February 01, 2000p>
MINUTES OF THE REGULAR MEETING
OF
THE SAN FRANCISCO RESIDENTIAL
RENT
STABILIZATION & ARBITRATION
BOARD,
Tuesday, February 1, 2000 at 6:00 p.m.
at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call to Order
President Wasserman called the meeting to
order at 6:10 p.m.
II. Roll Call
Commissioners Present: Becker;
Bierly; Gruber; Lightner; Marshall; Mosser; Murphy;
Wasserman.
Commissioners not Present: Hobson;
Justman.
Staff Present: Grubb;
Wolf.
III. Approval of the Minutes
MSC: To approve the Minutes of January
18, 2000.
(Becker/Lightner: 5-0)
IV. Consideration of Appeals
A. 572 San Jose Ave. U001-78R
The landlords petition for certification
of capital improvement costs to one of two units was granted, resulting in
a monthly passthrough in the amount of $52.48. The tenant appeals on the grounds
of financial hardship.
MSC: To deny the appeal. (Gruber/Lightner:
3-2; Becker, Marshall dissenting)
B. 807 Ashbury #6 U001-53A
The landlords petition for certification
of capital improvement costs to one out of six units was granted, resulting
in a monthly passthrough in the amount of $166.24. The landlord appeals, asserting
that: he should not be restricted to the imputed interest rate, since the
work was financed with a loan at the rate of 10.5%; imposition of the 10%
cap on the passthrough contained in Rules Section 7.12(d) denies him a fair
return on his investment, is unconstitutional and sufficient extraordinary
circumstances exist in this case to warrant relief from the cap; he is entitled
to make a profit on the capital improvement investment, in addition to recovering
the costs; and a "zero dollar return" on capital improvements constitutes
a taking.
After discussion, it was the consensus of the
Board to continue this case in order for the Administrative Law Judge to provide
the Commissioners with a Memorandum explaining why she was unable to trace
the loan proceeds to payment for the capital improvement work; for staff to
provide calculations as to the length of time it would take to phase in the
passthrough if the cap were increased to 12 or 15%; for the tenant to furnish
information regarding her claim of financial hardship should the amount of
the passthrough be increased; and for the parties to provide a copy of the
1992 Decision regarding a comparables increase for this unit, if available.
This case will be put on the March 21st Board meeting calendar.
C. 201 Chesnut #D U001-54A
The tenants petition alleging substantial
decreases in housing services was granted only as to full use of the deck,
and the landlord was found liable to the tenant in the amount of $1,500.00.
On appeal, the landlord claims that the subject housing service is not a "deck"
but, rather, a walkway provided for cleaning the windows and use as storage.
MSC: To deny the appeal. (Marshall/Becker:
3-2; Gruber, Lightner dissenting)
D. 201 Chesnut #E & F U001-55A; U001-81R
The tenants appeal was filed almost
two months late because, at the time the decision was issued, the tenant had
no way of knowing that the landlord would continue to deny her the right to
have a replacement roommate.
MSC: To find good cause for
the late filing of the appeal. (Marshall/Becker: 5-0)
The tenants petitions alleging substantial
decreases in housing services were granted, in part. Both tenants were granted
monthly rent reductions in the amount of $100.00 due to loss of use of their
decks, and the tenant in unit #F was granted a prospective $100 rent reduction
from such time as he vacates the garage; the tenant in unit #E was granted
a $100.00 monthly rent reduction for loss of one parking space, as well as
having her rent halved for a twelve-month period during which the landlord
withdrew the right to sublet. On appeal, the landlord maintains that the tenant
in unit #E was never rented more than one off-street parking space, which
she still has; that tandem parking at the subject property is illegal; that
the tenant voluntarily gave up the tandem space for the parking space she
now has; and that the tenant has failed to pay rent for use of the garage
since July of 1999. As to the tenant in unit #F, the landlord alleges that
he received a carport space of equal value. The landlord additionally claims
that the subject decks are merely walkways meant to be used for window cleaning;
and that the rent reductions are proscribed by the Golden Gateway decision.
As to the rent reduction for loss of the right to sublet, the landlord claims
that the tenant had no right to have additional roommates prior to service
of the notice of change of terms of tenancy; and that the original lease included
non-waiver language. The tenant in unit #E also appeals, claiming that the
rent reduction should be continuing, because the landlord has failed to respond
to her repeated requests for permission to obtain a roommate.
MSC: To accept the tenants appeal
and remand the case for a hearing on the issue of whether the rent
reduction for the landlords unreasonable withholding of consent
to a replacement roommate should be continuing. To accept the landlords
appeal and remand the case to the Administrative Law Judge on the
following issues, which shall be consolidated with the hearing on
the tenants appeal: to determine whether the facts in this
case regarding the tandem parking spaces are the same as those in
Case No. T990303 and, if so, to make the Conclusions consistent
with those in Case No. T990303; to determine whether the storage
spaces were merely swapped, and to consider the allegations raised
in the landlords appeal as to this issue; to issue a Technical
Correction as to the amount owing to the tenant in unit #F; and
to deny the landlords appeal on the deck and subletting claims.
(Wasserman/Marshall: 4-1; Gruber
dissenting)
E. 1216 - 38th Ave. U001-56A: U001-85R
The landlords petition for certification
of capital improvement costs to one of two units was granted, resulting in
a monthly passthrough in the amount of $35.84. On appeal, the landlord asserts
that the 6-Month Rule (Rules Section 7.12{b}) should be waived because the
tenant himself requested that the new kitchen sink and counter be installed.
The tenant appeals on the grounds of financial hardship; claims that the rear
exterior siding should not have been certified because of the landlords
deferred maintenance; and asserts that the landlord is forcing him to remove
his possessions from the back yard.
MSC: To accept the landlords appeal
and remand the case for a hearing only on the issue of whether the
tenant asked for the kitchen sink and counter work to be done and,
if so, the 6-Month Rule shall not apply; to deny the appeals as
to all other issues.
(Marshall/Becker: 5-0)
F. 36 Divisadero St. U001-80R
The tenants petition alleging unlawful rent
increases was granted and the landlord of this Proposition I Affected Unit
was found liable to the tenant in the amount of $7,858.00. On appeal, the
landlord asserted: that the increase was lawful at the time it was given;
that it was issued prior to the retroactive rollback provisions of Proposition
I; and that it is an impermissible penalty to declare a rent increase invalid
if it was proper at the time of service of the notice of rent increase. At
the meeting on April 6, 1999, the landlords appeal was accepted and
the case was remanded to consider any equitable issues. The Decision on Remand
upholds the original decision, because the Administrative Law Judge held that
the landlord had presented no evidence or legal basis on which to alter the
original decision on equitable grounds. The landlord again appeals, asserting
that: Proposition I was improperly retroactive in that it impaired an existing
contractual relationship and deprived the landlord of a vested right; State
law provides that a landlord who acts in good faith shall not be penalized
for failure to comply with a rent control Ordinance; and the Decision is unfair
and creates a hardship for the landlord.
MSC: To deny the appeal. (Becker/Marshall:
5-0)
G. 3149 California St. #2E U001-81R
The tenants petition alleging a substantial
decrease in housing services due to inadequate heat was granted, and the landlord
was found liable to the tenant in the amount of $275.00. On appeal, the landlord
maintained that the Decision contained misstatements of fact and errors of
law; that a Notice of Violation from the Department of Building Inspection
had to do with conditions that did not affect the supply of heat to the unit;
and that the tenant should not be considered credible due to a history of
alleged harassment toward management and other tenants in the building. The
landlords appeal was accepted and remanded for a new hearing in order
for the tenant to meet her burden of proving the heat to have been deficient.
The tenants petition was subsequently dismissed due to her failure to
appear at the properly noticed remand hearing. On further appeal, the tenant
provides documentation that her attorney had a scheduled jury trial at the
same time as the remand hearing; contends that her request for postponement
should have been granted; and argues that the landlords original appeal
was untimely and, therefore, the Original Decision of Hearing Officer should
be reinstated.
MSC: To accept the appeal and remand
the case for a new hearing. (Becker/Marshall: 4-1; Gruber dissenting)
H. 801 Jones, Apt. 311 U001-82R
The landlords petition for a rent increase
from $190.00 to $674.17 based on comparable rents was granted. The tenant
appeals on the grounds of financial hardship, and also asserts that the tape
recordings of the two hearings in this matter are defective, and that documents
are missing from the files.
MSC: To deny the appeal. (Gruber/Lightner:
4-1; Becker dissenting)
I. 227 - 7th St. U001-32A
(cont. from 11/23/99)
The tenants petition alleging decreased
housing services in this live/work unit was granted, in part, and the landlord
was found liable to the tenant in the amount of $5,530.00. On appeal, the
landlord explained his failure to appear at the hearing because of a pressing
business commitment; and asserted that the relevant lease agreement between
the parties is commercial and places responsibility for certain repairs on
the tenant.
After discussion, it was the consensus of the
Board to continue consideration of this case in order for staff to contact
the landlord and obtain a Declaration Under Penalty of Perjury and documentation
regarding the alleged business commitment that prevented him from appearing
at the hearing.
MSC: To accept the appeal and
remand the case for a new hearing. (Lightner/Gruber: 5-0)
J. 331 Waller St. U001-79R
The tenants petition alleging substantially
decreased housing services was granted, and the landlord was found liable
to the tenant in the amount of $917.50 through April 1999, the last month
the tenant paid rent. On appeal, the tenant claims that: the street door to
the premises still has not been fixed; notice was provided to the landlord
regarding the problem with the front door pursuant to the Notice of Violation
issued by the Department of Building Inspection; and the Administrative Law
Judges valuations regarding lack of security and bathing facilities
are not commensurate with the extent of the problems.
MSC: To deny the appeal. (Lightner/Gruber:
5-0)
K. 1018 Mission St. U001-83R
The tenants petition alleging a substantial
decrease in housing services was dismissed due to his failure to appear at
the properly noticed hearing. On appeal, the tenant claims that his landlord
does not give him his mail, and attaches the requisite Declaration of Non-Receipt
of Notice of Hearing.
MSC: To accept the appeal and remand
the case for a new hearing.
(Becker/Marshall: 5-0)
V. Communications
In addition to correspondence concerning cases
on the calendar, the Commissioners received the following communications:
A. The Boards approval of the appeal
decision concerning the case at 1935 Franklin St. #503 (T001-70A) was continued
to the next meeting.
B. A copy of an updated Commissioners
Roster.
VI. Directors Report
Executive Director Grubb informed the Board that
the amendments to the Ordinance regarding revised Ellis procedures and changing
the Hearing Officer designation to Administrative Law Judge took effect on
January 29, 2000. The amendments increasing relocation payments to low-income
tenants displaced pursuant to an Ellis eviction will take effect on February
13, 2000.
VII. Old Business
Rules and Regulations Section 6.14/Costa-Hawkins
Commissioner Murphy expressed his opinion that
the most recent proposed re-draft of Section 6.14 strays too far from Costa-Hawkins,
and he questioned why the Board had ceased to consider the draft that he had
distributed prior to Christmas. He distributed a new proposal, which he represented
as mirroring the language of Costa-Hawkins. The Board agreed to calendar another
Special Legislative Session to discuss this issue, which will be held on March
14th.
VIII. Remarks from the Public
A. Dennis Hyde, the attorney for the prior
owner of the property at 201 Chesnut St. (U001-54 & -55A), said that the
Board should amend the rent law to make it clear that a tenant can only have
one residence; and re-stated several of the contentions that he had raised
in his appeals.
B. The tenants involved in the case at 36
Divisadero (U001-59A) expressed their gratitude for the Boards denial
of the landlords appeal of the remand decision, but were upset that
the Commissioners had discussed a lawsuit as an option for the landlord, since
that would just make the case drag on longer.
IX. Calendar Items
February 8, 2000 - NO MEETING
February 15, 2000
9 appeal considerations
X. Adjournment
President Wasserman adjourned the meeting at 8:20
p.m.