MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, June 7, 2005 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call to Order
Vice-President Marshall called the meeting to order at 6:06 p.m.
II . Roll Call
Becker; Gruber; Henderson; Hurley; Justman;Marshall; Mosbrucker; Murphy.
Commissioners not Present:
Commissioner Mosser appeared on the record at 6:11 p.m.
III. Approval of the Minutes
MSC:To approve the Minutes of May 17, 2005.
IV. Remarks from the Public
A. Laura Traveler, President of the Parkmerced Residents’ Organization (PRO), explained that 13 untimely appeals from tenants of Block 3 were before the Board at this evening’s meeting. Ms. Traveler asked that Commissioner Murphy recuse himself from consideration of these appeals because he and landlord representative Bert Pollacci belong to the same organization. Ms. Traveler told the Board that it would be unfair for these tenants to have to pay passthroughs resulting from a petition which the Board had dismissed as having been prematurely filed upon appeal from other tenants in the complex.
V. Consideration of Appeals
A. 469 Greenwich St. AT050124
The landlord’s petition for certification of the costs of repairing a sidewalk to the tenant in one of three units was granted, resulting in a monthly passthrough in the amount of $36.25. On appeal, the tenant claims not to have received a copy of the petition or the Notice of Hearing.
MSC: To accept the appeal and remand the case for a new hearing. (Becker/Murphy: 5-0)
B. 2408 Taraval St. AL050141
The tenants’ petition alleging a substantial decrease in housing services and incorrect calculation of a utility passthrough was granted, in part. The landlord was found liable to the tenants in the amount of $4,405.00 due to loss of a common area living room and lack of heat in the unit, and utility payments in excess of $15.00 per month were determined to be owing from the landlord to the tenants. The landlord appeals on the grounds of hardship, and also appears to be disputing the ALJ’s findings regarding loss of the shared living room, lack of heat, tenant utility payments, and harassment by another tenant in the building and the landlord’s pit bull. The landlord also claims that the tenants have failed to pay rent for four months.
MSC: To deny the appeal. (Becker/Gruber: 5-0)
C. Parkmerced – Block 3 AT050125 thru -0137
The appeals of thirteen tenants were filed over seven months late on equitable grounds, explained below.
MSC: To recuse Commissioner Becker from consideration of these appeals. (Henderson/Gruber: 5-0)
MSC: To find good cause for the late filing of the appeals. (Marshall/Henderson: 5-0)
The landlord’s petition for certification of the costs of a repiping/irrigation project was granted, resulting in a monthly passthrough in the amount of $63.70 to the tenants in 48 of 66 units. The tenants in six units jointly appealed the decision on various grounds. At their meeting on November 23, 2004, the Commissioners accepted the appeals and remanded the case to the Administrative Law Judge to vacate the decision and dismiss the landlord’s petition and 23 other pending petitions because the work performed was part of a project involving multiple blocks in the complex that was not completed at the time of filing and therefore the case was not ripe for adjudication. The dismissal was without prejudice to the filing of a single petition for certification of the costs of the entire repiping/irrigation project. Thirteen tenants now appeal the original decision, arguing that it is unfair and inequitable that they and the tenants in thirteen other units who did not appeal the original decision should have to pay the passthrough, when the landlord’s petitions have been dismissed and no other tenants in the complex are liable for the passthrough.
MSC: To accept the appeals and remand the case to the Administrative Law Judge to dismiss the petition as to all affected tenants. (Henderson/Marshall: 4-1; Murphy dissenting)
D. 242-246 Cole St. AL050138
The landlord’s petition for certification of capital improvement costs to two of seven units was granted, in part. The landlord appeals the decision only as to the costs certified for exterior painting and new linoleum, where the landlord’s actual costs exceeded the amounts determined to be reasonable by the independent estimator hired by the Rent Board, and only the estimator amounts were certified. The landlord argues that Rent Board policy allows for a 5% variance from the estimated value and therefore only the amount over the 5% should be disallowed.
MSC: To deny the appeal. (Becker/Marshall: 4-1; Murphy dissenting)
E. 2201 Pacific Ave. #601 AT050139
The landlord’s petition for a determination pursuant to Rules Section 1.21 was denied because the Administrative Law Judge found that the subject unit was the tenant’s principal place of residence. The landlord appealed the decision, and the Rent Board Commissioners voted to vacate the decision and remand the case to the ALJ to find that the tenant is not a “Tenant in Occupancy.” The tenant appeals the remand decision, maintaining that: the documentary evidence shows that the subject unit is the tenant’s principal place of residence and usual place of return; the fact that the tenant is married, and her husband resides in Sausalito, should not result in her case being decided differently than if she were single; the Ordinance requires that reversal of a decision is only permitted after an appeal hearing; the landlord failed to meet its burden of proof; the tenant never signed the application for the homeowner’s property tax exemption her husband takes on the Sausalito property; the tenant is her mother’s primary caregiver at the subject unit; and the Commissioners exhibited bias against an alternative living arrangement in reversing the original decision in this case.
MSC: To accept the appeal and schedule a de novo hearing before the Board. Each side will have 30 minutes to present their case: 5 minutes for an Opening Statement; 20 minutes for testimony; and 5 minutes for a Closing Statement. Any additional submissions must be served on the Board and opposing counsel no later than 1 week prior to the scheduled hearing. (Becker/Marshall: 5-0)
F. 2028 Scott St. #203 AL050140
The landlord’s petition seeking a rent increase pursuant to Rules and Regulations Sections 6.14, 6.11 or Costa-Hawkins was denied. The Administrative Law Judge found that the tenant was an approved subtenant who has occupied the unit since 1993, no 6.14 notice was timely served, and the rent for the unit was not set low at the time of occupancy by the original tenant. The landlord appeals, asserting that: the tenant moved in as a caregiver, and not as a roommate; the tenant’s application was edited by the landlord to make clear that she could reside in the unit as an “occupant,” and not as a tenant, which is equivalent to a 6.14 notice; the tenant’s version of events is not credible, nor is her documentary and hearsay evidence; and no special relationship is required to justify a comparables increase, because the rent in this case was set low for “some other reason.”
MSC: To deny the appeal. (Becker/Marshall: 4-1; Murphy dissenting)
G. 2120 Pacific, Apt. 410 AT050140
The tenants’ petition was denied as to the claim of an unlawful rent increase because the Administrative Law Judge found that the tenants changed units on their own initiative and therefore the initial rent for the new unit could be set at market. Claims of decreased housing services were denied because it was found that the landlord remedied the problems shortly after receiving notice from the tenants, the tenants failed to provide access to the landlord, or the problem was not substantial. The tenants appeal, claiming that: the move to their current unit was not done at their request but was, rather, the manager’s solution to a noise problem emanating from another unit; the landlord should be estopped from changing the terms of the lease for the new unit after the tenants had moved; there was no option to move back to their prior unit at the same terms; and the manager having made certain repairs is proof that the tenants had requested the repairs.
MSC: To deny the appeal. (Gruber/Murphy: 3-2; Becker, Marshall dissenting)
In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:
A. The 2005 edition of the “Good Government Guide, an Overview of the Laws Governing the Conduct of Public Officials,” put out by the Office of the City Attorney.
B. An article from the S.F. Chronicle regarding an amendment introduced by Supervisor Peskin requiring term limits for anyone serving on a board, committee or commission created by City Charter (although the Rent Board is not a Charter commission).
C. An article from the Daily Journal regarding the Lingle v. Chevron decision regarding rent control for gas stations in Hawaii.
VII. Director’s Report
Acting Executive Director Wolf reported as follows:
A. The Board of Supervisors rejected the conversion of a six-unit North Beach rental building into condominiums because of Section 1386 of the Subdivision Code, which gives the City the power to reject condominium conversions if “evictions have occurred for the purpose of preparing the building for conversion.”
B. The Rent Board’s budget was approved by the Board of Supervisor’s Budget and Finance Committee on June 1 st . $109,000 in cuts recommended by the Budget Analyst was redirected to increased outreach to the Vietnamese and Russian communities and to explore the possibility of televising Rent Board meetings.
C. Sadly, Ms. Wolf informed the Commissioners that prior Tenant Commissioner Shirley Bierly had passed away.
VIII. Old Business
Water Bill Increase Passthroughs Resulting from Issuance of Water System Improvement Revenue Bonds
Senior Administrative Law Judge Sandy Gartzman went over proposed notification language to go out on water bills regarding costs attributable to water rate increases resulting from issuance of Water System Improvement Revenue Bonds authorized at the November 5, 2002 election (Proposition A), which language was approved by the Board. She also walked the Commissioners through proposed regulations she had drafted regarding landlords’ right to pass through to tenants 50% of the increase in their water bills attributable to the issuance of these bonds. The draft regulations reflect decisions the Commissioners made at their May 3 rd meeting. The Board will review the proposed regulations and discuss them further at the June 21 st meeting.
IV. Remarks from the Public (cont.)
B. Robert Pender, Vice-President of PRO, asked several questions regarding the water bill passthroughs and was assured that the Rent Board will be putting out information regarding these passthroughs. Mr. Pender explained that he “wears two hats” since he is a Vice-President of PRO and a founder of the Tenants’ Network. Mr. Pender told the Board that tenants “will endure like Londoners under the German blitz and Russians under the siege of Stalingrad.”
IX. Calendar Items
June 14, 2005 - NO MEETING
June 21, 2005
8 appeal considerations
Old Business: Water Bond Passthroughs
Vice-President Marshall adjourned the meeting at 8:10 p.m.