22 Cal. App. 5th 77
Cal. Ct. App. 5th2018Background
- San Francisco amended Planning Code §181 (Ordinance No. 286-13, Dec. 2013) to allow enlargement/alteration of nonconforming residential units so long as changes stay within the pre‑2013 building envelope.
- The amendment imposed 5–10 year waiting periods forbidding changes to units where a tenant had been evicted under various San Francisco Administrative Code "no‑fault" provisions; a 10‑year bar applied after an Ellis Act eviction.
- SPOSFI sued the City seeking writ/declaratory relief, arguing the ordinance violated the Planning Code and CEQA and was preempted by the Ellis Act because it penalized owners exercising their right to withdraw units from the rental market.
- The trial court denied relief; SPOSFI appealed. The Court of Appeal reviewed de novo the preemption issue.
- The court compared this ordinance to parallel authority (SFAA) and focused on whether the 10‑year waiting period functioned as a substantive restriction on owners’ Ellis Act rights rather than ordinary land‑use regulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ordinance §181(c)(3) is preempted by the Ellis Act | The 10‑year waiting period penalizes owners who exercise Ellis Act withdrawal rights and therefore is preempted | The waiting period is a permissible land‑use regulation to mitigate displacement and does not impose a prohibitive price | Held preempted: the 10‑year bar is a substantive restriction on Ellis Act rights and conflicts with state law |
| Whether the waiting period is merely regulation of post‑withdrawal redevelopment | It is not; it operates as a substantive prohibition triggered by exercising Ellis Act rights | It regulates redevelopment particulars and protects affordable stock | Held that it functions as a substantive penalty, not as permissible post‑withdrawal regulation |
| Whether the provision mitigates adverse impacts on displaced tenants (and so fits Ellis Act exceptions) | Mitigation rationale is speculative and tenants already receive protections under the Ellis Act/Administrative Code | The rule preserves affordability and protects displaced tenants’ reoccupation rights | Held the mitigation claim fails: ordinance does more than the limited mitigation authorized by Ellis Act |
| Whether a facial challenge was proper | Facial challenge appropriate because the ordinance text inevitably blocks Ellis Act withdrawals followed by alterations | Facial challenge improper because there may be circumstances where ordinance and Ellis Act can coexist | Held facial challenge proper: ordinance text creates an inevitable conflict in every Ellis Act withdrawal/alteration scenario |
Key Cases Cited
- San Francisco Apartment Assn. v. City & County of San Francisco, 3 Cal.App.5th 463 (2016) (upholding conclusion that a 10‑year waiting period on unit mergers after no‑fault evictions was preempted by the Ellis Act)
- Johnson v. City & County of San Francisco, 137 Cal.App.4th 7 (2006) (discussing scope of Ellis Act preemption over local substantive eviction controls)
- Reidy v. City & County of San Francisco, 123 Cal.App.4th 580 (2004) (distinguishing permissible post‑withdrawal redevelopment regulation from substantive limits on withdrawal)
- Nash v. City of Santa Monica, 37 Cal.3d 97 (1984) (state Supreme Court decision whose aftermath prompted enactment of the Ellis Act)
- City of Santa Monica v. Yarmark, 203 Cal.App.3d 153 (1988) (discussing legislative intent of Ellis Act to overturn Nash)
- Sherwin‑Williams Co. v. City of Los Angeles, 4 Cal.4th 893 (1993) (preemption framework: local law invalid if it duplicates, contradicts, or enters field occupied by state law)
- Tobe v. City of Santa Ana, 9 Cal.4th 1069 (1995) (facial‑invalidity analysis focuses on ordinance text and interplay with state law)