written by
Terrence Jones

If Tenderloin residents can’t leave their buildings or
access local merchants because of tent- and syringe-covered
sidewalks, should the city be held responsible?

If you are not familiar with the with UC Hastings lawsuit against the city of San Francisco, you are not alone. The basics of the suit and subsequent settlement focused on the city allowing the Tenderloin district to become a wasteland of tents, crime, drugs, and drug dealers. The lawsuit, while limited in scope to the Tenderloin, has broad implications for the entire city and county of San Francisco.

There are those who assert that the Tenderloin has always been seen by the city as a “containment zone” for illegal drug sales, drug use, and homeless people. Adherents to this view would argue that the city tolerates, and even implicitly supports and condones, negative behaviors that would not be accepted in more affluent neighborhoods. It is widely known that the BART station brings in drug dealers for their daily delivery runs into the Tenderloin. However, in the last six months since the shelter-in-place order took effect, the containment zone has become more of an unregulated favela with an explosion of homeless campers peaking at approximately 460 tents in May 2020.

The Hasting suit is instructive. In their filing, Hastings cited the reactions of potential students, many of whom chose not to accept their admissions offer due to the danger surrounding the Hastings campus, amplified by the lack of social distancing in the COVID-19 pandemic. The deterioration of sidewalk conditions was also noted in the experiences of the five co-plaintiffs who joined the suit, among them the Tenderloin Merchants Association. There is little disagreement among residents and merchants that the situation is untenable. The hazards posed to the elderly, vulnerable, and families who were essentially trapped inside their apartments and SRO units were palpable. The sidewalks had become campgrounds lacking basic sanitation, littered with syringes. The lawsuit also noted the prevalence of rampant open drug dealing.

Hastings did not seek monetary damages or attorney fees from the city in the suit. The attorneys, all UC Hastings alums, made their time available on a pro bono basis and they volunteered to prepare, research, and file the lawsuit. The ultimate settlement with the city stipulated that the city would make its best efforts to completely and permanently remove the tents and transfer the homeless to hotels or safe campgrounds. Further, they agreed that the SFPD would enforce drug laws uniformly across the city. But the settlement acknowledges that the use of litigation has its limits when it comes to the exercise of discretion by duly elected officials. In other words, the voters must ultimately make the judges and the District Attorney accountable.

The city’s legal obligations with regard to compliance with statutes and ordinances related to public nuisance, negligence, and the Americans with Disability Act (ADA) are much more prescriptive. The city and county of San Francisco actually own the sidewalks outside the buildings in the city. So, if residents cannot go outside their buildings because the sidewalks are covered with tents, the city is ultimately responsible. If you are fortunate enough to have a functioning business and people cannot come and go to buy groceries or do laundry because the door is blocked, that is considered a public nuisance.

After monitoring of the dynamics surrounding the litigation, I concluded that the primary opposition to the suit came from two constituencies. First, there were some members of the Board of Supervisors who expressed the fear that if the suit was successful, then copycat lawsuits would emerge throughout the city that would come with a significant cost. This is a real concern as the city is looking at a $2 billion deficit, and they are hoping the bonds in November cover the holes in the budget. So far, we have seen a few lawsuits with the Mid-Market merchants plus another likely suit soon to be filed, coming out of the Castro district. The second opposition group is the Coalition on Homelessness, which has led efforts to broadly oppose the settlement, despite the fact that many of the unhoused have been able to secure hotel rooms and other accommodations through this settlement, getting many human beings in need off the streets and into real shelter.

The settlement passed on a vote of 7-4 with the Board of Supervisors. Supervisors Hilary Ronen (D9), Shamann Walton (D10), Dean Preston (D5) and Aaron Peskin (D3) voted against it. Three of the 4 no votes are up for re-election in November.

This author certainly feels empathy, compassion, and concern for those people who are forced to live on the street. There are many people in need of housing and help in the city of San Francisco. We live in a complicated city and building more housing is one possible solution. I also feel that San Francisco spends more and more money each year to perpetuate what some refer to as the “Homeless Industrial Complex.” Stepping outside the COVID-19 shelter-in-place situation, on a macro long-term basis, we have not seen a reduction in the number of people living on the streets, despite the continued increase in funding over the past few years. It seems that the more money spent on the problem, the larger the unhoused and tent populations grows.

Another real issue is public safety as a result of these tent cities. I do not mean only the spread of COVID-19, but there is widespread speculation that the causes of the two massive fires at Pier 45 (May 25) and at 14th and Folsom (July 28) were from campfires. The merchants I talked to at Fisherman’s Wharf suspected that the Pier 45 fire was a campfire because a homeless person had actually been seen making fires nearby. After three months of investigation by the fire department, there is still no official cause for the Pier 45 fire. The response I got from Lt. Jonathan Baxter of the San Francisco Fire Department was that the “fire is under investigation.” In late August, I checked on the 14th and Folsom fire site and the burned area has been completely razed. All that is left of the four buildings are their fire-blackened foundations. The day before the fire, there was a camp mattress fire on the sidewalk in front of that site that was put out by the fire department. To this day, the fire has no official cause. As we saw in the great earthquake of 1906, fire was more devastating than the actual earthquake. I certainly do not think open flames on the street is a good idea.

What does the future hold for lawsuits to get the city politicians to act to protect residents and merchants in San Francisco? Only time will tell. It seems to me that lawsuits are a fair offset to the supervisor’s ability to put items on the ballot with just a few signatures because, in their opinion, their “cause” must be made into law. I once asked the city attorney why supervisors move forward with laws that are likely to be overturned in the courts and gave examples of many anti-real estate owner laws that have been overturned in San Francisco. His response was, “We advise them, but they are not obligated to heed our office’s advice.”

My advice to owners of real estate in the city is to get involved in the neighborhoods where your investments are to see if there are opportunities to change the dialogue from protecting the homeless and the tenants to a dialogue of protecting everyone, including the landlords and building owners in San Francisco.

Terrence Jones is a Senior Broker Associate with  Corcoran Global Commercial. He can be contacted at (415) 786-2216 or [email protected]