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February 20, 2007

February 20, 2007

MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,

Tuesday, February 20, 2007 at 6:00 p.m. at

25 Van Ness Avenue, Suite 70, Lower Level

I. Call to Order

President Gruber called the meeting to order at 6:10 p.m.

II. Roll Call

Commissioners Present: Becker; Gruber; Henderson; Hurley; Justman; Mosbrucker.

Commissioners not Present: Marshall; Mosser.

Staff Present: Lee; Wolf.

Commissioner Murphy appeared on the record at 6:45 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of February 6, 2007.

(Becker/Mosbrucker: 5-0)

IV. Remarks from the Public

A. Tenant Brian Browne of 550 Battery #1409 (AT070012 & -13) told the Board that the Rules and Regulations regarding utility passthroughs specify that the base year charges have to be investigated, and that wasn't done in his case. Mr. Browne believes that the PG&E bills in 1980 shouldn't be compared to present dollars, which works a hardship on elderly residents; that PG&E is included in the base rent at the inception of the tenancy; and that PG&E rates increase at the rate of the CPI, which includes power. Mr. Browne also maintains that his lease said that he was to receive no increase in 2005, and the landlord shouldn't be able to get it later retroactively.

B. Tenant Ernestine Weiss resides at the Golden Gateway complex and agrees with the points raised by Mr. Browne. Ms. Weiss feels that the landlord is taking advantage of the complex's older tenants, who they want to get rid of. Ms. Weiss feels that this practice should be illegal, as it is "raping the public."

V. Consideration of Appeals

A. 202 Font Blvd. AT070006

The landlord's petition for approval of a utility passthrough in this multi-unit complex was granted. The tenants in one unit appeal the decision on the grounds of financial hardship.

MSC: To recuse Commissioner Becker from consideration of this appeal. (Henderson/Mosbrucker: 5-0)

MSC: To accept the appeal and remand the case for a hearing on the tenants' claim of financial hardship.

(Henderson/Mosbrucker: 5-0)

B. 295 Graystone Terr. #1 AT070014

The tenant's appeal was filed almost four years late because the tenant was allegedly too ill to file at the time the decision was issued.

MSC: To find good cause for the late filing of the appeal. (Becker/Mosbrucker: 3-2; Gruber, Hurley dissenting)

The landlord's petition for certification of capital improvement costs to 2 of 4 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/Mosbrucker: 5-0)

C. 550 Battery #1120 AT070010 & -11

The landlord filed two petitions for approval of utility passthroughs in this multi-unit complex. One tenant appeals the decisions on the grounds of financial hardship.

MSC: To accept the appeals and remand the cases for a hearing on the tenant's claims of financial hardship.

(Becker/Mosbrucker: 5-0)

D. 580 McAllister #410 AT070016

The landlord's petition for approval of a utility passthrough to 28 of 75 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. (Mosbrucker/Becker: 5-0)

E. 407 Broadway #8 AT070015

The landlord's petition for a determination pursuant to Rules ß1.21 was granted and the ALJ found that the subject unit is not the tenant's principal place of residence. The tenant, who failed to appear at the properly noticed hearing, claims on appeal not to have received notice of the hearing. Attached to the appeal is the requisite Declaration of Non-Receipt of Notice of Hearing.

MSC: To accept the appeal and remand the case to the Administrative Law Judge for a new hearing. Should the tenant again fail to appear, absent extraordinary circumstances, no further hearings will be scheduled. (Becker/Mosbrucker: 5-0)

F. 363 – 22nd Ave. #3 AL070009

The tenants' petition alleging an unlawful rent increase was granted and the landlord was found liable in the amount of $342.06 due to rent overpayments. The tenants' lawful base rent was determined to be $815.68 and the landlord was found not to have any entitlement under the banking provisions of the Rules and Regulations. On appeal, the landlord provides additional information regarding the tenants' rent history pertaining to the availability of banked rent increases.

MSC: To deny the appeal. (Becker/Mosbrucker: 3-2; Gruber,

Hurley dissenting)

G. 550 Battery #1409 AT070012 & -13

Two petitions for approval of utility passthroughs in this multi-unit complex were granted. One tenant appeals the decisions on the grounds that: he wishes to have a hearing before an Administrative Law Judge; the landlord's utility costs are already embedded in his base rent; allowable annual rent increases more than cover the landlord's increased utility costs; authorizing the use of a base year that is 25 years prior to the comparison year creates exaggerated results that are not indexed for inflation; the landlord has failed to prove its utility costs in 1980; and utility passthroughs fall disproportionately on the elderly, who tend to be on fixed incomes.

MSC: To deny the appeals. (Mosbrucker/Justman: 5-0)

H. 610 Hyde St. #205, 303, 306, 403 & 606 AT070017 thru -21

The landlord's petition for approval of a utility passthrough to 16 of 32 units was granted. The tenants in five units appeal the decision on the grounds of financial hardship.

MSC: To accept the appeals and remand the cases for hearings on the tenants' claims of financial hardship. (Mosbrucker/Becker: 5-0)

VI. Public Hearing

Mirkarimi Legislation Requiring Just Cause for the Severance or Removal of Certain Housing Services

The Board convened a Public Hearing at 6:35 p.m. to consider proposed amendments to the Rules and Regulations to implement the Mirkarimi legislation, which requires a just cause reason for the landlord's severance or removal of certain housing services. Thirty individuals spoke as follows:

1. Tenant Lorraine Calcagni asked that the legislation not be weakened since she is paying off $71,000 in capital improvement costs and cannot afford any more extras on top of her rent. Ms. Calcagni is concerned about losing her garage.

2. Tenant Don Feinberg had a problem with the language regarding unilateral changes in the terms of a tenancy and read a letter he sent to his landlord concerning his placement of a rug and chair in the foyer of the building. Mr. Feinberg believes that the Board should allow oral modifications to contracts.

3. Tenant Maryanne Kayratos said that the way that the just causes in the proposed rules are defined waters down the Mirkarimi legislation, which was clear. Mr. Kayratos believes that landlords take away garages to harass tenants, and wondered who is going to determine what constitutes honest intent. She also wondered why a landlord's relatives should be given precedence over long-term tenants.

4. Sean Pritchard of the S.F. Apartment Association told the Board that, with San Francisco's aging housing stock, it is important to "incentivize repairs," because landlords won't make them if it's "too much hassle."

5. Small landlord Andrew Long told the Board he realized the Mirkarimi legislation was not their fault, but he believes it only makes things worse because it "gets the City involved in micro-managing landlord/tenant relationships. Mr. Long believes that it will result in landlords not offering housing services. As an example, Mr. Long said that he would not be able to replace free with coin-operated laundry facilities when the free service is no longer economically feasible. Mr. Long also pointed out that many projects take longer than 90 days to complete.

6. Tenant Attorney Eric Lifschitz pointed out that being a landlord in San Francisco entails being highly regulated. Mr. Lifschitz suggested that proposed ß13.11(a)(i) be amended to require that the landlord reside in the building as their principal place of residence, as is required for the landlord's relative in ß13.11(a)(ii). Mr. Lifschitz argued that the section that removes civil and criminal penalties for a good faith attempt to remove a housing service should be deleted.

7. Tenant Helen Fellows is also paying a large capital improvement passthrough in a case where the landlord was not required to submit subcontractor invoices. Ms. Fellows said that it would be "devastating" to lose her garage, as she uses her car to tutor. Ms. Fellows feels that a lease is "sacred," and she is afraid that something "unfair" will happen again.

8. Tenant Attorney Wally Oman said that there are many contradictions in the proposed regulations. He suggested that, in order not to exceed its jurisdiction, the Rent Board propose a "friendly" amendment to the Board of Supervisors which would result in clean-up legislation rather than litigation.

9. Tina Di Rienzo of the Golden Gateway Center thanked the Board for trying to create a 30-90 day window for the performance of necessary repair work, but suggested that anything stating specific periods of time be deleted. Ms. Di Rienzo argued that the only necessary distinction is between permanent and temporary removals of housing services. She reminded the Commissioners that the Golden Gateway decision resulted from a 4-month project. She asked that landlords not be penalized for trying to take care of their properties.

10. Small landlord Donald Stroh read a statement regarding the law of unintended consequences in passing regulations restricting the rights of property owners and argued for a means test to eliminate rent control on rentals whose occupants earn over $50,000 annually.

11. David Fix, President of the Small Property Owners of San Francisco, commended the Board's efforts to come up with regulations and said that he believed the Mirkarimi legislation was supposed to apply to permanent removals of services only. Mr. Fix argued that projects can take more than 90 days; only housing facilities written in to the lease should be covered; ADA required removals are not contemplated in the proposed regulations; and building code violations and economic unfeasibility should be just causes for removal.

12. Small landlord Brian Wallace said that foundation work and seismic retrofits take more than 90 days, and a tenant could file a petition if the landlord is taking too much time.

13. Small landlord Jeremiah Casey said that each bit of legislation makes it more difficult for small landlords to operate, and asked that landlords be respected as well as tenants.

14. Joel Panzer of the Professional Property Management Association asked that covered housing facilities be limited to those specified in a written agreement. Mr. Panzer explained that new property managers take over a building and often have no idea as to who's entitled to which services; in a form of "adverse possession," tenants wind up with something they didn't originally have a right to, and expand into the common areas of the building.

15. Victoria Tedder of the Independent Living Resource Center, an organization that assists the disabled, said that many of the calls they get have to do with services being taken away. She argued that "reasonable accommodation" is an undesirable term because a process exists for reasonable accommodations and the rent law would be limiting civil rights law.

16. Tenant Chris Barros said that his landlord is attempting to take his garage away for the use of an incoming tenant. He said that he and his landlord are working together to work the situation out.

17. Brook Turner of the Coalition for Better Housing thanked the Board for their efforts. Mr. Turner read from the S.F. Bay Guardian editorial urging that the Mayor sign the legislation, arguing that it was just "basic fairness." Mr. Turner said that the legislation was not meant to act as a deterrent to construction and necessary projects, nor obstruct temporary construction or upgrading a building.

18. Small landlord Meg Ruxton said that she has space in the basement of her building that she could rent out to her tenants for storage, but now she is afraid to do so. She also wondered if she could later turn it into a laundry facility.

19. Ted Roberts, Chris Barros' landlord, said that he rented Mr. Barros the garage space month-to-month, but that it wasn't in the lease. Mr. Roberts doesn't want to "divvy up" the garden, storage and parking spaces, and said that he is "totally confused." He now feels it was naive to separate the parking rent from the lease.

20. Ted Gullickson of the Tenants' Union said that the proposed rules contradict the Ordinance and that some just causes make sense and some don't. Although a landlord cannot move in to a housing facility, Mr. Gullickson argued that there is no provision in the Ordinance for landlord "use" and this doesn't make sense and shouldn't be included. Mr. Gullickson believes that the tenant fault just causes, such as non-payment of rent, should be included. Mr. Gullickson also feels that ß13.11(a)(4) (permanent removal) allows a landlord to take away services for no reason, and needs to be tied in to permits or a government order for demolition or removal. Mr. Gullickson believes that these proposed regulations would result in litigation if passed as is.

21. Small landlord Tanya Yurovsky asked several questions and said that small landlords do not have the purchasing power of large corporations: contractors show up when they show up. Mr. Yurovsky said that there is a roof garden on her building which her insurance company has said she must remove; she is afraid that her tenant will file for a rent reduction. She asked that the definition of housing services be limited to what's in the lease; otherwise, what's included is too unclear.

22. Small landlord Lee Anderson lives in the building and shares the facilities with his tenant. Mr. Anderson doesn't charge extra for housing services, which are not on the lease, and doesn't feel that he should have to justify this to anyone.

23. Small landlord Remi Nadeau said that the proposed regulations could have the opposite effect: as tenants come and go, the landlord will put the garden and laundry off-limits to new tenants. Mr. Nadeau asked that the Board take unintended consequences into account.

24. Small landlord John Perkins lives in his 4-unit building and asked the Board to give him flexibility, since his instinct is to say yes.

25. Tenant Chester Zemany reminded the Board that the legislation was passed because landlords were taking away services to drive tenants out. For this reason, the legislation should be interpreted in the way most favorable to tenants. Mr. Zemany said that the landlord should have to live in the building to take away services for their own use.

26. Miguel Wooding of the Tenants' Union and Eviction Defense Collaborative said that the underlying purpose of the legislation was to prevent landlord abuses and harassment. Mr. Wooding believes that, if the Board incorporates the reasons for eviction but no protections, it has abrogated the intent of the Ordinance. He said that it is not their job to agree or disagree with the legislation but only to implement regulations that comport with the Ordinance. If one of the just cause reasons for eviction specified in the Ordinance doesn't work for this purpose, it can't be used.

27. Tenant C.S. Gordon, a disabled senior and attorney, said that the regulations exist to implement the statute. She believes that the proposed language on temporary accommodations constitutes "open season on people with disabilities." Ms. Gordon feels that civil rights are the purview of federal, state and local laws. She said that the Ordinance requires the landlord to live in and not just use, the housing service. She said that the proposed regulations leave vulnerable tenants with few options.

28. Small landlord Doug Holloway said that he gets along with his tenants and doesn't anticipate problems. He feels that the service should be "supplied" in writing and the removal should be in conjunction with the landlord's occupancy, not use. He does not think that the Ordinance should have retroactive effect and alter existing leases.

29. Jenny Hunt said that the regulations shouldn't apply to oral agreements and that tenants wouldn't expect it to apply.

30. Tenant Resa Meyer said she was sympathetic with the small landlords present. However, she was never given a copy of her lease, and wouldn't be able to prove the agreements she has with her current landlords to a new owner. She believes it is necessary to look at the intent of the parties, and said she wants to be protected too.

At the conclusion of the Public Hearing at 7:50 p.m., the Board discussed the testimony and went over some minor amendments with Senior Administrative Law Judge Tim Lee: in conjunction with the City Attorney and the Mayor's Office of Disability, it was made clear that the carve-out for reasonable accommodations due to disability only applies to disabilities that are temporary in nature; and notice requirements are no longer specifically laid out. The Commissioners then discussed whether or not it is advisable for the Board to pass regulations, including whether or not the proposed regulations are ultra vires and whether it is possible to implement the Ordinance as written in a way that makes sense. Commissioner Henderson wondered how to write something that stops abuses without exceeding the Board's jurisdiction, while Commissioner Murphy said that the Supervisors chose not to straighten it all out, but that it would be unfair to the Board's constituencies for the Commissioners not to try. Commissioner Justman wondered whether it might be best to just "let the chips fall where they may." It was agreed that Commissioners Murphy and Becker would communicate about these issues and report back to the Board at the next meeting, when this issue will be continued.

VII. Communications

The Board received several communications regarding the proposed regulations to implement the Mirkarimi legislation.

VIII. Director's Report

Executive Director Wolf gave the Board this year's Statements of Economic Interest (Form 700) and told them the form and a copy are due to the Ethics Commission by April 2nd.

IV. Remarks from the Public (cont.)

C. Chester Zemany suggested that, if repair work takes longer than 90 days, tenants could file for relocation benefits.

D. Miguel Wooding said that any "tinkering" with the proposed regulations should include deleting the owner move-in provision. Mr. Wooding does not believe that non-payment of garage rent could be the basis for severance of the garage, as currently written. He also feels that the demolition just cause needs to be looked at, to prevent arbitrary removals.

IX. Calendar Items

February 27, 2007 - NO MEETING

March 6, 2007

6:30 8 appeal considerations

Mirkarimi Legislation (Ordinance ß37.2{r})

X. Adjournment

President Gruber adjourned the meeting at 8:55 p.m.

Last updated: 10/9/2009 11:26:18 AM