Berkeley Adopts New Zoning Ordinance

Code

On December 1, 2021, the City of Berkeley adopted a new Zoning Ordinance (Title 23 of the Berkeley Municipal Code), the first major revision of the City’s Zoning Ordinance since 1999. The revision process originated from a 2016 City Council referral which asked the Planning Department to undertake structural revisions to the Zoning Ordinance. As with many zoning codes, Berkeley’s Zoning Ordinance was needlessly long and repetitive, had inconsistent formatting and definitions, and outdated policies and practices. Each of the 25 zoning districts in the city had its own land use table that listed permitted uses and permit requirements, resulting in different lists of uses and disparate treatment of similar uses across zoning districts. There were no area/geographic maps and there were few figures to illustrate concepts and regulations. This led to inaccurate interpretations, inconsistent applications, and anger towards city planners. It was not a “user-friendly” zoning code.

Berkeley undertook a two-phase approach to its Zoning Ordinance: this first update – Phase 1 – improves the formatting, language, and organization of the current code. It is easier to read, understand and administer.  Phase 2 will undertake substantive changes to zoning regulations and processes.

The new Zoning Ordinance provides the following improvements:

  • New format and Writing Style. The entire ordinance was re-formatted, with new numbering and titles. A new style guide was created, laying out specific word choices (ex: “addition” should be called “expansion”; a “lot” is now called a “parcel”), grammatical and spelling rules, and establishes Plain English Guidelines as the new writing style.
  • Consolidated Land Use Tables. Former chapters and sections were combined. There are now three Land Use Tables – Residential, Commercial, and Industrial, consolidating all 25 districts. For example, all 10 commercial districts are under a single chapter. This will help remove inconsistencies in application and allow easy comparison among districts.
  • New Maps and Figures. The old ordinance relied on narrative descriptions of geographic areas and subzones. There were few illustrations. The new Zoning Ordinance has maps of each area, eliminating long narrative descriptions, and includes updated figures and diagrams to illustrate items such as Floor Area Ratio and measurement methods.
  • Eliminates Repetitive Language. In addition to eliminating repetitive land use controls, administrative procedures have been consolidated. This removed discrepancies and technical errors due to punctuation or word choice.
  • Introduces a List of “Consent Changes”. Minor but non-substantive changes were included in this update. Clarification of ambiguous terms, updated legal requirements, and codification of existing interpretations and practice were made, resulting in a clearer more comprehensive document.

The new Zoning Ordinance took effect on December 1, 2021. Pending projects that have been deemed complete or received Zoning approval on or before November 30th will be reviewed using the “legacy” Zoning Ordinance. Pending projects or those that were deemed incomplete as of December 1st will be reviewed under the new Zoning Ordinance.

Berkeley is currently working on updates to their Housing Element and developing Objective Design Standards, both of which were identified as needing updating during the Phase 1 analysis. These efforts are ongoing.  RJR will continue to track these efforts and provide updates.

 

Authored by Reuben, Junius & Rose, LLP Attorney Tara Sullivan.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Berkeley SB 35 Project Wins Appeal

SB 35

Court of Appeal Rejects City’s Bases for Denying the Project

After more than two years of legal wrangling in the courts, a 260-unit mixed-use project at 1900 Fourth Street in Berkeley (the Spenger’s parking lot) will soon be able to move forward under the streamlined approval process set forth in Senate Bill 35 (“SB 35”).  This week, the Court of Appeal determined—in a published decision that will have precedential value in other cases throughout the state—that the City’s rationale for denying the project had no merit.  The Court’s opinion reversed the decision of the trial court, which had upheld the City’s denial of the project.

Background

The project was originally proposed to include 135 apartments over 33,000 square feet of retail.  The project site is within a three-block area that the Berkeley Landmarks Preservation Commission (“Commission”) designated as a City landmark based on its proximity to the West Berkeley Shellmound.  The Shellmound is considered to have been a significant cultural resource and is listed on the California Register of Historical Resources.  However, as the Court noted in its opinion, nothing remains of the Shellmound above ground and decades of development had “systematically demolished” most of the Shellmound.

The draft Environmental Impact Report (“EIR”) for the original project exhaustively reviewed the potential impacts of the project on the Shellmound and concluded that there was very little chance, if any, that part of the Shellmound had been located on the project site.  The draft EIR nonetheless recommended mitigation measures to ensure that, if any of the Shellmound was discovered during construction, the project would not disturb it.  However, despite the robust analysis and mitigation measures in the draft EIR, the Commission took the position that the draft EIR was “seriously deficient” in its analysis of cultural resources.

In response to the Commission’s position, the project sponsor reformulated the project to take advantage of SB 35, which would allow the project to move forward without CEQA review.  The SB 35 project would include 260 apartments (nearly double the original number) over 27,500 square feet of retail space and parking.  To take advantage of SB 35, the project would make 50% of the units affordable to low-income households (we note that in some cases, only 10% of the units need to be affordable to low-income households).

The City Denies the Project

The City denied the revised application on several bases: (1) SB 35 does not apply to projects that require demolition of an “historic structure”; (2) SB 35 does not apply to the City because it is a Charter City; and (3) the project conflicts with the City’s affordable housing fee and traffic impact requirements.  After denying the revised application, the City offered that the project sponsor could restart the processing of the earlier application or revise it to conform to the SB 35 project.  The project sponsor sued.

Trial Court Upholds the City’s Denial of the Project

As described in a prior update, the trial court upheld the City’s denial of the revised application on two bases.  First, the trial court concluded that it was bound to uphold the City’s determination that the project might require demolition of an “historic structure” (i.e., the Shellmound) if there was any evidence to support it, however thin the evidence might be.  Second, the trial court concluded, after parsing the language of SB 35, that SB 35 did not apply to mixed use projects except in the very limited circumstance when the zoning specifically required at least 2/3 of the square footage to be residential.

Court of Appeal Rejects City’s Arguments and Reverses the Trial Court Decision

The Court of Appeal took a less deferential approach to its review of the City’s decision, concluding that the Legislature had intended to restrict cities’ discretion when it enacted SB 35.  The Court saw no evidence that the Legislature intended the term “historic structure” to include an historic site (like the Shellmound) and no evidence of a structure that could be demolished by the project.  The Court also rejected the City’s arguments that the revised project would conflict with its affordable housing fee and traffic impact requirements.

Significantly, the Court confirmed that the housing crisis is a matter of statewide concern and that the Legislature can therefore impinge upon a Charter City’s normally broad authority over its municipal affairs so long as the restriction of local authority is not overly broad.  In this case, the Court found that the extent to which SB 35 limited the City’s authority over historic preservation was not overly broad, and thus allowable.  This aspect of the Court’s opinion augurs well for the raft of recent state housing legislation, much of which restricts local discretion.

Finally, the Court rejected the notion that SB 35 does not apply to mixed-use projects except where the zoning requires at least 2/3 of the square footage to be residential.  The Court saw this interpretation of SB 35 as “strained and unreasonable” and concluded it “makes no sense in light of the statute’s purpose” to facilitate housing.  The Court affirmed that SB 35 is available so long as the project itself designates at least 2/3 of its square footage for residential use.

We expect the project sponsor will recover its attorney fees associated with the litigation given that the lawsuit ensured that the City would follow state housing law.  The Court’s opinion already provides for the sponsor to recover its costs (exclusive of attorney fees) related to the appeal.

 

Authored by Reuben, Junius & Rose, LLP Attorney Matthew Visick.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.