21.28.090 Approval of subdivisions -- Findings -- Conditions to be imposed.
A. The Planning Commission or City Manager or their designee shall not approve an application to convert to condominiums unless the Commission or City Manager or their designee finds that all the provisions of this chapter are met.
B. An application to convert to condominiums shall be denied if:
1. Within the immediately preceding 10 years:
(a) Any owner of the building has filed with the City of Berkeley a statement of intent to go out of the rental business; or
(b) Any owner has initiated proceedings to recover possession of any unit at the property pursuant to Section 13.76.130.A.8 or 9 of this Code;
2. Within the immediately preceding 5 years any owner has initiated proceedings to recover possession of any unit at the property pursuant to Section 13.76.130.A.8 or 9 of this Code, if such proceedings were initiated prior to October 27, 2005;
3. Within the immediately preceding 5 years a vacancy has been created by the termination of a tenancy:
(a) Within one year after the service by the owner of a termination of tenancy notice pursuant to either Civil Code Section 1946 or Civil Code Section 1946.1; or
(b) Within one year after a change in the terms of the tenancy noticed pursuant to Civil Code Section 827, including the owner’s termination or nonrenewal of a contract or recorded agreement with a governmental agency that provides for a rent limitation to a qualified tenant; or
(c) By the tenant being constructively evicted because the unit had been cited in an inspection report as containing serious health, safety, fire, or building code violations that were not caused by the tenant beyond normal wear and tear and one or more of the violations had not been abated by the date of the termination; or
(d) By the tenant household vacating the property and subsequently bringing an action for constructive or wrongful eviction that is pending at the time the application to convert is filed, or that resulted in a judgment for the plaintiff; or
(e) As the result of a rent increase greater than 10% of the prior rent in effect but for which the tenant would not have vacated the unit, unless that rent increase was approved by the Rent Stabilization Board.
C. The Planning Commission or City Manager or their designee shall impose the following conditions on any application to convert rental units:
1. The owner shall complete all the remedial actions and provide all the disclosures set forth in the determination as to whether the building complies with applicable local laws that was submitted with application.
2. The owner shall notify each resident tenant in writing when the ERP period starts for the unit they occupy by serving a copy of an ERP on each tenant. The owner shall provide a copy of this notice with proof of service on all tenants and to the City at the same time. No ERP period may start to run prior to the City’s approval of a final or parcel map for the property, regardless of when an ERP is provided to a tenant. The ERP shall include but not be limited to a good faith sale price and terms of sale for the unit occupied by the resident tenant, which may include an inflation/deflation factor. The ERP shall also state that the resident tenant may voluntarily waive the ERP in writing at any time during the ERP period, and that the tenant may wish to consult with the Berkeley Rent Stabilization Board before choosing to waive this right, and shall provide contact information to the Berkeley Rent Stabilization Board. No waiver of a resident tenant’s ERP is valid unless executed after the tenant’s receipt of the notice of ERP from the owner. An ERP may not be waived within 30 days after it is received, and any such waiver during that period shall be invalid, except that a tenant may waive an ERP at any time by voluntarily vacating their unit.
3. The owner shall satisfy the affordable housing fee requirements by paying the fee, or having recorded documents in a form required by the City, indicating the indebtedness to the City and a willingness to pay at time of transfer as defined therein. For purposes of this chapter, reconveyance of a unit from tenancy in common ownership to the individual member of the tenancy in common who occupies that unit shall not be a transfer that triggers an obligation to pay any affordable housing mitigation fee required by this chapter. Subsequent conveyance by the individual member of the tenancy in common shall trigger the obligation to pay an affordable housing mitigation fee required by this chapter.
4. No tenant may be evicted for the purpose of occupancy by the owner, or occupancy by any relative of the owner, so long as the unit remains the tenant’s principal place of residence. In the event the tenant does not exercise their right to purchase within the time period set forth in this section, the owner may transfer the unit without any price restriction to the tenant or any other person. However, in the event such transfer is to someone other than the tenant, the transfer shall be expressly made subject to the rights of the tenant to continue to occupy the unit as provided for in this chapter.
5. The owner may not opt out of any contract or recorded agreement with a governmental agency that provides for a rent subsidy to any qualified tenant for 2 years from the date the application is approved, except for cause as defined in 24 CFR 982.310 (except (d)(iii) and (d)(iv) thereof), unless the program under which the subsidy is provided terminates.
6. Where improvements are required as conditions of approval of the tentative map or parcel map or by City ordinance, any required improvement plan submitted pursuant to Chapter 21.44 shall include an analysis of potential harmful impacts on tenants of the repair and alteration process due to noise, blocked access, temporary displacement, increased rents, or other harms, and a plan for mitigation of harmful impacts.
7. Where the owner proposes or intends to make improvements other than pursuant to the foregoing paragraph, the owner shall submit to the Planning Commission an analysis of potential harmful impacts on tenants of the repair and alteration process due to noise, blocked access, temporary displacement, increased rents, or other harms, and a plan for mitigation of harmful impacts.
8. The owner shall provide all prospective buyers with a report on the seismic safety of the property.
D. In addition to the foregoing, the Planning Commission or City Manager or their designee shall not permit a map to issue as to the conversion of rental units in a property with inclusionary units unless the inclusionary provisions for sale properties are applied to the inclusionary rental units. Where the property received a density bonus or other public subsidy in return for providing below-market-rate units, the below-market-rate for-sale units shall meet the level of affordability required of the units in order to qualify for the density bonus or other subsidy. (Ord. 7070-NS § 7, 2009: Ord. 7025-NS § 1, 2008)