December 3, 2002MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, December 3, 2002 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 6:07 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Lightner; Marshall; Wasserman.
Commissioners not Present: Hobson; Justman; Murphy.
Staff Present: Grubb; Wolf.
Commissioner Mosser appeared on the record at 6:34 p.m.; Commissioner Aung arrived at the meeting at 6:50 p.m.; and President Wasserman left the meeting at 8:14 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of November 12, 2002.
IV. Remarks from the Public
A. Robert Pender of the Parkmerced Residents" Organization (PRO) told the Board that Parkmerced management is attempting to transfer funds from long-term tenants to the new landlords by circumventing the Rent Ordinance. PRO will now be seeking assistance from the Board of Supervisors, Office of the City Attorney and Office of the District Attorney.
V. Vote on Whether to Go Into Closed Session Regarding the Case of The Blaine Family Trust vs. Rent Board (Perlstadt) (Superior Court Case No. 500854) Pursuant to S.F. Administrative Code Section 67.11{a}
MSC: To go into Closed Session. (Marshall/Lightner: 5-0)
VI. Closed Session re Perlstadt, supra, Pursuant to Government Code Section
54956.9{a}
The Board went into Closed Session from 6:14 to 7:05 p.m. with Deputy City Attorney Scott Dickey to discuss the case of The Blaine Family Trust vs. Rent Board (Perlstadt) (Superior Court Case No. 500854).
VII. Vote on Whether or Not to Disclose and Possible Disclosure of Any/All
Conversations Held in Closed Session Regarding Perlstadt, supra.
MSC: Not to disclose the Board"s discussion regarding the Perlstadt case, on the advice of counsel.
VIII. Report on Any Actions Taken in Closed Session Regarding Perlstadt, supra,
Pursuant to Government Code Section 54957.1{a}{2} and S.F. Administrative
Code Section 67.14{b}{2}
President Wasserman reported that the Board held a Closed Session to discuss the Perlstadt case with its attorney, and voted not to disclose the content of those conversations, on the advice of counsel.
IX. Consideration of Appeals
A. 327 & 329 Font Blvd. AT020500 & -01
The landlord"s petition for certification of the costs of a new roof over two units was granted, resulting in a monthly passthrough in the amount of $27.21. The tenants appeal 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. Additionally, the tenants assert that the Administrative Law Judge made several errors in the decision; and claim that the invoice provided was insufficient to document the work.
MSC: To deny the appeals. (Gruber/Lightner: 3-2; Becker, Marshall dissenting)
B. 56 Cambon Dr. AT020502
The landlord"s petition for certification of the costs of a new roof over four units was granted, resulting in a monthly passthrough in the amount of $27.21. The tenant in one unit 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.
MSC: To deny the appeal. (Gruber/Lightner: 3-2; Becker, Marshall dissenting)
C. 1 Fuente Ave. AT020504
The landlord"s petition for certification of the costs of a new roof over two units was granted, resulting in a monthly passthrough in the amount of $19.63. The tenant in one unit appeals. The tenant is represented by the same representative as the tenant in unit 56 Cambon Drive, above, and puts forth the same arguments on appeal.
MSC: To deny the appeal except to remand the case on the record for a Technical Correction regarding the tenant"s move-in date. (Gruber/Lightner: 3-2; Becker, Marshall dissenting)
D. 16 Vidal Dr.
The landlord"s petition for certification of the costs of a new roof over two units was granted, resulting in a monthly passthrough in the amount of $50.50. The tenant in one unit appeals. The tenant is represented by the same representative as the tenant in unit 56 Cambon Drive, above, and puts forth the same arguments on appeal.
MSC: To deny the appeal. (Gruber/Lightner: 3-2; Becker, Marshall dissenting)
E. 101 Gonzalez Dr. AT020505
The tenants" appeal was filed twelve days late because one of the tenants changed jobs and could not find the necessary paperwork.
MSC: To find good cause for the late filing of the appeal. (Becker/Marshall: 5-0)
The landlord"s petition for certification of the costs of a new roof over one unit was granted, resulting in a monthly passthrough in the amount of $33.17. The tenants in that unit appeal the decision on the grounds of financial hardship.
MSC: To deny the appeal. (Gruber/Lightner: 5-0)
F. 1740 Beach St. #14 AT020497
The landlord"s petition for certification of capital improvement costs to 3 units was granted. One tenant appeals the decision on the grounds of financial hardship.
MSC: To accept the appeal and remand the case for a hearing on the tenant"s claim of financial hardship. (Gruber/Becker: 5-0)
G. 150 - 28th St. #4 AT020491
The landlord"s petition for rent increases to 9 of 12 units based on increased operating expenses was granted. One tenant appeals the decision on the grounds of financial hardship.
MSC: To accept the appeal and remand the case for a hearing on the tenant"s claim of financial hardship. (Becker/Marshall: 5-0)
H. 4120 Folsom St. AT020498
The tenant"s petition alleging decreased housing services and failure to repair was dismissed due to her failure to appear at the properly noticed hearing. On appeal, the tenant claims not to have received the notice of hearing, and attaches the requisite Declaration of Non-Receipt of Notice of Hearing.
MSC: To accept the appeal and remand the case for a new hearing; should the tenant fail to appear at the next hearing, absent extraordinary circumstances, no further hearings will be granted. (Becker/Marshall: 4-1; Gruber dissenting)
I. 6939 A California St. AT020494
The tenant"s petition alleging decreased housing services was denied because the Administrative Law Judge found that the landlord acted promptly to remedy the problems after being given access to the unit by the tenant. On appeal, the tenant claims that: the landlord has not responded to her requests for repair over the past year; and she has not failed to provide access to the unit in order for the landlord to perform the repairs.
MSC: To deny the appeal. (Gruber/Lightner: 5-0)
J. 1550 Bay St. AL020496
Forty-one tenant petitions were granted, in part, alleging decreased housing services during a period of extensive renovation work on the property. Although the Administrative Law Judge found that most of the tenants" claims were barred by the Golden Gateway decision, rent reductions were granted for the loss of a sauna, showers and a steam room ($25.00 per month); the permanent loss of temporary off-street parking spaces in front of the property ($25.00 per month); and the removal of screen doors from apartments with sliding glass doors. The landlord appeals the decision, maintaining that: permanent loss of the sauna and steam room coincided with the reopening of the pool, which was in May of 1999; no competent evidence was introduced regarding the value of the sauna and steam room, or any of the allegedly reduced services; the amount granted to each tenant should vary depending on the extent to which the tenant used the facilities, the amount of rent the tenant pays, and any cost savings to the landlord; the "20 minute" parking spaces were not a housing service provided by the landlord, their loss was not "substantial", and the amount granted is excessive; the removal of the screen doors was related to the construction project and the rent reduction is therefore barred by Golden Gateway; the correct date for any rent reduction for the loss of the screen doors is April of 1998; tenant Lynn Barrett never had a screen door; any tenants granted a hardship deferral of the capital improvement passthrough should have that amount offset against any rent reduction granted for decreased housing services; and a payment plan should be established for any sums found to be owing from the landlord to the tenants due to decreased housing services, since the tenants were granted a payment plan for retroactive capital improvement passthrough amounts owed to the landlord.
MSC: To deny the appeal. (Becker/Marshall: 3-2; Gruber, Lightner dissenting)
K. 55 Dolores St. AL020496
The landlords" petition for certification of capital improvement costs to the tenants in five units was granted, in part. The landlords appeal the disallowance of certain items, claiming that: the removal of the old fence and ivy were incidental to dry rot work, which constituted a capital improvement, and the tenants failed to object to certification of this work; the replacement of nine glass panels was improperly characterized as a repair; the dry rot work performed on the lower balcony of unit #3 did not benefit any of the other units in the building, and should only have been allocated to unit #3; the landlord was not provided with an opportunity to amend the petition; and the Rent Board has arbitrary standards for allocation of capital improvement costs.
The Deputy Director advised the Board that the landlord had only appealed as to two units, but other units in the building would be affected should the allocation of capital improvement costs change. Therefore, the Board agreed to re-schedule this matter in order to allow the landlord to amend the appeal.
X. Public Hearing
Proposed Amendments to Rules and Regulations Section 1.21
The Blaine Family Trust v. Rent Board (Perlstadt)
(Superior Court Case No. 500854)
A Public Hearing was held from 7:40 to 7:42 p.m. on proposed amendments to Rules and Regulations Section 1.21 that clarify that a tenant can occupy more than one unit in a building as their principal place of residence. The only speaker was Attorney Joe Bravo, who suggested that the Board clarify what is meant by the "subject premises." After discussion, the Board voted as follows below:
MSC: To adopt the proposed amendments to Rules and Regulations Section 1.21 with the suggested changes. The 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. (Becker/Marshall: 3-2; Gruber, Lightner dissenting)
The new language reads as follows below:
Section 1.21 Tenant In Occupancy
(Effective June 5, 2001; amended for clarification December 3, 2002)
A tenant in occupancy is an individual who otherwise meets the definition of tenant as set forth in Ordinance Section 37.2(t), and who actually resides in a rental unit or, with the knowledge and consent of the landlord, reasonably proximate rental units in the same building as his or her principal place of residence. Occupancy does not require that the individual be physically present in the unit or units at all times or continuously, but the unit or units must be the tenant"s usual place of return. When considering whether a tenant occupies one or more rental units in the same building as his or her "principal place of residence," the Rent Board must consider the totality of the circumstances, including, but not limited to the following elements:
(1) the subject premises are listed as the individual"s place of residence on any motor vehicle registration, driver"s license, voter registration, or with any other public agency, including Federal, State and local taxing authorities;
(2) utilities are billed to and paid by the individual at the subject premises;
(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
(6) Credible testimony from individuals with personal knowledge or other credible evidence that the tenant actually occupies the rental unit or units as his or her principal place of residence.
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.
XI. Communications
The Board received correspondence concerning cases on the calendar, and a letter from the San Francisco Apartment Association opposing the proposed amendments to Rules Section 1.21. In addition, the Commissioners received a copy of a letter from the Executive Director to Bert Polacci of Olympic View Realty (Parkmerced) regarding apparently improper PG&E passthroughs that have been imposed on most, if not all, tenancies at the property. In his letter, Mr. Grubb expresses the Department"s concern that tenants who have not filed petitions challenging the passthroughs are paying unsubstantiated and unjustified amounts. Mr. Grubb gives Parkmerced until December 4, 2002 to provide supporting evidence for the passthroughs or a letter of intent to discontinue the passthroughs, or he advises that he will refer the matter to the Office of the District Attorney.
XII. Director"s Report
Executive Director Grubb informed the Commissioners that the Staff Holiday Party would be held at Don Ramon"s Restaurant on Thursday, December 19th, from noon until 2:00 p.m.
XIII. Old Business
Proposed Amendments to Rules and Regulations Section 1.18
Since there was no Neutral Commissioner in attendance at this point in the meeting, this issue was continued to the meeting on January 7th.
IV. Remarks from the Public (cont.)
B. Attorney Joe Bravo, representing Parkmerced, informed the Board that Parkmerced is taking the letter from Executive Director Grubb most seriously. Mr. Bravo stated that, if refunds were warranted, they would be issued. He said that management has to sort out what they inherited from the prior owner. He also said that Mr. Grubb would receive a draft response the following day.
C. Landlord Greg Blaine, who filed the Writ in the Perlstadt case, commented regarding the issue of tenants using two units as their principal place of residence "with the landlord"s consent." Mr. Blaine said that he did not consent to rent control on any of his units, and that he "looks forward" to going back to living under the contracts that were originally made.
XIV. Calendar Items
December 10, 2002 - NO MEETING
December 17, 2002
10 appeals (1 cont. from 11/19/02; 1 rescheduled from 12/3/02)
XV. Adjournment
President Wasserman adjourned the meeting at 8:20 p.m.