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December 04, 2001

December 04, 2001p>

 

MINUTES OF THE REGULAR MEETING OF

THE SAN FRANCISCO RESIDENTIAL RENT

STABILIZATION & ARBITRATION BOARD,

Tuesday, December 4, 2001 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; 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.

                  (Becker/Lightner: 4-0)

          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.

          MSC: To deny the appeal. (Gruber/Lightner: 4-0)

    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.

          MSC: To deny the appeal, except to remand the case to the Administrative Law Judge for a numerical correction. (Becker/Marshall: 5-0)

    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.

          MSC: To deny the appeal. (Gruber/Lightner: 3-2; Becker, Marshall dissenting)

    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.

          MSC: To accept the appeal and remand the case to the Administrative Law Judge only to determine whether the kitchen island gap has been repaired; a hearing will be held only if necessary. (Marshall/Becker: 5-0)

    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;

            AT010169 & -70

    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.

          MSC: To accept the appeal and remand the case for a new hearing. (Becker/Marshall: 5-0)

    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.

          MSC: To deny the appeal. (Lightner/Gruber: 3-2;

                  Becker, Marshall dissenting)

    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.

          MSC: To accept the appeal and remand the case for a new hearing. (Lightner/Gruber: 5-0)

    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)

      Goodwin v. Rent Board (Superior Court Case No. 317339)

    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.

      B. Petition for Rules and Regulations Section 1.21 Determinations

    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.

Last updated: 10/9/2009 11:26:12 AM