Honorable Mayor and Members of the City Council. Submitted by: Eric Angstadt, Director, Planning and Development

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1 Office of the City Manager CONSENT CALENDAR September 11, 2012 To: From: Honorable Mayor and Members of the City Council Christine Daniel, City Manager Submitted by: Eric Angstadt, Director, Planning and Development Subject: Zoning Ordinance Amendment: Chair Massage RECOMMENDATION Adopt first reading of an Ordinance amending Berkeley Municipal Code sections 23C and 23F to define Chair Massage and allow it as an exempted accessory use to retail uses. FISCAL IMPACTS OF RECOMMENDATION None CURRENT SITUATION AND ITS EFFECTS The Planning Commission held a public hearing on July 25, 2012 and voted 6-2 (Ayes: Samuels, Eisen, Novosel, Abrams, Stoloff, Clarke. Noes: Poschman, Sheahan. Abstain: None. Absent: Dacey) to recommend that the Council amend the Zoning Ordinance to allow Chair Massage as an exempted accessory use, when incidental to a retail use in all Commercial Districts (C-1, C-N, C-E, C-NS, C-SA, C-T, C-SO, C-W, C- DMU) and in the MU-R District, with no additional parking required. The following definition was also recommended: Chair Massage means massage given in a public, open setting to a person who is fully clothed and sitting upright on a professional bodywork seat, a stool, or office seat, wheelchair, or other chair-like device. BACKGROUND The City Council referred issues regarding Chair Massage to the City Manager and Planning Commission on March 8, The referral was initiated in response to a concern that amendments to BMC Chapter 9.32, Massage Therapy, had resulted in code enforcement against chair massage proprietors at retail stores. Chapter 9.32, which is not part of the Zoning Ordinance, establishes the process and requirements for Massage Establishment Permits and requires individuals to either possess a valid California Massage Therapy Council certification or a valid Massage Therapy Permit. The referral suggested that changes be made to Chapter 9.32 similar to the Oakland ordinance, which recognize chair massage as an incidental service in non-massage 2180 Milvia Street, Berkeley, CA Tel: (510) TDD: (510) Fax: (510) manager@cityofberkeley.info Website:

2 Zoning Ordinance Amendment: Chair Massage CONSENT CALENDAR September 11, 2012 businesses and do not require Massage Establishment Permits for incidental massage use. Staff and the Planning Commission recommend that the issue be addressed in the Zoning Ordinance, which regulates land use. In particular, the amendment specifically allows Chair Massage as an exempted accessory use provided that it is incidental to any retail use. The Zoning Ordinance defines incidental use as a secondary use that does not exceed 25% of the floor area and for which gross receipts do not exceed 33% of those of the primary use. The proposed changes do not revise the process stipulated in Chapter RATIONALE FOR RECOMMENDATION The proposed zoning amendment will allow retail businesses to provide Chair Massage as an additional service to customers, without requiring land use review. Chapter 9.32 will continue to provide the necessary regulation for massage therapists and establishments. ALTERNATIVE ACTIONS CONSIDERED Staff recommended that Chair Massage be listed as an incidental use to a retail use in all Commercial Districts and in the MU-R District. A Zoning Certificate would be required for each operator at a given location. The Planning Commission discussed that, given that there is no history of problems with chair massage and given that there are other regulations and tracking of persons and establishments applying for Massage Therapy Permits and Massage Establishment Permits under BMC Chapter 9.32, that it was unnecessary to specifically require a Zoning Certificate process for each location where chair massage is provided incidental to a retail use. CONTACT PERSON Wendy Cosin, Deputy Planning Director, Planning and Development, Attachments: 1a: Ordinance with strike-out changes 1b: Ordinance in clean-text format 2: Planning Commission staff reports and attachments: June 20 and July 25, : Planning Commission minutes Page 2

3 ORDINANCE NO. -N.S. AMENDING BERKELEY MUNICIPAL CODE SECTIONS 23C AND 23F TO ADD A DEFINITION OF CHAIR MASSAGE AND TO ALLOW CHAIR MASSAGE AS AN EXEMPTED ACCESSORY USE TO RETAIL USES BE IT ORDAINED by the Council of the City of Berkeley as follows: Section 1. That Berkeley Municipal Code 23C is amended to read as follows: 23C Exempted Accessory Uses A. The renting of rooms and/or the providing of board in a dwelling unit to four (4) or fewer persons not living as a household is permitted by right as an accessory use in all residential districts, provided that: 1. The rental of rooms is for periods of at least fourteen (14) days; and 2. The rooms which are rented: a. Are fully integrated within the dwelling unit such that they have interior access to the rest of the dwelling unit; b. Do not have separate kitchen(s); and c. Do not have separate street addresses assigned to such room(s). 3. All requirements for off-street parking are met. B. The sale or donation of Non-Processed Edibles grown or raised on the premises is permitted by right as an accessory use in all residential districts, provided that: 1. Sales are directly to the end consumer of the Non-Processed Edibles; 2. Sales-related activities take place between the hours of 8am and 8pm and are located either indoors or in an area generally shielded from view from the public right-of-way to the extent practical based on the accessibility of the subject lot; 3. The sale of Non-Processed Edibles does not involve hazardous materials or processes or create offensive or objectionable noise, vibration, odors, heat, dirt, or electrical disturbance perceptible by the average person beyond the lot line of the subject lot. 4. The sale of Non-Processed Edibles does not involve more than ten customer visits to the premises in one day.

4 C. Chair massage is permitted by right as an accessory use when incidental to a retail use in the C-1, C-N, C-E, C-NS, C-SA, C-T, C-SO, C-W, C-DMU, and MU- R Districts, with no additional parking required. DC. Notwithstanding any to the contrary, this Section does not permit a Commercial Use in a Residential District unless such a Use is specified in the regulations for the District. Section 2. That Berkeley Municipal Code 23F is amended to include the following definition: Chair Massage means massage given in a public, open setting to a person who is fully clothed and sitting upright on a professional bodywork seat, a stool, or office seat, wheelchair, or other chair-like device. Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Council Chambers, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation. Page 2

5 ORDINANCE NO. -N.S. AMENDING BERKELEY MUNICIPAL CODE SECTION 23C AND 23F TO ADD A DEFINITION OF CHAIR MASSAGE AND TO ALLOW CHAIR MASSAGE AS AN EXEMPTED ACCESSORY USE TO RETAIL USES BE IT ORDAINED by the Council of the City of Berkeley as follows: Section 1. That Berkeley Municipal Code 23C is amended to read as follows: 23C Exempted Accessory Uses A. The renting of rooms and/or the providing of board in a dwelling unit to four (4) or fewer persons not living as a household is permitted by right as an accessory use in all residential districts, provided that: 1. The rental of rooms is for periods of at least fourteen (14) days; and 2. The rooms which are rented: a. Are fully integrated within the dwelling unit such that they have interior access to the rest of the dwelling unit; b. Do not have separate kitchen(s); and c. Do not have separate street addresses assigned to such room(s). 3. All requirements for off-street parking are met. B. The sale or donation of Non-Processed Edibles grown or raised on the premises is permitted by right as an accessory use in all residential districts, provided that: 1. Sales are directly to the end consumer of the Non-Processed Edibles; 2. Sales-related activities take place between the hours of 8am and 8pm and are located either indoors or in an area generally shielded from view from the public right-of-way to the extent practical based on the accessibility of the subject lot; 3. The sale of Non-Processed Edibles does not involve hazardous materials or processes or create offensive or objectionable noise, vibration, odors, heat, dirt, or electrical disturbance perceptible by the average person beyond the lot line of the subject lot. 4. The sale of Non-Processed Edibles does not involve more than ten customer visits to the premises in one day. Page 3

6 C. Chair massage is permitted by right as an accessory use when incidental to a retail use in the C-1, C-N, C-E, C-NS, C-SA, C-T, C-SO, C-W, C-DMU, and MU- R Districts, with no additional parking required. D. Notwithstanding any to the contrary, this Section does not permit a Commercial Use in a Residential District unless such a Use is specified in the regulations for the District. Section 2. That Berkeley Municipal Code 23F is amended to include the following definition: Chair Massage means massage given in a public, open setting to a person who is fully clothed and sitting upright on a professional bodywork seat, a stool, or office seat, wheelchair, or other chair-like device. Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Council Chambers, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation. Page 4

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