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January 22, 2008

January 22, 2008

MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,

Tuesday, January 22, 2008 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level

I. Call to Order

President Gruber called the meeting to order at 6:09 p.m.

II. Roll Call

Commissioners Present: Beard; Gruber; Henderson; Hurley; Justman; Marshall; Mosser.

Staff Present: Lee; Wolf.

Commissioner Murphy appeared on the record at 6:15 p.m.; Commissioner Mosbrucker arrived at the meeting at 6:30 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of January 8, 2008.

(Hurley/Henderson: 5-0)

IV. Remarks from the Public

A. Dave Burnett said that he has been a tenant in the Golden Gateway complex for over thirty years. Mr. Burnett believes that after rent control was first enacted, there were dramatic increases in utility costs, but that a comparison between 1980 and 2006 "no longer makes sense." Mr. Burnett feels that tenants are being charged for inflation because there is no indexing of base year costs for utility passthroughs. Mr. Burnett said that rents have gone up at about the same rate as utilities.

B. Golden Gateway tenant Paul Ledyard passed out a handout comparing utility passthroughs, monthly rents, and the landlord's utility costs. Mr. Ledyard said that he has paid the landlord $15,000 in rent over the cost of utilities. Although he doesn't mind paying his pro rata share, Mr. Ledyard believes that he has paid $10,000 more than his fair share.

C. Golden Gateway tenant Bobby Coleman remarked on the "inequity" of unbundling the energy cost component of the CPI. Mr. Coleman said that this has an onerous impact on tenants, and that he came before the Board to "exhaust his administrative remedies." Mr. Coleman appeared in support of tenant Brian Browne's appeal (AT070217).

D. Jim Faye appeared on behalf of the tenant at 150 Font (AT070213). Mr. Faye told the Board that after his client's mother gave notice that her daughter was moving in, the landlord failed to give a 6.14 notice or reserve the right to increase the rent at a later time. Mr. Faye believes that the landlord waived their rights to a rent increase because they knew his client was there and thereafter accepted rent. Mr. Faye explained that Rules ß6.14 confuses tenants, who think they're in the clear if the landlord hasn't served them with a 6.14 notice. Mr. Faye asked that the Board delete ß6.14, or amend it for clarity.

E. Constance Ryder, the tenant at 150 Font, told the Commissioners that she gave notice and moved out of the unit on January 8th. Ms. Ryder lost her job in October and is now in training at a new job. She told the Board that it would be a huge financial burden if she had to pay the retroactive amounts she owes.

F. Golden Gateway tenant Bill Hannon spoke in support of Brian Browne's appeal. Mr. Hannon said that the landlord wants to use the 1980 base year, while Mr. Browne wants them to use 2005. Mr. Hannon suggested that the Board consider an equitable compromise and "balance the unhappiness."

G. Golden Gateway tenant Brian Browne spoke in support of his appeal (AT070217). He told the Board that he has "done the math" and that the landlord's rent increases and power increases match. He said that the same amount of power is being consumed except that the common area costs are much less. Mr. Browne believes that $30,000 is owed to him by the landlord and that subtracting a 1980 bill from a 2006 bill is "nonsensical," and a "regressive tax on aging." Mr. Browne also feels that the regulation cannot override his lease.

H. Golden Gateway tenant George Eddick said that he agrees with the previous speakers. He feels that the landlord is trying to accomplish with utility passthroughs what they cannot accomplish through annual rent increases.

I. Golden Gateway tenant Ernestine Weiss said that the landlord is a "slumlord." Ms. Weiss is upset about the corporate rentals at the complex and "hotelization." Ms. Weiss feels it is "highway robbery" to compare 1986 rents to later years, and that fixed income tenants can't bear it. Ms. Weiss also maintains that "double-dipping" is illegal.

J. Golden Gateway tenant Regina Macias alleged that the Golden Gateway Center is charging tenants for electricity used in construction projects that are being undertaken. Ms. Macias maintained that the landlord hasn't done anything except for the provision of new curtains; she gets rent increases and expects something in return.

K. Landlord Joe Sutton spoke concerning the hardship appeals at 2360 Van Ness (AT070221 & -22). Mr. Sutton has no problem with Ana Gonzalez' appeal, but believes that tenant Nancy Berry's Hardship Application is incomplete because her expenses are greater than her income.

L. Golden Gateway tenant Natalie Jones said that she supports Brian Browne in his battle over these "unjust charges." Ms. Jones maintained that the landlord has done nothing to improve the surroundings and provides unsightly second-hand appliances.

M. Golden Gateway tenant Bridgette Boylan said that she is appalled at the amount of the utility passthroughs for long-term tenants. Ms. Boylan believes that this is a ploy to get rid of the older tenants.

V. Consideration of Appeals

A. 633 Cabrillo AT070214

The landlord's petition for certification of the costs of a new roof to 3 of 5 units was granted, resulting in a monthly passthrough in the amount of $73.30. 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. (Henderson/Marshall: 5-0)

B. 2360 Van Ness #11 & #8 AT070221 & -22

AT080002 & -03

The landlord's petition for capital improvement passthroughs and rent increases based on increased operating expenses to 16 of 20 units was granted. Two tenants appeal the decisions on the grounds of financial hardship.

MSC: To accept the appeals of the tenant in unit #11 and remand the cases for a hearing on the tenant's claim of financial hardship. (Marshall/Henderson: 5-0)

MSC: To accept the appeals of the tenant in unit #8 and remand the cases for a hearing on the tenant's claim of financial hardship. (Marshall/Henderson)

C. 214 A Bonview AT070212

The tenant's petition alleging an unlawful rent increase was denied. The tenant appeals, claiming that: at the Mediation session, the Administrative Law Judge indicated that he found the tenant's evidence credible; and the landlady had no proof that the tenant's rent had not been raised from $380.00 to $500.00.

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

D. 150 Font Blvd. #7-E AT070213

The tenant's petition alleging an unlawful increase in rent from $951.88 to $2,005.00 was denied because the Administrative Law Judge found that the rent increase was authorized by Costa-Hawkins. On appeal, the tenant maintains that: the landlord waived its right to increase the rent under Costa-Hawkins; Rules ß6.14 should be deleted or amended if it is preempted by Costa-Hawkins; the legal force and effect of the "Notice to all persons in residence" and "Application for Lease Renewal" need to be determined; and the 6.14 notice issued by the landlord was untimely served.

MSC: To accept the appeal and remand the case to the Administrative Law Judge for a hearing to ascertain whether the appellant was a tenant or a subtenant at the time the notice of rent increase was served; whether a direct landlord-tenant relationship was established; and/or whether a rent increase pursuant to Rules ß6.14 was warranted due to the timely service of a 6.14 notice. (Murphy/Marshall: 4-1; Gruber dissenting)

E. 550 Battery #1409 AT070217

The landlord's petition for approval of utility passthroughs for 69 of 794 units was granted. One tenant appeals the decision, asserting that: there is no valid policy reason for Rules ß6.16 to exist, as utilities were included in the tenant's initial base rent; the tenant's rent has increased at the same rate as the landlord's utility costs; the utility costs for the laundry room/health club are less than in 1980 when indexed for inflation; the tenant's lease should be controlling regarding the payment of utilities; revenues received by the landlord from vendors should be factored in; and Rules ß6.16 represents a regressive tax on aging for long-term tenants.

After discussion, it was the consensus of the Board to continue consideration of this appeal to the next meeting.

F. 845 Bosworth AL070216 & AT070219

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 $1,651.50 due to habitability defects on the premises. The landlord and tenant both appeal the decision. The landlord asks that the amount of $2,194.38, which he has already paid to the tenant, be offset to mitigate the amount that he owes. On appeal, the tenant provides additional evidence and claims that: three light bulbs needed to be replaced, as opposed to one; the heater is still unreliable; the rent reductions should commence at an earlier date; the landlord had constructive notice as to the lack of lights at the entrances to the building; and the landlord has harassed her and invaded her privacy.

MSC: To deny both appeals; no determination is made as to the validity of any non-Rent Board claims. (Marshall/Justman: 5-0)

G. 3640 – 16th St. AL070220

The tenant's petition alleging decreased housing services and unlawful rent increases was granted and the landlord was found liable to the tenant in the amount of $1,230.32 for rent overpayments and $1,551.00 for loss of storage space and limited access to the garage. On appeal, the landlord claims that the storage room was provided after the inception of the tenancy for no additional consideration; and the original agreement did not include unshared access to the garage and the tenant has been provided access upon request.

MSC: To deny the appeal. (Marshall/Henderson: 4-1;

Gruber dissenting)

VI. Communications

In addition to correspondence concerning cases on the calendar, the Commissioners received an article from SFGate regarding the increase in Bay Area rents.

VII. Director's Report

Executive Director Wolf reported as follows:

A. She appeared before the SRO Hotel Visitor Policy Task Force to inform them about this year's amendments to the Visitor Policy. The Task Force members commended the Rent Board Commissioners for their good work in administering the Policy. Ms. Wolf and a Deputy City Attorney also attended a Settlement Conference in conjunction with a tenant's Federal Court challenge to the Visitor Policy.

B. The annual Sunshine and Ethics training for City officials will be held on Monday, March 3rd at Herbst Theatre from 6:00 to 8:00 p.m.

C. Ms. Wolf proudly announced the promotion of Rent Board Supervisor Robert Collins to the position of Deputy Director. Mr. Collins will appear at a Board meeting in the near future.

D. She briefly discussed plans for a gift and farewell dinner for ex-Commissioner Larry Becker after the March 4th Board meeting.

IV. Remarks from the Public (cont.)

N. Ernestine Weiss said that Golden Gateway's utility passthroughs are unreasonable whether the tenant can afford it or not, and that the landlord shouldn't be able to breach a contract. Ms. Weiss believes that the landlord is "making a fortune," while the hardship appeals process itself constitutes a hardship.

O. Regina Macias said that the law should apply equally to everyone, rich or poor, and that she had to move in with friends because the conditions in the complex were "unlivable."

P. Brian Browne said he moved in to the Golden Gateway complex when it was under HUD jurisdiction, and admitted that he "lucked out." Mr. Browne maintained that the landlord knew about the existing contracts when they purchased the buildings, and can't "unbundle" utilities since they are a component of the CPI.

VIII. New Business

Standards for Rescinding Ellis/OMI Notices of Constraints and the

Role of Rent Board Staff in Processing Requests for Rescission and

Other Petitions

The Board discussed the standard to be applied to landlord requests to rescind OMI/Ellis eviction notices. At their May 1, 2001 meeting, the Commissioners unanimously adopted a policy that, in order to rescind an Ellis eviction notice, an owner must prove that none of the existing tenancies was terminated as a result of the Ellis filing or show extraordinary circumstances. However, landlords sometimes argue that the tenants did not move as the result of the Ellis filing but, rather, for some other reason. Proper application of the standard is unclear in such situations. Is it sufficient to deny a request for rescission if the Ellis/OMI eviction notice is a link in the chain of events that led the tenant to vacate the unit? Or must the Ellis/OMI notice play a greater causal role in the tenant's vacation of the unit, e.g. be 50% or more responsible for the move-out? The Board discussed possible ways to clarify the standard, including a bright-line standard based on whether the tenant in fact vacated after service of the eviction notice. Such a bright-line standard would avoid the difficult issue of determining the precise causal relationship between the eviction notice and the tenant vacating the unit, and would also eliminate the need for staff investigation or proof at a hearing regarding the "real" reason the tenant vacated the unit. Commissioner Justman wondered if the Board needed to enumerate what constitutes "extraordinary circumstances" and several Commissioners expressed a desire for there to be an opportunity for public input. The Board continued discussion of this issue to the next meeting.

IX. Calendar Items

January 29th and February 5th, 2008 - NO MEETINGS

6:30 February 12, 2008

6 appeal considerations

Old Business: Standards for Rescission of Ellis/OMI Notices

New Business: Departmental Budget

X. Adjournment

President Gruber adjourned the meeting at 8:17 p.m.

Last updated: 10/9/2009 11:26:18 AM