September 30, 2003
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, September 30, 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 6:05 p.m.
II. Roll Call
Commissioners Present: Becker; Justman; Marshall; Mosbrucker; Murphy.
Commissioners not Present: Gruber; Lightner; Wasserman.
Staff Present: Lee; Wolf.
Commissioner Mosser appeared on the record at 6:22 p.m. and left the meeting at 7:25 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of September 16, 2003.
(Becker/Murphy: 4-0)
IV. New Business
Review of the Commission on the Environment’s List of Energy Conservation Improvements
Section 37.7(c)(2) of the Ordinance provides that certain qualified energy conservation improvements and renewable energy improvements shall be certified as capital improvements at 100% of the cost. Currently, only EPA Energy-Star-compliant refrigerators where the refrigerator replaced is more than five years old and where the unit has separate metering qualify for this treatment. The Ordinance also provides that other such improvements may be approved by the Board of Supervisors upon recommendation of the Rent Board, following hearings and recommendations by the Commission on the Environment in an Energy Conservation Improvements and Renewable Energy Improvements List.
The Commission on the Environment held public hearings and adopted a suggested List of energy conservation improvements and renewable energy improvements. Senior Administrative Law Judges Tim Lee and Sandy Gartzman reviewed this List and revised it in accordance with Rent Ordinance policies and procedures. Several policy questions for the Rent Board Commissioners were raised, which were outlined in a Memorandum from Mr. Lee and Ms. Gartzman. Mr. Lee and Cal Broomhead from the Department on the Environment appeared in order to answer the Commissioners’ questions. After discussion, it was the consensus of the Commissioners to accept staff’s recommendations regarding questions 1-4 in the Memorandum, except to change the amortization period for attic/roof insulation to 20 instead of 10 years. The Board continued consideration of the question of whether future changes to the List should be made without approval of the Board of Supervisors but, rather, by the Rent Board through Rules and Regulations. This issue will be discussed at a future meeting.
V. Old Business
Rossoff v. S.F. Rent Board (Superior Court Case No. 401226)
Senior Administrative Law Judge Tim Lee told the Board that Judge Quidachay granted the Writ filed by the landlord in this case. The landlord’s petition for rent increases based on comparable rents had been denied because it was not found that the rents were set low because of a special relationship, fraud, incompetency, or some other reason. Rather, it was found that the rents were low because, at the time they were rented, they were in a state of tremendous disrepair. However, Judge Quidachay cited Ordinance Section 6.11(a)(1), which states that “The provisions of this Section 6.11(a) shall apply only in extraordinary circumstances, including but not limited to situations” where the rents were set low due to one of the qualifying factors set forth above. Since the Judge found the facts of this case to constitute “extraordinary circumstances,” the “including but not limited to” language did not preclude a comps increase even though there was no proved special relationship between the parties. Several of the Commissioners voiced a concern that just having low rent could be considered “extraordinary,” without there having to be a reason for the rent to have been set low. The Board asked Mr. Lee to draft language to rectify this problem and re-calendar this issue for a future Board meeting.
VI. Consideration of Appeals
A. Golden Gateway AT030241 thru –61
(cont. from 9/16/03)
The landlord’s petition for certification of the costs of voluntary seismic work to 622 units was granted, in part, resulting in passthroughs ranging from $14.00 to $27.72 per month. 108 tenants appealed the decision. Most of the tenants were represented by fellow tenant Robert Coleman (the joint appeal); tenant Thomas Flowers filed a substantive appeal on behalf of himself and one other tenant (the Flowers appeal); two tenants filed individual substantive appeals; and seventeen tenants filed appeals on the grounds of financial hardship. At the meeting on September 16th, the Board remanded the joint appeal on one issue and denied the Flowers appeal. The individual appeals were continued due to the lateness of the hour. In her response to the individual appeals, the landlord’s attorney stated that the landlord took no position with regard to the hardship appeals and understood that they might be remanded for hearing and determination.
The individual appeals are as follows:
The tenant at 440 Davis Court #801 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/Mosser: 5-0)
The tenant at 440 Davis Court #814 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/Mosser: 5-0)
The tenant at 440 Davis Court #1118 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/Mosser: 5-0)
The tenant at 440 Davis Court #1616 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/Mosser: 5-0)
The tenant at 50 Ironship Plaza 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/Mosser: 5-0)
The tenant at 405 Davis Court #1305 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/Mosser: 5-0)
The tenant at 440 Davis Court #1402 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/Mosser: 5-0)
The tenant at 155 Jackson #508 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/Mosser: 5-0)
The tenant at 155 Jackson #908 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/Mosser: 5-0)
The tenants at 155 Jackson #1002 appeal 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/Mosser: 5-0)
The tenant at 25 Hinckley Walk appeals the decision on the grounds of financial hardship and maintains that his unit should have been withdrawn from the petition.
MSC: To accept the appeal and remand the case for a hearing on the tenants’ claim of financial hardship. (Becker/Mosser: 5-0)
The tenant at 34 Hinckley Walk appeals the decision on the grounds that the Administrative Law Judge did not address the issues presented nor explain his decision.
MSC: To deny the appeal. (Justman/Murphy: 5-0)
The tenant at 550 Battery #1020 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/Mosser: 5-0)
The tenant at 550 Battery #1120 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/Mosser: 5-0)
The tenant at 550 Battery #1208 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/Mosser: 5-0)
The tenant at 550 Battery #1409 appeals the decision, asserting that: the historical cost allowed has been capitalized since 1998, when each payment should have been capitalized at the time of actual payment; and a lower market related interest rate should be used for calculating the amortization schedule.
MSC: To deny the appeal. (Justman/Mosser: 5-0)
The tenant at 550 Battery #2004 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/Mosser: 5-0)
The tenant at 550 Battery #2008 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/Mosser: 5-0)
B. 935 Geary #306 AT030297
The landlord’s petition for certification of capital improvement costs to 60 of 115 units was granted. 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/Marshall: 5-0)
C. 1550 Bay St., Apt. 401 AT030294
The tenant’s appeal was filed over twenty months late because the tenant’s retirement income has been severely impacted by the economy and increasing health issues.
MSC: To recuse Commissioner Murphy from consideration of this appeal. (Becker/Marshall: 5-0)
MSC: To find good cause for the late filing of the appeal. (Becker/Justman: 5-0)
The landlord’s petition for certification of capital improvement costs was granted. 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/Marshall: 4-0)
D. 300 Buchanan St. AT030281 thru –0293
The landlord’s petition for certification of capital improvement costs to 40 of 60 units was granted, resulting in monthly passthroughs in the amount of $9.61. Thirteen tenants appeal the decision on the grounds that the PG&E and bond passthroughs are incorrectly calculated. The tenant in unit #408 also raises several allegations of decreased housing services.
MSC: To deny the appeals without prejudice to the tenants’ filing tenant petitions challenging the PG&E and bond passthroughs, and raising any decreased housing services claims that they may have. (Murphy/Justman: 5-0)
E. 1081-D Ashbury AT03027
The tenant’s appeal was filed over two months late because of medical difficulties the tenant was experiencing.
MSC: To find good cause for the late filing of the appeal. (Becker/Marshall: 5-0)
The landlords’ petition for certification of the cost of a new roof to 3 of 11 units was granted, resulting in a monthly passthrough in the amount of $13.99. 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/Murphy: 5-0)
F. 106 San Jose Ave. AL030274
The subtenants’ petition alleging that the master tenant charged them more than their proportional share of the rent for the unit was granted and the master tenant was found liable to the subtenants for rent overpayments. A claim of decreased housing services was denied. The master tenant appeals the decision, asserting that: two of the subtenants have the use of more space than that accessed by the other occupants of the unit; the master tenant did not have exclusive use of the living room until April 1, 2003; some of the subtenants did not fulfill their rental obligation to the master tenant; the subtenants failed to meet their burden of proving that they paid excess rent; one of the subtenants agreed that the master tenant only needed to pay a $35 storage charge when he was out of the country; the square footage calculations of room sizes used in the decision are incorrect; and a prior tenant’s security deposit should be accounted for in the calculations.
MSC: To deny the appeal. (Murphy/Mosser: 5-0)
G. 1310 Jones St. #1202 AL030275
The tenant’s petition alleging improper calculation of a PG&E passthrough was granted and the passthrough was determined to be void. On appeal, the landlord provides documentation to prove the base year calculation upon which the passthrough was based.
MSC: To accept the appeal and remand the case to the Administrative Law Judge on the issue of the PG&E passthrough; a hearing will be held only if necessary. Any PG&E passthrough amounts found to be warranted shall be owed by the tenant prospectively only. (Murphy/Justman: 3-1; Marshall dissenting)
H. 1025 Post #3 AT030276
The tenant’s petition alleging an unlawful increase in rent was denied because the Administrative Law Judge found that the increase was warranted pursuant to Section 6.14 of the Rules and Regulations. On appeal, the tenant claims that: the proposed rent increase presents her with a financial hardship; the landlord knew that she was residing at the unit for over 1-1.2 years; her mother did not put her name on the estoppel certificates because she was paranoid that the rent would be increased; and the landlord contradicted himself several times at the hearing.
After discussion, consideration of this appeal was continued to the next meeting, due to the lack of a voting majority.
I. 1347 – 25th Ave. AL030277
The landlords’ petition seeking a determination pursuant to Rules Sections 6.14, 1.21 and Costa-Hawkins was denied. The Administrative Law Judge found that although the original tenant had vacated the subject unit, the current occupant is a lawful subtenant who resided in the unit prior to January 1, 1996 and that a 6.14 notice was not timely served upon him. The tenant’s petition alleging decreased housing services was granted, in part, and the landlords were found liable to the tenant in the amount of $8,520.00 due to worn out carpeting and a defective stove and refrigerator. The landlords appeal the decision, claiming that: there is no evidence that the tenant was living at the premises at the time the 1997 rental agreement was executed; the landlords’ 6.14 notice should presume to have been received by the tenant; the Rent Board does not have jurisdiction over “substantial damage” claims; there is no quantifiable standard as to the value of the decreased services; and the landlords were denied their right to a jury trial and an opportunity to have the matter heard in civil court.
After discussion, consideration of this appeal was continued to the next meeting, when there will be more Commissioners in attendance.
J. 264 Broad St., Unit 2 AL030280
The tenant’s petition alleging an unlawful rent increase was granted and the landlord was found liable to the tenant in the amount of $2,065.00 for rent overpayments. Additionally, claims of decreased housing services in this residential hotel were granted, in part, and the landlord was found liable to the tenant in the amount of $2,356.00 due to habitability problems on the premises. On appeal, the landlord asserts that: the landlord was entitled to enter into a new lease agreement at a higher rent after the original tenant vacated the unit pursuant to Rules Section 6.14; the tenant was furnished with an electric space heater; the defects complained of by the tenant were not cited by the building inspector; and the tenants contributed to the unsanitary condition of the premises.
MSC: To deny the appeal. (Becker/Murphy: 4-0)
VII. Communications
The Board received an e-mail from tenant Brian Browne of 550 Battery #1409 (AT030257) regarding his appeal.
VIII. Calendar Items
October 7, 2003 - NO MEETING (Election Day)
October 14, 2003
12 appeal considerations (2 cont. from 9/30/03)
Old Business:
A. List of Energy Conservation Improvements
B. Rossoff v. Rent Board: Proposed Amendments to Rules Section 6.11
C. Uniform Visitor Policy for Residential Hotels
IX. Adjournment
Vice-President Marshall adjourned the meeting at 8:01 p.m.