For purposes of this section, replacement rooms must be:
1. Substantially comparable in size, location, quality, and amenities;
2. Subject to rent and eviction controls substantially equivalent to those provided by the Rent Stabilization Ordinance or those that applied to the original rooms which are being replaced; and
3. Available at comparable rents and total monthly or weekly charges to those being removed. Comparable rooms may be provided by:
(a) Offering the existing tenants of the affected rooms the right of first refusal to occupy the replacement rooms;
Attachment 4 – Existing Demolition Ordinance
(b) Making available comparable rooms, which are not already classified as residential hotel rooms to replace each of the rooms to be removed; or (c) Paying to the City of Berkeley’s Housing Trust Fund an amount sufficient to provide replacement rooms.
i. The amount to be paid to the City of Berkeley shall be the difference between the replacement cost, including land cost, for the rooms and the amount which the City of Berkeley can obtain by getting a mortgage on the anticipated rents from the newly constructed rooms.
ii. The calculations shall assume that rents in the newly constructed rooms shall not exceed the greater of either a level comparable to the weekly or monthly charges for the replaced rooms or the level which would be charged if no current tenant paid more than 30 percent of such tenant’s gross income for rent.
C. Exception for Non-Profit Ownership. In a residential hotel owned and operated by a non-profit organization, recognized as tax-exempt by either the Franchise Tax Board and/or the Internal Revenue Service, residential hotel rooms may be changed to non- residential hotel room uses if the average number of residential hotel rooms per day in each calendar year is at least 95 percent of residential hotel rooms established for that particular residential hotel.
23.326.070 Demolitions of Non-Residential Buildings.
A. Main Non-Residential Buildings. A main building used for non-residential purposes may be demolished with a Use Permit.
B. Accessory Buildings.
1. Demolishing an accessory building with less than 300 square feet of floor area is permitted as of right.
2. An accessory building with 300 square feet or more of floor area may be demolished with an AUP.
C. Landmarks Preservation Commission Review.
Attachment 4 – Existing Demolition Ordinance
1. Any application for a Use Permit or AUP to demolish a non-residential building or structure which is 40 or more years old shall be forwarded to the Landmarks Preservation Commission (LPC) for review before consideration of the Use Permit or AUP.
2. The LPC may initiate a landmark or structure-of-merit designation or may choose solely to forward to the ZAB its comments on the application.
3. The ZAB shall consider the recommendations of the LPC in when acting on the application.
D. Findings. A Use Permit or an AUP for demolition of a non-residential building or structure may be approved only if the ZAB or the Zoning Officer finds that:
1. The demolition will not be materially detrimental to the commercial needs and public interest of any affected neighborhood or the City of Berkeley; and
2. The demolition:
(a) Is required to allow a proposed new building or other proposed new use; (b) Will remove a building which is unusable for activities which are compatible with the purposes of the district in which it is located or which is infeasible to modify for such uses;
(c) Will remove a structure which represents an inhabitable attractive nuisance to the public; or
(d) Is required for the furtherance of specific plans or projects sponsored by the City of Berkeley or other local district or authority upon a demonstration that it is infeasible to obtain prior or concurrent approval for the new construction or new use which is contemplated by such specific plans or projects and that adhering to such a requirement would threaten the viability of the plan or project.
23.326.080 Building Relocations.
A. Treatment of Building Relocation.
Attachment 4 – Existing Demolition Ordinance
1. Relocating a building from a lot is considered a demolition for purposes of this chapter.
2. Relocating a building to a lot is considered new construction and is subject to all requirements applicable to new construction.
3. When a building is relocated to a different lot within in Berkeley, the lot from which the building is removed shall be known as the source lot and the lot on which the building is to be sited shall be known as the receiving lot. In such cases all notification requirements apply to both the source and receiving lots.
B. Findings. The ZAB may approve a Use Permit to relocate a building upon finding that:
1. The building to be relocated is not in conflict with the architectural character, or the building scale of the neighborhood or area to which it will be relocated; and
2. The receiving lot provides adequate separation of buildings, privacy, yards, and usable open space.
23.326.090 Limitations.
A. Unsafe, Hazard, or Danger.
1. Notwithstanding anything to the contrary, if a building or structure is unsafe, presents a public hazard, and is not securable and/or is in imminent danger of collapse so as to endanger persons or property, as determined by the city’s building official, it may be demolished without a Use Permit.
2. The Building Official’s determination in this matter shall be governed by the standards and criteria in the most recent edition of the California Building Code that is in effect in the City of Berkeley.
B. Ellis Act. This chapter shall be applied only to the extent permitted by state law as to buildings which have been entirely withdrawn from the rental market pursuant to the Ellis Act (California Government Code Chapter 12.75).
Planning and Development Department
Land Use Planning Division
STAFF REPORT
December 6, 2023
TO: Members of the Planning Commission
FROM: Justin Horner, Associate Planner
SUBJECT: Zoning Ordinance Amendments to Berkeley Municipal Code Chapter
23.326 (Demolition and Dwelling Unit Controls)
RECOMMENDATION
Make a recommendation to the City Council regarding amendments to Berkeley Municipal Code Chapter 23.326 (Demo Ordinance). The existing and proposed redlined ordinances are presented in Attachments 1 and 2, respectively.
SUMMARY
State law SB 330 (Housing Crisis Act of 2019) includes new provisions related to demolition of residential units. SB 330 provides optional ways to comply with these requirements, based on whether the units are occupied or vacant, whether existing tenants are low income, whether the units are subject to local rent control (in Berkeley, this would be most properties with more than two units built before 1980), or whether the units were removed from the rental market pursuant to the Ellis Act.1 In particular, replacement units required by SB 330 may be deed restricted to low income households or they may be subject to local rent control. The law also addresses the rights of existing tenants that would be displaced by demolition, including relocation benefits and a right of first refusal to return to the new units at below market rate (BMR) rent. Density bonus law now mirrors these requirements.
The proposed ordinance (Attachment 2) includes provisions to bring the Demo Ordinance into conformance with State law, and includes a number of new Berkeley- specific provisions as recommended by the 4x4 Joint Task Force Committee on 1 Under a state law called the Ellis Act (CA Gov. Code Sec. 7060 et seq.), an owner can evict tenants in order to withdraw a rental property from the rental housing market. A local ordinance, Berkeley Municipal Code Chapter 13.77, establishes specific procedures under the state law.
Item 10 - Staff Report
Planning Commission
December 6, 2023
ATTACHMENT 5
Housing. The proposed ordinance also includes a number of text edits, including grammatical corrections and renumbering.
CURRENT SITUATION AND ITS EFFECTS
The existing Demo Ordinance (Attachment 1) requires a Use Permit for the demolition or elimination of one or more dwelling units in Berkeley. The Zoning Adjustments Board (ZAB) may issue a Use Permit for the demolition of a dwelling unit for specific enumerated reasons:
• A building is “hazardous or unusable and is infeasible to repair”; • “Demolition is necessary to permit construction… of at least the same number of dwelling units.”
• “The elimination of the dwelling units would not be materially detrimental to the housing needs and public interest of the affected neighborhood and the City.”
The existing ordinance includes provisions for unit replacement and the rights of sitt ing
tenants, as well as additional situations such as:
• W hen housing units are demolished and no new housing units are being developed at the site (e.g., commercial development);
• W hen tenants have been unlawfully evicted, such as forcing a tenant out of a unit without a court order; and
• W hen units are being merged or converted within an existing building rather than physically demolished.
The existing ordinance includes a provision whereby appli cants may pay a fee rather
than provide below-market-rate replacement units, however the amount of the fee has never been established.
Demolition of dwelling units is prohibited where a building has been removed from the rental market under the Ellis Act during the preceding five years or where there have been verified cases of harassment or threatened or actual illegal eviction during the immediately preceding three years. Applicants are generally required to provide relocation benefits, including moving expenses and differential rent payments. In addition, displaced tenants are provided a right of first refusal to rent new units after the lot has been redeveloped.
Proposed Demolition Ordinance Provisions
The proposed ordinance (Attachment 2) includes provisions to bring the Demo Ordinance into conformance with State law, and includes a number of new Berkeley- specific provisions as recommended by the 4x4 Joint Task Force Committee on Housing. The proposed ordinance also includes a number of text edits, including grammatical corrections and renumbering.
Item 10 - Staff Report
Planning Commission
December 6, 2023
The most significant changes are summarized below in Table 1, and discussed in more detail below. The primary rationales for the proposed changes include clarifying the applicability of the ordinance, expanding tenant protections, bringing the ordinance into conformance with State law, and assigning the Rent Stabilization Board (Rent Board) to administer some aspects of the ordinance rather than the ZAB.
Applicable Unit.
The existing ordinance indicates that it applies to a “dwelling unit or units.” The proposed ordinance includes clarifications that it applies to dwelling units, group living accommodations, residential hotel rooms, accessory dwelling units (ADUs), junior accessory dwelling (JADUs) units, and units built without permits.
Comparable Unit.
The existing ordinance refers to a “comparable unit” when referring to replacement units, but does not define “comparable unit.” The proposed ordinance includes an explicit definition of “comparable unit”, indicating that it should be of a comparable size, include similar amenities, and be located in a similar area of the city as the demolished unit.
Prohibited Demolitions.
The existing ordinance indicates that demolition is prohibited for units that have been removed from the rental stock through the Ellis Act within the past five years, or in cases where there has been substantial evidence of tenant harassment by a rental property owner, or an attempted or actual illegal eviction, within the past three years. In the latter case, the determination of whether harassment has occurred is made by the ZAB.
The proposed ordinance expands tenant protections to include any no fault eviction within the past five years, not just removal of a rental unit from the market through the Ellis Act. A “no fault eviction” is when the property owner or landlord wants to evict a tenant at no fault of the tenant, for example, when the property owner wants to move into the property.
The Rent Stabilization Board is proposed to be the deciding body for questions regarding harassment and illegal eviction, instead of the ZAB.
Mitigation Fee.
The existing ordinance includes a requirement to pay an in-lieu mitigation fee for every unit demolished, or the option to replace a comparable BMR unit on-site.
State law (SB330) imposes a requirement that any housing development project that requires the demolition of dwelling units must create at least as many residential dwelling units as will be demolished on-site, and requires that the City condition Item 10 - Staff Report
Planning Commission
December 6, 2023
approval on the provision of replacement units. Therefore, an option to “fee out” of the replacement requirement is a violation of State law, because it would not provide replacement units at the sizes and affordability levels required by SB 330. Accordingly, the proposed ordinance removes the mitigation fee section.
Landmarks and Structures of Merit.
While the provisions of BMC Chapter 3.24 (Landmarks Preservation Commission) apply to units proposed for demolition, the existing ordinance does not explicitly refer to this chapter. Accordingly, the proposed ordinance includes specific language referring to Chapter 3.24.
Affordability of Replacement Units.
The existing ordinance includes a requirement that any replacement units must be BMR units, and that the income levels of the qualifying households, and rents for the replacement units, shall be set by a resolution of the City Council. The existing ordinance also includes a requirement that the project applicant enter into a regulatory agreement with the city to provide these units.
The proposed ordinance includes more detailed provisions addressing the affordability levels of replacement units:
• The proposed ordinance requires that any demolished unit shall be replaced with equivalent units and comply with the applicable affordability requirements included in BMC 23.328 (Affordable Housing Requirements) and BMC 23.330 (Density Bonus). Referencing these sections clarifies the appropriate affordability levels for replacement units, and establishes consistent requirements across a number of affordable housing-related provisions in the BMC. • The proposed ordinance also includes a provision that if a displaced household has an income below 50% AMI, a comparable replacement unit shall be offered at a rent that is affordable to households at 30% of AMI.
Sitting Tenants’ Rights.
The existing ordinance establishes certain rights for sitting tenants. Sitting tenants in demolished units are entitled to a rig
ht of first refusal to move into the new building,
have a right of first refusal for any BMR units, and retain those rights even if they have incomes that do not qualify for BMR units.
The proposed ordinance clarifies that tenants who do not qualify for BMR replacement units due to income limits above the area median income must still be provided a market-rate replacement unit at their prior rent. Additionally, the rent for the duration of that tenancy would be subject to Berkeley's rent control regulations. This section was added by the 4x4 Committee to provide additional rights to sitting tenants who may not qualify for BMR units.
Item 10 - Staff Report
Planning Commission
December 6, 2023
The proposed ordinance includes additional provisions related to sitting tenants’ rights.
The revisions clarify that a sitting tenant’s right of first refusal extends to a comparable unit (not just any unit) in the building, and sets the initial rent and subsequent rents for sitting tenant households that are ineligible for BMR units. These provisions go beyond what is required under State law.
Elimination of Units through Combination with Other Units.
The existing ordinance includes provisions regulating the elimination of dwelling units through physical combination with other units. This is usually done in cases where two units are combined to make a single larger unit. The existing ordinance requires a Use Permit, with specific findings, to move forward with such an elimination. It also prohibits such an elimination if the building was removed from the rental market through the Ellis Act in the past five years, or if there is evidence of tenant harassment or illegal eviction within the past three years, as determined by the ZAB.
The proposed ordinance permits combined units through an AUP approval if such a combination would return the building to, or move it closer towards, its permitted density. This is a provision to make it easier for units in owner-occupied buildings to be combined. The AUP requirement still includes discretionary review, the ability to set conditions, and an appeal option to the ZAB.
Elimination of a unit for a combination would not be approved if the building was vacated through any no-fault eviction, not just due to the Ellis Act, or if the tenant was subject to landlord harassment or an illegal eviction. The determination of whether landlord harassment or a real or attempted illegal eviction occurred would be made by the Rent Board Hearing Examiner, with an appeal option to the Rent Stabilization Board, instead of by the ZAB.
Demolition of ADUs that are not Controlled.
The existing ordinance includes a provision that allows the demolition, with a Zoning Certificate (ZC), of ADUs that are not rent controlled. The proposed ordinance removes this section, and clarifies that ADUs and JADUs are considered residential units for the purposes of the ordinance, and therefore require a Use Permit for demolition or elimination.
Demolition of Accessory Buildings
The existing ordinance includes a provision that permits the demolition of an accessory building that does not contain a dwelling unit, such as garages, carports, and sheds, with a ZC. The proposed ordinance includes additional clarifying language that an accessory building that is occupied by a residential tenant shall be considered a residential unit for the purposes of this chapter.
Residential Hotel Rooms
Item 10 - Staff Report
Planning Commission
December 6, 2023
The existing ordinance includes a section specifically regulating the elimination of residential hotel rooms. These provisions include specific requirements related to monthly and weekly charges, and permit residential hotel rooms to be removed for the purpose of providing common use facilities (such as a kitchen, lounge, or recreation room) for remaining residents or to undertake seismic upgrades or meet the requirements of the Americans with Disabilities Act. They also include a provision allowing an owner to meet the replacement requirements through a payment to the Housing Trust Fund, which, as noted above, is not permitted under State law. The proposed ordinance removes this section, and includes language indicating that residential hotel rooms are treated as residential units for the purpose of this ordinance.
Technical Edits, Reorganization and Renumbering
The proposed ordinance also includes a variety of purely technical edits, and reorganization, retitling, and renumbering of some sections and subsections.
Table 1. Summary of Revisions to Demolition Ordinance
Policy Area Current Ordinance Proposed
Ordinance
Rationale
Applicable unit “Dwelling unit or units.” Dwelling Unit, GLA, ADU, JADU, and units
built without permits
23.326.010(A)(1) – (3)
Clarification of the
types of units covered.
Comparable unit No definition. “Similar size, amenities and location within the
city.”
23.326.010(A)(4)
Clarification by
providing a definition.
Demolition
Prohibition: Ellis Act
Prohibition applies to
any unit removed via
Ellis Act within the past
5 years
Prohibition applies to
any “no-fault” eviction.
23.326.030(A)
Expansion of tenant
protections beyond just
one type of no-fault
eviction (Ellis Act).
Demolition
Prohibition: Tenant
Harassment
Determination made by
ZAB.
Determination made by
Rent Board.
23.326.030(A)(2)
For tenant-landlord
issues, the Rent Board
is the subject-expert
body.
Mitigation Fee Includes mitigation fee
option.
Removes mitigation fee
option.
State Law: Demolished
units must be replaced
(SB 330).
Landmarks and
Structures of Merit
No reference to
Landmarks
Preservation
Commission (LPC)
procedures.
Includes reference to
LPC procedures.
23.326.030(C)
Clarification that LPC
procedures apply.
Replacement Units --
Affordability
• Replacement unit
must be “BMR” in
perpetuity;
• Replacement unit
must comply with
Chapter 23.328
(Affordability
Requirements) and
State Law: Existing
tenant income levels
impact type/affordability
of replacement units
(SB 330).
Item 10 - Staff Report
Planning Commission
December 6, 2023
Policy Area Current Ordinance Proposed
Ordinance
Rationale
• Affordability level to
be set by Council
resolution;
• Regulatory
agreement with the
City required.
23.330 (Density
Bonus);
• For demolished unit
with household at
50% AMI or below,
replacement unit
must be set at 30%
AMI; and
• Allows Zoning
Officer and Fire
Marshall to waive
replacement for
health and safety
23.326.030(C)
Sitting Tenants
Rights
• Right of first refusal
to move into the
building
• Right of first refusal
for BMR units
• Income restrictions
do not apply
• Right of first refusal
for a comparable
unit
• For displaced
tenants who rent a
comparable unit,
rent is controlled for
duration of tenancy
• For households
ineligible for BMR
units, a
replacement unit
shall be offered at
prior rent
23.326.030(E)(4)
State Law: Tenant
income levels impact
type/affordability of
replacement units (SB
330).
Additional local
requirement: Income
restrictions do not apply
to displaced
households upon their
return to the property
after completion of the
project.
Elimination of Units
through Combination
with other Units
Use Permit required in
all cases, with findings.
AUP to combine units
when the combination
would return the
building to, or move it
closer towards, its
original density
23.326.040(B)
Simplification: Allow
conversion of owner-
occupied buildings with
a lesser standard.
Combination not
allowed if the building
was removed via Ellis
Act within the past 5
years
Combination not
allowed if vacated
through no fault
eviction within the past
5 years
23.326.040(C)
Expansion of tenant
protections beyond just
one type of no-fault
eviction (Ellis Act).
Combination not
allowed if tenant
harassment.
Determination made by
ZAB
Determination made by
Rent Board Hearing
Examiner, with appeal
to Rent Board
23.326.040(C)
For tenant-landlord
issues, the Rent Board
is the subject-expert
body.
Item 10 - Staff Report
Planning Commission
December 6, 2023
Policy Area Current Ordinance Proposed
Ordinance
Rationale
Demolition of ADUs Provides path to
demolition with ZC for
ADUs that are not rent
controlled.
Section removed. All
ADUs and JADUs,
regardless of rent
control status, are
regulated as a
residential unit.
ADUs and JADUs are
considered Residential
Units for purpose of
ordinance.
23.326.010(A)(2)
Demolition of
Accessory Buildings
Can be demolished by
right.
Added language to
clarify that Accessory
Buildings that are
occupied by residential
tenants are considered
Residential Units.
23.326.050
Expansion of
demolition controls and
tenant protections.
Elimination of
Residential Hotel
Rooms
Section 23.326.060
provides specific
procedures for removal
of residential hotel
rooms
Section removed. Residential Hotel
Rooms are considered
Residential Units for
purpose of ordinance.
23.326.010(A)(1)
BACKGROUND
The impetus for these revisions is recent changes in State law that provide additional requirements for new housing development projects that involve the demolition of existing residential units. These provisions of SB 330 (Housing Crisis Act of 2019), which modified Government Code sections relating to zoning and density bonus, require all new housing development projects to provide replacement units of equivalent size, defined as having the same number of bedrooms as the demolished units.
At its meeting of February 1, 2023, the Planning Commission scheduled a public hearing to adopt a recommendation for the City Council of changes to the Demo Ordinance (Attachment 3). The Planning Commission deferred a final recommendation pending recommendations from the 4x4 Joint Task Force Committee on Housing. Staff returned to the 4x4 Joint Task Force Committee in September and October of 2023 for discussion and recommendations, which are reflected in Attachment 2. The proposed amendments do not include changes in permit requirement for by-right demolition of single-family homes, which will be considered in the future as part of a larger package of ‘middle housing’ zoning amendments.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPAC
TS
California Public Resource Code Section 21065 defines a “project” under CEQA as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” The proposed ordinance amendments relate only to the requirements to demolish existing structures, and would not result in any physical changes to the environment. The proposed ordinance does not consist of a discretionary action that would permit or cause any Item 10 - Staff Report
Planning Commission
December 6, 2023
direct or indirect change in the environment. The proposed ordinance is therefore not a project under CEQA.
RATIONALE FOR RECOMMENDATION
The proposed ordinance includes changes required by state law, as well as policy changes recommended by the 4x4 Joint Committee Task Force on Housing.
NEXT STEPS
After the Planning Commission holds a public hearing and makes a recommendation to the City Council, the City Council shall hold a public hearing and vote to adopt the proposed ordinance amendments
CONTACT PERSON
Justin Horner, Associate Planner, Planning and Development, [email protected]; 510-981-7476
Attachments:
1. Existing Demolition Ordinance (BMC Chapter 23.326)
2. Proposed Demolition Ordinance – Redlined (BMC Chapter 23.326)
3. Planning Commission Staff Report – Feb 1, 2023.
4. Public Hearing Notice
Item 10 - Staff Report
Planning Commission
December 6, 2023
Planning and Development Department
Land Use Planning Division
STAFF REPORT
January 17, 2024
TO: Members of the Planning Commission
FROM: Justin Horner, Associate Planner
SUBJECT: Zoning Ordinance Amendments to Berkeley Municipal Code Chapter
23.326 (Demolition and Dwelling Unit Controls)
RECOMMENDATION
Conduct a public hearing and make a recommendation to the City Council regarding amendments to Berkeley Municipal Code Chapter 23.326 (Demolition and Dwelling Unit Control Ordinance). The existing and proposed redlined ordinances are presented in Attachments 1 and 2, respectively.
SUMMARY
State law SB 330 (Housing Crisis Act of 2019) established new provisions related to demolition of residential units. SB 330 provides optional ways to comply with these requirements. These include unit occupancy or vacancy, existing tenant income status (ex. low income), local rent control applicability (in Berkeley, this would be most properties with more than two units built before 1980), or if units were removed from the rental market pursuant to the Ellis Act.1 In particular, replacement units required by SB 330 may be deed restricted to low income households or subject to local rent control. The law also addresses the rights of existing tenants that would be displaced by demolition, including relocation benefits and a right of first refusal to return to the new units at below market rate (BMR) rent. Density bonus law now reflects these requirements.
The proposed ordinance ( Attachment 2 ) includes provisions to bring the Demo lition Ordinance into conformance with State law, and includes a number of new Berkeley - specific provisions as recommended by the 4x4 Joint Task Force Committee on Housing and the Planning Commission’s Subcommittee meeting of December 20, 2023. The proposed ordi nance also includes a number of text edits, including grammatical corrections and renumbering.
1 Under a state law called the Ellis Act (CA Gov. Code Sec. 7060 et seq.), an owner can evict tenants in order to withdraw a rental property from the rental housing market. A local ordinance, Berkeley Municipal Code Chapter 13.77, establishes specific procedures under the State law.
REVISIONS TO DECEMBER 6, 2023 PROPOSED ORDINANCE
The proposed ordinance presented to the Planning Commission at its December 2, 2023 meeting was prepared based on multiple Planning Commission meetings and meetings of the 4x4 Joint Task Force Committee on Housing. The staff report for the December 6th 2023 Planning Commission meeting (Attachment 3 ) includes detailed discussion of those meetings, as well as the rationale for the development of the proposed ordinance.
At its December 6 , 2023 meeting, the Planning Commission moved to create a Subcommittee to review the proposed ordinance in detail, and to consider suggestions and recommendations made by Commissioners at that meeting. The Subcommittee met on December 20 , 2023 and recommended a number of changes to the ordinance presented to the Planning Commission at the December 6, 2023 meeting . These changes are detailed below.
• Demolition of Single -Family Dwellings with a Zoning Certificate. The ordinance presented on December 6, 2023 included a provision that requires a Use Permit (UP) to demolish any dwelling unit. Program 29-Middle Housing of the recently-adopted Housing Element includes a provision requiring the City Council to consider by-right demolition of single -family homes to encourage the development of middle housing.
Proposed Modification: The proposed ordinance includes a provision to allow the demolition of a single-family dwelling with a Zoning Certificate if the demolition is part of a development project that would result in a net increase in residential density. This provision changes the required permit for the demolition from a Use Permit to a Zoning Certificate. All other aspects of the ordinance, including tenant notice, tenant protection s, unit replacement requirements and other provisions , would continue to apply to the demolition of single-family dwellings.
• Demolition of Residential Units for Non -Residential Projects. The ordinance presented on December 6, 2023 included a provision which would allow the Zoning Adjustments Board (ZAB) to approve the demolition of residential units with a finding that the demolition is necessary to permit construction of “economically beneficial uses;” that is, projects that are non -residential. Residential units demolished under this finding would not have been required to be replaced.
Proposed Modification: The Subcommittee recommended removal of this provision. AB 1218, 2 recently signed into law, applies SB 330 residential unit replacement requirements to proposed projects that do not include resident ial units.
• “Equivalent” vs. “Comparable” Units. The ordinance presented to the Planning Commission on December 6 , 2023 included a requirement that residential units that are demolished shall be replaced with “equivalent” units.
2 https://legiscan.com/CA/text/AB1218/id/2845253
Proposed Modification: Neither the ordinance, nor Title 23, includes a definition of “equivalent,” for this context. The Subcommittee therefore replaced "equivalent” with “comparable,” which is defined in the proposed ordinance.
• Tenants’ Intent to Return. The ordinance presented to the Planning Commission on December 6, 2023 included a provision that “tenants shall have until the date that the new units are ready for occupancy to decide whether to move into the newly constructed building.” [emphasis added]
Proposed Modification: The Subcommittee recommended more precise language to indicate the timeline by which a tenant should inform an owner of their intent to return to a unit. The proposed ordinance includes new provisions that:
a) an owner must inform a tenant within five days of the issuance of a Certificate of Occupancy that a new unit will be ready for move in on a specific date; and
b) tenants are to confirm in writing their intent to lease a replacement unit at any time between learning of a demolition and twenty days after the issuance of a Certificate of Occupancy for a new unit.
• Combination of Units , Findings . The ordinance presented to the Planning Commission on December 6 , 2023 included a provision that allows the ZAB to approve a UP to eliminate a unit within a single -resident occupancy residential development undergoing a publicly-funded rehabilitation through combination with another unit , for the purpose s of providing private bathrooms, kitchenettes, accessibility upgrades, or seismic safety upgrades.
Proposed Modification: The Subcommittee recommended additional language to broaden the acceptable purposes to include “other elements required by funding sources or programmatic needs.”
• Combination of Units, Applicant Requirements. The ordinance presented to the Planning Commission on December 6, 2023 includes two requirements relating to applicants intending to demolish units through combination. One requirement is that the ZAB must find that the applicant ’s household has occupied the affected unit for no less than two years, and the other is that an applicant’s household must occupy the combined unit for at least two years after its completion.
Proposed Modification: The proposed ordinance changes this requirement from applying to the “applicant,” to applying to an “owner.” This revision would still require owner-occupancy, maintaining prohibitions on evicting tenants to combine units or immediately renting combined units, but would permit an owner-to-owner sale of a property.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
California Public Resource Code Section 21065 defines a “project” under CEQA as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseea ble indirect physical change in the environment.” The proposed ordinance amendments relate only to the requirements to demolish existing structures, and would not result in any physical changes to the environment. The proposed ordinance does not consist of a discretionary action that would permit or cause any direct or indirect change in the environment. The proposed ordinance is therefore not a project under CEQA.
RATIONALE FOR RECOMMENDATION
The proposed ordinance includes changes required by state law, as well as policy changes recommended by the 4x4 Joint Committee Task Force on Housing and the Planning Commission’s Subcommittee.
NEXT STEPS
After the Planning Commission holds a public hea ring and makes a recommendation to the City Council, the City Council shall hold a public hearing and vote to adopt the proposed ordinance amendments.
CONTACT PERSON
Justin Horner, Associate Planner, Planning and Development, [email protected]; 510-981-7476
Attachments:
1. Existing Demolition Ordinance (BMC Chapter 23.326)
2. Proposed Demolition Ordinance – Redlined (BMC Chapter 23.326)
3. Planning Commission Staff Report – December 6, 2023.
4. Public Hearing Notice
Attachment 6
NOTICE OF PUBLIC HEARING
BERKELEY CITY COUNCIL
Zoning Ordinance Amendments to Berkeley Municipal Code
Section 23.326 (Demolition and Dwelling Unit Controls)
The public may participate in this hearing by remote video or in-person.
The Department of Planning and Development is proposing amendments to the Demolition Ordinance, Berkeley Municipal Code Chapter 23.326, that are required or permitted pursuant to recent changes in State law that provide additional requirements for new housing development projects that involve the demolition of existing residential units. The proposed amendments would also detail additional tenant protections and affordability requirements for replacement of demolished units.
The hearing will be held on, March 26, 2024 at 6:00 p.m. in the 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 https://berkeleyca.gov/ as of March 14, 2024. 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 Justin Horner, Associate Planner at 510-981- 7476. 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 (510) 981-6900 or [email protected] for further information.
Published: March 15, 2024
Public Hearing required by BMC 23.412.050 and Govt Code 65853; notice provided according to Govt Code 65090 and BMC 23.404.040. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Attachment 6
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 March 14, 2026.
__________________________________
Mark Numainville, City Clerk
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/
ACTION CALENDAR
March 26, 2024
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Margot Ernst, Manager, Health, Housing, and Community Services, Community Services Division
Subject: Dissolution of the Human Welfare and Community Action Commission and the Peace and Justice Commission; and, establishment of the Human Welfare, Peace and Justice CommissionBerkeley Community Action Agency Commission
RECOMMENDATION
Adopt first reading of an Ordinance to:
1. Repeal Chapter 3.68, Peace and Justice Commission; and,
2. Repeal Chapter 3.78, Human Welfare and Community Action Commission; and,
3. Establish the Human Welfare, Peace and Justice Berkeley Community Action Agency Commission withCommission with Chapter 3.70
FISCAL IMPACTS OF RECOMMENDATION
The City of Berkeley receives approximately $300,000 of CSBG funding per calendar year to support programs and services that combat poverty for Berkeley residents.
Currently, the Human Welfare and Community Action Commission (HWCAC) acts as the federally mandated tripartite board for CSBG funding and advises the Council on how to use these funds. The duties associated with CSBG funding will be transferred to the newly-established Human Welfare, Peace and Justice Commission Berkeley Community Action Agency Commission (HWPJBCAA), which will take on the advisory responsibilities previously held by the HWCAC. The City Council will continue to be the decision-making body and will be responsible for all final CSBG funding decisions.
The dissolution of two commissions and establishment of one commission may will reduce staffing and operating costs associated with running commission meetings, because the total number of commissions will be decreased by one. This staff cost saving was identified in the June 15, 2021 Council item, “Commission Reorganization for Post-COVID19 Budget Recovery” (Attachment 2).
CURRENT SITUATION AND ITS EFFECTS
In order to sustain civic engagement and remain fiscally responsible, in June 2021 the City Council directed the City Manager to consolidate several City commissions,
Dissolution of the HWCAC and PJC; and establishment of the BCAAHWPJ ACTION CALENDAR March 26, 2024
including the HWCAC and Peace and Justice Commission (PJC). Additionally, tThe HWCAC has struggled to maintain a full commission since 2012 (Attachment 2). In 2023, the HWCAC did not meet for a total of six regular meetings due to a lack of quorum. The inability of the HWCAC to achieve a meeting quorum can be partially attributed to the high number of vacancies on the commission; from July to December of 2023, the HWCAC never had more than three commissioners at any given time.Additionally, as of this writing, the HWCAC has two commissioners and has not achieved a commission meeting quorum since June 21, 2023. This is a significant problem for both the City commission meeting requirements as well as CSBG funding requirements, for which the HWCAC serves as an advisory board to Council. Without regular meetings of the HWCAC, the City is in violation of the contract requirements for CSBG funding, which include approval of CSBG revenue contracts, regular review of community agency performance reports, public hearings on community needs, and funding recommendations to City Council. With over half of the seats currently vacant, the PJC has also struggled to maintain its membership of 15 seats. In fact, on February 16, 2024, the Chair of the HWCAC and the Health, Housing and Community Services Department received a letter from the State of California’s Department of Community Services and Development, notifying the City that it would be considered “high risk” for losing CSBG funding unless demonstrable progress was made to address these issues within 45 days (see Attachment 2)..
The proposed Human Welfare, Peace and Justice Commission (HWPJ) Berkeley Community Action Agency Commission (BCAA) would adopt all CSBG-related requirements, ensuring contract compliance and preservation of the approximate $300,000 per calendar year that the City receives in CSBG funding for anti-poverty programs and services for Berkeley residents.
The proposed change from 15 members of the HWCAC to a nine-member structure for the HWPJ BCAA would achieve a balance between the strict federal funding requirement to have a tripartite board, and the ability to keep the seats on the commission filled. The three parts of the tripartite board are one-third elected public officials (or their designees), at least one- third elected low-income individuals residing in the CSBG agency's designated service area (in this case, the City of Berkeley), and the remaining members from the private sector (such as representatives from business, industry, labor, religious, human services, education, or other groups with interest in the community). City staff received technical assistance from the California Community Action Partnership Association (CalCAPA), which supports Community Action Agencies and CSBG funding recipients with HUD compliance, to ensure that the new commission structure will be CSBG compliant. The revised ordinance presented in this report has been reviewed for compliance by CalCAPA.
The new HWPJ BCAA municipal code chapter will include the key responsibilities and requirements from both the HWCAC and PJC.
Dissolution of the HWCAC and PJC; and establishment of the BCAAHWPJ ACTION CALENDAR March 26, 2024
BACKGROUND
On June 15, 2021, City Council directed the City Manager to examine a multi-phased approach to the consolidation of City commissions, including a merger of the HWCAC and the PJC. The merging of these two commissions was delayed due to conflicting municipal code requirements, as well as challenges to ensuring CSBG funding compliance. City staff have now determined that the commissions are able to be merged without disrupting the responsibilities of each respective commission. City staff shared a memo with both commissions that included a description and timeline for the merger, as well as staff contact information for any questions, concerns, or feedback.
In November 2023, City staff shared a memo with both commissions that included a description and timeline for the commission consolidations, as well as staff contact information for any questions, concerns, or feedback. Staff met with representatives of each commission to discuss their concerns about the merger, both individually and during commission meetings. Staff received clear feedback from HWCAC and PJC commissioners that the consolidation should not move forward, including letters from each respective commission to Council detailing their concerns. Ultimately, the commission merger Council ordinance scheduled for the February 13, 2024 Council meeting was sent back to the Agenda and Rules Committee for future scheduling.
On February 16, 2024, the Chair of the HWCAC and the Health, Housing and Community Services Department received a letter from the State of California’s Department of Community Services and Development, notifying the City that it would be considered “high risk” for losing CSBG funding unless demonstrable progress was made to address these issues within 45 days (see Attachment 2).
Since then, staff have taken the input received from the HWCAC and PJC commissions into consideration and have incorporated changes to the proposed HWPJ ordinance as allowable under the requirements of CSBG funding. Staff heard three main categories of concerns from the commissions and have made strides to revise the ordinance to incorporate these concerns:
1. Concerns about the name of the commission, and specifically losing “peace” and “justice” from the name. To address this concern, the attached ordinance changes the name to the “Human Welfare, Peace, and Justice Commission.”
2. A concern from the PJC that staff’s original ordinance dropped some of the PJC’s main and most important charges from their enabling legislation, such as (among other things) holding public hearings and community forums. To address this concern, the attached ordinance adds back a number of original items from PJC’s enabling legislation. It is important to note that, in order to maintain CSBG funding and be in compliance with federal regulatory requirements, the main charge of this Commission must be primarily poverty-related issues.
3. Concerns about the drop in membership (from 15 seats to 9 seats) and the loss of BUSD-appointed seats. Unfortunately, this is not something staff recommend accommodating. Federal regulations on the tripartite board structure include specific ratios of membership composition; the more seats there are to fill, the harder it is to find and retain qualified candidates for the Commission. At present,
Dissolution of the HWCAC and PJC; and establishment of the BCAAHWPJ ACTION CALENDAR March 26, 2024
both the PJC and HWCAC (15 seats now) have struggled with participation and ability to meet quorum. Reducing the seats to 9 is not only Council’s 2021 direction, but it also helps ensure the City constructs a board that can more reliably meet quorum.
The HWCAC was established to identify social welfare needs of the community and to advise City Council on the use of CSBG funds for services that benefit low-income Berkeley residents, acting as a tripartite board for the City of Berkeley’s CSBG funding.
The PJC was established to advise City Council and the Berkeley Unified School Board on all matters relating to the City of Berkeley’s role in issues of peace and social justice, including, but not limited to the issues of ending the arms race, abolishing nuclear weapons, support for human rights and self-determination throughout the world, and the reallocation of our national resources so that money now spent on war and preparation of war is spent on fulfilling human needs and the promotion of peace.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no environmental sustainability or climate impacts associated with this report.
RATIONALE FOR RECOMMENDATION
The proposal to dissolve the HWCAC and PJC and establish the HWPJ BCAA is consistent with Council’s directive to consolidate those two commissions. The new commission (HWPJBCAA) will be responsible for all CSBG-related requirements, which are currently not being met by the HWCAC due to ongoing commissioner vacancies and a lack of commission meeting quorum. The formation of the HWPJ BCAA addresses these issues explicitly, by introducing new strategies and configurations for the tripartite board. In addition, the PJC has struggled to maintain its membership as well with over half of the seats currently vacant. Combining the two commissions will help maintain a more robust membership and public participation, and will support carrying out the assigned duties.
ALTERNATIVE ACTIONS CONSIDERED
Council could choose to adopt an ordinance that restructures only the HWCAC, to bring that commission into CSBG regulatory compliance.Due to the ongoing commission vacancies in the HWCAC and PJC, as well as Council’s directive to consolidate the HWCAC and PJC, no alternative actions were considered.
CONTACT PERSON
Mary-Claire Katz, Associate Management Analyst, HHCS, 981-5414 Attachments:
1. Ordinance
2. Letter from CA State Dept. of Comm. Services and Dev. to City of Berkeley, “RE: 45- Day Notice of Anticipated High-Risk Designation Based on The City of Berkeley's Failure to Maintain Required CSBG Tripartite Board Structure and Failure to Administer