In the latest in a long line of cases challenging the constitutionality of San Francisco's hotel conversion laws, the Ninth U.S. Circuit Court of Appeals has sent one hotel owner back to state court. The case involves the longstanding attempt by the owners of the San Remo Hotel to have the city officially recognize their hotel as a tourist hotel. San Francisco has had strict restrictions against the conversion of residential hotels to tourist use in place for almost twenty years. When the first "hotel conversion ordinance" was passed in 1979, the San Remo Hotel in North Beach was operating as a tourist hotel. However, when Thomas and Robert Field began operating it in 1984, it was classified as a residential hotel. Under a 1987 zoning law for North Beach, new tourist hotels require conditional use permits, while existing tourist hotels were classified as non-conforming uses. In 1990, the Fields requested under the hotel conversion ordinance that their hotel be officially re-classified as a tourist hotel. Because of the 1984 classification, however, the San Remo was never listed by the city as a non-conforming use and therefore the Fields were required to obtain a conditional use permit under the North Beach zoning ordinance. Field first contended before city administrative agencies that he did not need a conditional use permit because his property was a non-conforming use that pre-dated the 1987 zoning ordinance. However, the Board of Permit Appeals rejected this argument, claiming that Field was bound by the residential classification under the hotel conversion ordinance and therefore required a conditional use permit. In 1993, the Planning Commission approved Field's request for a conditional-use permit, provided that Field paid 40% of the cost of replacement units to make up for the loss of the 62 residential units and that Field offered lifetime leases to existing long-term tenants. Field then sued the city in federal court under 42 U.S.C. 1983, the federal civil rights law, claiming that the hotel conversion ordinance (as amended in 1990), was unconstitutional both on its face and as applied in this case and seeking damages. Field also argued that the 40% fee was a violation of both procedural and substantive due process. In 1996, U.S. District Court Judge Lowell Jensen ruled against Field and also refused him permission to amend the complaint to state an equal protection claim, reasoning that it would be futile. Field later dropped the due process claims but appealed Jensen's ruling on the constitutionality issues. In addition, the Fields argued on appeal that under the so-called "Pullman abstention", the federal courts should refrain from deciding the takings question - a strategy usually undertaken by government agency defendants seeking to avoid federal court, rather than plaintiffs. On appeal, the Ninth Circuit panel ruled against the Fields on both the facial and as-applied takings cases - ruling that the case was not ripe for federal review under Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1994). Regarding the facial challenge, the court wrote: "Field has not filed an inverse condemnation action in state court, and therefore has not been denied compensation by California. It follows that Field's facial takings claim - insofar as it alleges the denial of the economically viable use of his property - is unripe." This is especially true, the court said, in light of the famous First English Evangelical Lutheran Church v. County of Los Angeles case, 482 U.S. 304 (1987), which re-established inverse condemnation claims in California state courts. Similarly, on the as-applied taking claim, the Ninth Circuit concluded that the claim was not ripe because the Fields had not pursued an inverse condemnation claim in state court. Regarding Judge Jensen's denial of Fields' attempt to add an equal protection claim - which arose after the Fields conceded defeat on the due process claims - the court concluded that such an amendment would have been futile under Younger v. Harris, 401 U.S. 37 (1971). Finally, the court granted the Fields unusual request - unusual for a plaintiff, at least - that the federal courts abstain from deciding the takings issue under Railroad Comm'n v. Pullman, 312 U.S. 496 (1941). The Pullman abstention requires the plaintiff to require a definitive ruling in state courts regarding state law before returning to federal court. It is typically used by government agencies that are defendants as a mechanism for removing cases from unsympathetic federal courts. "Unsurprisingly," the Ninth Circuit panel wrote, "the City views Field's request for abstention as an outrageous act of chutzpah, and argues that Field should be stuck with the federal forum he chose. Although we have some sympathy for the city's position, we agree with Field that a plaintiff may raise Pullman abstention just as a defendant may, and he may do so for the first time on appeal." However, the court concluded that the Pullman abstention "does not exist for the benefit of either of the parties but rather than for the rightful independence of the state governments and for the smooth working of the federal judiciary....There is no reason why federal defendants should have a monopoly on preserving the harmonious functioning of the federal and state court systems." On the merits of the Pullman issue, the court concluded that the case hinges on an interpretation of the city's ordinance - specifically, "the meaning of a prior non-conforming use under state law," which the Ninth Circuit concluded is properly a question for California state courts. The Case: San Remo Hotel v. City and County of San Francisco, No. 96-16843, 98 Daily Journal D.A.R. 5827 (issued June 3, 1998). The Lawyers: For San Remo Hotel and the Fields: Andrew M. Zacks and Paul F. Utrecht, (415) (821-0347 For City and County of San Francisco: Andrew Schwartz, Deputy City Attorney, (415) 554-3800.