April 06, 1999

Tuesday, April 6, 1999 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 6:12 p.m.

II. Roll Call

Commissioners Present: Becker; Bierly; Justman; Lightner; Wasserman.
Commissioners not Present: Gruber; Marshall.
Staff Present: Wolf.

Commissioner Mosser appeared on the record at 6:15 p.m.; Commissioner Moore arrived at the meeting at 6:50 p.m.; and Commissioner Murphy appeared at 7:07 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of March 30, 1999.
(Becker/Lightner: 4-0)

IV. Remarks from the Public

Simon Lambert, a tenant involved in the appeal concerning 625 Powell Street (T001-51R), asked the Board to consider whether provisions for rent increases based on the debt service of a recent purchaser should apply when the prior landlord owned the building free and clear.

V. Consideration of Appeals
 

A. 36 Divisadero St. T001-43A
(cont. from 3/30/99)

The tenant’s 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 asserts: 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.

MSC: To accept the appeal and remand the case for a hearing to consider any equitable issues.
(Lightner/Mosser: 4-1; Bierly dissenting)

B. 625 Powell St. #43, 32 & 34 T001-51 thru -53R

The tenant in unit #32 filed an appeal five days late because she assumed that, if the appeal filed by the tenants in unit #43 was granted, the results would apply to her unit as well. The tenant in unit #34 filed an appeal one day late because he allegedly calculated the filing deadline from the time of the postmark, instead of the Proof of Service.

MSC: To find good cause for the late filing of the appeals.
(Becker/Bierly: 5-0)

The landlord’s petition for rent increases based on increased operating expenses was granted, resulting in 7% base rent increases to the tenants in 15 units. Three tenants appeal the decision, asserting that: the debt service category should not be considered because it was voluntary, and not used to finance capital improvement work and creates exaggerated results; the prior owner’s having financed the building entirely with equity should be factored in as a lost opportunity cost; the landlord’s attribution of zero expense to the Year One management category evidences bad faith; and it is possible that the provisions of Rules Section 6.10(f) ("the anti-speculation clause) apply to the facts of this case.

MSC: To accept the appeal and remand the case to the hearing officer to determine whether Rules and Regulations Section 6.10(f), the "anti-spec clause", is applicable to this case; a hearing will be held only if necessary. (Becker/Bierly: 5-0)

C. 1600 Clement St. #303 T001-47A

The tenant’s petition alleging substantial decreases in housing services was granted, in part, and the landlord was found liable to the tenant in the amount of $5,812.50 due to serious leaks on the premises that the landlord had known about since the inception of the tenancy. On appeal, the landlord asserts that the amount of $375.00 per month whether or not it is raining is excessive and unfair; tarps placed on the roof only interrupted the tenant’s quite enjoyment of the unit on rainy days; and the hearing officer exhibited bias against the landlord.

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

D. 295 Monterey St. T001-54 & -55R

The landlord’s petition for certification of capital improvement costs to the tenants of five of six units was granted. Two tenants appeal the decision on the grounds that: the hearing officer miscalculated the apportionment of the passthrough based upon the square footage and services benefiting each unit; the hearing officer did not allow the tenants’ attorney to present evidence of deferred maintenance at the hearing; and regular inspections of the premises would have revealed the presence of dry rot and led to repairs that would have reduced the scope of the work later performed.

MSC: To deny the appeals. (Lightner/Mosser: 5-0)

E. 660 Bush St. #503 T001-48A; T001-59R

The tenant’s petition alleging substantial decreases in housing services during a period of renovation of the unit was granted, in part, and the landlord was found liable to the tenant in the amount of $248.00. Both the tenant and the landlord appeal the decision. The tenant claims that the holes in the wall could not have been caused by the tenant’s children; and that the scope of the project was prolonged by the landlord’s deferred maintenance. The tenant also renews his objections to the capital improvement passthrough granted in a prior decision. The landlord produces a check in the amount of $251.33 that she claims was compensation to the tenant for reduced services during renovation of the premises, and asserts that the rent reductions granted constitute double recovery.

MSC: To deny the tenant’s appeal. To accept the landlord’s appeal and remand the case to the hearing officer, on the record, to offset the amount already paid by the landlord to the tenant from the amount determined to be owing in the Decision of Hearing Officer. (Lightner/Justman: 5-0)

F. 534 Broadway T001-60R

The tenant’s petition alleging decreased housing services was dismissed based on lack of jurisdiction due to the fact that the rents are controlled and regulated by the State of California. On appeal, the tenant asserts that the Rent Board’s failure to exercise jurisdiction in this case deprives similarly situated tenants of a forum for asserting decrease in services claims; that nothing in the State’s Loan or Regulatory Agreement governing the project precludes the Rent Board from exercising jurisdiction; that the tenant was under the jurisdiction of the Ordinance prior to being temporarily evicted for capital improvement work and had the right to reoccupy at the prior rent adjusted in accordance with the provisions of the Rent Ordinance; and requests an extension of time in order to procure an opinion from the Office of the City Attorney regarding the legislative intent behind the exemption contained in Ordinance Section 37.2(r)(4)

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

MSC: To deny the appeal. (Mosser/Lightner: 4-0)

G. 1018 Tennessee St. T001-49A

The landlord’s petition for certification of the costs of replacement of the front stairs and exterior painting was granted, in part. On appeal, the landlord provides documentary evidence in support of his petition that was not provided at the time of the hearing; and allegedly proving that the tenant was not being charged twice for work with which the landlord was dissatisfied.

MSC: To accept the landlord’s appeal and remand the case on the record to grant the $500.00 paid for scaffolding and to give the landlord credit for the $750.00 deducted from the payment to the first contractor and paid to the second contractor. (Lightner/Mosser: 5-0)

H. 452 Castro St. #5 T001-61R

The tenant’s appeal was filed twelve days late because the tenant maintains that he had pneumonia.

MSC: To find good cause for the late filing of the appeal. (Becker/Lightner: 5-0)

The landlord’s petition for certification of the costs of new gas lines to two units was granted, resulting in a monthly passthrough in the amount of $57.64. One tenant appeals the decision on the grounds of financial hardship, also asserting negligence on the part of the landlord by having faulty gas lines.

MSC: To accept the appeal and remand the case for a hearing on the tenant’s claim of financial hardship. (Becker/Bierly: 5-0)

VI. Communications

The Board received correspondence concerning cases on the calendar.

VIII. Old Business

Proposed Amendment to Rules Section 1.17 Regarding Non-Residential Use of a Unit

The Board discussed a proposal by Commissioner Lightner to add a subsection (i) to Section 1.17 of the Rules and Regulations to read as follows:

"Rental Unit" means a residential dwelling unit, regardless of zoning or legal status, in the City and County of San Francisco and all housing services, privileges, furnishings (including parking facilities supplied in connection with the use or occupancy of such unit), which is made available by agreement for residential occupancy by a tenant in consideration of the payment of rent. The term does not include:

(i) a lawful residential unit, wherein there is no consistent residential use by the tenant.

After discussion, which focused on whether such an amendment was necessary, the Board voted as follows:

MSC: To put out for Public Hearing proposed language adding subsection (i) to Rules and Regulations Section 1.17. (Lightner/Mosser: 3-2; Becker, Bierly dissenting)

The Public Hearing will be held at 6:00 p.m. at the Board meeting on May 18, 1999.

IV. Remarks from the Public (cont.)

Attorney Steven Adair MacDonald informed the Commissioners of the status of a case where he is representing a tenant claiming protection under Rent Ordinance Section 37.9(i)(1)(B) ("The Moratorium"). A woman inquired as to Rent Board jurisdiction over recipients of project-based rental assistance and was informed that there is limited jurisdiction over recipients of tenant-based rental assistance only.

IX. Calendar Items

April 13, 1999 - NO MEETING

April 20, 1999
7 appeal considerations
Old Business: Issues Possibly Warranting Amendments to the Ordinance and Rules and Regulations
New Business: Rent for Non-Comparable Replacement Units
{Ord. Section 37.9(a)(8)(iv)}

X. Adjournment

President Wasserman adjourned the meeting at 7:30 p.m.