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.
(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.
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.
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
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. (Ord. 7810-NS § 1, 2022: Ord. 7787-NS § 2 (Exh. A), 2021)