March 04, 2003
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, March 4, 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 6:15 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Lightner; Marshall; Murphy; Wasserman.
Commissioners not Present: Mosser.
Staff Present: Gartzman; Grubb; Wolf.
Commissioner Justman appeared on the record at 6:18 p.m.;
Commissioner Marshall went off the record at 8:55 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of February 18, 2003.(Becker/Marshall: 5-0)
IV. Remarks from the Public
Robert Pender told the Board that this is the 29th birthday of the Parkmerced Residents’ Organization (PRO), and gave them a brief history of PRO’s activities.
V. Consideration of Appeals
A. 1550 Bay #331 AT030008
The tenant’s appeal was filed over one year late because the tenant was involved in an accident at the time the decision was issued, from which she has not recovered as she expected to.
MSC: To recuse Commissioner Murphy from consideration of this appeal. (Lightner/Becker: 5-0)
MSC: To find good cause for the late filing of the appeal. (Becker/Lightner: 4-1; Gruber dissenting)
The landlord’s petition for certification of a large capital improvement project 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: 3-2; Gruber, Lightner dissenting)
B. 133 Buchanan St. #3 AT030002
The landlord’s petition for certification of capital improvement costs was granted, resulting in a monthly passthrough in the amount of $38.39. The tenants appeal, claiming that: the improvements were done to attract new tenants, rather than benefit existing tenants; the hallway painting and wallpapering are merely cosmetic improvements; the new intercom system is more sophisticated and expensive than necessary; and estimators’ reports or competitive bids were not shown to the tenants.
MSC: To deny the appeal. (Gruber/Lightner: 5-0)
C. 1660 Bay St. AT 020614 thru –28
The landlords’ petition for certification of capital improvement costs to the tenants in twenty-four units was granted. The tenants in fifteen units appeal certification of the costs of a new utility room in the amount of $6,815.00. The tenants claim that the utility room was formerly the tenants’ storage room, and that the tenants no longer have access to the area to confirm that it is indeed a utility room that benefits the tenants. The tenants believe that the "utility room" is used by the landlord as his office.
MSC: To accept the appeal and remand the case to the Administrative Law Judge to determine whether the former storage room is now a utility room that benefits the tenants in the building; a hearing will be held only if necessary. (Marshall/Becker: 4-1; Lightner dissenting)
D. 424 Jones St. #201 AL020003
The tenant’s petition alleging an unlawful increase in rent was granted. The Administrative Law Judge found that the tenant, although a minor at the inception of the tenancy, had continuously resided in the unit and therefore was an "original occupant" pursuant to Costa-Hawkins and Rules and Regulations Section 6.14. On appeal, the landlord asserts that: a minor cannot be an original occupant within the meaning of Costa-Hawkins and/or Rules Section 6.14 because minors lack the capacity to enter into contracts or take possession of a rental unit; and that the Decision of the Administrative Law Judge would require landlords to serve every newborn baby with a 6.14 notice, which would be burdensome and contrary to public policy.
MSC: To deny the appeal. (Becker/Marshall: 3-2; Gruber, Lightner dissenting)
E. 2030 Vallejo St. AL030007
Ten tenant petitions alleging decreased housing services were granted, and the landlord was found liable to the tenants in the amount of $200 per month due to the elimination of doorman services and $75.00 per month due to a lack of general maintenance and repairs in the building. Two individual decreased housing claims regarding defective ovens were also granted. On appeal, the landlord claims that: the Administrative Law Judge is biased against him because he has filed a Writ against a decision she rendered in a previous case; the rent reductions granted should reflect the amount of rent paid by each tenant; no value was ascribed to the benefits provided by the current employee who has replaced the doormen; and the tenants failed to meet the burden of proving the value of the allegedly decreased services.
MSC: To deny the appeal. (Becker/Marshall: 3-2; Gruber, Lightner dissenting)
F. 1369 Sacramento St., No. 6 AL030004
The landlord’s petition seeking a determination that the tenant is not a "Tenant in Occupancy" pursuant to Rules Section 1.21 and/or seeking a rent increase based on Rules Section 6.14 or Costa-Hawkins was denied because the Administrative Law Judge found that the tenant occupies the unit as his principal place of residence. On appeal, the landlord asserts that: the tenant is not an original occupant of the unit because he was a minor child at the inception of the tenancy, his parents, the original occupants, vacated the unit, at which time the tenant was served with a 6.14 notice; the tenant’s alleged continued possession of the unit may be "illusory"; minors cannot be considered tenants nor served with 6.14 notices because they cannot enter into contracts; and the language of Costa-Hawkins refers to occupants "pursuant to the rental agreement", when the tenant in this case is not mentioned in the rental agreement.
MSC: To accept the appeal and remand the case to the Administrative Law Judge with instructions that, under these facts, a rent increase pursuant to Costa-Hawkins is warranted. (Lightner/Gruber: 3-2; Becker, Marshall dissenting)
G. 2101 Sacramento #604 AL020630
The tenant’s petition alleging decreased housing services was granted and the landlord was found liable to the tenant in the amount of $1,322.50 due to a defective bathtub and leaking walls. Due to code violations on the premises, an annual rent increase was also ordered deferred for eighteen days. On appeal, the landlord claims that: the Notice of Violation from the Department of Building Inspection (DBI) was sent to an incorrect address, and the landlord received no other notice of the problems in the unit; the picture entered into evidence by the tenant was taken quite some time ago, and remedial work has been effectuated since that time; the problem with the bathtub was de minimus; the repairs were done to the satisfaction of the DBI in a timely fashion; and the fact that the new paint is a slightly different color does not constitute a code violation.
MSC: To accept the appeal and remand the case to the Administrative Law Judge on the issue of the date the Notice of Violation was received by the landlord; to deny the appeal as to all other issues. (Marshall/Becker: 3-2; Gruber, Lightner dissenting)
H. 515 John Muir Dr. AT020574 thru –0581; 0583-0600; 0603-0610; & 0612
The landlord’s petition for certification of the costs of exterior painting and clubhouse remodel to 375 units was granted, in part, resulting in a monthly passthrough in the amount of $5.74. Thirty tenants appeal the decision, asserting that: the tenants were prejudiced by not having been given an additional extension of time for filing their appeal; the taped recordings of the hearings are largely unintelligible; the landlord’s representative is engaging in the unauthorized practice of law; the Administrative Law Judge exhibited bias against the tenants and failed to consider all of their objections; items withdrawn from the petition by the landlord should have been discussed as indications of the landlord’s bad faith; painting constitutes repair rather than capital improvement; amortization of capital improvement costs should commence immediately upon completion of the work; the capital improvement passthrough should be precluded because of housing code violations on the premises; the Administrative Law Judge ignored tenant allegations of perjury on the part of the landlord’s agent; the burden of proof was improperly placed on the tenants; one of the tenants requested a postponement of the hearing, which was improperly denied; the tenants were prejudiced by not being served with post-hearing submissions by the landlord; there are factual errors in the decision; the petition was deficient and should have been administratively dismissed; the costs were not allocated to the individual buildings, as required; required permits were not submitted; the landlord intentionally falsified the petition; the contract for the painting work was never provided; the services of an independent estimator should have been utilized; the cost of the clubhouse renovation was excessive; the Rent Board improperly defines "capital improvements" differently from the commonly accepted IRS definitions; fitness equipment cannot be considered a capital improvement; the re-tiling of the spa constituted ordinary repair and maintenance; certain spa improvements constituted "gold-plating"; the costs were not allocated reasonably; and the landlord should only to allowed to impose the passthroughs on the tenants’ anniversary dates.
MSC: To deny the appeals. (Lightner/Gruber: 5-0)
I. 623 – 15th Ave. AT030005
The tenant’s petitions alleging an unlawful increase in rent and decreased housing services were denied. The tenant’s base rent had been reduced due to the landlord’s failure to allow the tenant to obtain a replacement roommate. The landlord subsequently notified the tenant of her right to obtain a replacement roommate, and restored the prior base rent amount. The tenant appeals, maintaining that the landlord’s notice restoring the prior base rent amount was not a proper notice of rent increase.
MSC: To deny the appeal. (Lightner/Gruber: 5-0)
VI. Public Hearing
Proposed Amendments to Rules Sections 7.10, 7.11, 7.12 and 7.14 to Implement the "Ammiano" Legislation
A Public Hearing regarding proposed amendments to the capital improvement provisions of the Rules and Regulations necessitated by the passage of the "Ammiano" legislation commenced at 7:50 p.m. and concluded at 7:53 p.m. The only speaker was Robert Pender, who expressed his support for the Ammiano legislation because "50-50 is better than 100%." The Commissioners then discussed the proposed regulations with Senior Administrative Law Judge Sandy Gartzman, who explained the mechanics of the legislation, and how it will be implemented by staff. Commissioner Becker asked that the word "petition", rather than "application" be used throughout; the Commissioners requested that Energy-Star-compliant refrigerators be added to the 10-year amortization schedule; the Board decided that a tenant cannot rescind an election unless the amount certified changes pursuant to an appeal; and the Board decided that, in the event that more than one petition is filed, the base rent in effect at the time of filing each petition shall be used for purposes of calculating the maximum 15% increase. Staff will draft the above changes and approval of the proposed amendments will be taken up at the March 18th meeting.
In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:
A. The appeal decision in the case concerning 1670 Clay St. (AT020245), heard and decided on January 7, 2002, which was continued to the next meeting.
B. The monthly workload statistics for January 2003 and the corrected statistics for the month of December, 2002.
C. The appellate decision in the case of Bullard v. Rent Board (A098336), determining that Ordinance Section 37.9(a)(8)(iv) is in contravention of Costa-Hawkins by requiring a landlord evicting for owner occupancy to offer a non-comparable replacement unit to the evicted tenant at a controlled rent.
VIII. Calendar Items
March 11, 2003 - NO MEETING
March 18, 2003
10 appeal considerations
Old Business: Proposed Amendments to Implement "Ammiano" legislation
President Wasserman adjourned the meeting at 9:40 p.m.