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A. Protected Industrial Uses in the MM and MU-LI Districts. The industrial use protections in this subsection apply in the MM and MU-LI districts.

1. Uses Subject to Protection. Table 23.206-5 identifies protected industrial uses in the MM and MU-LI districts and when the requirements in this subsection apply to these uses. Protections apply only to legally-established uses.

Table 23.206-5. PROTECTED INDUSTRIAL USES

Zoning District

Protected Industrial Uses

Applicability of Requirements

MM

Manufacturing, warehousing, wholesale trade

Ground-level protected uses on or after January 1, 1988 [1]

MU-LI

Material recovery enterprise, manufacturing, warehousing, wholesale trade

Buildings with 33% protected use on or after January 1, 1996 [1]

Note:

[1]Includes protected uses that were previously used on or after this date but now vacant.

(a) In the MM district, requirements in this subsection apply if protected use space is used, or has been used, for the manufacture, assembly, processing, repair, testing (including prototype manufacturing), storage, display (other than in retail stores) or distribution of goods. Requirements do not apply in the MM district if the protected use is or was demonstrably ancillary to another use.

2. Permits Required. Table 23.206-6 identifies permits required if a protected industrial use is changed to any use that is not a protected industrial use.

Table 23.206-6. PERMITS REQUIRED FOR CHANGES TO PROTECTED LAND USES

Zoning District

Change to Protected Use

Permit Required

MM

Change any amount of ground-floor protected use to a non-protected use

UP(PH)

MU-LI

Change less than or equal to 20,000 sq. ft. or less than or equal to 25% of protected use to a non-protected use

AUP

Change over 20,000 sq. ft. or 25% of protected use to a non-protected use

UP(PH)

3. Permit Findings.

(a) To approve a Use Permit required by Table 23.206-6 for changes to a protected industrial use in the MM and MU-LI districts, the review authority must find that replacement space is provided as required by Paragraph 4 (Replacement Space) below.

(b) To approve a Use Permit for a change of 25 percent more to a protected use in the MU-LI district, the Zoning Adjustments Board (ZAB) must also find that either:

i. The City has approved necessary Use Permits to provide comparable quality replacement space in Berkeley at a comparable rent that will be available before the demolition or change of use of the space; or

ii. Both of the following:

(1) As a result of lawful business and building activities, there are exceptional physical circumstances (exclusive of the presence of hazardous materials in the building(s), soil or groundwater) found at the building not generally found in industrial buildings in the MU-LI district which make it financially infeasible to reuse the building for any of protected industrial uses permitted in the district. The analysis of the financial feasibility effects (which shall be verified by the City) of these physical circumstances shall consider those costs necessary to make the building meet current minimum standards for manufacturing, wholesale trade or warehouse buildings.

(2) Appropriate mitigation has been made for loss of the protected industrial use space in excess of 25 percent of that space through providing such space elsewhere in the City, payment into the West Berkeley Building Acquisition Fund, or by other appropriate means.

4. Replacement Space. Floor area occupied by a protected industrial use that is changed to a non-protected use must be replaced, in the West Berkeley Plan area, by a comparable space devoted to one or more of protected industrial uses.

5. Minimum Protected Use Floor Area--MM District. For properties in the MM district where 25 percent or more of the total gross floor area was occupied by a protected industrial use as of January 1, 1996, protected industrial uses may not be reduced to less than 25 percent of the total gross floor area on the property.

6. Cumulative Limitations--MU-LI District. Permit requirements for changes to protected industrial uses in the MU-LI district are cumulative.

7. Exceptions. Changes to protected industrial uses in the MM and MU-LI districts described below are exempt from the requirements in Paragraphs 2-6 above.

(a) Changes to R&D Uses. A protected warehouse or wholesale trade use established before January 1, 2010 may be changed to a research and development (R&D) use with the permits shown in Table 23.206-7.

Table 23.206-7. PERMITS FOR CHANGES FROM PROTECTED TO R&D USES

Change in Protected Use Gross Floor Area

Permit Required

20,000 square feet or less

AUP

Over 20,000 square feet

UP(PH)

i. A maximum of 150,000 square feet of protected warehouse or wholesale trade space occupied on or after August 1, 2011 may be converted to R&D. This maximum applies regardless of whether or not the protected warehouse or wholesale trade space was legally established.

(b) Changes to Warehouse-Based Non-Store Retail, Art/Craft Studio, and Contractor Uses. A protected industrial use may be changed to a warehouse-based non-store retail, art/craft studio, or contractor use with the permit required by Section 23.206.020 (Allowed Land Uses and Permit Requirements).

(c) Langendorf Building. Protected industrial uses in the Langendorf Building (2929 Seventh Street) may be changed to a non-protected use if at least 30,000 square feet of total gross floor area remains as a protected industrial use.

(d) MU-LI Lots Under Common Ownerships. Protected industrial uses in the MU-LI district may be changed to a non-protected use if:

i. The protected industrial use is on a lot or group of abutting and confronting lots under single ownership and with more than one building; and

ii. 25 percent or less of the total gross floor area in all buildings on the lot(s) remains as a protected industrial use.

(e) Prior Protections Remain. Establishing a new non-protected use under 23.206.050.A.7 (Exceptions) does not eliminate any protections for the prior protected use and such protections will remain if the new non-protected use ceases.

8. Reports to City Council.

(a) The Planning and Development Department will report to the City Council once a cumulative total of 50,000 square feet in the MM and MU-LI districts of protected warehousing or wholesale trade use is converted to a R&D use (or at the end of one year, whichever occurs first). The Department will provide additional reports in the same increments after this first report. The reports will include the gross square footage of building space converted and the number and type of jobs expected to be created.

(b) No later than April 15, 2016, the City Manager will provide a cumulative report to the City Council and schedule an action item for the Council’s consideration so that it can provide direction as to what, if any, modifications it wishes to make to this section.

B. Protected Non-Industrial Uses in the MU-LI and MU-R Districts.

1. Protected Non-Industrial Uses Defined. A use in the MU-LI or MU-R districts listed in Table 23.206-8 is classified as a protected non-industrial use, provided the use:

(a) Was legally established as of July 6, 1989; and

(b) Exists as a single stand-alone use or is combined with residential use in a live/work unit.

Table 23.206-8. PROTECTED NON-INDUSTRIAL USES

Category

Protected Uses

Category 1

Art/craft studio

Category 2

1) Art galleries, ancillary to art/craft studios and when located in the same building
2) Child care facility
3) Fine arts performance, instruction and rehearsal studios (dance, music, theater)
4) Theaters, stage performance, but excluding motion picture theaters

2. Permit Required for Change of Use.

(a) Table 23.206-9 shows permits required to change a protected non-industrial use.

Table 23.206-9. PERMITS REQUIRED FOR CHANGE TO PROTECTED NON-INDUSTRIAL USE

EXISTING PROTECTED USE GROSS FLOOR AREA

NEW USE

A PROTECTED USE IN THE SAME CATEGORY

A PROTECTED USE IN A DIFFERENT CATEGORY

A NON-PROTECTED USE THAT OCCUPIES ALL OF THE NON-RESIDENTIAL FLOOR AREA IN THE BUILDING

Less than 5,000 sq. ft.

ZC

AUP

AUP

5,000 sq. ft. or more

AUP

UP(PH)

UP(PH)

3. Owner-Occupied Exemption. A protected non-industrial use which is owner-occupied and occupies all of the non-residential floor area in a building is exempt from the requirements of this section.

4. Findings.

(a) To approve a permit required by Table 23.206-9, the review authority must find that space occupied by the existing non-industrial protected use will be replaced with a comparable space in the West Berkeley Plan area, which is reserved for use by any protected use in the same category. Such replacement space may not qualify for exemption under Paragraph 3 (Owner-Occupied Exemption) above or by reason of having been established after July 6, 1989.

(b) When making additional findings required by Chapter 23.406 (Specific Permit and Approval Requirements), the review authority may only consider the potential detriment associated with the new use. Dislocation of any specific previous occupant or use may not be a basis for finding detriment. (Ord. 7882-NS §§ 9, 10, 2023; Ord. 7835-NS § 5, 2022; Ord. 7830-NS § 5, 2022: Ord. 7787-NS § 2 (Exh. A), 2021)