Lambert v. City & County of San Francisco

• Decision Date: 23 September 1997
• Docket Number: No. A076116,A076116
• Citation: 67 Cal.Rptr.2d 562,57 Cal.App.4th 1172
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 57 Cal.App.4th 1172 57 Cal.App.4th 1172, 97 Cal. Daily Op. Serv. 7589, 97 Daily Journal D.A.R. 12,189 Claude LAMBERT, et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a California municipal corporation, et al., Defendants and Respondents.

Page 562

67 Cal.Rptr.2d 562

Previously published at 57 Cal.App.4th 1172

57 Cal.App.4th 1172, 97 Cal. Daily Op. Serv. 7589,

97 Daily Journal D.A.R. 12,189

Claude LAMBERT, et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a California municipal corporation, et al., Defendants and Respondents.

No. A076116.

Court of Appeal, First District, Division 1, California.

Sept. 23, 1997.

Review Granted Jan. 15, 1998.

Review Dismissed and Cause Remanded July 28, 1999.

James S. Burling, R.S. Radford, Victor J. Wolski, Pacific Legal Foundation, Sacramento, for Plaintiffs and Appellants.

Louise H. Renne, City Attorney, Andrew W. Schwartz, Deputy City Attorney, San Francisco, for Defendants and Respondents.

STEIN, Associate Justice.

Claude and Micheline Lambert (hereafter, "Lambert") are the owners of the 58-unit Cornell Hotel in San Francisco. Lambert filed the present action to challenge the decision of San Francisco's Planning Commission disapproving his application to convert 24 of the hotel's units from long-term residential use to tourist use. The trial court rejected the challenge, granting summary judgment to San Francisco. We will affirm.

FACTUAL/PROCEDURAL BACKGROUND

In 1979, San Francisco's Board of Supervisors took action in response to concerns that the city had a serious housing shortage for low income and elderly residents caused by the conversion of residential hotels into tourist hotels or condominiums. These concerns, originally addressed by a moratorium on the demolition or conversion of residential hotel units, resulted in the adoption of 1981 legislation limiting the ability of hotel owners, such as Lambert, to convert existing residential units to tourist units. Lambert's proposed conversion is affected by two interrelated bodies of local law: San Francisco's Planning Code, and San Francisco's Residential Hotel Unit Conversion and Demolition Ordinance (the "HCO"). The Cornell hotel is located in a district zoned for high density residential-commercial use. The Planning Code provides that tourist hotels in that zone are permitted only upon the granting of conditional use authorization by the Planning Commission. (S.F. Planning Code, § 209.2, subd. (e).) To the extent a hotel has been operated as a tourist hotel in the past, that use is considered a permitted conditional use, but it may not be "significantly altered, enlarged, or intensified, except upon approval of a new conditional use application." (S.F. Planning Code, § 178, subds. (a)(2), and (c).) the HCO, as relevant, prohibits hotel owners from converting residential hotel units to tourist units without first obtaining a permit from the Planning Commission. (HCO § 41.6) the HCO further provides that before a permit may be issued, the owners must provide for one-to-one replacement of the units either by adding replacement units to San Francisco's residential housing stock, or by paying an amount equal to the costs of rebuilding an equal number of legal, comparable units. (HCO - 41.7) Thus, an owner such as Lambert who desires to convert existing residential hotel units to tourist units must obtain both a conditial use permit under the Planning Code and permission under the HCO to convert the units, permission that may be given only if the owner replaces the units or agrees to pay the costs of constructing like units.

In October 1981, in compliance with the HCO, Lambert reported that the Cornell Hotel had 31 residential units and 27 tourist units. In 1990, Lambert applied to the Planning Commission for a conditional use permit to convert all of the hotel's residential units to tourist. The Planning Commission ultimately denied Lambert's request for a conditional use permit, finding that the proposed use was neither desirable nor necessary, would be injurious to personal and property interests in the neighborhood and the community and would be inconsistent with the policies and objectives of San Francisco's Master Plan. Lambert then petitioned the superior court for a writ of administrative mandate, challenging the decision to deny his application for a conditional use permit.

In the meantime, in 1993, and notwithstanding that Lambert himself had reported that the Cornell Hotel had both residential and tourist units, Lambert applied to the Zoning Administrator for a formal determination of the use classification of the hotel and whether it might be converted to full tourist use without a conditional use permit. The Zoning Administrator determined, in accordance with Lambert's earlier representations, that 31 of the hotel's units were residential and 27 units were tourist. The Administrator further determined that Lambert could convert the hotel to a tourist hotel only upon receiving conditional use authorization. Lambert appealed that determination. The Board of Permit Appeals, partially overruling the Zoning Administrator, found that seven of the units classified as residential properly should be classified To complicate things further, the seven reclassified units continued to be classified as residential units for purposes of the HCO. The Planning Commission accordingly ruled that Lambert could not convert them to tourist use without complying with the HCO's one-for-one provisions. Lambert filed a second action in the superior court. Where the first action challenged the decision to deny Lambert conditional use authorization as to the units still classified residential, the second action challenged the decision to require him to comply with the one-for-one provisions of the HCO as to the seven units newly classified for tourist use. The superior court consolidated the two actions. It later granted the petition for writ of mandate as to the second action, severed the cases and remanded to the Board of Permit Appeals the issue of whether a permit to convert the seven units to tourist units should be conditioned on Lambert's compliance with the one-for-one provisions of the HCO. The Board of Permit Appeals resolved the matter by finding that the units could be converted without compliance with the one-for-one provisions.

as tourist because they were legal non-conforming commercial units. ¹ As a result, Lambert was entitled to reclassify seven units from residential to tourist. The practical result of the Board's ruling was that Lambert was entitled to use the seven units for tourist purposes without obtaining a conditional use permit. The remaining 24 rooms originally classified for residential use, however, were still classified for residential use under the Planning Code. It followed that they could be converted to tourist use only upon obtaining a conditional use permit.

The present case therefore does not concern the decision to require Lambert to comply with the one-for-one provisions under the HCO, which decision reached only the seven newly classified units and in all events was reversed by the Board of Permit Appeals. Rather, the present case concerns the Planning Commission's decision to deny Lambert's application for a conditional use permit to convert the remaining 24 residential units to tourist use. Lambert's theory in the trial court was that the denial of the permit constituted an unlawful taking. The superior court found that the denial of the permit was not a taking, and granted summary judgment on that basis.

DISCUSSION

I.

Neither San Francisco's Regulations nor the Refusal to Grant the Conditional Use Permit Effected a "Taking"

Lambert does not directly challenge the validity of the local regulations themselves, and thus does not challenge the right of the Planning Commission to require him to obtain a conditional use permit to convert his residential units to tourist use. ² Nonetheless, it is appropriate to point out that in Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892, 223 Cal.Rptr. 379, we upheld the HCO against claims that it violated principles of due process and equal protection, finding that "when tested according to traditional due process and equal protection standards, there can be little dispute that the ordinance serves a legitimate governmental interest, and does so by means reasonably and directly related to its goals." (Id. at p. 910, 223 Cal.Rptr. 379.) We also rejected the argument that by restricting the use of residential hotel property the HCO effected a taking in violation of Amendment V of the United States Constitution and article I, section 19 of the California Constitution. (Id. at pp. 911-912, 223 Cal.Rptr. 379.)

We see no reason to revisit our earlier decision here in any detail. As a general rule, no taking results from the down-zoning of property in such a manner as to limit its potential for development. " 'A purchaser of land merely acquires a right to continue a use instituted before the enactment of a more restrictive zoning. Public entities are not bound to reimburse individuals for losses due to changes in zoning, for within the limits of the police power "some uncompensated hardships must be borne by individuals as the price of living in a modern enlightened and progressive community." (Metro Realty v. County of El Dorado [1963] 222 Cal.App.2d 508 ....)' [Citation.]" (HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 516, 125 Cal.Rptr. 365, 542 P.2d 237, citing Morse v. San Luis Obispo County (1967) 247 Cal.App.2d 600, 602-603, 55 Cal.Rptr. 710.) In such cases, a taking occurs only if the application of the general zoning law to the particular property does not substantially advance legitimate state interests or denies an owner economically viable use of his land. (Agins v. City of Tiburon (1980) 447 U.S. 255, 260, 100 S.Ct. 2138, 2141-2142, 65 L.Ed.2d 106.) That application of a general zoning law reduces the value of land is not a denial of economically viable use of the land. "[U]nlike a regulation which effects a taking by prohibiting all economically beneficial uses of the land in question (see Lucas, supra, ...