23.404.050 Public Hearings and Decisions

23.404.050 Public Hearings and Decisions.

A. General. Hearings shall be conducted in a manner consistent with the requirements of State and local law and the procedures approved by the review authority.

B. Time and Place of Hearing. A hearing shall be held at the date, time and place for which notice was given, unless the required quorum of review authority members is not present.

C. Public Comment. All hearings shall be open to the public, which have the opportunity to present their views and be heard in accordance with established procedures.

D. Quorum Required for Action. A majority of the members of review authority must be present to take action on an application.

1. Any public hearing may be continued from time to time without further notice, provided that the chair of the review authority announces the date, time, and place to which the hearing will be continued before the adjournment or recess of the hearing.

2. Hearings may not be continued beyond the time limits for reviewing applications established by the Permit Streamlining Act, CEQA, and other state and federal laws unless the applicant expressly waives their rights relating to time limits for City action on a pending application.

1. After the close of public hearing, the review authority shall either approve, modify, or deny the application; continue the hearing to a future date; or refer the application to a mediation or conflict resolution service.

2. If an application is referred to mediation, it must return to the review authority for action.

G. CEQA. For projects not subject to a CEQA exemption, the review authority that approves the application takes final action on the project’s CEQA determination. Final action on the CEQA determination, when required, shall occur before or concurrent with action on required permits. The City is not required to take final action on CEQA documents for denied applications.

1. The review authority may attach conditions to any permit as it deems reasonable or necessary to achieve consistency with the General Plan and Zoning Ordinance, and to promote the public health, safety, and welfare.

2. As a condition of approval, the City may require an applicant to provide adequate financial security to guarantee the proper completion of an approved project.

3. Any approval may be subject to time limits.

1. The ZAB or City Council may waive or limit the application of any Zoning Ordinance requirement to a development project if it finds that such requirement would result in a deprivation of the applicant’s constitutional rights.

2. The burden of establishing that this exemption applies is on the applicant.

1. General. The ZAB or Zoning Officer may refer an applicant and neighbors to a conflict resolution or mediation service to resolve conflicts over a proposed project.

2. Eligible Services. The ZAB or Zoning Officer may refer participating parties only to a conflict resolution or mediation service on a pre-approved list maintained by the City.

3. Non-Binding Results. The results of the conflict resolution or mediation service shall be non-binding on the final decision of the ZAB or Zoning Officer.

4. Timing of Referral. A referral may be made at any time after an application is deemed complete and before a final decision on the application.

5. Additional Meetings Allowed. Nothing in this section prevents the parties from meeting on their own at any time, with or without a mediator, in an attempt to resolve their differences.

6. Early Discussions Encouraged. The City encourages applicants and neighbors to discuss proposed projects early in the project-planning process so that differences may be resolved before the submission of an application.

7. Payment for Service. The applicant shall pay for the cost of conflict resolution or mediation service.

8. Rules and Expectations. Mediation and conflict resolution shall be conducted in accordance with the following provisions, a copy of which shall be made available to participating parties, before beginning the process.

(a) The goal of mediation is to seek a mutually agreeable result for the pending application.

(b) Participation for the applicant and others parties is strictly voluntary.

(d) The ZAB or Zoning Officer shall direct the mediator as to what issues are to be addressed in the mediation process. The mediator may ask the ZAB or the Zoning Officer for a clarification of these issues from time to time.

(e) Department staff will be available to provide the mediating parties with information on rights and requirements prescribed by the Zoning Ordinance.

(f) The mediation service will provide the ZAB or the Zoning Officer with a report as to the result of the mediation within 45 days of the referral.

(g) If no agreement between the parties is reached within 45 days, or at any time that the mediator indicates that further meetings between parties is futile, the ZAB or Zoning Officer shall proceed with making a decision on the application. If the parties to the mediation/conflict resolution agree to continue the mediation process, the process may be extended for an additional time period not to exceed 45 days. Unless the applicant expressly waives their rights relating to time limits for City action on a pending application, in no case shall the time periods for mediation cause the application review period to exceed the time limits prescribed by state or federal law.

(h) Participants in mediation are advised that the ZAB or Zoning Officer cannot deny applicants the opportunity to develop their properties in a reasonable manner. The Zoning Ordinance requires that a project must meet all minimum requirements and any other applicable City ordinances and regulations.

(i) Results of the mediation will in no way be binding upon the City, and the ZAB or Zoning Officer may approve, deny, or modify any aspect of any mediated agreement.

(j) A participant who has indicated either agreement or disagreement with the results of a mediation is in no way bound by their decision, and may change their mind after the mediation.

(k) Participation in a mediated meeting, or agreement with the results of a mediation, affects in no way the statutory right of any party to appeal the ZAB or Zoning Officer decision.

(l) Only those aspects of a mediated agreement that are either incorporated into the approved plans of a project, or are made conditions of approval, shall be enforceable by the City.

1. Resubmittals Prohibited. For twelve months following the denial of a discretionary permit application, the Department may not accept an application that is the same or substantially similar to the previously denied application, unless:

(a) The application was denied without prejudice; and/or

(b) Evidence or substantially changed conditions warrant resubmittal as determined by the Zoning Officer.

2. Determination. The Zoning Officer shall determine whether an application is the same or substantially similar to the previously denied application.

3. Appeal. The determination of the Zoning Office may be appealed to the ZAB, in compliance with Chapter 23.410 (Appeals and Certifications).

1. A Notice of Decision shall be issued after the ZAB:

(a) Approves, modifies, or denies a Use Permit or Variance application; or

(b) Takes action on an appealed decision.

2. The Notice of Decision shall be issued before the ZAB’s next regular meeting and shall describe the ZAB’s action, findings, and applicable conditions.

3. The Notice of Decision shall be posted in the lobby of the Permit Service Center and shall be mailed to:

(a) The applicant;

(b) The appellant, if applicable;

(d) The City of Berkeley Central Library.

4. The Notice of Decision shall be filed with the City Clerk and provided to the ZAB. The City Clerk shall make the notice available to interested members of the City Council and the public. (Ord. 7787-NS § 2 (Exh. A), 2021)