Randy Shaw addresses the San Francisco Residential Hotel Ordinance and how if it’s deemed “confiscation” residential zoning would be all but abolished.
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Nothing Radical About Hotel Law
In his Nov. 16 letter to the editor, Michael Berger accuses me of failing to address the substantive merits of the U.S. district court’s decision in the Golden Gate Hotel Association case. Not having the advantage of an entire column to address Judge John P. Vukasin’s ruling in the case, I focused on the issues of statewide concern to land-use practitioners. These issues are primarily procedural. The substantive basis of the court’s ruling in invalidating the ordinance, however, is even more unsound and equally worthy of alarm.
San Francisco’s Residential Hotel Ordinance was enacted in 1979 to prevent the continued loss of residential hotel units through demolition or conversion to tourist use. The ordinance required every hotel operator to inform the city of the number of residential rooms in their hotel as of a particular date. If the hotel rented exclusively to tourists when the ordinance took effect, the hotel was exempt from its provisions. The ordinance also exempted hotels which were residential in 1979 but where the owners proved an intent to convert. Finally, the ordinance gave hotel operators the right to challenge determinations of their residential use, and many hotel owners did so.
Moreover, the ordinance allows hotels to rent vacant residential rooms to tourists for five months every year during the tourist season. The ordinance also allows certain hotels unable to attract sufficient long-term tenants to rent up to 20 residential hotel rooms to tourists in the nontourist season.
San Francisco’s Residential Hotel Ordinance is thus far less restrictive than the garden-variety zoning laws which exist in cities throughout our state. For example, many zoning measures in residential districts absolutely prohibit commercial use. Nor do residential zoning laws give an owner the option of using the premises for commercial purposes for nearly half the year.
Residential zoning laws which restrict a property owner’s right to freely use their property have been routinely affirmed when challenged in state and federal courts. How then can San Francisco’s Residential Hotel Ordinance be an unconstitutional deprivation of property? The reasoning of the district court and supported by Berger – that the ordinance defeats “reasonable investment-backed expectations to use property as the owner wants” – would necessarily abolish virtually all residential zoning as well as rent control ordinances.
If a city law which limits a property’s use to its current historic use at the time of enactment is “confiscation,” we are operating under a new taking standard that practically eliminates restrictions on use.
Editor’s note: Randy Shaw is a staff attorney with the Tenderloin Housing Clinic.