July 15, 2003
CORRECTED MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, July 15, 2003 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 6:08 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Lightner; Mosbrucker; Wasserman.
Commissioners not Present: Marshall; Mosser; Murphy.
Staff Present: Wolf.
Commissioner Justman appeared on the record at 6:18 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of July 1, 2003.
(Lightner/Gruber: 4-0)
IV. Remarks from the Public
Robert Pender, Vice-President of the Parkmerced Residents’ Organization (PRO), informed the Commissioners that several hearings regarding Parkmerced’s petition to pass through the costs of piping and landscaping were held last week. The tenants were pleased that the Administrative Law Judge requested that the services of an independent estimator be obtained.
V. Consideration of Appeals
A. 971 Pacific #1 & #6 AT030137 & -38
The landlords’ petition for certification of capital improvement costs to 4 of 6 units was granted. Two tenants appeal the decision on the grounds of financial hardship.
MSC: To accept the appeals of the tenants in unit numbers 1 and 6 and remand the cases for a hearing on the tenants’ claims of financial hardship. (Becker/Wasserman: 4-0)
B. 1166 Haight #3 & #5 AT030127 & -28
The landlords’ petition for certification of capital improvement costs to 6 of 12 units was granted. The tenants in two units appeal the decision on the grounds of financial hardship. The tenant in unit #3 also appeals on the grounds that a heater is a replacement appliance and therefore not a capital improvement.
MSC: To accept the appeals of the tenants in unit numbers 5 and 3 and remand the case for a hearing on the tenants’ claims of financial hardship only. (Lightner/Becker: 4-0)
C. 975 Burnett Ave. #6 AT030129
The landlords’ petition for certification of capital improvement costs to 11 of 18 units was granted. One tenant appeals the decision on the grounds that: there are factual errors in the decision; he is still paying for capital improvements that have been fully amortized; and payment of the passthrough constitutes a financial hardship for him.
MSC: To accept the appeal and remand the case for a hearing on the issues of financial hardship and the tenant’s rent history; to deny the appeal as to all other claims. (Lightner/Becker: 4-0)
D. 238 – 24th Ave. AT030095
The landlords’ petition for a determination as to whether the tenant is a “Tenant in Occupancy” pursuant to Rules Section 1.21 was granted and a rent increase from $1,399.55 to $1,950.00 was found to be warranted. The Administrative Law Judge found that the unit is not the tenant’s principal place of residence and that the tenant actually resides with his family in Mill Valley. On appeal, the tenant claims that: the Administrative Law Judge omitted significant portions of relevant testimony and took testimony out of context; events and correspondence that preceded the adoption of Section 1.21 should not have been included; the tenant provided documentary evidence meeting all of the indicia of residency delineated in the regulation; the tenant was informed by his accountant that one could have homeowner’s exemptions on two residences; the subject unit is the tenant’s usual place of return, albeit with an atypical schedule; and the property manager is biased against the tenant.
MSC: To deny the appeal. (Lightner/Gruber: 3-1; Becker dissenting)
E. 141 Central Ave. AL030131
The landlord’s Petition for Extension of Time to do Capital Improvement Work was denied because the landlord did not obtain or file copies of all necessary building permits until after the petition was filed and served Notices to Temporarily Terminate Tenancies prior to obtaining all necessary permits. The landlord appeals, asserting that: the Rent Board demanded compliance with the procedural requirements prior to scheduling a hearing in this matter and therefore is estopped from now denying the petition on procedural grounds; if the Rent Board believed the petition was procedurally flawed, it should not have accepted it for filing; and the eviction notices have been withdrawn and new notices are going to be served now that all necessary permits have been issued and the period of time that the tenants will have to vacate has been found to be reasonable.
MSC: In the interests of justice, under the facts of this case, to waive the requirements of Rules Section 12.15(e)(1) and remand the case to allow the landlord to amend the petition as necessary. (Lightner/Gruber: 3-1; Becker dissenting)
F. 2820 Scott St. #21 AL030130
The tenant’s petition alleging decreased housing services and asking for a determination as to the legality of the base rent was granted, in part. The Administrative Law Judge found the landlord liable to the tenant in the amount of $95 per week due to discontinuation of meal service in this residential hotel, but found the tenant’s claim regarding excessive initial rent for the unit to be outside the jurisdiction of the Rent Board. The landlord appeals, maintaining that: the respondent is not the landlord for purposes of liability for rent reductions due to decreased housing services; meals in a hotel are not housing services as defined in the Rent Ordinance; and there is no substantial evidence to support the rent reduction granted.
MSF: To accept the appeal and remand the case to the Administrative Law Judge only to grant the $70 rent reduction amount requested by the tenant in the petition. (Justman/Becker: 2-2; Gruber, Lightner dissenting)
Because of the lack of a second voting Tenant Commissioner, this case was continued to the next meeting.
G. 2117 – 48th Ave. AT030132 & -33
The tenant’s appeals of two prior decisions certifying capital improvement costs on the grounds of financial hardship were filed over two years late because the tenant’s financial circumstances have changed since the decisions were issued.
MSF: To find good cause for the late filing of the appeal. (Becker/Justman: 2-2; Gruber, Lightner dissenting)
Because of the lack of a second voting Tenant Commissioner, this case was continued to the next meeting.
H. 1360 Lombard, Apt. 602 AT030135
The tenants’ appeal of a decision certifying capital improvement costs on the grounds of financial hardship was filed over two years late because the tenants’ financial circumstances have changed dramatically due to a stroke experienced by the husband.
MSC: To find no good cause for the late filing of the appeal. The decision is therefore final. (Lightner/Gruber: 3-1; Becker dissenting)
I. 46 Bruce Ave. AL030136
The tenants’ petition alleging decreased housing services was granted, in part, and the landlord was found liable to the tenants in the amount of $837.50 due to inoperable ventilation fans in the kitchen and bathroom. The landlord appeals, claiming that the amount of the rent reduction is excessive because the tenants vacated the unit and that an ensuing rent increase made the base rent amount stated in the decision incorrect.
MSC: To accept the appeal and remand the case to the Administrative Law Judge to determine the date the tenancy terminated and correct the termination date for the rent reduction, if necessary. A hearing will be held only if necessary. (Becker/Justman: 4-0)
VI. Communications
The Commissioners received correspondence concerning cases on the calendar.
VII. Director’s Report
In the absence of Executive Director Grubb, Deputy Director Wolf informed the Board that legislation allowing for “Floating Alternates”, who could vote in the absence of either regular member, has been forwarded to the Board of Supervisors. Additionally, Supervisor Daly’s legislation proposing that the Rent Board be elected was on the Agenda for today’s Board of Supervisors meeting.
VIII. Old Business
Bullard v. S.F. Rent Board (Superior Court Case No. 319025)
Deputy Director Wolf informed the Board that Judge McBride granted the landlord’s motion for attorney’s fees in the above-referenced case. The City had opposed the motion on the grounds that: 1) the Bullard action did not confer any significant benefit on the general public or a large class of persons, because the preempted law has been applied in only a handful of Rent Board adjudications and only comes into play in unusual cases; and 2) the landlords in Bullard filed suit to promote their own pecuniary interest in receiving higher rent and any public benefit was merely coincidental. The Judge rejected both arguments because he concluded that it was sufficient that the large class of persons in San Francisco who wish to live in property that they own will now have a greater ability to move in to that property; and that the financial benefit that the landlords gained (the ability to charge $1350 initial monthly rent for the replacement unit, rather than the $976 that the Rent Board had ordered) was out of balance with the $21,000 in fees and costs it took them to obtain that victory.
IX. Calendar Items
July 22nd & 29th, 2003 - NO MEETINGS
August 5, 2003
10 appeal considerations (2 cont. from 7/15/03)
New Business:
A. Review of Commission on the Environment’s List of Energy Conservation Improvements
B. Rent Board Alternative Dispute Resolution Mediation Program
X. Adjournment
President Wasserman adjourned the meeting at 7:29 p.m.