NORTH OF MARKET PLANNING COALITION
295 Eddy Street, San Francisco, CA 94102 (415) 474-2164

Honorable Sue Bierman President, San Francisco Planning Commission
450 McAllister Street San Francisco, CA 94102

Dear President Bierman:

We are writing to express our concern that the Planning Department is not enforcing the provisions of Section 249.5 of the Planning Code in regards to an illegally operating tourist hotel at 473 Ellis Street. Section 249.5 created the North of Market Special Use District, and was enacted in 1985 following innumerable discussions, meetings, and hearings before the Planning Commission. We find it very distressing that the Commission can enact real zoning restrictions only to: have their strength rendered almost moot by the lack of enforcement by Planning Department staff.

Over one year ago, we informed Mr. Passmore that this tourist hotel had opened after the effective date of Section 249.5, which bars new tourist hotels. We met repeatedly with Mr. Passmore on this issue, although, as the attached correspondence indicates, the Department was less than responsive. We were ultimately informed that the city could not proceed against the hotel due to lack of evidence regarding the actual prior use of the hotel (the hotel was vacant when the zoning was enacted). One obstacle to city prosecution was the Department’s inability to locate a certain file; there was nearly an eight month delay while a search for the file was made, yet it was never located.

When we finally were informed that the city would not prosecute the illegally operating hotel, the Planning Coalition, represented by the Tenderloin Housing clinic, filed suit against the current owner of the hotel for violating Section 249.5 of the Planning Code. The clinic has spent several hundred dollars litigating our case, and this figure does not include any payment of attorney’s fees. 

As a result to taking the depositions of the hotel’s current and prior owners, we discovered that Mr. Passmore needed (i.e., that the hotels prior actual use was residential) and immediately hand-delivered copies of the relevant portions of the depositions to Mr. Passmore. Our cover letter requested a prompt response, since we felt that the Department had already wasted several months searching for the missing file. Despite our request, we received no response from anyone from the Planning Department.

As a last resort, our attorney, Randy Shaw, sought the assistance of Donna Yick of the Mayor’s office. Ms. Yick succeeded in contacting Passmore, who seemed not to be aware of our newly discovered evidence. Passmore delegated the case to Nancy Gin, who then spoke with Mr. Shaw on July 13, 1988. Ms. Gin seemed neither familiar with the legal basis of our claim, nor aware of the true reasons that the city had originally failed to prosecute. The city Attorney has since explained the legal issues to Ms. Gin, and a response from Mr. Passmore is (presumably) forthcoming.

We cannot understand the Department’s lack of interest in enforcing a zoning restriction adopted by the Commission following a lengthy public debate. The Planning Coalition and Housing clinic are prepared, if necessary, to continually defend our zoning in the face of department inaction, but it is the Planning Department, and not private non-profit groups, which is empowered to issue the cease and desist orders necessary to stop zoning violations. The Planning Coalition has always trusted that the Commission would not have enacted Section 249.5 unless it expected its provisions to be enforced. We thus are bewildered as to why your staff is so unconcerned and unresponsive on this issue.

We hope that you will take whatever action is necessary to ensure your staff fulfills the mandates of the Planning Code regarding this property and to make the necessary steps to ensure enforcement of the Code in the future.