August 20, 2002
MINUTES OF THE REGULAR MEETING
OF
THE SAN FRANCISCO RESIDENTIAL
RENT
STABILIZATION & ARBITRATION
BOARD,
Tuesday, August 20, 2002 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: Aung; Becker; Gruber; Mosser;
Murphy; Wasserman.
Commissioners not Present: Hobson; Lightner; Marshall.
Staff Present: Grubb; Wolf.
Commissioner Justman appeared on the record at 6:25
p.m.
III. Approval of the Minutes
IV. Remarks from the Public
A. Arnold Cohn, tenant at Marina Cove Apartments,
asked about the status of the decision on tenant decrease in service petitions
that were filed on June 10, 1998.
V. Consideration of Appeals
A. 20 Adele Ct. #455 AT020135
The landlords’ petition for certification of capital
improvement costs was granted pursuant to a Minute Order. One tenant appealed
the decision on the grounds of financial hardship. The appeal was continued
from the meetings on July 16th and August 6th in order
for other occupants of the unit, the tenant’s wife and adult daughter, to
fill out Hardship Applications. The requested additional documents were never
furnished by the tenant, despite repeated requests in the tenant’s native
language by Rent Board staff members.
B. 808 Leavenworth St. AL020144
The landlord’s petition for certification of capital
improvement costs to 20 of 33 units was dismissed due to the landlord’s failure
to appear at the properly noticed hearing. On appeal, the landlord claims
to have been out of the country at the time of the hearing. Consideration
of the appeal was continued from the meeting on August 6th in order
for the landlord to provide proof that he was out of the country, and an explanation
as to why he failed to request a postponement.
C. 1550 Bay St. AT020147 thru -0190
The landlord’s petition for certification of capital
improvement costs, including a large waterproofing project, to 94 out of 241
units was granted in the amount of almost $3,200,000.00. 48 tenants, represented
by the same attorney, filed a joint appeal. At the meeting on February 22,
2002, the joint appeal was accepted and remanded to the Administrative Law
Judge on the issue of allocation of the costs of installing waterproofing
materials between the ceiling of the commercial units and the floor of the
twelve tenant decks above the ceiling of the commercial units; to determine
the use of the old laundry room space as of the date of the close of the record,
or March 30, 2001, for purposes of allocation of those costs; and to establish
a repayment schedule for sums owing from the tenants to the landlord. 44 tenants
represented by the same attorney now appeal the remand decision, claiming
that: the tenants were prejudiced because the landlord violated the pre-hearing
order regarding evidence; the tenant representatives understood the stipulation
reached between the parties regarding the costs of the waterproofing materials
as applying only to the appealing tenants; and the entire passthrough should
be barred by Proposition H.
Prior to the meeting, the Commissioners received a
letter from tenant James O’Donnell of 1550 Bay, whose individual appeal was
denied by the Board at their meeting on February 26, 2002. Mr. O’Donnell alleged
that Commissioner Bart Murphy had a conflict of interest which he had failed
to disclose prior to voting on Mr. O’Donnell’s appeal on February 26th,
because he had represented the landlord in the past. Commissioner Murphy informed
the Board that he did not believe that he had a conflict, because he has no
financial interest in this case; his name was mistakenly on some pleadings
from a 1998 case in which he was not involved; he had never represented the
landlord before the Rent Board; and he had no feelings of bias or "lingering
loyalty" towards the landlord. Additionally, he had voted with the 5-0
majority to remand the case for further hearing on many of the issues appealed
by the tenants. Commission Murphy further informed the Board that he had discussed
this matter with the City Attorney, was told that he did not have a conflict,
and will be receiving a letter to this effect. It was the consensus of the
Commissioners to continue consideration of this case until receipt of the
letter from the Office of the City Attorney, either at the meeting on September
3rd or 17th.
It was later decided that this case would be continued
to the Board meeting on September 17th.
D. 42 Rudden Ave. AL020192
The tenant’s petition alleging decreased housing services
was granted, in part, and the landlord was found liable to the tenant in the
amount of $4,696.00 due to serious habitability problems in the illegal unit,
including the lack of a heating source. The landlord appeals, claiming that:
the tenant bought a space heater for the unit and the landlord paid the electrical
bills; the tenant did not provide oral or written notice regarding the lack
of heat from March of 1997 through May of 2001; and the tenant failed to provide
access to the unit in order for the landlord’s contractor to effectuate repairs.
E. 164 - 5th Ave. AL020193 & AT020194
The landlord filed two petitions for certification
of capital improvement costs, which were consolidated for hearing with the
tenant’s petition alleging decreased housing services due to the landlord’s
failure to consent to a replacement roommate. One of the capital improvement
petitions was granted, in part. The petition requesting certification of the
cost of a new roof was denied because the Administrative Law Judge found that
the landlord had failed to prove that payment was made. The tenant’s petition
was granted and the landlord was found liable to the tenant in the amount
of $4,722.20. Both the landlord and tenant appeal the decision regarding the
tenant’s claim of decreased housing services. The landlord asserts that: the
tenant failed to comply with the requirements of Rules Section 6.15B by not
requesting permission to have new roommates prior to the commencement of the
tenancies; the evidence supporting a finding of constructive eviction of a
prior roommate consists of hearsay which should not have been given any weight
by the Administrative Law Judge; and the tenant acted in violation of Rules
Section 6.15C(3) by charging her roommates more than their proportional share
of the rent. The tenant maintains that the rent reduction granted should have
been one-half of the tenant’s total rent, and not base rent; and that the
rent reduction should have extended to the time the tenant obtained a replacement
roommate who was agreed to by the landlord.
MSC: To deny the landlord’s appeal. (Becker/Aung:
5-0)
MSC: To accept the tenant’s appeal and remand
the case to the Administrative Law Judge on the record: to base the rent
reduction for the landlord’s refusal to consent to a replacement roommate
on the total rent paid by the tenant on June 14, 2001 and December 1,
2001, including the capital improvement passthroughs in effect on each
of those dates; to grant the rent reduction for a reasonable period of
time after the landlord’s consent to the replacement roommate, not to
exceed thirty days; and to order that any amounts unpaid by the tenant
shall be offset against amounts owing from the landlord to the tenant.
(Becker/Aung: 5-0)
F. 721 Geary, #7 AT020195
The tenant’s petition alleging an unlawful rent increase
was dismissed due to her having arrived 45 minutes late for the properly noticed
hearing. On appeal, the tenant claims to have been on a broken-down bus.
MSC: To accept the appeal and remand the case
for a new hearing. The tenant is advised that should she fail to appear
timely for the next hearing, absent extraordinary circumstances, no further
hearings will be granted. (Becker/Aung: 5-0)
G. 2782 Union St. AL020197
The tenant’s petition alleging decreased housing services was granted and the landlord was found liable to the tenant in the amount of $1,205.00 for loss of exclusive use of the deck and garden area and loss of laundry privileges. The landlord appealed on the grounds that there was only a minimal decrease, if any, since no other person had used the deck or garden area during the disputed time period. The landlord’s appeal was accepted and remanded for a hearing on the amount of the rent reduction for the deck and the period of time for which the rent reduction was granted. In the Decision on Remand, the Administrative Law Judge reduced the amount of the rent reduction from $100 per month to $50 per month and extended the length of time for the rent reduction by an additional month. The landlord appeals the remand decision, arguing that: the tenant provided no evidence that she did in fact suffer a loss of the exclusive use of the backyard area during the period in question; the Administrative Law Judge exhibited bias against the landlord and in favor of the tenant; the letter the landlord sent the tenant regarding the use of the deck was not a notice of change in the terms of the tenancy but, rather, an attempt to clarify the tenant’s unsubstantiated claim of a right to exclusive use of the back yard; and the valuation of $50 per month is arbitrary and not supported by any quantifiable data.
VI. Communications
In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:
A. A letter from tenant James O’Donnell of 1550 Bay Street alleging that Commissioner Bart Murphy had a conflict of interest and should not have voted on Mr. O’Donnell’s appeal, with supporting documentation.
B. A new staff roster.
VII. Old Business
Proposed Amendments to Rules and Regulations Section 1.18
The Board continued their discussion of a proposal by Commissioner Aung to revise the definition of substantial rehabilitation codified in Rules and Regulations Section 1.18. In a recent court decision, the judge found that Section 1.18 as written does not apply to evictions for substantial rehabilitation of the premises because its valuation scheme uses a post-construction frame of reference, whereas evictions occur prior to the work being done. The proposed revision would provide guidance as to the scope of work necessary to justify an eviction based on sub. rehab., using figures that are available prior to the work being completed. Commissioner Aung provided the Commissioners with copies of the briefs in Barjesteh v. Qaqish (Superior Court Case Nos. 192 549 & 192 550) and a Memo from Attorney Gen Fujioka of the Asian Law Caucus explaining why Rules Section 1.18 needs to be clarified. Several Commissioners agreed that additional guidance as to what constitutes substantial rehabilitation could aid both landlords and tenants and their attorneys. This issue will be discussed further at the September 3rd meeting.
IV. Remarks from the Public (cont.)
B. The landlord in the case at 42 Rudden (AL020192) told the Board that the tenant is moving out on September 1st. He paid the tenant $3,000 to move out, and wishes to spread out the payments.
C. Tenant Sharon Gelder of Parkmerced told the Board that, in addition to the operating and maintenance expense increases that have been approved for 2,400 units, there are currently capital improvement passthrough petitions in the pipeline. Ms. Gelder objected to what she believed was the Rent Board’s delegation of their authority to hear hardship appeals to Parkmerced. It was explained that Parkmerced has offered to settle hardship claims privately with tenants who approach them, and tenants will be given until October 1st to do so, but that this in no way compromises the tenant’s right to pursue such a claim with the Rent Board should they fail to work out an agreement with Parkmerced. Additionally, any tenant who wishes to pursue their hardship appeal through the Rent Board will not be required to approach Parkmerced first.
VIII. Calendar Items
August 27, 2002 - NO MEETING
September 3, 2002
6:00 Executive Session: Blaine v. Rent Board (Sup. Ct. Case No. 500854)
7 appeal considerations (inc. 1 post. from 8/6/02)
Old Business: Proposed Amendments to Rules Section 1.18
IX. Adjournment
President Wasserman adjourned the meeting at 7:35 p.m.