Item 7 Staff Report Request for Amicus Participation in San Remo Hotel v. City and County of San Francisco, First District Court, at No Cost to the TownMEETING DATE: 3/5/01
ITEM NO.
COUNCIL AGENDA REPORT
DATE: February 23, 2001
TO: MAYOR AND TOWN COUNCIL
FROM: ORRY P. KORB, TOWN ATTORNEYQ
SUBJECT: REQUEST FOR AMICUS PARTICIPATION IN SAN REMO HOTEL v.
CITY AND COUNTY OF SAN FRANCISCO, FIRST DISTRICT COURT, AT
NO COST TO THE TOWN
RECOMMENDATION:
Authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of
San Remo Hotel v. City and County of San Francisco, First District Court of Appeal, at no cost to
the Town.
DISCUSSION:
The case involves a city's hotel conversion ordinance that was designed to help preserve the city's
limited stock of affordable housing. Under the ordinance, a residential hotel may convert to tourist
use if the owner provides replacement housing or pays an in lieu fee. An owner challenged the
ordinance, contending that the fee is subject to heightened scrutiny by the courts because the in lieu
fee constitutes an exaction.
The city maintains that heightened scrutiny does not apply and the fee does not constitute a taking
of the hotel owner's property without just compensation. The city prevailed in earlier actions at the
trial court level. A state appellate court reversed, finding that, because the fee did not apply evenly
to all properties located within the city (approximately 500 hotels are affected), the fee was a
PREPARED BY: ORRY P. KORB, TOWN ATTORNEY
OPK:LMB/wp N:IATYISm1Kuno.Ami.TCli.wpd
Reviewed by: "1 ager Finance Revised: 2/23/01 11:37
am
Reformatted: 10/23/95
File# 301-05
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: REQUEST FOR AMICUS PARTICIPATION IN SAN REMO HOTEL v. CITY
AND COUNTY OF SAN FRANCISCO, FIRST DISTRICT COURT, AT NO
COST TO THE TOWN
February 23, 2001
"particularized government exaction" subject to a higher degree of scrutiny by the court. The
appellate court sent the controversy back to the trial court for further proceedings.
The amicus brief will focus on the potential chaos that such a ruling would inflict on California
municipalities. It will also review the history of the standard developed in Nolan v. California
Coastal Commission, Dolan v. City of Tigard, and Monterey v. Del Monte Dunes at Monterey, Ltd.
This case is specifically relevant to the Town with regard to the enforcement of its affordable
housing rules including those concerning mobile home park conversion.
Attachments: Letter dated February 12, 2001
Distribution: Bill Higgins, Project Director, Institute for Local Self Government, 1400 K
Street, Suite 400, Sacramento, CA 95814
NO
INSTITUTE for LOCAL
SELF GOVERNMENT
REQUEST TO CITIES TO .LOIN AMICUS BRIEF
To: California City Attorneys
From:
Bill Higgins
Project Director
Institute for Local Self Government
Date: February 12, 2001
RECEIVED
FEB 2 0 2001
TOWN ATTNY
Re: Request to Cities to Join as Amicus in San Remo Hotel v.
City and County of San Francisco (No. S091757).
The board of directors of the League of California Cities is urging cities to join the
amicus curiae brief in San Remo Hotel v. City and County of San Francisco. This
memorandum details the background of the case and why the issues raised are of major
significance to cities. The deadline for filing has been extended to April 10, 2001.
SUMMARY OF THE FACTS AND ISSUES PRESENTED
Courts have been highly deferential to local agency land use decisions. But in San Remo
Hotel, the court of appeal made a significant departure from existing law when it imposed
a non -deferential standard of review on a legislative development fee. The California
Supreme Court has granted review and will determine the standard of judicial review of
legislative land use regulations. Accordingly, this case will have major impact on the
ability of local agencies to enact development impact fees and other land us regulations.
Owners of single room occupancy hotels — an important source of affordable housing in
San Francisco — were increasingly seeking to convert their properties to serve the more
lucrative tourist industry. In response, the city adopted a Hotel Conversion Ordinance
("HCO") to protect its stock of affordable housing. The ordinance allows such hotel
conversions to proceed on the condition that the hotel owners provide replacement
housing or pay an in lieu fee. The HCO applies to more than 500 hotels in the city.
I The case name is San Reny Hotel v City and County 82 CaL App. 4th 1105, (1st Dist. August 8, 2000). So also
San Reny Hotel v City and County cf San Francisco, 145 F.3d 1095 (9th Cir. June 3, 2000) (finding hotel owner's deprivation of
all economic use claim unripe and abstaining from resolving ripe claims under the Pulhmn and Younger doctrines).
K STRI`.LT, SUITE 40o • S\CR1\If:`Tl). t'\ c)iS'l4 • • f.1S t)I(•.i`iJ.\_�u
N'11' w.II11SJ.0E0
San Remo Hotel v. City and County of San Francisco: Amicus Joinder Request Page 2
The hotel owner contends that the HCO effects a "taking" of private property. In making
this claim, the owner invites the court to change the rules under which it reviews local
legislative actions — asking it to apply the more severe "heightened scrutiny" standard of
review. Normally, courts defer to legislatively adopted fees and apply heightened
scrutiny only where a local agency requires the dedication of property as a condition of
approval in an adjudicator)/ action involving an individual development. The court of
appeal held that the increased level of scrutiny was justified and strongly suggested that a
"taking" had occurred. The court reasoned that since the ordinance affected only 500
hotels — and did not apply to all properties in the city — the fee amounted to a
"particularized government exaction," warranting a higher level of judicial scrutiny.
WHY THIS CASE MERITS CITY ATTENTION
The implications of this case reach well beyond a tight San Francisco housing market.
Mitigation fees are at the center of many housing and environmental programs, including
the California Environmental Quality Act (CEQA) and inclusionary zoning regulations.
If the court of appeal decision stands, even the most basic impact fees will receive
increased scrutiny from the judiciary. At the very least, such a ruling would make
implementing development fee programs more expensive and burdensome. At most, it
places an essential source of municipal revenue at risk.
The amicus brief will focus on the potential chaos that such a ruling would inflict on
California municipalities. It will also review the history of the heightened scrutiny
standard as developed in Nollan v. California Coastal Commission, 483 U.S. 825 (1987)
and Dolan v. City of Tigard, 512 U.S. 374 (1994) and subsequently limited in Monterey
v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). Moreover, the brief will
provide a strong city voice that will stress the important role that municipalities play in
balancing the competing interests of the community. The local legislative processes that
govern land use regulation should not be second-guessed by the judiciary.
BRIEF AUTHOR & DEADLINE FOR JOINDER
Tim Dowling, coauthor of the TAKINGS LITIGATION HANDBOOK and Chief Counsel of the
Community Rights Counsel, will author the brief under the supervision of the legal
advocacy committee. The Institute for Local Self Government — through its Community
Land Use Project- is coordinating the joinder process. The deadline for filing the brief is
April 10, 2001. Accordingly, if your city is willing to join as an amicus party, please
complete and return the enclosed consent form by facsimile or first class mail as
soon as possible, but no later than April 1, 2001.
CONCLUSION
If you need any further information, please do not hesitate me at 916.658.8250 or e-mail
me at higginsb@a,cacities.org. We look forward to receiving your support.
G:\LEGAL\Institute\Clp\Cases & Bills\San Remo Hotel Amicus Ltr_files\San Remo Joiner Letter.doc
AUTHORIZATION TO JOIN AMICUS BRIEF
METHOD OF
TRANSMISSION
(check one):
TO:
SUBJECT:
Facsimile
Bill Higgins
Project Director
Institute for Local Self Government
1400 K Street, Suite 400
Sacramento, CA 95814
First Class Mail
Phone: 916.658.8250
Fax: 916.658.8240
San Remo Hotel v City and County of San Francisco (No. S091757)
Authorization to Join Amicus Curiae Brief
You are authorized to add the City (Town) of
as a party in the amicus curiae (friend -of -the -court) brief in San Remo Hotel v. the City
and County of San Francisco, in which the legal advocacy committee and the board of
directors of the League of California Cities urges California cities to join. The case is
currently on appeal to the California Supreme Court.
The city understands that this brief is being prepared on a pro bono basis under the
supervision and guidance of an attorney from the League's legal advocacy committee.
The city further understands there will be no cost to the city associated with joinder in
this brief. This authorization extends only to adding the city's name to the amicus curiae
brief to be submitted at the present stage of the litigation. Supplemental authorization
will be necessary to add the city's name to any further briefing efforts.
FROM:
Signature of Authorized Representative
Printed Name State Bar No.
Street Address
City
State Zip Code
G:\LEGAL\Institute\CIp\Cases & Bills\San Remo Hotel Amicus Ltr_filaVoinder Form doc
Town Council Minutes March 5, 2001
Redevelopment Agency Los Gatos, California
HEARINGS CONTINUED
N. SANTA CRUZ AVE. 217-A/JUICY BURGER/BEER & WINE PERMIT/CONT.
Motion by Mr. Attaway, seconded by Mr. Glickman, to close the public hearing. Carried
unanimously.
Council comments:
The current policy discourages new liquor licenses. Council is prepared to limit new restaurants
downtown, and if there are new restaurants allowed and new liquor licenses granted there must be
complete plans of operations and services before licenses are issued. The alcoholic beverage policy
will be discussed in study session by Council before further action is taken on the issue.
Motion by Mr. Pirzynski, seconded by Mrs. Decker, to uphold the Planning Commission and deny
the appeal. Carried unanimously.
AMICUS BRIEF/SAN REMO HOTEL VS. CITY & COUNTY OF SAN FRANCISCO (07.28)
Motion by Mr. Pirzynski, seconded by Mr. Attaway, that Council authorize the Town Attorney to
include the Town of Los Gatos as an amicus curiae in the case of San Remo Hotel vs. City and County
of San Francisco, First District Court of Appeal, at no cost to the Town. Carried by a vote of 3 ayes.
Mr. Glickman and Mr. Blanton voted no stating that they believed that the expo facto ruling was
unfair and unconstitutional.
STREET RESURFACING FOR YEAR 2001/RESOLUTIONS 2001-23 & 2001-1RD (13.33 & 27))
Mayor/Chairman Pirzynski announced that this was the time and place so noted to consider approving
the recommended work program for the 2001 street resurfacing program and to consider adopting
resolution authorizing an agreement with Nichols Consulting Engineering and Construction.
Larry Perlin, Public Works Director, reported on the street resurfacing program. He reviewed the
study session that was held in the fall and the decisions of the Council on how to begin this program.
He spoke of the aggressive program necessary to maintain all town streets at a level of 75 PCI over
a five year period and the 15 million dollars needed to accomplish this. Financing strategies were
reviewed in light of proceeding with this plan and he noted that 62% of the funding had been
earmarked for the program at this time. A community outreach program will be put in place to notify
the town of the planned street work and keep the neighborhoods apprized. He suggested a dedicated
hot line number for distribution of updated information on the program.
Council comments:
Preservation of concrete streets in the historic districts was important to Council along with
coordination of traffic calming studies and various agencies' plans to do road cuts. Council believes
that the newly surfaced streets should remain untouched by other projects for several years after their
resurfacing is completed. Council requested that these questions be explored before the program
begins. Mr. Perlin noted that Public Works would coordinate with the other agencies so that our
newly surfaced streets would not be ruined. Council feels that the residents of the Town believe that
this activity should be the highest priority item on Town's maintenance and service agendas.
The following people from the audience addressed this issue:
Mark Jensen, 120 Oak Rim Way, would like the pedestrian issues addressed before the streets are
re -paved. Stripping and bicycling routes need to be considered and striped while the streets are being
re -paved. He asked that traffic calming issues be addressed in concert with the street resurfacing
program.
No one else in the audience addressed this issue.
TC: D l 3: MM03050 I
7