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November 28, 2000

November 28, 2000p> 

 

 

MINUTES OF THE REGULAR MEETING OF

THE SAN FRANCISCO RESIDENTIAL RENT

STABILIZATION & ARBITRATION BOARD,

Tuesday, November 28, 2000 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; Hobson; Lightner; Marshall; Murphy; Wasserman.

                  Commissioners not Present: Mosser.

                  Staff Present: Grubb; Wolf.

                  Commissioner Justman appeared on the record at 6:35 p.m.

    III. Approval of the Minutes

          MSC: To approve the Minutes of November 14, 2000.

                  (Becker/Lightner: 4-0)

    IV. Remarks from the Public

      1. Janan New, Director of the S.F. Apartment Association, informed the Board that their organization has been deluged with calls regarding the effects of Proposition H. She asked the Board for guidance as to what to tell property owners, many of whom will not be able to prove that they are not receiving a fair return under the standard mandated by Prop. H. She said that small property owners will not be able to pay the bills for necessary work.

      2. Tenant Angelique Duvall also asked about the impacts of Prop. H, and said that tenants too are living with uncertainty.

    V. Consideration of Appeals

    A. 745 Haight St. #6 AT2K0181

    The tenant’s petition alleging an unlawful rent increase from $709.29 to $1,150.00 was denied because the Administrative Law Judge found that the increase was justified pursuant to Costa-Hawkins and that the landlord had served a valid 6.14 notice. A decrease in services claim regarding an inoperable oven was granted and the landlord was found liable to the tenant in the amount of $240.00. On appeal, the tenant maintains: that she is a subsequent occupant of the unit whose roommate moved out prior to April 25, 2000; that she received the 6.14 notice 62 days after the landlord had knowledge of her presence on the premises, which is untimely; and that she was forced to eat out during the time period when she did not have a working oven, which cost considerably more than $1.90 per day.

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

          MSC: To deny the appeal. (Lightner/Gruber: 5-0)

      B. 645 Stockton St. #200 & 204 AT2K0182

    The landlord’s petition for certification of capital improvement costs to 53 of 70 units was granted, in part. The tenant in unit #200 appeals the decision, asserting that: the work was the result of deferred maintenance; and the landlord purchased the building in 1984, and not 1992, as stated in the Decision. The tenant in unit #204 also appeals on the issue of the date of the landlord’s purchase of the building; and claims that the amount of the increase is not consistent with the original petition. This tenant also provides evidence that the requisite 30-day notice of rent increase was not provided.

          MSC: To deny the appeals except to remand the case to the Administrative Law Judge for a Technical Correction to make the notice of rent increase for the tenant in unit #204 effective on December 5, 1999. (Gruber/Lightner: 5-0)

      C. 4845 California St. #5 & #1 AT2K0184 & -85

    The landlord’s petition for certification of capital improvement costs and rent increases based on increased operating expenses for 3 of 5 units was granted. The tenants in two units appeal the decision on the grounds of financial hardship.

          MSC: As to the tenant in unit #5: to accept the appeal and remand the case for a hearing on the tenant’s claim of financial hardship; the possibility of the tenant obtaining a roommate to share the rent will be examined. (Marshall/Becker: 5-0)

          MSC: As to the tenants in unit #1: to accept the appeal and remand the case for a hearing on the tenants’ claim of financial hardship; consideration will be given to available income and resources from family members. (Becker/Marshall: 4-1; Lightner dissenting)

      D. 553-555 - 28th Ave. AL2K0188

    The landlords’ appeal was filed two days late because the landlords relied on the postmark date, rather than the date the Decision was mailed by the Rent Board.

          MSC: To find good cause for the late filing of the appeal. (Becker/Gruber: 5-0)

    The tenants’ petition alleging decreased housing services due to the loss of their garage space was granted and the landlords were found liable to the tenants in the amount of $100.00 per month. The tenants’ claim for rent reduction due to the landlord’s interference with their right to have pets in the unit was denied because the tenants’ two cats are still in the unit. The landlords were cautioned, however, that the former owners had waived the "no pets" provision in the lease. On appeal, the landlords claim that the tenants provided fabricated evidence; that the tenants "know" people at the Rent Board and there was improper influence; and that the landlords do not speak English sufficiently well to adequately have represented themselves.

                  MSC: To deny the appeal. (Marshall/Becker: 5-0)

      E. 2395 - 34th Ave., Apt. 7 AT2K0186

    The landlord’s petition for certification of capital improvement costs was granted. The tenant’s appeal was accepted and remanded for hearing only on the tenant’s claim of financial hardship. The tenant’s claim was denied because the Administrative Law Judge found that the tenant had provided no evidence that she is medically unable to work during the summers, when she is not teaching; and, even with the capital improvement passthrough, the tenant’s income to rent ratio is lower than when she moved in to the subject unit. The tenant appeals the remand decision, claiming that: she would like to teach during the summer months, but does not have the opportunity to do so; the Administrative Law Judge did not request evidence of her medical condition, which she now provides on further appeal; she does not receive regular financial assistance from her son; the ALJ exhibited bias against her; the figures in the Decision regarding her income are incorrect; and one of her classes for next year has been cut, so her income will be even lower.

                  MSC: To deny the appeal. (Lightner/Gruber: 5-0)

      F. 1345-1347 - 25th Ave. AL2K0189

    The tenants in two units filed petitions alleging unlawful rent increases, which were granted because the Administrative Law Judge found that the premises are not exempt as new construction or as having been substantially rehabilitated. On appeal, the landlords argue that: although the landlords never filed a petition for exemption pursuant to substantial rehabilitation, the building meets the criteria for such exemption; the Rent Ordinance does not require that such a petition be filed, nor impose any time limits on such filing; the Department of Building Inspection acknowledged and authorized the creation of new units in 1987, based on the demolition and rebuilding of a single family dwelling into a two-unit structure; Section 37.9A(b) does not apply to this case, because the tenants who resided in the property were not evicted pursuant to the Ellis Act; the landlords’ failure to immediately acknowledge exemption status does not constitute a waiver of the right to assert exemption; and the newly issued Certificate of Occupancy is sufficient to exempt the building from Rent Board jurisdiction.

          MSC: To accept the appeal only to remand the case to the Administrative Law Judge for a Technical Correction to clarify that there is no Statute of Limitations on filing for exemption from the Ordinance pursuant to substantial rehabilitation of the premises. (Marshall/Becker: 3-2; Gruber, Lightner dissenting)

      G. 547 Valencia St. AT2K0187

    The tenant filed a petition alleging that the master tenant, to whom he paid rent, improperly increased his rent in excess of the amount that was being paid to the landlord. The Administrative Law Judge denied the petition, finding that the basement was not a separately rented commercial space but, rather, part of the rental unit. Therefore the amount paid for the basement was properly part of the base rent and the Master Tenant was collecting no more rent from the subtenants than the amount he was paying to the landlord. On appeal, the tenant claims that: the Administrative Law Judge ignored the Master Tenant’s own statement that the basement rent is separate and distinct from the rent paid for the unit; the ALJ failed to request that the Master Tenant provide a copy of the lease agreement; and that canceled checks are insufficient proof.

          MSF: To accept the appeal and schedule a hearing before the Board. (Lightner/Gruber: 2-3; Becker, Marshall, Justman dissenting)

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

        H. 610 & 660 Clipper St. AT2K0190 &

            AL2K0191

    The landlord’s petition for certification of capital improvement costs to 11 of 21 units was granted, in part. One tenant appeals the decision on the grounds of financial hardship. The landlord appeals as to the disallowance of three separate items of work done to the building’s elevator systems, consisting of a new hydraulic jack assembly, rebuilt pump, and new elevator door motor. The landlord asserts that: these items are not repairs but constitute capital improvements, since they materially add to the value of the building and prolong the life of the elevator, which is part of the property; work that only needs to be done every thirty years or so cannot be considered routine repair and maintenance; and the Decision does not provide an incentive for landlords to maintain, improve and renovate their properties, a stated policy goal of the Ordinance.

          MSC: To accept the tenant’s appeal and remand the case for a financial hardship hearing; consideration shall be given to income and resources that may be available from family members. (Becker/Marshall: 5-0)

          MSC: To accept the landlord’s appeal and remand the case to the Administrative Law Judge to consider whether any of the elevator work constitutes capital improvements; a hearing will be held only if necessary. If the work is found to constitute capital improvements, any tenant objections shall be considered. (Marshall/Lightner: 5-0)

      I. 156 Ninth Ave. #302 AT2K0194

    The landlords’ petition for certification of capital improvement costs to 11 of 15 units was granted, in part. One tenant appeals the certification of the cost of new hall light fixtures, claiming that the original light fixtures were fully functional and did not need replacement; and that the cost of the replacement fixtures is excessive.

          MSC: To deny the appeal. (Lightner/Gruber: 4-1; Becker

                  dissenting)

        J. 2330 Larkin St. #1A & #32 AT2K0192 & -93

    The landlords’ petition for certification of capital improvement costs to 24 of 32 units was granted. Two tenants appeal the decision on the grounds of financial hardship.

          MSC: As to the tenant in unit #1A, to accept the appeal and remand the case for a hearing on the tenant’s claim of financial hardship. (Marshall/Becker: 5-0)

          MSC: As to the tenant in unit #32, to accept the appeal and remand the case for a hearing on the tenant’s claim of financial hardship. The trust documents must be provided in order to determine whether the corpus can be invaded for the health and welfare of the beneficiary. (Marshall/Becker: 4-1; Lightner dissenting)

    VI. Communications

    In addition to correspondence concerning cases on the calendar, the Commissioners received a copy of the Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction in the case of Quigg v. City and County of San Francisco (Superior Court Case No. 316928), which challenges the legality of Proposition H.

    VII. Old Business

    Fair Return/Implementation of Prop. H

    Executive Director Grubb informed the Board that Deputy City Attorney Marie Blits has been out with pneumonia for the last two weeks, which has delayed that office’s response to a Memorandum he sent outlining four questions having to do with the implementation of Proposition H. They will try and have something for next week’s meeting. Commissioner Becker urged the Board to begin drafting Regulations, which Commissioner Murphy said would be "impossible." Commissioner Lightner stated her opinion that there are many policy questions to be debated first. Commissioner Justman said that he doesn’t think the Board should do something that would affect the litigation; Commissioner Marshall stated her belief that not trying to implement the Proposition also affects the litigation. Mr. Grubb will convey a sense of urgency to the Office of the City Attorney.

    IV. Remarks from the Public (cont.)

      3. Landlord’s representative Andy Braden, involved in the case at 610 & 660 Clipper St. (AL2K0191), told the Board he was disappointed that the case was sent back for more fact-finding, since he considers the issue to be a policy call. He expressed his belief that the Board’s current policy regarding the passthrough of elevator work contradicts the Ordinance, and said that the Board needs to provide guidance on this issue.

      4. Tenant Sandra Finnegan said that landlords shouldn’t be distressed at not being able to pass through the costs of capital improvements when they get tax breaks and other relief, including reducing potential liability.

    VIII. Calendar Items

    December 5, 2000

    9 appeal considerations

    Old Business: Fair Return/Implementation of Prop. H

    December 12, 2000 - NO MEETING

    IX. Adjournment

    President Wasserman adjourned the meeting at 8:06 p.m.

 

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