Item 9 September 7, 2016

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1 Item 9 September 7, 2016 Planning and Development Department Land Use Planning Division STAFF REPORT DATE: September 7, 2016 TO: FROM: SUBJECT: Members of the Planning Commission Kelly Cha, Assistant Planner Alex Amoroso, Principal Planner Public Hearing: Accessory Buildings as Short-Term Rentals (STRs) RECOMMENDATION Hold a Public Hearing and take testimony on the Zoning Ordinance amendment to Sections 23D (Permitted Uses in Accessory Buildings and Structures), 23D (Accessory Buildings & Structures May Exceed Limit with Use Permit), 23F (Definitions). Consider the draft language, identify any changes, and then make a recommendation to the City Council. INTRODUCTION/BACKGROUND On July 7, 2016, the City Council did not adopt the second reading of the Short-Term Rental. They discussed not allowing Short-Term Rentals (STRs) in Accessory Dwelling Units (ADUs), but potentially allowing them in Accessory Buildings. The Council referred to the Planning Commission options to amend Zoning Ordinance language regarding Accessory Buildings, as well as others changes related to the proposed STR Ordinance (Attachment 1). The City Council requested that the Commission consider amending the existing Accessory Buildings regulations to allow the space to be rented for short-term rentals and include a full bathroom and limited cooking facilities. In addition, the Council asked for a new definition of kitchen. A STR ordinance has not yet been adopted. Staff introduced this item to the Planning Commission on July 20, The Planning Commission expressed concerns about allowing a full bathroom and limited kitchen in Accessory Buildings. Staff informed the Planning Commission that a public hearing would be set for early September (Attachment 2). DISCUSSION The Discussion section describes the proposed amendments to the Zoning Ordinance to amend regulations on Accessory Buildings. Sections 23F (Definitions), 2120 Milvia Street, Berkeley, CA Tel: TDD: Fax: planning@cityofberkeley.info

2 Public Hearing: Accessory Buildings as STRs Item 9 Page 2 of 5 September 7, D (Permitted Uses in Accessory Buildings and Structures), and 23D (Accessory Buildings & Structures May Exceed Limit with Use Permit) amended to include the followings: Add a new definition of kitchen Allow Short-Term Rentals in Accessory Buildings Allow Accessory Buildings to contain a full bathroom and limited cooking facilities. Set appropriate levels of discretion for new or modified Accessory Buildings Determine applicable zoning districts for the proposed Accessory Buildings regulations Definition of Kitchen The Zoning Ordinance currently does not have a definition of kitchen. Having a definition would provide clarity for applicants interested in creating or modifying an existing Accessory Buildings, as well as code enforcement purposes. At the City Council meeting on July 7, 2016, the City Council reviewed two definitions of kitchen from the City of Pasadena and Sonoma County (Attachment 3). The Sonoma County definition is very specific and provides little flexibility of interpretation. The City of Pasadena has a simpler definition. Staff recommends a modified version of the Pasadena definition: A habitable space used for preparation of food. A full kitchen contains a sink, refrigerator of no less than 10 cubic feet, a cooktop, and an oven. This definition identifies a short list of items anticipated in any complete kitchen. A partial kitchen would be missing at least one of these items. The final definition recommended by Staff includes some modifications to the Pasadena definition, to accommodate feedback received from Code Enforcement. Modifications to Accessory Buildings Regulations Three changes to Accessory Building regulations are proposed: (1) Allowing Accessory Buildings be rented. (2) Permitting a full bathroom and limited cooking facilities, and (3) options for levels of discretion for permitting purposes. Zoning Certificate (ZC) is a by right authorization as long as the regulations are met, while an Administrative Use Permit (AUP) requires neighbor notification and discretionary review. The proposed amendments would allow for STRs use in Accessory Buildings. Current Section 23D A: An accessory building constructed or altered so as to contain an accessory dwelling unit which satisfies the requirements of Chapter 23D.10 and other applicable requirements of this code is permitted by right. Other than an accessory dwelling unit as described above, no accessory building shall be constructed or altered so as to contain habitable space except as authorized by an AUP. No such accessory building may be rented, contain cooking facilities or be used as a dwelling unit or Page 2 of 5

3 Public Hearing: Accessory Buildings as STRs Item 9 Page 3 of 5 September 7, 2016 accessory dwelling unit, except as authorized by a Use Permit and all other requirements applicable to a dwelling unit in the District in which it is located are satisfied. Staff has proposed redrafting of this section to make it more clear and understandable, and included modifications to allow for Accessory Buildings to be rented, and contain a full bathroom. Accessory Buildings still would not be permitted to contain a full kitchen. The draft ordinance text is Attachment 4. Full Bathroom and/or Kitchen in Accessory Buildings The Zoning Ordinance Section 23D specifies that Accessory Buildings may not be used as Dwelling Units. A Zoning Adjustment Board (ZAB) Policy from 1996 distinguishes Accessory Buildings from Dwelling Units (Attachment 5). The adopted ZAB Policy states that having a kitchen or a full bathroom in a separate buildings on a residential lot (or a floor in a single family structure without an internal connection) would be considered a Dwelling Unit. The City Council referral asks consideration of permitting a full bathroom in an Accessory Building. A change in ordinance would nullify the ZAB policy mentioned above. The proposed amendments would distinguish between Dwelling Units and Accessory Buildings based on the presence of a full kitchen. In addition, the Accessory Buildings could only be rented on a short term basis, aligning with the STR Ordinance if adopted. If the Planning Commission s recommendations include permitting a partial kitchen in Accessory Buildings, staff recommends adding the following language to the proposed amendments (as Section 23D A.3) for code enforcement purposes: Accessory Buildings shall not include installed kitchen appliances (stove, oven, or other similar), gas lines, or electric supply for kitchen appliances connections. Other Options to Consider: 1. Allow a full bathroom in an Accessory Building, but no cooking facilities. 2. Maintain the current regulations for a bathrooms and cooking facilities in Accessory Buildings. Level of Discretion The City Council referral asks consideration of certain levels of discretion for Accessory Buildings. The existing regulations require an AUP for creating new or altering existing Accessory Buildings. Other options could be considered: 1. New construction of, or conversion or alteration to an existing Accessory Buildings, could be allowed with a ZC. 2. New Construction of an Accessory Building could be considered through an AUP, while modification to an existing Accessory Structure could be allowed with a ZC. 3. New or modified Accessory Structures could be considered with an AUP. Page 3 of 5

4 Public Hearing: Accessory Buildings as STRs Item 9 Page 4 of 5 September 7, 2016 Zoning Districts Applicability Zoning Ordinance Chapter 23D.08 (Accessory Building and Structures) applies in all Residential Districts. Staff recommends allowing the proposed amendments to Accessory Buildings in all Residential Districts except for ES-R District. Any changes to the Accessory Buildings chapter will apply to all Residential Districts. The proposed amendments would also apply to Accessory Buildings in Commercial Districts because those regulations cross-reference Residential Districts for standards and requirements (see the table below). Manufacturing Districts, however, would not be impacted by the proposed amendments because they either do not allow Accessory Buildings or do not refer back to standards required in Residential Districts. Table: Accessory Buildings in Non-Residential Districts Commercial District Accessory Buildings Allowed? C-1 Yes (Per R-3 District) C-N Yes (Per R-3 District) C-E Yes (Per R-3 District) C-NS Yes (Per R-3 District) C-SA Yes (Per R-4 District) C-T Yes (Per R-3 District) C-SO Yes (Per R-3 District) C-W Yes (Per R-3 District) C-DMU Yes (Per R-5 District) CONCLUSION Staff recommends that the Commission: 1. Review and make recommendations to Council on the proposed Amendments, focused on the following issues: Definition of a Kitchen Allowing a full bathroom in Accessory Buildings Allowing limited cooking facilities in Accessory Buildings Appropriate levels of discretion for new and/or modified Accessory Buildings Applicable zoning districts 2. Make a recommendation to the Council regarding the proposed amendments in overall. Attachments 1. Annotated Agenda from City Council meeting on July 7, Public Hearing Notice 3. Definitions of Kitchen: from the City of Pasadena and the Sonoma County 4. Proposed Amendments to Section 23D , Section 23D , and Section 23F Zoning Adjustment Board Policy on Accessory Buildings and Dwelling Units (1996) Page 4 of 5

5 Public Hearing: Accessory Buildings as STRs Item 9 Page 5 of 5 September 7, 2016 Additional Information 1. Staff report from City Council meeting on May 31, 2016 (Item 30): =1 2. Staff report from City Council meeting on June 14, 2016 (Item 3): =1 3. Staff report from City Council meeting on June 28, 2016 (Item 55): =1 4. Supplemental document from City Council meeting on July 7, 2016: 5. Staff report from Planning Commission meeting on July 20, 2016: -_Commissions/Commission_for_Planning/ _Item%209_Short%20Term%20Rentals-Combined.pdf Page 5 of 5

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7 1. Short-Term Rental Regulations Ordinance, Adding BMC Chapter 23C.22 and Amending Titles 23D and 23E (Continued from June 28, Item contains Supplemental Materials.) From: City Manager Recommendation: Adopt first reading of an Ordinance regulating Short-Term Rentals, adding BMC Chapter 23C.22 and amending Titles 23D and 23E to make related changes. Financial Implications: See report Contact: Carol Johnson, Planning and Development, Action: 31 speakers. M/S/C (Worthington/Bates) to request that the City Manager initiate a process of enforcement for when three or more verified complaints are received against the same individual, company, or owner, of multiple units being used as short-term rentals. The City is initiating a process of enforcement due to the fact that short-term rental of multiple units by the same individual, company, or owner, is illegal under existing laws and will continue to be illegal under the shortterm rental regulations being considered for adoption by the Council, and that short-term rental of multiple units in the larger buildings more significantly impact the housing stock of the City. Vote: Ayes Maio, Anderson, Arreguin, Capitelli, Wengraf, Worthington, Bates; Noes None; Abstain None; Absent Moore, Droste. Action: M/S/C (Arreguin/Bates) to: 1. Direct staff to include options in the ordinance for displaying identifying information about the short-term rental. Options may include: A) the Zoning Certificate to be posted on the ad either by the host or the hosting platform; B) the host to provide identifying information, including the Zoning Certificate number, to the City or the City s third-party vendor; or C) an alternative recommended by staff in working with the City s third-party vendor. 2. Refer to the Planning Commission an amendment of the accessory building regulations that would allow accessory buildings to be used for short-term rental purposes, including allowing them to have a full bath, and revising the process to require a Zoning Certificate rather than an Administrative Use Permit. 3. Refer to the Planning Commission the development of a definition for kitchen and/or cooking facilities. 4. Request that staff attempt to estimate the loss of long-term units if amnesty was granted to existing accessory dwelling units that are currently being used for shortterm rental purposes. 5. Request that staff return to Council six to twelve months after ordinance adoption to review the impact of short-term rentals on long-term rentals. 6. Refer to staff to add clarification to Berkeley Municipal Code Section 23C stating that the host must reside in the unit. Vote: Ayes Maio, Anderson, Arreguin, Capitelli, Wengraf, Worthington, Bates; Noes None; Abstain None; Absent Moore, Droste. Recess 7:59 p.m. 8:10 p.m. Item 9 - Attachment 1 Planning Commission September 7, 2016

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9 P L A N N I N G C O M M I S S I O N N o t i c e o f P u b l i c H e a r i n g September 7, 2016 Item 9 - Attachment 2 Planning Commission September 7, 2016 Accessory Buildings Modifications and New Definition of Kitchen The Planning Commission, of the City of Berkeley, will hold a Public Hearing on the above matter, on Wednesday, September 7, 2016, at the North Berkeley Senior Center, 1901 Hearst Ave. (at Martin Luther King, Jr. Way), Berkeley, California (wheelchair accessible). The meeting starts at 7:00 p.m. PROJECT DESCRIPTION: The intent of the proposed amendments is to allow Accessory Buildings (habitable space) to be enhanced with bathrooms and limited cooking facilities (but not a full kitchen). Such structures could also be rented in conformance with the pending Short Term Rental regulations. Amending the following Berkeley Municipal Code Sections is intended to accommodate Short-Term Rentals in Accessory Buildings: Section 23F (Definitions) Section 23D (Permitted Uses in Accessory Buildings and Structures) Section 23D (Accessory Buildings & Structures May Exceed Limit with Use Permit) Uses Permitted Sections in affected Residential Chapters of Title 23D The Draft Zoning Ordinance language for Sections 23D , 23D , and 23F are as follows: Chapter 23D.08 Section: Accessory Buildings and Structures 23D Permitted Uses in Accessory Buildings and Structures 23D Accessory Buildings & Structures May Exceed Limit with Use Permit Section 23D Permitted Uses in Accessory Buildings and Structures A. An accessory building constructed or altered so as to contain an accessory dwelling unit which satisfies the requirements of Chapter 23D.10 and other applicable requirements of this code is permitted by right. Other than an accessory dwelling unit as described above, no accessory building shall be constructed or altered so as to contain habitable space except as authorized by an AUP. No such accessory building may be rented, contain cooking facilities or be used as a dwelling unit or accessory dwelling unit, except as authorized by a Use Permit and all other requirements applicable to a dwelling unit in the District in which it is located are satisfied. A. Accessory Buildings 1. No Accessory Building shall be created, either from new construction or conversion of an Accessory Structure, except as authorized by an AUP. A ZC shall be required for alteration of existing Accessory Buildings. 2. An Accessory Building may contain a full bathroom, including handwashing sink, toilet, and sink or shower; but may not include a kitchen. 3. No Accessory Building may be rented, unless it complies with the Short-Term Rentals Ordinance (Chapter 23C.22). B. An Accessory Structure shall include those detached structures, other than an Accessory Building, in which non-habitable uses or activities other than the principal use of the property are conducted. Residential Accessory Structures include, but are not limited to, enclosed structures such as garages, carports, garden or tool sheds, and non-enclosed structures such as, but not limited to, fences, gazebos, ground-mounted satellite dishes, skateboard ramps and wheelchair ramps. Non-

10 residential Accessory Structures may include, but are not limited to, storage buildings, garages, sheds and other outbuildings. Section 23D Accessory Buildings & Structures May Exceed Limit with Use Permit A. An Accessory Building or Accessory Structure which satisfies the requirements of this Chapter is permitted by right, except in the ES-R District (Chapter 23D.24). B. The Zoning Officer may issue an AUP for an Accessory Structure or Accessory Building which does not comply with the height limits, minimum setback distances, site location and/or maximum length requirements of this chapter, except for the height limit in Section 23D C, subject to a finding that the proposed accessory building or enclosed accessory structure will not be detrimental to the light, air, privacy and view of adjacent properties. Sections: 23F Definitions Chapter 23F.04 DEFINITIONS Section 23F Definitions Kitchen. A habitable space used for preparation of food. A full kitchen contains a sink, refrigerator no less than 10 cubic feet, cooktop, and oven. LOCATION: The proposed Zoning Ordinance amendments would apply to accessory buildings in the following Zoning Districts: R-1, R-1A, R-2, R-2A, R-3, R-4, R-5, R-S, and R-SMU, not in ES-R. ENVIRONMENTAL REVIEW STATUS Public Review Information: CEQA is used to evaluate physical impacts resulting from changes in use and activity. The STR Draft Zoning Ordinance sets operating standards and requirements, but has no effect on the development of land or projects. Therefore, this action can be considered exempt from CEQA, per Section b.3, which states:...ceqa applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. PUBLIC COMMENT & FURTHER INFORMATION Comments may be made verbally at the Public Hearing, and in writing before the hearing. Written comments or questions concerning this project should be directed to: Alex Amoroso Planning Commission Secretary aamoroso@cityofberkeley.info City of Berkeley Telephone: (510) Land Use Planning Division 2120 Milvia Street, 2 nd Floor Berkeley, CA To assure distribution to Commission members prior to the meeting, correspondence must be received by 12:00 noon, seven (7) days before the meeting. For items with more than ten (10) pages, fifteen (15) copies must be submitted to the Secretary by this deadline. For any item submitted less than seven (7) days before the meeting, fifteen (15) copies must be submitted to the Secretary prior to the meeting date. COMMUNICATION ACCESS To request a meeting agenda in large print, Braille, or on audiocassette, or to request a sign language interpreter for the meeting, call (510) (voice) or (TDD). Notice of at least five (5) business days will ensure availability. Agendas are also available on the Internet at: FURTHER INFORMATION Questions should be directed to Alex Amoroso at aamoroso@cityofberkeley.info.

11 Definitions of Kitchen Item 9 - Attachment 3 Planning Commission September 7, 2016 City of Pasadena Kitchen. A room used for preparation of food. A complete kitchen contains a sink, refrigerator, stove or range top, and oven or microwave. A partial kitchen is missing one of the above components. Sonoma County Kitchen. A kitchen means an area within a structure that is used or designed to be used for the preparation or cooking of food and that contains one or both of the following: 1. Cooking appliances or rough in facilities including, but not limited to: ovens, convection ovens, stoves, stove tops, built-in grills or microwave ovens or similar appliances, 240 volt electrical outlets or any gas lines. OR 2. A sink less than 18 inches in depth with a waste line drain 1-½ inches or greater in diameter AND a refrigerator exceeding five (5) cubic feet in capacity or space opening with an electrical outlet that may reasonably be used for a refrigerator exceeding five (5) cubic feet in capacity.

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13 Berkeley Municipal Code Chapter 23D.08 Accessory Buildings and Structures Item 9 - Attachment 4 Planning Commission September 7, 2016 Page 1/2 Chapter 23D.08 Accessory Buildings and Structures Sections: 23D Permitted Uses in Accessory Buildings and Structures 23D Accessory Buildings & Structures May Exceed Limit with Use Permit Section 23D Permitted Uses in Accessory Buildings and Structures A. An accessory building constructed or altered so as to contain an accessory dwelling unit which satisfies the requirements of Chapter 23D.10 and other applicable requirements of this code is permitted by right. Other than an accessory dwelling unit as described above, no accessory building shall be constructed or altered so as to contain habitable space except as authorized by an AUP. No such accessory building may be rented, contain cooking facilities or be used as a dwelling unit or accessory dwelling unit, except as authorized by a Use Permit and all other requirements applicable to a dwelling unit in the District in which it is located are satisfied. A. Accessory Buildings 1. No Accessory Building shall be created, either from new construction or conversion of an Accessory Structure, except as authorized by an AUP. A ZC shall be required for alteration of existing Accessory Buildings. 2. An Accessory Building may contain a full bathroom, including handwashing sink, toilet, and sink or shower; but may not include a kitchen. 3. No Accessory Building may be rented, unless it complies with the Short-Term Rentals Ordinance (Chapter 23C.22). B. An Accessory Structure shall include those detached structures, other than an Accessory Building, in which non-habitable uses or activities other than the principal use of the property are conducted. Residential Accessory Structures include, but are not limited to, enclosed structures such as garages, carports, garden or tool sheds, and non-enclosed structures such as, but not limited to, fences, gazebos, groundmounted satellite dishes, skateboard ramps and wheelchair ramps. Non-residential Accessory Structures may include, but are not limited to, storage buildings, garages, sheds and other outbuildings. Section 23D Use Permit Accessory Buildings & Structures May Exceed Limit with A. An Accessory Building or Accessory Structure which satisfies the requirements of this Chapter is permitted by right, except in the ES-R District (Chapter 23D.24). The Berkeley Municipal Code is current through Ordinance 7480-NS, passed June 14, 2016.

14 Berkeley Municipal Code Chapter 23D.08 Accessory Buildings and Structures Page 2/2 B. The Zoning Officer may issue an AUP for an Accessory Structure or Accessory Building which does not comply with the height limits, minimum setback distances, site location and/or maximum length requirements of this chapter, except for the height limit in Section 23D C, subject to a finding that the proposed accessory building or enclosed accessory structure will not be detrimental to the light, air, privacy and view of adjacent properties. The Berkeley Municipal Code is current through Ordinance 7480-NS, passed June 14, 2016.

15 Item 9 - Attachment 5 Planning Commission September 7, 2016 July 22, 1996 TO: FROM: SUBJECT: CITY OF BERKELEY CURRENT PLANNING DIVISION MEMORANDUM Current Planning Staff Dan Marks, Current Planning Manager Definition and Regulation of Accessory Buildings/Dwelling Units The Zoning Ordinance definition of a dwelling unit is as follows: A building or portion of a building designed for or occupied exclusively by one family. (italics added) The Zoning Officer has relied on the "designed for" statement to find that buildings that look like separate dwelling units and can easily be converted to separate dwelling units -- even if they lack one of the elements of a separate dwelling unit -- are dwelling units. Kitchens have traditionally been considered the defining characteristic of a dwelling unit, but these can be easily established with little modification to an accessory structure. Therefore, the Zoning Officer found that bathing facilities were also a defining element of a dwelling unit. However, this policy was not previously codified or adopted by the Board. On May 30, 1996, the Zoning Adjustments Board adopted the following policy regarding Accessory Buildings and the definition of residential units to be applied until such time as the Planning Commission revises the Zoning Ordinance. ZONING ADJUSTMENTS BOARD POLICY 1. All separate buildings on a residential lot (or a floor in a single family structure without an internal connection) with a kitchen shall be considered a dwelling unit. 2. All separate buildings on a residential lot (or a floor in a single family structure without an internal connection) with a toilet and bathing facilities* shall be considered a dwelling unit. 3. An accessory building may have either a toilet or bathing facilities, but not both. 4. A deed restriction shall be required for any accessory building (or floor within a single family structure without an internal connection) with a toilet or bathing facilities indicating that the building may not be used as a separate dwelling unit unless and until a Use Permit is obtained. * bathing facilities = shower or bath