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November 09, 1999

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the Act does not preempt local regulation of nonresidential uses or local controls on demolition or redevelopment of withdrawn property.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 tenant’s 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 tenant’s 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 tenant’s 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 landlord’s 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 tenant’s 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 tenant’s 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 tenant’s 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 landlord’s 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 Officer’s 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 tenant’s 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 tenant’s claim of financial hardship. (Becker/Bierly: 5-0)

G. 2084 Mission St. #32 U001-30A

The owner’s 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 tenant’s 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 landlord’s 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 tenant’s 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 landlord’s 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 Berkeley’s 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. Director’s 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 Board’s 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 he’s been experiencing with his landlord.

IX. New Business

Commissioner Gruber motivated a discussion of possible dates for the Board’s 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.

Last updated: 10/9/2009 11:26:14 AM