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October 29, 1996

October 29, 1996B>

 

 

 

MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,

Tuesday, October 29, 1996 at 5:30 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level

  1. Call to Order

    President Becker called the meeting to order at 5:40 p.m.

  2. Roll Call

    Commissioners Present: Becker; Bierly; Lightner; Marshall; Moore; Mosser; Murphy; Palma; Wasserman.
    Commissioners not Present: Gruber.
    Staff Present: Grubb; Wolf.

  3. Approval of the Minutes

    MSC: To approve the Minutes of October 15, 1996 with the following typographical correction: In the summary concerning the case at 4314 - 17th St. (R001-17A), the second sentence should read as follows: "The tenant’s failure to repair claim was denied because it was untimely filed." (correction underlined)

    (Marshall/Wasserman: 5-0)

  4. Remarks from the Public

    Robert Pender of the Tenants’ Network distributed a copy of an "Affordable Housing" newsletter to the tenant Commissioners only and invited them to attend the next meeting of the Tenants’ Network.

  5. Consideration of Appeals

    1. 1600 Larkin St. #104 R001-47R (cont. from 10/15/96)

      The landlord’s petition for certification of the costs of bathroom renovation necessitated by dry rot was granted, resulting in a capital improvement passthrough in the amount of $180.70 to the tenant in one unit in the building. On appeal, the tenant alleged that the work was in the nature of repair, and not capital improvement; that he failed to vigorously contest the passthrough at the hearing because he assumed that the hearing officer would agree with his depiction of the work as necessary repairs; and that the work was necessitated by the current landlord’s deferred maintenance. Since the tenant had expressed concern at the hearing over his ability to pay the passthrough, and stated in his appeal that he is a senior citizen, at the meeting on October 15th the Commissioners denied the appeal on substantive grounds but continued the matter in order to staff to contact the tenant and see if he wished to pursue a hardship appeal. As the tenant failed to submit a Hardship Application, no further action was taken regarding this case.

    2. 320 Turk St. #408 R001-23A

      The tenant’s petition alleging substantial decreases in housing services was granted and the landlord was found liable to the tenant in the amount of $765.00 due to a lack of heat; mold, mildew and dampness on the walls of the unit; and sporadic elevator service. The landlord failed to appear at the hearing and alleges on appeal that this was due to the Notice of Hearing having been lost by a new property manager his first week on the job. The landlord accepts the majority of the hearing officer’s findings but asks that the Board reduce the amount of the rent reduction for the lack of heat because the repair was effectuated as of November 22, 1995, rather than the end of December.

      MSC: To deny the appeal. (Marshall/Becker: 5-0)

    3. 1555 Greenwich St. #11 R001-49R

      The landlord’s petition for certification of capital improvement costs and rent increases based on increased operating expenses for ten of twelve units in the building was granted. One tenant appeals the decision, alleging financial hardship. The Commissioners had several questions regarding the information provided in the tenant’s Hardship Application and continued consideration of this case to the next Board meeting in order for staff to contact the tenant.

    4. 2699 Bryant St. R001-50R

      The landlords’ petition for certification of capital improvement costs was granted, in part, resulting in a passthrough in the amount of $124.07 to one unit in the building. The tenant of that unit appeals, asserting that: the majority of the work performed was necessitated by the negligence of upstairs tenants who have since vacated the unit; repeated water leakages from the upstairs tenants resulted in deferred maintenance resulting in code violations; tenants should not be responsible for paying for work necessary for habitability; certain of the costs for the work are unreasonably high; the heating system purchased by the landlord is unnecessarily elaborate and a luxury item; and that there has been a decrease in housing services due to the conditions that necessitated the work. The tenant appellant did not appear at the hearing and claimed on appeal that he is a City Housing Inspector and was required to testify in Superior Court on the day of the hearing. The Commissioners continued this matter in order for staff to contact the tenant and ask him to provide documentation of the court appearance; an explanation as to why he failed to request a postponement of the hearing; and the reason why his wife also failed to appear.

    5. 2450 Lake St. #2 R001-52R

      The tenant’s petition alleging substantial decreases in housing services was denied, for the most part, except for a $10 per month rent reduction for a two-month period due to a broken bedroom light switch. The parties have been involved in numerous prior cases in which rent reductions were granted for pest infestation and drainage problems in the unit, which were found to have been abated by the landlord. In the instant petition, the tenant raised these problems again but the hearing officer found that there was no evidence to prove that the problems had not been corrected or had resurfaced. On appeal, the tenant maintains that there are still problems with cockroaches, sewage backup and blocked drains.

      MSC: To accept the appeal and remand the case to a different hearing officer for a new hearing. (Marshall/Becker: 5-0)

    6. 572 San Jose Ave. R001-51R

      This case involves a Proposition I Affected Unit. The tenant’s petition alleging unlawful increases in rent due to capital improvement passthroughs not having been discontinued and having been improperly included in base rent was denied due to the equitable defense of laches; the hearing officer found that the tenant had been a party to the capital improvement certification proceedings and had waited too long to assert this claim. The landlord’s petition for a rent increase based on comparable rents was granted, resulting in a rent increase for the unit in the amount of $312.60 (from $339.00 to $651.60). On appeal, the tenant asserts that the hearing officer erred and abused her discretion in the following respects: since the landlord did not make the building his principal place of residence in good faith and with honest intent, this is not a Proposition I Affected Unit; since the tenant’s family has occupied the unit since 1966, tenancies commencing prior to 1979 should have been considered; the tenant’s comparables evidence, including comparison of the subject unit to itself, was superior to that provided by the landlord; the delays in scheduling of the hearing and issuance of the decision were prejudicial to the tenant; laches should not apply, since the tenant did not know that the capital improvement passthrough should have been discontinued and the landlord has unclean hands; and the decision creates a financial hardship for the tenant, especially considering the large retroactive amount owed.

      MSC: To recuse Commissioner Becker from consideration of this appeal. (Lightner/Palma: 5-0)

      MSF: To accept the appeal and remand the case for a new hearing on the issues of: whether the landlord resided in the unit in good faith such that this is a Proposition I Affected Unit; laches, because the notices of rent increase didn’t separate out the capital improvement passthrough amounts; rents for comparable units prior to 1979; and tenant hardship, if necessary. (Marshall/Moore: 2-3; Lightner, Mosser, Palma dissenting)

      MSC: To accept the appeal and remand the case for a hearing on the issue of tenant hardship. (Lightner/Mosser: 4-1; Palma dissenting)

      MSC: To reconsider the prior motion because Commissioner Marshall mis-heard the motion and misunderstood what was being voted on. (Marshall/Moore: 3-2; Lightner, Mosser dissenting)

      MSF: To accept the appeal and remand the case for a hearing on the issue of tenant hardship. (Mosser/Lightner: 2-3; Marshall, Moore, Palma dissenting)

      MSC: To accept the appeal and remand the case for a hearing on the issue of tenant hardship; and to state that, in similar cases, the issue of good faith owner occupancy and ulterior motive shall be examined in determining whether the unit qualifies as Proposition I Affected. (Palma/Marshall: 3-2; Lightner, Mosser dissenting)

    7. 99 Jersey St. #1 - 12 & 14 - 16 R001-24A

      This case involves 19 tenant petitions alleging decreased housing services due to inadequate heat, which was remanded pursuant to the Order of the Superior Court. In the original decision in this case, the hearing officer granted rent reductions in the amounts of either $100 or $125 for the winter months from November 1992 and on-going because the majority of the tenants had proved that, although the heating sources provided by the landlords were in compliance with code requirements, the amount of heat generated was insufficient. The landlord’s appeal, which was denied by the Rent Board Commissioners, asserted that the hearing officer’s finding that the heat was inadequate was contradicted by the sworn deposition of a building inspector; that rent reductions were inappropriate because there was no violation of health or safety codes; and that the decision promulgates confusion because the landlords have no way of knowing what would be considered adequate under the circumstances. Upon the landlord’s Writ of Administrative Mandamus having been granted, the case was remanded to the hearing officer by the Board "for consideration, upon the record or after a hearing, of the August 2, 1994 deposition of David Gogna and to determine the amounts owed, if any."

      In the instant decision, the hearing officer found that the deposition of the housing inspector shed little light on the matter, nor did it persuade her to rule differently, and the rent reductions granted in the original decision were upheld. The landlord appeals the Decision on Remand, asserting that: the hearing officer should have taken the fact that roofing insulation has been added to the building into account in determining the sufficiency of heat; the requirement that these landlords do more than comply with City housing codes constitutes disparate treatment; the hearing officer gave great credence to the tenants’ expert witness, who is unfamiliar with San Francisco code requirements, but gave little consideration to the landlords’ witness, a City building inspector; and the commencement date for the rent reductions should be February, 1993, rather than the fall of 1992, since that is when the Department of Building Inspection re-opened the case and the owners received notice that there was a problem with heat adequacy.

      MSC: To deny the appeal. (Marshall/Becker: 3-2; Lightner, Mosser dissenting)

  6. Public Hearing

    From 8:50 to 8:51 p.m., the Board held a Public Hearing regarding proposed amendments to Rules and Regulations Sections 11.15, 11.20 and 11.21, which would codify the Board’s Mediation Project. Only Robert Pender of the Tenants’ Network testified, stating that he believed that the Regulations should specifically say "mediate in good faith."

  7. Communications

    In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:

    1. Re-drafted Notice of Mediation Session and Summary of the Mediation Program and revisions to Rules Sections 11.15, 11.20 and 11.21 codifying the Mediation Project.

    2. A letter from Janan New, Executive Director of the San Francisco Apartment Association, expressing that organization’s support for the Rent Board’s Mediation Project.

    3. A copy of Assembly Bill 3244 (Hawkins), which amends Assembly Bill 1164 (Costa-Hawkins), showing the changes effectuated by the recently enacted legislation.

  8. Old Business

    1. Mediation Project

      The Commissioners continued their discussion of the Rent Board’s Mediation Project and requested that the Notice of Mediation Session and Rules and Regulations be revised to make it clear that if a mediation is unsuccessful, the case will go to arbitration with a different Hearing Officer. Additionally, Commissioner Becker requested monthly statistics showing settlement outcomes, particularly the number of decrease in services petitions that are settled without monetary reimbursement to the tenant. It was agreed that, in cases where settlements include an agreement to vacate by the tenant, there will be a one week "cooling-off period" during which the tenant can change his or her mind; and all adult occupants of a unit must sign any such agreement. Staff will incorporate the above agreements into the Executive Summary of the Mediation Project and provide draft language to effectuate the "cooling-off period" for the Board’s approval at the next meeting.

  9. Director’s Report

    Executive Director Grubb reported as follows:

    1. There have been problems with the Rent Board’s automated voicemail system for the past week, which have led to gaps in service and frustration for the public and staff alike.

    2. The Mayor’s Office has provided all Commissioners with a Notification of Absence form which should be completed and provided to the Mayor’s Office any time they will be out of State.

    3. Debra Hayes, Chief of the Special Prosecutions Unit of the District Attorney’s Office, provided the Board with a written summary of their office’s involvement in Rent Board referrals regarding eviction cases and Molinari notice filings.

  10. Old Business (cont.)

    Due to the lateness of the hour, the issues of possible further amendments to Rules Section 6.14 necessitated by the passage of AB 3244 and codification of the Board’s Artist Live/Work Policy were continued to the next meeting.

  11. Remarks from the Public (cont.)

    Miguel Wooding stated his belief that any agreement to vacate a unit should be tenant-initiated in the context of a mediated agreement. A landlord expressed concern regarding the "illegal" vote that was taken concerning the appeal of 572 San Jose Ave. (R001-51R) in that a motion was made and carried, but the vote was subsequently reconsidered and overturned.

  12. Calendar Items

    November 5 & 12, 1996 - NO MEETINGS

    November 19, 1996 - 6:00 p.m.

    6 appeal considerations (2 cont. from 10/29/96)

    Old Business:

    1. Mediation Project

    2. Rules and Regulations Section 6.14 (Assembly Bill 3244)

    3. Artist Live/Work Policy

    November 26, 1996 - NO MEETING

  13. Adjournment

    President Becker adjourned the meeting at 10:15 p.m.

Last updated: 10/9/2009 11:26:12 AM