San Remo Hotel L.P. v. City & County of San Francisco

BAXTER, J., Concurring and Dissenting.

I concur in the majority opinion insofar as it finds the Court of Appeal erred in assessing plaintiffs’ as-applied challenge to the City and County of San Francisco’s (City) housing replacement fee under a standard of heightened scrutiny. I also agree with much of what the majority says about the test that does apply to this exaction. My objections are that in the remainder of its analysis, the majority fails to decide the issues on which we granted review and strains to reach questions that are not fairly included in the review petition.

*680I ask different questions and, not surprisingly, come up with different answers. Unlike the majority, I would affirm the Court of Appeal to the extent that it remanded for further proceedings concerning the petition for writ of administrative mandate and would remand for further proceedings under the correct takings standard.

I

The majority frames the first question as whether the City properly required plaintiffs to obtain a conditional use permit for full tourist use of the hotel. The problem with this formulation is that it treats the issue of the conditional use permit as an all-or-none proposition. This is a mistake. The critical issue is not whether plaintiffs needed to obtain a conditional use permit if they wished to rent all of the hotel’s rooms to tourists—as the majority notes, there is evidence in the record to support the finding that some rooms had historically been rented to long-term residents (maj. opn., ante, at pp. 659, 663)—but how many rooms required a permit before plaintiffs could rent them to tourists. To answer that question, it is necessary first to determine how many tourist rooms are grandfathered as a permitted conditional use.

As the City points out, the process of converting residential hotel rooms to tourist hotel rooms requires two separate permits: a conversion permit from the City Department of Building Inspection under the Residential Hotel Unit Conversion and Demolition Ordinance (HCO), and a conditional use permit from the City Planning Commission under the City Planning Code. Plaintiffs do not independently challenge here the requirement of obtaining a conversion permit from the Department of Building Inspection, merely the need to obtain a conditional use permit from the Planning Commission.

The parties agree that no duty exists to obtain a conditional use permit to continue a property use that qualifies as a permitted conditional use.1 A permitted conditional use is one that “existed lawfully at the time a new zoning prohibition or restriction came into force” and “is conditionally permitted by the new zoning law.” (Maj. opn., ante, at p. 661, fn. 10.) Thus, a permitted conditional use in the North Beach neighborhood commercial district must have “lawfully existed” on the effective date of the 1987 ordinance. {Id. at pp. 658-659, citing S.F. Planning Code, § 179, subd. *681(a)(2).) It was on this ground that plaintiffs disputed the need for a conditional use permit. (See maj. opn., ante, at p. 653.)2

The City asserts that no tourist rental could have “lawfully” existed in the district because of the legal restrictions on tourist rental imposed by the ECO, which was enacted in 1981 and amended in 1990. The City, however, has been unable to explain why the ECO, which is part of the San Francisco Administrative Code, should have been considered by the City Planning Commission in determining whether tourist rental “lawfully existed” under section 179, subdivision (a)(2) of the San Francisco Planning Code, where the zoning ordinances are found. Indeed, the City’s statements throughout these proceedings preclude any attempt to cut and paste the ECO into the Planning Code.

As the City repeatedly asserts, the ECO is “separate” from the City Planning Code and, in particular, did not change the zoning classification of the San Remo Botel under the City Planning Code. The City likewise concedes that “[n]either the Planning Commission nor the Zoning Administrator has responsibility for administering the ECO.” The ECO is administered instead by the City Department of Building Inspection.

These concessions are consistent with an opinion letter by the city attorney issued contemporaneously with the enactment of the ECO in 1981. In that letter, the city attorney stated that the ECO was not a zoning law, that the City Planning Code “makes no distinction between the use of a hotel devoted to permanent residents or to tourists,” that the adoption of the ECO “does not render an existing structure or use a non-conforming structure or use,” and that whether a tourist use may continue as a permitted conditional use is governed by the applicable sections of the Planning Code. (S.F. City Atty., Opn. No. 81-54 (Sept. 14, 1981) pp. 7-8; see maj. opn., ante, at p. 660.)

*682The city attorney’s opinion letter, together with the City’s concessions, undercut the City’s efforts here to claim that the HCO was a critical component of the determination whether tourist use lawfully existed as a permitted conditional use under the City Planning Code. Indeed, the zoning administrator was apparently so uncomfortable with the City’s belated change of heart that he declined to accept the City’s newly minted position and found instead that “[i]t has been the Department of City Planning’s (‘Department’) administrative practice to classify residential hotels designated under the Hotel Ordinance as residential uses under the Planning Code.” (Italics added.) But “administrative practice” is merely a convenience; it does not aid in determining whether a prior use was lawful or unlawful. The body of law relevant to that determination—i.e., the Planning Code—did not distinguish between tourist hotels and residential hotels and therefore did not prohibit tourist rentals at the San Remo.3

The superior court, on this same record, impliedly rejected the zoning administrator’s restrained construction and found instead that “[sjince the issuance of the Certificate of Use in 1981, residential use of the San Remo Hotel was the only lawful use.” The majority holds—and I agree—that the superior court erred. (Maj. opn., ante, atp. 660.) But the majority declines to issue the administrative writ on the separate ground that plaintiffs’ proposal to rent all of the rooms to tourists is “a significant alteration or enlargement of the historical lawful use” and therefore required a new conditional use permit. {Ibid.) I agree that a conditional use permit is required to the extent plaintiffs wish to alter or enlarge the historical lawful use. I disagree strongly, however, with the majority’s unstated and unproven assumption that this encompasses all of the San Remo’s rooms. The majority has simply terminated its analysis prematurely.

Nothing in the record supports the majority’s implied finding that none of the rooms could be grandfathered as a permitted conditional tourist use. *683Indeed, neither the zoning administrator nor the superior court bothered to determine how many rooms might have been used historically as tourist rooms because of their erroneous belief that the HCO barred any tourist use from qualifying as a lawful permitted conditional use. (See maj. opn., ante, at p. 658.) Similarly, the Board of Permit Appeals, in affirming the zoning administrator, apparently found it sufficient that the San Remo was a residential hotel “at least in part.”

The majority’s reliance on the unproven assumption that no rooms could be grandfathered as a permitted conditional use is all the more puzzling given that the opinion elsewhere is quite cognizant of the prospect that some rooms in the same building may be subject to differing classifications. As the majority explains, we must “consider separately each use in a multiple-use structure,” such as the San Remo, in classifying uses “for purposes of neighborhood commercial district zoning.” (Maj. opn., ante, at p. 662, citing S.F. Planning Code, § 703.2, subd. (b)(1).)4 The majority also recognizes that “[t]he administrative record shows that both residential and tourist rentals were significant uses of the San Remo Hotel at the relevant times.” (Maj. opn., ante, at p. 659.) Accordingly (and as the majority acknowledges), tourist use at the San Remo would qualify as a permitted conditional use—and is grandfathered under the Planning Code—“to the extent it lawfully existed when the current laws’ restrictions came into effect, but does not qualify to the extent plaintiffs propose to significantly alter or expand it.” (Id. at p. 662, italics added.)

The majority thus appears to recognize not only that the critical question here is the number of tourist rooms that should be grandfathered as a permitted conditional use, but also that the current record is inadequate to ascertain that number. For example, the zoning administrator described the annual unit usage reports from 1982 to 1992 as showing residents occupying between 25 and' 57 of the designated residential units. “Even if only the 25-57 units actually shown to be occupied by residents were designated as residential units,” the zoning administrator explained, “[plaintiffs] would still be required to procure a conditional use permit to convert them under the terms of Planning Code section 178(c).” (Italics added.) Yet, as the majority recognizes, the number of eligible rooms “during the relevant period” is “not clearly answered” by the zoning administrator’s aggregation *684of usage reports over a 10-year period. (Maj. opn., ante, at p. 661.) Plaintiffs, for their part, offered evidence that no more than 10 to 20 percent of the hotel’s room had been rented to long-term residents, which would fix the number of rooms to be converted well below the number suggested by the zoning administrator. In their complaint, they allege that no more than nine rooms should have been deemed residential.

As interesting as this dispute may be, it is beyond cavil that the current record is insufficient to resolve how many tourist rooms might be grandfathered as a permitted conditional use. Under the circumstances, a remand is appropriate to enable factual findings to be made regarding the actual use of the hotel during the relevant period.5 On remand, the City would also be free to argue that plaintiffs had discontinued or abandoned any permitted conditional tourist use they are able to establish. “ ‘ [Abandonment of a nonconforming use ordinarily depends upon a concurrence of two factors: (1) An intention to abandon; and (2) an overt act, or failure to act, which carries the implication the owner does not claim or retain any interest in the right to the nonconforming use (8A McQuillin, [Municipal Corporations (3d ed. 1994)], § 25.192; 1 Anderson, American Law of Zoning, § 6.58). Mere cessation of use does not of itself amount to abandonment although the duration of nonuse may be a factor in determining whether the nonconforming use has been abandoned (101 C.J.S. Zoning § 199).’ ” (Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 569 [48 Cal.Rptr.2d 778, 907 P.2d 1324]; see S.F. Planning Code, § 178, subd. (d) [permitted conditional uses deemed abandoned if discontinued for three years]; S.F. Admin. Code, § 41.19 (a)(1) [a tourist unit may be rented to a permanent resident without changing the legal status of the unit]; cf. Tenderloin Housing Clinic, Inc. v. Astoria Hotel, Inc. (2000) 83 Cal.App.4th 139, 144-145 [98 Cal.Rptr.2d 924].) The current record, however, renders it impossible to determine which rooms, if any, could be rented to tourists as a permitted conditional use and which rooms, if any, have abandoned or discontinued that permitted conditional use. How the majority, which is plainly aware of the significance of the hotel’s historical use and the inadequacy of the record on that point, can do anything other than order a remand is a mystery.

In sum, the answer to the question framed by the majority—“Did San Francisco Properly Require Plaintiffs to Obtain a Conditional Use Permit for *685Full Tourist Use of the Hotel?”—is a conditional yes. The need to obtain a permit exists only for those rooms for which plaintiffs cannot establish tourist rental as a permitted conditional use, which is precisely the issue left unresolved by the majority. In my view, the writ petition should be granted in part and the matter remanded to permit the superior court or the appropriate administrative agency to take evidence concerning actual tourist use and to resolve any claims that tourist use was abandoned or discontinued. The majority’s abrupt termination of the litigation grants the City a windfall housing replacement fee for each room that further proceedings would have revealed to be grandfathered as a permitted conditional tourist use.

II

I agree with the majority that in-lieu fees assessed under the HCO are not subject to the “rough proportionality” test articulated in Dolan v. City of Tigard (1994) 512 U.S. 374 [114 S.Ct. 2309, 129 L.Ed.2d 304] (Dolan). Dolan envisioned that some “land use regulations” would not be subject to the “rough proportionality” test. (Id. at p. 385 [114 S.Ct. at pp. 2316-2317].) To identify which land use regulations would be subject to the more stringent test, the court relied on two “relevant” distinctions: between “an adjudicative decision to condition the [owner’s] application for a building permit on an individual parcel” and “essentially legislative determinations classifying entire areas of the city,” and between “a requirement that [the owner] deed portions of the property to the city” and “a limitation on the use [the owner] might make of her own parcel.” (Ibid., italics added.)

In Ehrlich v. City of Culver City (1996) 12 Cal.4th 854 [50 Cal.Rptr.2d 242, 911 P.2d 429], this court unanimously concluded that the “rough proportionality” test applied when “special, discretionary permit conditions on development by individual property owners” (id. at p. 881 (plur. opn. of Arabian, J.); id. at p. 912 (conc. & dis. opn. of Werdegar, J.)) were “adjudicatively imposed” (id. at p. 906 (cone. & dis. opn. of Kennard, J.); id. at p. 891 (cone. opn. of Mosk, J.)). Here, as the majority notes, the in-lieu fee is a product of “generally applicable legislation” (maj. opn., ante, at p. 669) and its calculation is subject to “no meaningful government discretion.” (Ibid.) Under those circumstances, the in-lieu fee here must be viewed as one of those land use regulations that is not subject to the “rough proportionality” test.

This much is sufficient to answer “no” to the main question the City presented in its review petition: “Where a legislatively adopted impact fee applies equally to 500 residential hotels and 18,000 residential hotel units, is it nevertheless a ‘particularized’ exaction subject to ‘heightened scrutiny’ *686because it does not apply to every property in the city?” Although the majority might have stopped the takings analysis at that point, it seems prudent to me to discuss, as the majority does, the legal standard that does apply to the in-lieu fee here, namely that “[a] land use regulation does not effect a taking if it ‘substantially advances legitimate state interests’ . . . (Dolan, supra, 512 U.S. at p. 385 [114 S.Ct. at p. 2316].)

Admittedly, this test is not easy of application. The Supreme Court acknowledges that it has not provided “a thorough explanation of the nature or applicability of the requirement that a regulation substantially advance legitimate public interests” (Monterey v. Del Monte Dunes at Monterey, Ltd. (1999) 526 U.S. 687, 704 [119 S.Ct. 1624, 1636, 143 L.Ed.2d 882] other than to distinguish this requirement from that used by the high court in due process and equal protection claims. (See ibid., citing Nollan v. California Coastal Comm’n (1986) 483 U.S. 825, 834-835, fn. 3 [107 S.Ct. 3141, 3147, 97 L.Ed.2d 677].) As Nollan stated in that footnote, “our opinions do not establish that these standards are the same as those applied to due process or equal protection claims.” (Nollan, supra, 483 U.S. at pp. 834-835, fn. 3 [107 S.Ct. at p. 3147].) Rather, takings jurisprudence has diverged from due process and equal protection both in “verbal formulations” and in application. (Ibid.) “[T]here is no reason to believe (and the language of our cases gives some reason to disbelieve) that so long as the regulation of property is at issue the standards for takings challenges,, due process challenges, and equal protection challenges are identical.” (Ibid.; see generally Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 1018-1021 [81 Cal.Rptr.2d 93, 968 P.2d 993] (dis. opn. of Chin, J.) (Santa Monica Beach).)

Thus, to the extent that the majority suggests that the property owner must prove the land use regulation is arbitrary to prevail on a takings claim as opposed to a due process claim (see maj. opn., ante, at p. 674, fn. 16, quoting Dolan, supra, 512 U.S. at p. 391, fn. 8 [114 S.Ct. at p. 2320]), it is not faithful to the distinction the high court has drawn between those two legal doctrines.6 For the most part, however, the majority takes pains to distinguish the requirement under the takings clause that a land use regulation “substantially advance[] legitimate state interests” from the requirement of due process and equal protection that a regulation be “not arbitrary.” To pass scrutiny under the takings clause, the majority says that in-lieu fees “must bear a reasonable relationship, in both intended use and amount, to the deleterious public impact of the development,” although “the relationship between means and ends need not be so close or so thoroughly established *687for legislatively imposed fees as for ad hoc fees,” which are subject to the “rough proportionality” test. (Maj. opn., ante, at p. 671.) Although this formulation makes plain that something more is required than mere rational-basis review, its meaning is still opaque. The defect, I submit, is that the majority’s test is too much defined by what it is not, rather than by what it is. For the courts who will be called upon to apply this standard, we must be more illuminating. .

The majority’s formulation correctly describes the subjects of the inquiry—i.e., the governmental regulation and the public impact of the development—as well as the intensity of the relationship between them—i.e., a reasonable relationship. What is missing is a description of the nature of the relationship between the public impact of the development and the governmental regulation. On this point, I find helpful the concurring and dissenting opinion in Pennell v. San Jose (1988) 485 U.S. 1, 15-24 [108 S.Ct. 849, 859-864, 99 L.Ed.2d 1] (conc. & dis. opn. of Scalia, J.). Pennell involved the kind of land use regulation that, like the in-lieu fees here, is not subject to the “rough proportionality” test. (See Santa Monica Beach, supra, 19 Cal.4th at p. 968.) Justice Scalia, joined by Justice O’Connor, observed that “[traditional land use regulation (short of that which totally destroys the economic value of property) does not violate this [takings clause] principle because there is a cause-and-ejfect relationship between the property use restricted by the regulation and the social evil that the regulation seeks to remedy. Since the owner’s use of the property is (or, but for the regulation, would be) the source of the social problem, it cannot be said that he has been singled out unfairly.” (Pennell v. San Jose, supra, 485 U.S. at p. 20 [108 S.Ct. at p. 862], italics added.)

From Justice Scalia’s separate opinion, it is apparent that the missing element in the majority’s formulation is the causal connection between the property use restricted by the regulation and the social evil that the regulation seeks to remedy. Thus, I would reformulate the standard as follows: The in-lieu fee does not violate the takings clause so long as (1) there is a cause-and-effect relationship between the owner’s desired use of the property and the social evil that the fee seeks to remedy, and (2) the fee is reasonably related in both intended use and amount to that social evil. This two-part standard best implements the high court’s broadly stated requirement that the fee substantially advance legitimate state interests.

Ill

The majority, after announcing the correct standard, strays beyond the questions presented and applies the standard to some of the claims in *688plaintiffs’ complaint and then, without any additional discussion, dismisses the remaining claims by affirming the trial court’s judgment sustaining the demurrer. I would refrain from reaching the merits of these selected takings claims and, without analysis or even an acknowledgement of doing so, from summarily denying the others. Well-settled principles of appellate review counsel us to remand the matter to the lower courts to apply the correct legal standard in the first instance.

The most immediate reason for remanding to the lower courts, of course, is that we already need to remand for further factual findings to determine the number of rooms that require further permitting before they may be offered to tourists. When that is completed, plaintiffs will need to choose anew whether and, if so, how to satisfy the housing replacement requirement, “whether by constructing or bringing onto the market new units; by sponsoring such construction by a public or nonprofit private housing developer; or by paying, in lieu of such construction, a fee to a designated City housing fund.” (Maj. opn., ante, at p. 668.) Should plaintiffs choose again to pay the in-lieu fee, the appropriate City agency will need to recalculate it, taking into account the correct number of units and their replacement cost. (See ibid.) Only if plaintiffs then challenge the fee imposed will we be presented with an actual case or controversy that resembles the one the majority addresses here.

Even if we were not already remanding for further factual development involving the petition for writ of administrative mandate, a remand to permit the Court of Appeal to apply the correct legal standard to plaintiffs’ claims would be the prudent course. The majority finds, and I agree, that the Court of Appeal erred in analyzing plaintiffs’ as-applied takings challenge under a heightened scrutiny standard. (Maj. opn., ante, at pp. 668, 670.) It is our practice, where a lower court has applied an incorrect legal standard, to remand for application of the correct standard, even when a remand is not required for other reasons. (E.g., Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 15 [78 Cal.Rptr.2d 1, 960 P.2d 1031] [where the Court of Appeal applied an erroneous standard, “regard for the structure of appellate decisionmaking suggests that the case should be returned to the Court of Appeal”]; id. at p. 25 (conc. opn. of Mosk, J., joined by George, C. J. and Werdegar, J.) [“It is therefore appropriate to remand to the Court of Appeal for reconsideration in light of the proper standard of review”]; see also People v. Cox (2000) 23 Cal.4th 665, 677-678 & fn. 7 [97 Cal.Rptr.2d 647, 2 P.3d 1189]; Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 803 [85 Cal.Rptr.2d 844, 978 P.2d 2]; People v. Breverman (1998) 19 Cal.4th 142, 164, 178-179 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Cahill (1993) 5 Cal.4th 478, 510 [20 Cal.Rptr.2d 582, 853 P.2d *6891037].) There is no reason to deviate from our practice in this case. Indeed, the justifications for adhering to our traditional practice are numerous and compelling.

First, no hardship exists to warrant our extraordinary intervention to bring an abrupt close to the litigation. Plaintiffs have done everything the City has ordered them to do: they have secured the permits to rent to tourists and have paid the $567,000 housing replacement fee. The only issue in the litigation, as conceded by the City at oral argument, is whether plaintiffs will get some or all of their money back—and the majority’s approach plainly does not aid plaintiffs. Moreover, the majority should not be under any illusion that sustaining the demurrer will bring an end to a decade of litigation over that issue. Plaintiffs have reserved their federal claims and, if rebuffed here, will resume their federal litigation, which is now subject to Pullman abstention. (See The San Remo Hotel v. City and County of San Francisco (9th Cir. 1998) 145 F.3d 1095, 1106 & fn. 7.)

Second, remand would give us, a reviewing court, the benefit of a reasoned decision applying the correct standard to the merits of plaintiffs’ claims. The Court of Appeal declined to address plaintiffs’ facial challenge on the grounds that plaintiffs “failed to seek leave of court to replead such causes of action” and that “the present state of the pleadings is insufficient to allow us to fully assess the ultimate legal validity of the facial constitutionality of the HCO.” The trial court did purport to reach the merits, but relied solely on Terminal Plaza Corp. v. City and County of San Francisco, supra, 177 Cal.App.3d 892, and Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072 [271 Cal.Rptr. 44]. Yet, neither Terminal Plaza nor Bullock addresses the “substantially advance” branch of takings analysis. As for the as-applied challenges, the Court of Appeal applied the wrong standard, and the trial court failed to reach the merits of these claims at all, choosing instead to reject the claims categorically on the authority of Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74 [137 Cal.Rptr. 804]. The Court of Appeal held Pfeiffer inapplicable for several reasons, none of which the City challenges here. (See maj. opn., ante, at p. 658, fn. 9.) In sum, only one category of claims has even been addressed on the merits by a lower court—the as-applied claims by the Court of Appeal—and that court applied what we have now determined to be the wrong standard. I do not view these circumstances as crying out for us to deviate from our practice of remanding to permit the lower courts to apply the correct standard in the first instance.

Third, remand for application of the correct standard would be consistent with the way the parties have framed the issues and the relief the City has sought here. The questions presented in the City’s petition for review do not *690invite us to resolve the merits of plaintiffs’ claims. Indeed, when asked at oral argument what this court should do if it adopts (as it has) a standard not urged by either party,7 the City’s counsel replied, “I assume the court would remand for a consideration by the trial court of what standard of review the court would order to be applied.”

Fourth, remand is appropriate to permit the lower courts to address the claims articulated in the complaint that are not discussed by the majority. The majority purports to affirm the trial court’s judgment sustaining the demurrer to the entire complaint, yet limits its discussion only to a few facial and as-applied challenges to the HCO. Our task on demurrer is to determine whether “the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [77 Cal.Rptr.2d 709, 960 P.2d 513].) Viewed in this light, it is apparent that this complaint articulates a number of potential takings and other claims, none of which has yet been addressed by the majority or rejected by the Court of Appeal, including (1) that the lifetime leases effect a physical taking (see Yee v. Escondido (1992) 503 U.S. 519, 528 [112 S.Ct. 1522, 1529, 118 L.Ed.2d 153] [“A different case would be presented were the statute, on its face or as applied, to compel a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy”]);8 (2) that the HCO and fee deprived plaintiffs of their reasonable investment-backed expectations; (3) that the HCO denies plaintiffs all economically viable use of the property, inasmuch as a surplus of vacant residential hotel rooms already exists in San Francisco;9 and (4) that state law preempted the HCO.10

*691I can think of no reason for the majority’s failure to address these claims, other than the fact that none of them can even remotely be shoehomed into the issues presented by the City’s petition. But the City’s decision to limit issues for review can hardly be deemed a license for us to dismiss plaintiffs’ entire complaint without comment, especially where viable issues remain. To affirm the demurrer here would punish plaintiffs for complying with rule 29.3(c) of the California Rules of Court, which tells the parties that “[ujnless otherwise ordered, briefs on the merits shall be confined to those issues, and issues fairly included in them.” The lesson here, if there is one, is that litigants in this court should be careful to brief against any conceivable contingency that could jeopardize any favorable ruling below, even if the arguments fall well outside the questions presented. I confess I do not think this is a good idea.

IV

I would therefore affirm the judgment of the Court of Appeal to the extent that it ordered a remand for further proceedings relating to the petition for writ of administrative mandate and affirmed the imposition of nominal penalties under the City’s cross-complaint. I would reverse the Court of Appeal to the extent that it applied a heightened-scrutiny standard to plaintiffs’ taking claims and would then remand the cause to enable the Court of Appeal to apply the correct legal standard. To the extent the majority prevents plaintiffs from demonstrating their entitlement to writ relief, prematurely analyzes plaintiffs’ as-applied takings claims, and summarily disposes of plaintiffs’ other claims without any analysis whatsoever, I respectfully dissent.

Chin, J., concurred.

It follows that no conversion permit would be needed to continue a permitted conditional use, either. Yet, under the result endorsed by the majority, property owners who wish to convert only one residential room to tourist use must also convert all remaining rooms in the building—even rooms grandfathered as a permitted conditional tourist use—and satisfy the one-for-one replacement requirement for all the rooms. Remarkably, the majority makes no effort to justify such a condition under the takings test the court has adopted.

The majority purports to find it significant that the conditional use permit did not “specify the number of rooms subject to one-to-one replacement under the HCO, calculate the in lieu replacement fee to be assessed, or impose any other condition dependent on the number of rooms previously in tourist use.” (Maj. opn., ante, at p. 662.) Plaintiffs’ challenge, however, is not to the contents of the permit, but to the administrative decision that preceded issuance of the permit, in which the City refused to grandfather any prior tourist use of the hotel as a permitted conditional use. (See id. at p. 653.) Although plaintiffs thereafter applied for a conditional use permit for all their hotel rooms, they did so, as the City Planning Commission noted, “under protest” and without waiving their claim that the majority of the rooms should have been grandfathered as a permitted conditional tourist use.

Were plaintiffs on remand to establish the truth of their allegation that at least 53 of their 62 rooms should be grandfathered as a permitted conditional tourist use, it is certainly plausible that they would not undertake the permitting process for the remaining handful of rooms. Without a remand, however, the majority has approved a procedure in which plaintiffs, no matter the number of rooms sought to be converted, are obligated to pay $567,000. It is difficult to imagine how such a scheme satisfies even the most lax of constitutional tests.

The majority’s resolution of this hotly disputed issue is, to put it charitably, unclear. The majority begins by declining to wade into the fray, insisting that it is unnecessary to resolve whether the City Planning Commission properly considered the HCO to be a legal restriction on tourist use of the hotel since “the critical issue in this case is not the lawfulness of the historical tourist use, but its extent.” (Maj. opn., ante, at p. 660.) Later on, however, the majority appears to leave the sidelines and adopt the City’s newly minted position, rejecting plaintiffs’ effort to have prior tourist use grandfathered as a permitted conditional use “because plaintiffs’ tourist use of the hotel was, as required under the HCO, temporary and subject to preemption by residential demand..” (Maj. opn., ante, at p. 662.) If the latter statement represents the majority’s true views, the majority ought in all fairness explain why the city attorney, the zoning administrator, and the Court of Appeal (see Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892, 902 [223 Cal.Rptr. 379] [HCO “does not regulate land use in the same manner as zoning laws”]) all are wrong about the role of the HCO in determining whether a permitted conditional use has been established.

I do not assume, as the majority suggests, “that conditional use permits are issued on a room-by-room basis.” (Maj. opn., ante, at p. 662.) I do, however, agree with the quotation in the text from the majority that, in classifying uses for zoning purposes, we must consider separately each use in a multiple-use structure. The need for a conditional use permit, in other words, is determined on a room-by-room basis—as the majority acknowledges. (See maj. opn., ante, at p. 660 [affirming the need for a conditional use permit “[e]ven as to those rooms that had, on occasion, been lawfully rented to tourists . . . .”].)

It is unclear whether the critical date is in 1987, when the neighborhood commercial district ordinance took effect, or in 1982, when interim measures first took effect (and before plaintiffs resumed operation of the hotel), or some date in between. (See maj. opn., ante, at p. 659.) Because the selection of the appropriate effective date may depend in part on the evidence adduced by plaintiffs demonstrating an existing tourist use, it would be premature to resolve the issue here. Inasmuch as the parties agree that the relevant effective date lies somewhere between 1982 and 1987, the purpose of the majority’s discussion of usage rates between 1988 and 1991 (see maj. opn., ante, at pp. 654-655, 659-660) is lost on me.

Justice Chin cogently explained the meaning of Dolan’s footnote 8 in his dissenting opinion in Santa Monica Beach, supra, 19 Cal.4th at pages 1020 through 1021.

The City misperceives the applicable standard to be “akin to the rational basis test.”

The Court of Appeal found that plaintiffs had properly alleged a physical taking in the complaint. The City disagrees, and urges us to reverse the Court of Appeal. On this, as with the remaining causes of action in the complaint, the majority is silent.

The federal court deemed this claim unripe because state remedies for inverse condemnation on this claim were available. (The San Remo Hotel v. City and County of San Francisco, supra, 145 F.3d at pp. 1101-1102.) The majority’s decision to affirm the judgment sustaining the demurrer without even mentioning this claim casts grave doubt on the correctness of the federal court’s understanding of state remedies—and thus will have repercussions on ripeness far beyond this case.

Since the Court of Appeal, having ordered a remand to permit plaintiffs to prove up a legal nonconforming use, found it unnecessary to reach the preemption claim, it is not surprising that plaintiffs did not use their answer to the review petition to seek our review of this issue—or of the other unrelated issues that had not yet been resolved in the litigation. What is surprising is the majority’s rush to have this court, in the first instance, opine on a number of constitutional issues in this difficult area of law despite the existence of an unaddressed, nonconstitutional basis for decision. The majority’s eagerness to discard cherished views of judicial restraint (see, e.g., People v. Hernandez (1998) 19 Cal.4th 835, 843 [80 Cal.Rptr.2d 754, 968 P.2d 465] (cone. opn. of Werdegar, J.); People v. Bennett (1998) 17 Cal.4th 373, 393 [70 Cal.Rptr.2d 850, 949 P.2d 947] (conc. opn. of Werdegar, J.)) merely to *691facilitate an abrupt and unsolicited termination of this litigation in the City’s favor is puzzling.