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SF mayor, county may seize private buildings for coronavirus relief

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City Attorney Dennis Herrera says there’s broad power to commandeer buildings and land during an emergency

US-CALIFORNIA-HOMELESSNESS-TECH-SANFRANCISCO Photo by Josh Edelson/AFP via Getty Images

San Francisco’s civic government can seize seemingly any privately-owned land or buildings as part of its effort to protect people from the COVID-19 outbreak.

In fact, according to San Francisco City Attorney Dennis Herrera, there are few limits on what certain public office holders may do with private property at a time like this.

In a memo issued this week—a response to queries from unnamed parties at City Hall—Herrera explains the process for commandeering properties, and the rules by which SF must abide if it takes this extreme step.

Among the city attorney’s conclusions:

  • Under state and local law, the mayor has broad authority to confiscate private property by issuing a formal written statement to the owners (a “commandeer order”), but only during a sufficiently compelling emergency that constitutes “unusual circumstances calling for immediate action.” The mayor must also get the assent of the Board of Supervisors before seizing any private holdings.
  • The county health officer, an obscure role that gains potentially sweeping power during an emergency, can also commandeer property. In fact, the health officer has even more power in these matters, as the Board of Supervisors does not provide any check on this office. “The health officer may [...] take any measure necessary to prevent the spread of an infectious disease,” says Herrera. This is according to the California health and safety code, which states “the health officer may take any preventive measure” to protect the public during a sufficiently compelling health crisis, including property seizure.
  • Despite the broad power that Herrera acknowledges in these offices, there are limits. Under the law, the city must “narrowly tailor” such acts, and must compensate the property owner by paying the “fair value” of the assets taken. The law does not specifically define either of those terms, which leaves quite a lot of room for interpretation; however, given the very high likelihood of litigation after the fact, the language does incentivize a soft-touch approach to exercising emergency powers.
  • If a property owner doesn’t comply with a commandeer order, it can result in fines of up to $1,000 per day, jail time, or both. “Each day the violation continues is a separate offense under state law,” notes Herrera.

The memo does not detail precisely why Herrera’s office is fielding this request now, but it’s almost certainly to do with an emergency order this week from the SF Board of Supervisors demanding that Mayor London Breed’s administration secure 7,000 hotel rooms to house the city’s homeless population during the COVID-19 outbreak.

The measure passed unanimously, after weeks of jockeying between lawmakers and the mayor’s office about how best to protect homeless populations during the public health emergency.

Thus far the city has opted to rent the rooms from hoteliers, at potentially great expense. City Controller Ben Rosenfield estimates that the bill for 7,000 rooms could run up to $105 million over 90 days, although it’s likely that federal disaster relief would cover more than half that sum.

If hotels don’t want to play ball and Breed is willing to risk potential lawsuits, Herrera’s memo provides another way to secure housing in a hurry. The mayor has until April 26 to obtain enough rooms.

Representing the kind of legal challenges SF might face, real estate lawyer Bryan Wenter responded to Herrera’s memo alleging that although Breed et al. do indeed have extensive emergency powers right now in the memo “says nothing about what due process requires, much less acknowledges the existence of constitutional limits” on that authority

While a variety of national laws allow for the government to take private property, the U.S. Supreme Court has in the past overruled or narrowed the scope of such powers in certain rulings.