23.302.030 Temporary Uses and Structures

23.302.030 Temporary Uses and Structures.

1. Temporary Uses. The following temporary uses are permitted by right:

(a) Using a dwelling, school, church, community center, or other facility as a polling or voting place for an election conducted by the City or other government agency.

(b) Conducting a garage, yard, or rummage sale on a residential property or a block sale of several properties. A sale may not exceed two days and is limited to one sale in any month’s period of time.

(c) Temporary sidewalk sales conducted adjacent to, and in conjunction with, an approved commercial retail lease space, when all other City regulations are met.

(d) The use of a property as temporary parking during football games in the University of California Memorial Stadium under the provisions of Ordinance No. 2435-N.S.

(e) A temporary retail use where:

i. The temporary sales are on the same property with an established commercial business holding a valid City business license; and

ii. The temporary sales conform with the approved permit for the commercial business.

2. Temporary Structures. The following accessory and temporary structures are permitted by right as long as they do not change the character of, and are in keeping with the purposes of the district in which they are located:

(a) Lines, wires, poles and devices to transmit electricity, telephone/telecommunications or cable television, including pipelines, conduits and appurtenances to containing such wires and devices. Allowed activities include installing, maintaining, undergrounding, and repairing such facilities. A Use Permit or AUP is required for wireless telecommunication antennas other than those located within the public right-of-way.

(b) Pipelines or conduits and appurtenances to transport oil, gas, sewage or water.

(c) Temporary construction offices, scaffolding, utility connections, on-site construction material yards and/or debris containers for not more than the time period authorized in a valid building permit.

1. When Required. An AUP is required to establish, maintain, or operate a temporary use or structure not identified in Subsection A (Permitted By Right) above.

2. Scope of Approval. An AUP for a temporary use or structure applies only to the circumstances of the temporary use or structure existing at the time the application is granted.

3. Seasonal Product Sales. Temporary seasonal product sales activity may not exceed a 45-day period and may not be established in any Residential district.

(a) The AUP shall specify the time period for the temporary use or structure, including a required ending date.

(b) A time extension is not allowed unless approved by the Zoning Officer.

5. Findings. To approve the AUP, the Zoning Officer must make the findings in Section 23.406.030.F--Administrative Use Permits (Findings for Approval). When making this finding, the Zoning Officer shall consider whether the temporary nature of the use or structure will make it not detrimental.

(a) An AUP decision for seasonal product sales of pumpkins and Christmas trees, including the temporary use of a structure for an office, may not be appealed.

(b) All other AUP decisions for a temporary uses and structures may be appealed as provided in Chapter 23.410--Appeals and Certifications.

C. Violations. Permits for temporary uses may be revoked for non-compliance with any conditions of approval and the Zoning Officer may issue an immediate cease and desist order.

(a) This subsection is valid during and up to 90 days after a locally-declared state of emergency related to COVID 19.

(b) An eligible business must:

i. Have a valid City of Berkeley Business License;

ii. Be located on private property in one of the following districts:

(1) Any commercial zoning district; or

(2) The Manufacturing (M) District, the Mixed Manufacturing (MM) district, or the Mixed-Use Light Industrial (MU-LI) district; and

iii. Be authorized by the Governor’s Executive Orders and Public Health Orders and the Public Health Orders of the City Health Officer, include appendices, to conduct outdoor business.

i. Delivery-Only (Cannabis) Retailers.

ii. Liquor Stores/Wine Shops.

iii. Adult-Oriented Businesses.

iv. Smoke Shops.

v. Firearm/Munitions Businesses.

2. Definitions. The definitions below shall govern the meaning of the terms as used in this subsection.

(a) Temporary Outdoor Use. An allowable temporary use on private property conducted by a legally-established business in the same zoning district as it currently operates. A Temporary Outdoor Use may be conducted:

i. On private property at the address listed on a business’s City of Berkeley Business License;

ii. On private property at an address other than that listed on a business’s City of Berkeley Business License if the property is used solely for commercial purposes, is a vacant lot, or is a vacant building; or

iii. As a new stand-alone outdoor business, subject to obtaining a City of Berkeley Business License for the temporary location.

(b) Temporary Fixtures and Structures. Physical equipment necessary to safely conduct business outdoors.

(a) An eligible business may conduct business outdoors as a Temporary Outdoor Use with a Zoning Certificate and compliance with 23.302.030.D.4 (Operating Standards).

(b) An application for a Zoning Certificate must be accompanied by a site plan, business description and operational plan that certifies compliance with23.302.030.D.4 (Operating Standards). The site plan must include any proposed Temporary Fixtures and Structures.

(d) Permits issued pursuant to this subsection must be posted in plain view within the commercial establishment for which the permit has been issued.

(a) A business must comply with State and local regulations for normal business operations, including previously-imposed conditions of approval related to hours of operation and other conditions of approval not in conflict with the allowances in this subsection, in addition to State regulations for outdoor operations.

(b) A business must follow the Governor’s Executive Orders, Public Health Orders, and the City of Berkeley Public Health Orders, including Appendices.

(d) A Temporary Outdoor Use must maintain a 10-foot setback adjacent to any property in a residential district.

(e) A Food Service Establishment with incidental beverage service must comply with all applicable regulations of the California Department of Alcohol Beverage Control and obtain a COVID-19 temporary catering authorization.

(f) Operating Hours for a Temporary Outdoor Use are limited to 9 a.m. to 9 p.m. Operating Hours include the time that the business is open for customer access to the departure of the last patron.

i. Operating Hours limitations do not apply to delivery, maintenance, security, product preparation and other pre-opening activities, and cleanup, shutdown and other post-closure activities which do not involve the presence of customers.

(g) Temporary Outdoor Uses must be conducted in a manner that protects the residential character of surrounding neighborhoods from adverse impacts, including, but not limited to, commercial noise and offensive odors.

(h) Smoking is prohibited in areas designated for Temporary Outdoor Uses (BMC Section 12.70.030).

(i) Temporary outdoor lighting fixtures must be oriented in a manner to direct light away from adjacent parcels.

(a) A business must provide garbage, recycling and compost services in accordance with the Alameda County Mandatory Recycling Ordinance.

(b) A Food Service Establishment must provide restrooms and sanitation during hours of operation.

6. Existing Parking and Loading. Non-residential parking and loading requirements on private property are temporarily suspended if a Temporary Outdoor Use displaces areas designated for these purposes.

(a) Movable fixtures such as tables and chairs, umbrellas, heaters, generators, trucks or trailers must be stored in a secure place on private property when not in use.

(b) Fixed structures, such as semi-permanent tents, shipping containers, portable sinks and toilets, must occupy no more than 50% of the outdoor space dedicated to a Temporary Outdoor Use, in order to allow for social distancing.

(c) The location, type and operation of Temporary Fixtures and Structures must comply with requirement of, and be inspected by, the Building and Safety Division, Health Department, Fire Department, Police Department and/or Public Works Department, as applicable.

(a) If a Temporary Outdoor Use is located within an active parking lot, a business must provide temporary barriers to separate vehicle traffic from pedestrians and commercial activity.

(b) If a Temporary Outdoor Use fully occupies a parking lot, a business must provide temporary barriers to prevent vehicle traffic from entering the parking lot.

(a) A Zoning Certificate for a Temporary Outdoor Use may be revoked for non-compliance with any conditions in this subsection, and the Zoning Officer may issue a cease and desist order immediately.

(b) A Temporary Outdoor Use that meets the nuisance criteria set forth in 23.414.040.B (Nuisances Prohibited) is subject to abatement, as set forth in 23.414 (Nuisance Abatement). (Ord. 7830-NS § 6, 2022: Ord. 7787-NS § 2 (Exh. A), 2021)