Metropolitan News-Enterprise


Thursday, July 12, 2001


Page 5


C.A. Reinstates ‘Takings’ Challenge to San Francisco Eviction Ordinance


By a MetNews Staff Writer


San Francisco landlords may seek compensation for the loss of use of their properties resulting from a San Francisco ordinance that restricts a property owner’s ability to evict a tenant so that the owner or a family member may occupy it, the First District Court of Appeal ruled yesterday.

The court reinstated a challenge to the law, reversing an order by San Francisco Superior Court Judge David Garcia, who sustained the city’s demurrer.

State Supreme Court decisions upholding local rent control ordinances do not necessarily insulate Proposition G from a challenge on the ground that it constitutes a regulatory taking, Justice Paul Haerle wrote for Div. Two. The panel reinstated a suit by individual landlords and groups which claim the law is unconstitutional, both on its face and as applied.

“In our view, Proposition G is not an ordinary rent control law; it is not a price or rate regulation,” the justice wrote. “Proposition G restricts an owner’s right to use his or her property as a family home.”

Proposition G was enacted by voters in November 1998. It imposes a number of restrictions on evictions by owners intending to reoccupy the property.

Under the measure, a landlord who wants to occupy a unit that he or she had previously rented out may evict a tenant from only one such unit in a building—precluding multiple owners from occupying separate units—and must occupy the unit for at least three years. A landlord who wishes to recover possession of a unit for occupancy by a family member may do so only if the landlord also lives in the building, and if the family member occupies the unit for three years.

Even if those requirements are met, a landlord may not evict a tenant who is at least 60 years old or disabled and has lived in the unit for 10 years, or is “catastrophically ill” and has lived in the unit for five years.

The city argued that the law was a reasonable measure designed to maintain a “reasonable balance” between owner-occupied and rental housing, keep housing affordable, and protect low-income, elderly, and disabled tenants.

But while those goals are “certainly legitimate,” Haerle wrote, the plaintiffs are entitled to present evidence in support of their claims that Proposition G doesn’t serve them. The plaintiffs claim that the ordinance goes too far, because it doesn’t take into consideration the needs of individual landlords and favors wealthy individuals who can purchase homes for themselves over small landlords who need to buy buildings jointly and then rent out one or more units in order to pay for the property. They also argue that the law doesn’t necessarily promote affordable housing, because it forces multiple owners who wish to occupy a property to withdraw the entire building from the rental market. “At this pleadings stage in the litigation, whether the restrictions imposed by Proposition G substantially advance legitimate state interests is still an open question,” Haerle wrote. “Thus, plaintiffs should not have been denied the opportunity to establish a regulatory taking by showing that these restrictions do not, in fact, advance legitimate state interests.” Even if the city can ultimately show that the law serves its asserted interest, Haerle added, the plaintiffs can still prevail if they show that the burden imposed on property owners outweighs the public interests served by Proposition G.

The case is Cwynar v. City and County of San Francisco, 01 S.O.S. 3305.


Copyright 2001, Metropolitan News Company