November 09, 1999B>
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, November 9, 1999 at 6:00 p.m.
at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call to Order
Commissioner Becker called the meeting to
order at 6:00 p.m.
II. Roll Call
Commissioners Present: Becker; Bierly; Gruber;
Hobson; Justman; Mosser; Murphy.
Commissioners not Present: Marshall; Wasserman.
Staff Present: Grubb; Wolf.
Commissioner
Lightner appeared on the record at 6:05 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of October 19, 1999.
(Gruber/Justman:
5-0)
IV. Remarks from the Public
Angela Johnson, the landlord involved in the case
at 3629 Mission St. (U001-28A), told the Board that the Notice of Hearing
in her case was sent to the property address. Since she does not live there,
she contends that she did not get the notice in time to attend the hearing.
She also said that the unlawful rent increase that she gave the tenant was
based on information that the tenant had given her regarding the rent history
of the unit.
V. Old Business
A. Ellis Act Amendments
Senior Hearing Officer Tim Lee appeared to answer
any questions from the Board regarding proposed amendments to the Rent Ordinance
necessitated by the passage of SB 948. Mr. Lee explained that SB 948 amended
the Ellis Act as follows: 1) the effective date of withdrawal of the rental
units is extended from 60 to 120 days generally, and to one year for senior
or disabled tenants; 2) the time period for filing a lawsuit and the amount
of exemplary damages recoverable for violations of the Act are increased;
and 3) there is clarification as to the fact that the Act does not preempt
local regulation of nonresidential uses or local controls on demolition or
redevelopment of withdrawn property. After going over a few clerical corrections
to the draft amendments suggested by Deputy City Attorney Marie Blits, the
Board voted as follows:
MSC: To approve the proposed amendments
to the Rent Ordinance in order to conform it to the requirements
of the Ellis Act. (Lightner/Bierly: 5-0)
The proposed amendments will now be forwarded
to the Board of Supervisors for their consideration.
VI. Consideration of Appeals
A. 3629 Mission St. U001-28A
The tenants petition was granted as to various
decreased housing services claims and the landlord, who failed to appear at
the hearing, was found liable to the tenant in the amount of $1,802.50. On
appeal, the landlord claims not to have received notice of the hearing timely,
because it was delivered to the subject building; that she ought not to be
held responsible for problems that had existed for many years under prior
ownership of the building, especially since she has undertaken repairs; that
the tenant accepted the condition of the unit when she rented it; that the
tenant was uncooperative in providing access to the unit; and the tenants
petition is in retaliation for her rent having been increased.
After discussion, this case was continued in order
for staff to write to the landlord and obtain a statement under penalty of
perjury regarding her failure to appear at the hearing.
B. 765 Sutter St. #206 U001-41R
The tenants appeal was filed three days
late because the Notice of Hearing and Decision were mailed to his roommate,
who is currently away from the premises.
MSC: To find good cause for the late
filing of the appeal. (Bierly/Justman: 5-0)
The landlords petition for certification
of the costs of new kitchen vinyl floors and seismic upgrading of the building
to 17 of 24 units was granted, resulting in a monthly passthrough in the amount
of $49.43. One tenant appeals the decision on the grounds of financial hardship.
After discussion, this case was continued in order
for staff to advise the tenant that a co-tenant, currently away from the unit,
must also file a Hardship Application.
C. 123 Sanchez St. #8 U001-26A
The tenants petition alleging an unlawful
increase in rent was granted because the hearing officer found that the tenant
had proved that the rental of his unit included a parking space. On appeal,
the landlord claims that the hearing officer erred in finding that the landlord
had admitted at the hearing that "parking was included in the rent";
that the tenant failed to prove that his rent included a parking space, and
the statements he offered as evidence were not executed under penalty of perjury;
and the tenants payment of the $85.00 charge for parking for a three-year
period constitutes a binding contract between the parties and a waiver of
any other agreement that may have existed.
MSC: To accept the appeal and remand
the case for a hearing to consider the equitable defense of laches;
the parties are encouraged to arrive at a mediated settlement of
this matter. (Lightner/Gruber: 3-2; Becker, Bierly dissenting)
D. 3271 Harrison St. U001-29A
MSC: To recuse Commissioner Becker from consideration
of this case. (Bierly/Lightner: 5-0)
The tenants petition alleging substantial
decreases in housing services was granted, in part. The landlord was found
liable to the tenant in the amount of $5,866.39 due to the landlords
failure to allow the tenant to obtain a replacement roommate, even though
the governing lease contains a consent clause. The tenant failed to meet her
burden of proving that certain repair issues constituted substantial decreases
in housing services; however, an otherwise allowable rent increase was deferred
until the time that the repairs were effectuated. The landlord appeals, maintaining
that the hearing officer ignored the fact that the tenant is violating the
rental agreement by having house guests, for which he could recover possession
of the premises; that there are factual errors in the Decision; Rules and
Regulations Section 6.15(d) is inapplicable to this case; and the standards
for reasonable withholding of consent found in the Kendall case are
inapplicable in a residential context.
Since the landlord appellant only received the
first page of the Hearing Officers two-page response memorandum, consideration
of this matter was continued in order for the landlord to have an opportunity
to reply to the memo.
E. 93 Stanyan St. U001-39R
MSC: To recuse Commissioner Mosser from consideration
of this case. (Becker/Lightner: 5-0)
The landlords petition for certification
of capital improvement costs to one unit in a two-unit building was granted,
in part, resulting in a monthly passthrough in the amount of $112.14. The
tenant appeals the decision on the grounds of financial hardship.
MSC: To accept the appeal and remand
the case for a hearing on the tenants claim of financial hardship.
Additionally, staff will provide the landlord with a Landlord Hardship
Application. The landlord is also advised that he may wish to contact
one of the Senior Hearing Officers regarding the possibility of
filing a petition based on fair return on investment. The parties
are encouraged to arrive at a mediated settlement of this matter.
(Becker/Justman: 5-0)
F. 999 Bush St. #302 U001-38R
The landlords petition for certification
of capital improvement costs was granted, in part. One tenant appeals the
decision on the grounds of financial hardship.
MSC: To accept the appeal and remand
the case for a hearing on the tenants claim of financial hardship.
(Becker/Bierly: 5-0)
G. 2084 Mission St. #32 U001-30A
The owners appeal was filed almost six months
late because the owner asserts that the petition, Notice of Hearing and Decision
were sent to an address where she neither resides or receives mail.
MSC: To find good cause for the late
filing of the appeal. (Gruber/Lightner: 5-0)
The tenants petition alleging decreased
housing services was granted and the landlord was found liable to the tenant
in the amount of $735.00 due to the landlords failure to provide heat
and working fire alarms in the subject residential hotel. On appeal, the individual
named as the landlord in the decision asserts that she is the owner of the
building, but subleases the building through a commercial lease. Therefore,
it is the operators of the hotel who are the instant tenants landlord.
MSC: To accept the appeal and remand
the case for a new hearing with notice to the proper parties. (Gruber/Lightner:
5-0)
H. 184 Funston Ave. #1, 3, 4, 7 & 9 U001-42R
thru -46R
The landlords petition for certification
of capital improvement costs for six out of 12 units was granted, in part.
Five tenants appeal the decision, asserting that: the costs of the new electric
heaters and new electrical service system were not separately itemized; the
landlord failed to prove that the old electrical system was insufficient to
accommodate the new electric heaters, nor that the boiler needed to be replaced;
the new heating system and water heater have resulted in decreased services,
rather than improvement to the property; the tenants were given insufficient
time to object to the work; the tenants objections were insufficiently
acknowledged in the Decision; the landlord failed to prove that removal of
the underground storage tank was required by law; the sidewalk replacement
constituted maintenance; and the untimely issuance of the Decision warrants
the Decision being vacated and dismissal of the landlords petition.
MSC: To deny the appeals. (Gruber/Lightner:
3-2; Becker, Bierly dissenting)
VII. Communications
In addition to correspondence concerning cases
on the calendar, the Commissioners received the following communications:
A. A Memo from Deputy City Attorney Marie
Blits regarding amendments to Berkeleys Rules and Regulations pursuant
to Costa-Hawkins.
B. Ms. Blits re-draft of proposed amendments
to the Rent Ordinance to conform it to Costa-Hawkins in light of recently
passed Senate Bill 1098.
C. The office workload statistics for the
month of September, 1999.
VIII. Directors Report
Executive Director Grubb informed the Board that
two new counselors, Maria Martinez and Richard Winn, commenced employment
as of November 1st. This brings the complement of counselors to ten. One additional
counselor will be assigned to the Eviction Unit, and one will be assigned
to screening landlord petitions. Additionally, four additional Hearing Officers
have been hired as of January 1, 2000: Vanessa Aching Davenport; Peter Kearns;
Penelope Pahl; and Lily Lau.
V. Old Business (cont.)
B. Rules and Regulations Section 6.14
On behalf of the landlord community, Commissioner
Murphy distributed a proposed revision of Rules and Regulations Section 6.14
in order to conform that Section more closely with the requirements of the
Costa-Hawkins Rental Housing Act. Commissioner Becker had already distributed
a re-draft on behalf of the tenant community. Commissioner Murphy will also
circulate a Memo he is preparing on the issue of waiver. Discussion of this
issue will occur at the Boards Special Legislative Session on November
16th.
IV. Remarks from the Public (cont.)
A tenant inquired as to the status of possible
amendments to Rules and Regulations Section 6.14. The tenant involved in the
hardship appeal concerning 93 Stanyan Street (U001-39R) explained more about
his financial circumstances and the problems hes been experiencing with
his landlord.
IX. New Business
Commissioner Gruber motivated a discussion of
possible dates for the Boards annual Holiday Party. It was agreed by
those in attendance that, considering the difficulty of finding a mutually
agreeable date in December, this year the Board will hold a Millennium Party
in January. The exact date will be decided upon at the November 16th meeting.
X. Calendar Items
November 16, 1999 - SPECIAL LEGISLATIVE
SESSION
Rules and Regulations Section 6.15 (Leno Legislation)
Costa-Hawkins
Rules
and Regulations Section 6.14
XII. Adjournment
Commissioner Becker adjourned the meeting at 7:30
p.m.