October 29, 2002
MINUTES OF THE REGULAR MEETING
OF
THE SAN FRANCISCO RESIDENTIAL
RENT
STABILIZATION & ARBITRATION
BOARD,
Tuesday, October 29, 2002 at 6:00 p.m.
at
25 Van Ness Avenue, Suite 70, Lower Level
President Wasserman called the meeting to order at
6:19 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber;
Lightner; Marshall; Murphy; Wasserman.
Commissioners not Present: Justman;
Hobson; Mosser.
Staff Present: Gartzman; Grubb;
Wolf.
Commissioner Aung appeared on the
record at 6:50 p.m.
III. Approval of the Minutes
IV. Remarks from the Public
A. Robert Pender of the Parkmerced Residents’ Organization
(PRO) informed the Board that residents of Parkmerced are facing a number
of increases in their rent: increases based on increased operating expenses;
PG&E passthroughs; passthroughs for painting of the towers apartments;
passthroughs for new roofs in the garden apartments; and capital improvement
passthroughs for landscaping. Mr. Pender believes that Parkmerced management
is trying to get rid of older tenants in favor of new tenants who will pay
market rents.
V. Consideration of Appeals
The landlord’s petition seeking a determination as
to whether there are any "Tenants in Occupancy" at the subject unit
was denied, because the Administrative Law Judge found that two of the current
occupants reside at the unit as their principal place of residence. On appeal,
the landlord argues that: the tenant took actions after the petition was filed
to establish occupancy in the unit but, at the time the petition was filed,
she was not a "Tenant in Occupancy"; the tenant does not qualify
for protection under the Ordinance because she has been residing out of state
for three years; by having sublet the unit, the tenant became a landlord,
and had no right to occupy the unit; the decision is beyond the authority
of the Rent Board, because it expands the definition of "Tenant in Occupancy";
and the tenant in this case has unclean hands, which should have factored
in to the decision. After discussion at the meeting on October 15th,
it was the consensus of the Board to continue this case in order for staff
to contact the tenant and find out whether she has moved back in to the subject
unit. Evidence of her reoccupancy of the unit was furnished by the tenant.
In the absence of Commissioner Justman, who had begun consideration of this
case, the appeal was further continued to the meeting on November 19th.
The landlord’s petition seeking a determination as
to whether there is a "Tenant in Occupancy" on the premises was
granted, and a rent increase from $185.38 to $575.00 per month was approved
because it was found that the tenant resides in a condominium that he owns.
On appeal, the tenant asserts that Rules and Regulations Section 1.21 violates
due process because the Rent Board did not notify tenants not in occupancy
of its passage and allow them the opportunity to "cure" by moving
back in to the unit.
The tenants’ appeals were filed two months late and
no good cause reason for the late filing was furnished.
The landlord’s petition for certification of capital
improvement costs to seven of twenty units was granted. Two tenants appeal
the decision on the grounds of financial hardship.
The tenant’s petition alleging decreased housing services
due to toxic odors at the premises was denied because the Administrative Law
Judge found that the tenant had failed to meet her burden of proof. On appeal,
the tenant claims that: she submitted sufficient evidence to support her claim;
in addition to the implied warranty of habitability, the landlord breached
the covenant of quiet enjoyment; the decision was prejudiced against her;
there are factual errors in the decision; the landlord’s witness is actually
the landlord of the property; and the landlord’s motivation is eviction, and
not resolution of the problem.
The tenant filed a petition alleging an unlawful rent
increase, decreased housing services and the landlord’s failure to repair,
which was denied. The Administrative Law Judge found that the tenant had failed
to prove that the landlords had agreed to permanently waive their right to
banked increases in exchange for foregoing the payment of interest on the
tenant’s security deposit, and that the rent increase was therefore lawful.
As to the decreased services claim, the Administrative Law Judge found that
there was no reduction in the tenant’s storage space in the garage but, rather,
the tenant was restricted to an original area due to safety problems he was
creating by storing his belongings next to the water heater. Lastly, the tenant
failed to prove the existence of a code violation sufficient to uphold his
failure to repair claim. On appeal, the tenant states that the decision is
in error as to his allegations regarding waiver of rent increases, water and
mold damage and storage, and that the Administrative Law Judge allowed hearsay
testimony.
The landlord’s petition for certification of capital
improvement costs to the tenants in two units was granted, in part, but the
costs of work that had to be re-done several years later was not certified.
On appeal, the landlord asserts that: the roof and roof deck were one continuous
project, rather than two separate projects; the roof work was not complete
until the deck had been replaced; the last invoice for roof work falls within
the 5-year Statue of Limitations period; the tenants benefited from the original
deck installed in 1996, as well as the larger deck installed in 1999; removal
of the deck was incidental to the roof work, as was repair work in the interior
of the unit; and the Rent Board has previously certified the costs of correcting
defective work, as well as the original work.
The landlord’s petition for certification of the costs
of a new porch roof over two units was granted, resulting in a monthly passthrough
in the amount of $6.52. The tenant at 553 Arballo appeals on the grounds that
the complex should be treated as one property, and the work does not meet
the definition of "capital improvement" because: it does not materially
add to the value of the property; it does not appreciably prolong the property’s
useful life, as roof replacement is more in the nature of repair; it does
not adapt the building to new uses; and there is no evidence that the roof
replacements are being amortized or depreciated over their useful lives. The
tenant in unit 555 Arballo maintains on appeal that there are errors in the
decision, specifically: the finding that the porch roof covers no living space
is incorrect, since the porch roof overhangs the bathroom windows of neighboring
units; no repair work was done in the unit as a result of water damage from
the porch roof; the existing porch was not rebuilt; the porch roof does not
benefit this tenant, since she experienced no water damage; and, if the tenants
in neighboring units benefited from the reconstruction, they should share
in the costs.
The landlord’s petition for certification of the costs
of a new porch roof over two units was granted, resulting in a monthly passthrough
in the amount of $20.29 to the tenant in unit 20 Fuente Ave. only. That tenant
is represented by the same representative as the tenant in unit 553 Arballo,
above, and puts forth the same arguments on appeal.
The landlord’s petition for certification of the costs
of a new porch roof over two units was granted, resulting in a monthly passthrough
in the amount of $17.62 to the tenant in unit 454 Arballo only. That tenant
is represented by the same representative as the tenant in unit 553 Arballo,
above, and puts forth the same arguments on appeal.
The landlord’s petition for certification of the costs
of a new porch roof over two units was granted, resulting in a monthly passthrough
in the amount of $15.11. The tenant in one unit is represented by the same
representative as the tenant in unit 553 Arballo, above, and puts forth the
same arguments on appeal.
The landlord’s petition for certification of the costs
of a new porch roof over two units was granted, resulting in a monthly passthrough
in the amount of $28.72. The tenants in both units appeal. They are represented
by the same representative as the tenant in unit 553 Arballo, above, and put
forth the same arguments on appeal.
MSC: To accept the appeals and remand the
case for a hearing to determine whether the porch roof replacement
should be allocated to more than the two units in the petition by
determining whether the water intrusion would have been of detriment
to more than the two units who received the passthrough. If allocation
is decided differently, the landlord will be allowed to amend the
petition to include more units than originally petitioned for.
During their discussion of the above four appeals
(20 Fuente Ave., 454 Arballo Dr., 608 Gonzalez Dr. and 116 & 118 Grijalva
Dr.), the Commissioners were under the impression that these were porch roof
replacements, when they were actually replacement of the roofs covering the
entire structures. Since the allocation issues surrounding the porch roofs
are different from those involving the replacement of the roofs in their entirety,
these appeals will be reconsidered at the Board meeting on November 19th.
IV. Remarks from the Public (cont.)
B. Laura Traveler, President of PRO, informed the
Board that she was happy they remanded the porch roof cases, but that it
didn’t appear that the Commissioners had read the documents submitted with
the appeals. In those submissions, the tenants argued that the roofs did
not meet the definition of "capital improvement" in the Ordinance.
Ms. Traveler described the situation between Parkmerced management and the
tenants as "David vs. Goliath", and said that the landlord just
wants money.
C. PRO Board member Genevieve Callejo said that
the Administrative Law Judge should have brought up the tenants’ objections
in his response. Ms. Callejo told the Board that many tenants are too old
or ill to have attended the hearings, and that PRO acted as their advocate.
D. Robert Pender inquired about the status of other
pending cases concerning Parkmerced.
VII. Old Business
A. The Blaine Family Trust v. Rent Board
(Perlstadt)
The Board had voted to pursue an appeal of the court’s
decision granting the landlord’s Writ at their meeting on September 3rd.
At that time, Deputy City Attorney Randy Riddle informed the Commissioners
that it might be beneficial to the appeal if the Board clarified Rules Section
1.21 to make it clear that tenants can occupy more than one unit in a building
as their principal place of residence. President Wasserman asked that staff
draft such language, but that it also be made clear that the units had to
have been rented to the tenant(s) in good faith and with the landlord’s knowledge.
Senior Administrative Law Judge Tim Lee drafted such language. Additionally,
Deputy City Attorney Scott Dickey proposed additional language to make it
clear that tenants must really live in the units, and that a tenant could
meet the indicia of residency outlined in the regulation, but still not reside
in the unit as their principal place of residence. Commissioner Gruber objected
to the proposed amendments because he believes that the language does not
constitute a clarification but, rather, is a change from the singular to the
plural. The Commissioners discussed an introductory paragraph stating that
the amendment shall apply to all pending decisions, and requested that staff
consult the City Attorney about whether that paragraph needs to be or should
be included. With a minor change to the proposed language, the Board voted
as follows:
The Public Hearing will be held on December 3rd,
2002. The proposed language reads as follows below (deletions indicated with
strikeouts; new language underlined):
This amendment clarifies that the Board intends and
has understood the phrase "in a rental unit" not to preclude a tenant’s
use of more than one unit in a building as a principal place of residence where
the tenant resides in the units with the knowledge and consent of the landlord.
This clarifying amendment shall apply to all decisions issued after the effective
date of the amendment and to all pending decisions for which no final court
decision has been issued as of the effective date.
(3) all of the individual’s personal possessions
have been moved into the subject premises;
(4) a homeowner’s tax exemption for the individual
has not been filed for a different property;
(5) the subject premises are the place the individual
normally returns to as his/her home, exclusive of military service, hospitalization,
vacation, family emergency, travel necessitated by employment or education,
or other reasonable temporary periods of absence; and/or
A compilation of these elements lends greater credibility
to the finding of "principal place of residence" whereas the presence
of only one element may not support such a finding.
In order for Commissioner Lightner to familiarize
herself with the proposed amendments to Rules Section 1.18, discussion of
this issue was continued to the meeting on November 19th.
In March of 2002, the Board amended Rules and Regulations
Section 6.10(e) to provide that only the owner who incurred increased debt
service and/or property tax costs could file a petition to pass through such
costs to tenants. At the meeting on October 15th, the Deputy Director
informed the Board that there is a pending situation where other costs incurred
by a prior owner, specifically water and repairs, are being petitioned for.
Ms. Wolf asked the Board if they wished to further amend the regulation to
make it clear that all expenses must have been incurred by the owner who is
filing the petition. The Commissioners requested that the City Attorney be
consulted regarding the effect of amending a regulation on pending cases,
filed before the effective date of the amendment. The Deputy Director reported
that the City Attorney advised that there would be no problem applying a new
regulation to pending cases unless a party could prove that the Board acted
with malice toward a particular individual, and would not have adopted the
regulation if the problem had been raised in any other case; or if the party
had a vested right to application of the existing regulation, i.e., by having
acted in reliance on the existing reg. The Board may wish to amend Rules Section
6.10(a) to require that expenses be incurred by the owner who files the petition
at some time in the future.
IX. Calendar Items
November 5, 2002 - NO MEETING (Election Day)
November 12, 2002
6:30 3 appeal considerations
6:30 18 appeals (including 10 Parkmerced roof
appeals; 4 rescheduled from 10/29/02)