Bullock v. City and County of San Francisco, Nos. A044386

CourtCalifornia Court of Appeals
Writing for the CourtChannell; POCHE; Pollak; PERLEY; CHANNELL
Citation269 Cal.Rptr. 123,219 Cal.App.3d 1331
PartiesPreviously published at 219 Cal.App.3d 1331 219 Cal.App.3d 1331 Peter J. BULLOCK, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents, Abigail Tenants Association et al., Intervenors and Respondents. CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. Peter J. BULLOCK, Defendant and Appellant.
Docket NumberA046047 and A043073,Nos. A044386
Decision Date30 April 1990

Page 123

269 Cal.Rptr. 123
Previously published at 219 Cal.App.3d 1331
219 Cal.App.3d 1331
Peter J. BULLOCK, Plaintiff and Appellant,
v.
CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents,
Abigail Tenants Association et al., Intervenors and Respondents.
CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent,
v.
Peter J. BULLOCK, Defendant and Appellant.
Nos. A044386, A046047 and A043073.
Court of Appeal, First District, Division 4, California.
April 30, 1990.
Rehearing Granted May 30, 1990.
See 271 Cal.Rptr. 44.

Channell, J., filed dissenting opinion.

Page 125

Charles M. Kagay, Spiegel, Liao & Kagay, Bartholomew Lee, San Francisco, for plaintiff and appellant.

Louise H. Renne, City Atty., Kate A. Herrmann, Deputy City Atty., San Francisco, for defendants and respondents.

Randall M. Shaw, Stephen L. Collier, Tenderloin Housing Clinic, San Francisco, for intervenors and respondents.

POCHE, Acting Presiding Justice.

Beginning in 1979, defendant City and County of San Francisco (the City) adopted a number of measures intended to preserve the supply of hotel units available for residential use, by limiting conversion of such units for use by tourists. Frustrated in his efforts to remove his hotel from the reach of the San Francisco Residential Hotel Unit Conversion and Demolition Ordinance (the Conversion Ordinance), plaintiff Peter J. Bullock appeals from a judgment, a preliminary injunction, and several orders in favor of the City. 1 We will affirm the judgment except to the extent it holds that plaintiff has no civil rights damage action (42 U.S.C. § 1983) against the City. We will also affirm the order granting the injunction and the other orders.

BACKGROUND

The issues raised on these appeals require that the record of salient events be summarized in some detail.

Located in central San Francisco, the Abigail Hotel was purchased by plaintiff in May of 1980 for $591,000. Plaintiff continued the previous owner's efforts to renovate the hotel, which had been condemned by the City in 1974. Plaintiff expended more than $500,000 toward this end. In November of 1980 plaintiff applied for, and the Bureau granted, a "Permit of Occupancy" authorizing "the operation of a[ ] hotel of 66 Rooms." 2 The permit did not specify any uses to which the rooms could or could not be devoted.

Prior to plaintiff's purchase of the hotel, the City's Board of Supervisors in 1979 enacted an ordinance providing (among other things) that "The conversion of any residential hotel unit into a unit intended for the primary use of tourists or other transient overnight guests or to any other use or the demolition of the unit shall be prohibited for the duration of this ordinance." Although this moratorium in its original form was to expire at the end of six months, the conversion ban was extended to May 31, 1981.

In January of 1981 the Board of Supervisors adopted Ordinance No. 15-81, the first version of the Conversion Ordinance, whose aim was "to end the moratorium on conversion of residential hotel units and apartment units and instead regulate residential hotel unit and apartment unit conversion." Two additional measures (Ord. Nos. 106-81, 330-81), also enacted in 1981, refined and amended the original ordinance.

The 1981 Ordinance (our collective designation of the three ordinances adopted in that year) constituted Chapter 41 of the San Francisco Administrative Code. 3 The general provisions of the ordinance have been summarized thusly: "Its stated objective is to alleviate the 'adverse impact on the housing supply and on displaced low income, elderly and disabled persons resulting from the loss of residential hotel units through their conversion and demolition.'

Page 126

(Ord., § 41.2.) Findings were made by the Board in support of the ordinance: a study indicated that residential housing units in the city had decreased dramatically since 1975 due to 'vacation, conversion or demolition' of such housing; residential hotel units were declared an endangered housing resource in need of preservation. (§ 41.3.)

"The ordinance provides that owners of residential hotel units must obtain a permit from the City ... prior to conversion of the property to any other use. A permit will be granted only if the property owner provides relocation assistance to hotel residents and makes a 'one-for-one replacement' for the residential hotel units being converted by one of the following methods: 1) constructing the replacement units, 2) rehabilitating an equal number of residential hotel units, or 3) contributing an 'in lieu' fee to the City's Residential Hotel Preservation Fund Account in the amount of 40 percent of the construction costs of the number of units converted. [§ 41.10.]

"The ordinance defines 'residential unit' as a hotel guest room occupied by a permanent resident as of September 23, 1979; a 'permanent resident' for purposes of the ordinance is a person who occupied a hotel guest room for at least 32 consecutive days on that date. A 'residential hotel' is any building containing a 'residential unit' as of September 23, 1979. (§ 41.4.)

"Exemptions and exceptions are provided in the ordinance. It does not apply to residential hotels which had commenced substantial capital improvements or rehabilitation work prior to the effective date of the ordinance for the purpose of converting the hotel to another use; it also specifically permits a residential hotel to rent any vacant residential unit to tourists during the designated tourist season, May 1 to September 30. (§ 41.16.)

"According to the terms of the ordinance, hotel owners and operators are required to submit to the ... Bureau ... information on the number of units falling within the residential classification. Then, the number of units the owner is required to maintain for residential use is certified. (§ 41.6.)" (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892, 898-899, 223 Cal.Rptr. 379 [original emphasis; footnote omitted].)

In October of 1981 plaintiff filed in a claim for exemption from the 1981 Ordinance on the ground that the hotel's conversion had been partially completed. A hearing officer issued a decision denying plaintiff's claim in February of 1983. The Bureau adopted this decision. Plaintiff thereupon filed a petition seeking a writ of administrative mandamus. In November of 1983 plaintiff amended his pleading to allege causes of action for (1) declaratory relief to the effect that the 1981 Ordinance was "invalid ... under the Federal and State Constitution[s] and Federal, State and local laws" in 21 particulars, and injunctive relief restraining the City from enforcing the 1981 Ordinance (2) a taxpayer's action seeking to enjoin the City from expending money to enforce the 1981 Ordinance (3) damages pursuant to Code of Civil Procedure section 1095, and (4) attorneys' fees pursuant to Code of Civil Procedure section 1021.5.

In April of 1984 Judge Pollak denied the petition for a writ of administrative mandamus, finding merit in none of plaintiff's complaints against the administrative decision. In November of that year the trial court issued a preliminary injunction restraining the City from enforcing those provisions of the 1981 Ordinance which prohibited plaintiff from renting or offering to rent hotel rooms for "non-residential ... or tourist use." The court's order specified: "It is the intent of this preliminary injunction to allow plaintiff to continue to rent rooms in the ABIGAIL HOTEL to tourists which the City has designated as residential units. For plaintiff to rent such units as tourist units shall not constitute an unlawful conversion during the life of this Preliminary Injunction."

The following month, pursuant to a stipulation by the parties, the court ordered that the preliminary injunction would "remain valid and in full force and effect until entry of a final binding judgment in this action." Also in May of 1984 the Bureau issued plaintiff a "Certificate of Use"

Page 127

which "authorize[d] the operation of 42 residential rooms [and] 20 tourist rooms" at the hotel.

In May of 1985 leave to intervene was granted the Abigail Hotel Tenants Association and the North of Market Planning Coalition.

In September of 1985 the Board of Supervisors enacted an ordinance which changed the zoning classification of plaintiff's hotel and specified its inclusion within the North of Market Residential Special Use District.

In January of 1986 plaintiff filed a supplemental complaint and second amended petition which included a number of common law causes of action in addition to the entirety of his first amended petition and complaint. Nor was this all; the most notable new feature was plaintiff's addition of causes of action based upon 42 U.S.C. sections 1983, 1985, and 1986.

The following month Division One of this Court determined that the 1981 Ordinance was "illegal" because its enactment was not preceded by an environmental impact report as required by the California Environmental Quality Act. (Terminal Plaza Corp. v. City and County of San Francisco, supra, 177 Cal.App.3d 892 at pp. 902-905, 223 Cal.Rptr. 379.) The court noted that "[t]he defect was cured, however, by reenactment of the ordinance following an environment evaluation and issuance of a negative declaration." (Id. at p. 905, fn. 7, 223 Cal.Rptr. 379.)

The City moved to strike certain portions of plaintiff's latest pleading (e.g., the petition already decided by Judge Pollak, and various portions relative to damages), and demurred to the rest. Judge McCabe granted the motion to strike and sustained the demurrer, but plaintiff was granted leave to amend.

Plaintiff thereafter filed an amended supplemental complaint, this time attempting to state a single cause of action founded upon section 1983. Again the City demurred. This time Judge McCabe sustained the demurrer without granting leave to amend.

In May of 1988 motions...

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