I. Call to Order
President Wasserman called the meeting to order at
6:05 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber;
Lightner; Mosser; Wasserman.
Commissioners not Present: Aung; Hobson;
Justman.
Staff Present: Grubb; Wolf.
Commissioner Murphy appeared on the record at 6:11
p.m.; Commissioner Marshall arrived at the meeting at 6:20 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of November 13,
2001.
MSC: To recuse Commissioner Lightner from discussion
of the next item. (Lightner/Murphy: 4-0)
MSC: To amend the October 30, 2001 Minutes to
reflect that, at the end of the discussion of the case at 1935 Franklin
St. #503 (AT010153), Commissioner Gruber requested that consideration
of the appeal be continued in order for there to be five voting Board
members present. His request was not granted. (Gruber/Wasserman: 4-0)
IV. Consideration of Appeals
A. 237 Steiner St. #2 AT010165
The landlords’ petition for certification of capital
improvement costs to the tenants in three of eight units was granted. The
tenant in one unit appeals the decision, asserting that: the improvements
were done to appeal to a wealthier class of tenants; and the dry rot replacement
was necessitated by the current landlord’s deferred maintenance.
B. 858 Filbert St. #3 AL010173
The tenant’s petition alleging an unlawful rent increase
was granted and the landlord was found liable to the tenant in the amount
of $9,825.22 due to a $200 rent increase issued because the tenant’s husband
and three children moved in to the unit. On appeal, the landlord argues that:
the Administrative Law Judge exhibited bias against the landlord; the rent
increase was not unlawful because the tenant had breached the provision of
the rental agreement requiring the landlord’s consent for subletting; the
presence of additional occupants in the unit cause the landlord to provide
increased housing services; the landlord is being denied a constitutional
fair rate of return; there is an arithmetic error in the decision; and the
result of an appeal in a related case may affect the amounts owed.
C. 3435 Cesar Chavez #336 AT010176
The tenant’s petition alleging unlawful increases
in rent was denied. The building, which consists of artists’ live/work spaces,
was determined to be exempt from Rent Ordinance limitations as new construction
pursuant to a decision issued in 1981. The Administrative Law Judge found
that this unit constitutes an exempt newly constructed rental unit pursuant
to Ordinance Section 37.2(r) because this case involves the same building
and the same issue as the prior case. On appeal, the tenant asserts that:
the case of Da Vinci v. Rent Board is applicable and held that the
filing of a Certificate of Occupancy after the effective date of the Rent
Ordinance does not exempt a unit from the Ordinance if the unit was occupied
as a residence prior to that date; there is no valid reason to distinguish
the facts of Da Vinci from this case, since in both instances, the
issuance of the Certificate of Occupancy did not create new units, but merely
legalized existing residential use; the construction of the residential units
at the complex was not motivated by the promise of exemption from the Ordinance,
and only an unforeseen delay in the construction resulted in the Certificate
of Occupancy being issued after June 13, 1979; the prior Rent Board decision
was overruled by the holding in Da Vinci; and finding that the unit
is subject to the Rent Ordinance is in keeping with the Board’s prior Policy
Directives regarding live/work tenancies.
D. 1108 Fulton St. AT010178
The tenants’ petition alleging decreased housing services
was granted, in part, and the landlords were found liable to the tenants in
the amount of $2,979.00 due to the loss of housing services during a period
of construction on the property. The landlords and tenants appealed the decision.
The tenants’ appeal was granted only to correct certain factual errors in
the decision; the landlords’ appeal was accepted only to adjust the termination
dates of rent reductions granted for openings under the kitchen island and
replacement of the front bathroom window, if warranted. In the decision on
remand, the Administrative Law Judge determined that no rent reduction was
warranted for the window, since the landlord had immediately responded to
the problem; and adjusted the amounts owed due to the kitchen island openings
having been corrected. The tenants again appeal, claiming that: the work was
not performed in a timely manner and the tenants’ claims that were denied
in the original decision should be taken into account; and the holes in the
front bathroom and kitchen island have never been repaired.
E. 3715 Scott St. AL010177
The tenant’s petition alleging an unlawful increase
in rent from $1,625.00 to $2,500.00 was granted because the Administrative
Law Judge found that the tenant was a co-tenant and not a sub-tenant, and
therefore no increase was warranted pursuant to Costa-Hawkins; and the landlord
did not timely serve a 6.14 notice upon the tenant. On appeal, the landlord
argues that: he served a 6.14 notice upon the tenant within a reasonable amount
of time after learning of her presence in the unit, because he never received
written notice from the original tenant that he would be vacating the premises;
a Federal Express receipt does not constitute proof as to when the tenant’s
rental application was actually mailed; the tenant’s last name and bank are
the same as the prior tenant’s, so her rent checks did not serve to provide
actual notice to the landlord; oral notice was timely given to the tenant
as to her status pursuant to Rules Section 6.14; and the increase is also
justified under Costa-Hawkins because the tenant was always considered and
treated as a subtenant by the landlord.
MSF: To deny the appeal. (Marshall/Becker: 2-3;
Gruber, Lightner, Wasserman dissenting)
MSC: To accept the appeal and remand the case
to the Administrative Law Judge on the record with instructions to vacate
the decision and find that the 6.14 notice was timely served. (Lightner/Gruber:
3-2, Becker, Marshall dissenting)
F. 1671 Lombard St. AL010168;
The landlords’ petition for rent increases based on
increased operating expenses to 9 of 12 units was granted. However, it was
determined that the operating and maintenance expense portion of rent increase
notices issued prior to the filing of the petition were null and void. The
tenants in two units appeal the decision on the grounds of financial hardship.
The landlord also appeals, contending that the original date on the notices
of rent increase had subsequently been corrected to a date subsequent to the
filing of the petition.
MSC: To accept the landlord’s appeal and remand
the case to the Administrative Law Judge on the issue of the effective
date of the operating and maintenance expense increases; a hearing will
be held only if necessary. (Becker/Marshall: 5-0)
MSC: To accept the appeal of the tenant in unit
#10 and remand the case for a hearing on the tenant’s claim of financial
hardship. (Becker/Marshall: 5-0)
MSC: To accept the appeal of the tenants in
unit #11 and remand the case for a hearing on the tenants’ claim of
financial hardship. (Becker/Marshall: 5-0)
G. 868 Valencia #24 AT010171
The tenant’s petition alleging decreased housing services
was dismissed due to the tenant’s failure to appear at the properly noticed
hearing. On appeal, the tenant claims to have missed the hearing because he
had to speak to an inspector on the day of the hearing.
H. 34 - 6th St. #433 AT010172
The tenant’s petition alleging decreased housing services
was dismissed due to his failure to appear at the properly noticed hearing.
The tenant, who had vacated the premises, maintained on appeal that he did
not receive the notice of hearing. The appeal was accepted and the case was
remanded for another hearing. The tenant appeared one hour late for the remand
hearing, after his petition had been dismissed. The tenant appeals the dismissal
on remand, claiming that he arrived one hour late for the hearing because
he had to go home and get the notice of hearing, which had the room number
on it.
I. 1566 Church St. AL010174
The tenant’s petition alleging decreased housing services
was granted, in part, and the landlord was found liable to the tenant in the
amount of $1,398.00. On appeal, the landlord alleges that: the tenant’s deceased
husband had stated that he would attach the door to the freezer; leaks in
the unit were corrected and do not constitute an on-going condition; the windows
were not in working condition prior to the inception of the tenancy; the rent
reductions granted are arbitrary; the tenant has failed to provide access
to the unit in order for repairs to be effectuated; and the tenant has not
dealt with the landlord in good faith.
J. 1959 Oak St. #4 AT010175
The landlords’ petition for certification of capital
improvement costs to the tenants in six units was granted. One tenant appeals
the decision on the grounds of financial hardship.
MSC: To recuse Commissioner Lightner from consideration
of this appeal. (Wasserman/Lightner: 5-0)
MSC: To accept the appeal and remand the case
for a hearing on the tenant’s claim of financial hardship. (Becker/Murphy:
5-0)
V. Remarks from the Public
A. The tenant appellant involved in the case at
1108 Fulton (AT010178) asked how the Board could have considered the landlord’s
completion of the work timely, when it took over two years.
B. The tenant appellee in the case concerning 3715
Scott Street (AL010177) said that the Notice of Consideration of Appeal
didn’t make it clear that the Decision of the Administrative Law Judge could
be overturned by Board action at this evening’s meeting; and that the landlord
had known that she was residing at the unit, and accepted her as a tenant.
VI. Communications
The Commissioners received the office workload statistics
for the month of October.
VII. Director’s Report
Executive Director Grubb informed the Board that the
staff party, to which they are all invited, will be held at Don Ramon’s restaurant
from noon to 1:30 on Tuesday, December 18th. The Board party will
be at Hayes Street Grill at 8:00 p.m. after the meeting on the night of the
18th.
VIII. Old Business
A. Proposed Amendment to Rules and Regulations Section
6.10(e)
The Board continued their discussion of a proposed
amendment to Rules Section 6.10(e), pursuant to the Public Hearing held on
October 16th. The proposed language would make it clear that only
an owner who incurred an increase in expenses can file a petition for rent
increase based on those expenses. Commissioner Lightner voiced her concern
that estates can’t petition for increases based on the property tax reassessment
triggered by the death of the owner because it takes so long for the supplemental
tax bill to be issued by the City. She made it clear that she is concerned
about protecting a prior owner who wants an increased sales price but is precluded
from filing due to not having received the bill, and not an owner who had
the bills and could have filed. To that end, Commissioner Lightner outlined
three possible approaches to the problem: 1) allow the new owner to file for
the increase when the bill comes in, even if it is late, because the estate
wasn’t able to file; 2) allow the estate to file and amend the petition later,
after the bill is received; or 3) allow the estate to petition for property
tax increases not yet received or paid, but which could be calculated pursuant
to the applicable formula. After discussion, the consensus of the Board was
that option number 3 was the most appropriate and Commissioner Lightner volunteered
to draft language to be discussed at the January 8th meeting.
This issue was continued to the January 8, 2002 Board
meeting.
IX. New Business
Commissioner Marshall asked that the Board consider
amending the Rules and Regulations to allow tenants to file appeals for hardship
deferrals of capital improvement passthroughs in subsequent years, upon the
phase-in of accumulated amounts in excess of the initial 10%. Commissioner
Marshall is concerned that tenants facing large capital improvement passthroughs,
such as those at the Lombard Place Apartments, will be facing displacement
in the next few years. While there is a consensus among the Commissioners
in support of this proposal, several Board members felt that it would be unwise
for the Rent Board to enact a partial legislative fix to problems associated
with capital improvement passthroughs while Proposition H settlement negotiations
are ongoing.
X. Calendar Items
December 11, 2001 - NO MEETING
December 18, 2001
6 appeal considerations
XI. Adjournment
President Wasserman adjourned the meeting at 8:15
p.m.