Blogging Bayport Alameda

July 10, 2017

Marilyn Ezzy Ashcraft: Can We Talk . . . And Listen?

Filed under: Alameda — Lauren Do @ 6:00 am

In his book, “The Road to Character”, New York Times and NPR commentator, David Brooks observes that, “Great matters cannot be settled by taking into account just one principle or one viewpoint. . .The moderate [steps] back to understand opposing perspectives . . . appreciating the merits of each.”

This is how I try to approach the challenging issues that come before the City Council. One of the most difficult issues we have faced is the current housing crisis, including the affordability and availability of rental housing. It is tempting to look the other way and say housing issues are not a local problem, but a regional one; Alameda didn’t cause the housing crisis so it’s not our responsibility to fix it. But I believe every city has a responsibility to help address this issue, while taking into consideration the legitimate concerns of both tenants and landlords. And the majority of our City Council agreed.

Last March we enacted a rent stabilization ordinance (Ordinance 3148) that addressed objectionable practices including frequent and extreme rent increases and evictions for no reason. Under the new ordinance rent increases are allowed only once a year and a rent increase over 5% triggers a hearing before the Rent Review Advisory Committee (RRAC). RRAC decisions are non-binding, but under certain circumstances can be appealed to a hearing officer for a binding decision.

Landlords were still allowed to evict tenants in order to move family members into a unit, make substantial repairs, remove the unit from the rental market, or for no reason at all, but had to compensate displaced tenants with relocation fees. Relocation fees are intended to help tenants with a deposit and first month’s rent for another apartment because statistics showed that more than 50% of our renters, including seniors on fixed incomes and families with school children, pay more than 50% of their income for housing costs, leaving little, if any reserves.

Ordinance 3148 went into effect at the end of March 2016. In November two competing measures, L1 and M1, were placed on the ballot. L1 was approved by the majority of voters (55.5%) thereby ratifying Ordinance 3148, which included a provision granting the City Council the authority to amend or repeal the Ordinance without going back to the voters.

This past April a Council majority, myself included, voted to amend Ordinance 3148 by removing the ability of landlords to evict tenants for no reason, even with compensation.

Why did I vote for this amendment? Because a year after the ordinance took effect the vacancy rate in Alameda is still very low, causing some renters, especially seniors on fixed incomes and families with children to fear the upheaval of being evicted for no reason, not being able to find another home, and possibly having to leave their school during the school year.

We also heard from tenants who were reluctant to report needed repairs to landlords or property managers for fear of being labeled a problem tenant and being evicted. In December 2016 the devastating Oakland Ghost Ship fire resulted in 36 deaths and brought to light a variety of failures that led to this tragedy, among them, numerous building and fire code violations. No one wants a Ghost Ship fire in Alameda, but in some cases, a neglected repair can have devastating consequences. (In April, after learning that more than 3,000 properties in Alameda, including apartment buildings with three or more units, haven’t been regularly inspected, some since 2005, the City Council authorized the Fire Department to hire a fire marshal and two firefighters to work full time as fire inspectors to address this backlog.)

Before we voted to eliminate “no cause” evictions, I spoke with landlords, property managers and realtors to help inform my decision. Those with rental property said they rarely use “no cause” evictions, but find them useful to evict a problem tenant who is violating the lease, without having to hire an attorney and go to court. I understand this perspective, but on balance, the benefit of continuing “no cause” evictions was outweighed by their potential detriment.

Then, at the June 6 City Council meeting, an out of town representative of various landlords’ organizations addressed the Council and warned that if we approved these amendments to the ordinance, they “would return Ordinance 3148 to the voters”. And so began the latest round of petition signature gathering, and quite possibly another ballot measure, or several.

I am both frustrated and disappointed by this latest turn of events because I have long implored representatives of both sides to meet with each other to hear firsthand the legitimate concerns of each group. Renters need homes that are safe and affordable. Landlords need to earn a reasonable return on their investment and have the resources to maintain their property and set aside reserves for unanticipated repairs and potential relocation benefits. Without open dialogue, viewpoints become extreme, positions become entrenched. If we talk only with like-minded individuals, we operate in an echo chamber, reinforcing our own position without the reality check of factoring in another’s perspective. The language around this issue, from both sides, has become vitriolic and personal. Name calling and stereotyping do not bring us closer to finding middle ground.

I am still hopeful that the opportunity exists for both sides to engage in civil and constructive dialogue because there are still areas in the ordinance that need to be improved and refined. I would like to eliminate the “shuttle diplomacy” that has taken place between City staff and the two sides separately and would prefer that future reviews of the ordinance involve a City Council sub-committee that meets with representatives of both sides and staff simultaneously and reports its findings to the full Council.

If we are willing to engage in constructive dialogue, we can make Alameda’s rent ordinance unique, one that recognizes and addresses the legitimate needs of both landlords and tenants. A referendum, or charter amendment brought by special interest groups representing either side will lack that essential balancing of interests.

“Great matters cannot be settled by taking into account just one principle or one viewpoint. . .The moderate [steps] back to understand opposing perspectives . . . appreciating the merits of each.” I continue to believe that we in Alameda are equal to the task.

Marilyn Ezzy Ashcraft
Alameda City Council

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10 Comments »

  1. Correction: RRAC decisions re proposed increases over the 5% threshold ARE binding if not appealed to a hearing officer, unless the unit is an exempt condo unit, post-1995 construction or a single family residence. (“If neither party files a petition, the Committee’s decision will be BINDING on the parties and the Rent Increase shall be effective upon the expiration of the time to file the petition.”). Only if such cases are appealed to a hearing officer is the RRAC decision not binding. No such case was appealed to a hearing officer during the period before the Council passed amendments to L1. All were binding.

    Comment by MP — July 10, 2017 @ 9:05 am

  2. This statement needs some clarification:

    “a rent increase over 5% triggers a hearing before the Rent Review Advisory Committee (RRAC). RRAC decisions are non-binding, but under certain circumstances can be appealed to a hearing officer for a binding decision.”

    First, residents have the right to a RRAC hearing for any amount of rent increase. There is no minimum. A housing provider that wants to raise the rent over 5% is required to submit an application to the Alameda Housing Authority for a RRAC hearing. This means that every rent increase over 5% in any one of the 15,000 plus rental units is recorded. The data is available to download from the AHA’s website. http://www.alamedarentprogram.org/reports.

    As for the enforceability (binding decision) of any recommendation or decision of the RRAC, the binding nature of the decision is determined by the type of housing unit and the amount of the rent increase that was initially noticed.

    If the housing unit is a single family home, a townhouse, a condomunium, or a multifamily building built after February 1,1995, the RRAC decision is not binding on either party regardless of the amount of the rent increase due to state law. Separate from this exemption, if the proposed rent increase was 5% or less and the multifamily housing unit was built before February 1, 1995, the RRAC decision is not binding. However, in any of the above cases, either party may appeal the RRAC decision to the Alameda City Council for a public review of the case and obtain a letter from the city “requesting” acceptance of the RRAC recommendation. There is no cost to either party to file this appeal. In the 15 months that Ordinance 3148 has been in effect, the City Council has not heard one case.

    As noted earlier, all housing providers that wish to raise the current rent above 5% are required to file an application with AHA. While many of these applications are resolved prior to the RRAC meeting through the mediation efforts of the AHA staff or the parties come to an agreement during the RRAC meeting, a few cases require the RRAC to determine a specific amount of rent increase. In the event a party does not agree with the decision of the RRAC, then either of the parties may appeal the decision to a hearing officer. If a party doesn’t appeal the decision in 15 days, the decision is binding. In other words, once the RRAC decision is made, the parties do not need to take any action for the recommendation to become binding. Historically, in the 15 months that Ordinance 3148 has been in effect, there have been no hearings to challenge a RRAC decision.

    Comment by Jeff Cambra — July 10, 2017 @ 9:14 am

  3. The statement of reasons for the vote to amend L1 is essentially the same as the reasons given during Council meetings. Notably, there does not seem to be an expressed concern over the actual number of “no cause” evictions (a 30 or 60 day notice) that occurred in the City since 3148/L1 passed. That is likely because there were very few. Less than 30 in a city of 15,000 rental units. Why is that? In part, it is because it is extremely costly for a landlord to conduct a “no-cause” eviction. It is always money loser as compared to continuing with an existing tenancy: large relocation fees are required and the subsequent rent is capped. A rational landlord who intends to remain a landlord would do it only if necessary and for good reason.

    It also seemed like the Council was trying to fix the problem of a few landlords – the specific cases are not given — who would resort to illegal retaliation, and illegal evictions, to avoid maintenance complaints. No real dimensions were put on that problem or much consideration given to enhancing the existing, significant due process tools for combatting it: it is already illegal to retaliate against a tenant for complaining about maintenance issues. Where it is shown that a “no cause” eviction was in response or retaliation for a complaint about maintenance, the landlord will not recover possession, is subject to an attorney fee award in favor of the tenant, and could be subject to additional penalties.

    The Council’s amendments, on the other hand, would have greatly increased the risks for the vast majority of normal, law-abiding landlords. As mentioned, a “no cause” eviction cannot be used to retaliate against a tenant with maintenance complaints without creating a serious violation of the law and exposing the landlord to big monetary penalties. The Council’s solution, however, takes away a legitimate (but very costly) way – that Alameda voters approved in November — for landlords to reasonably manage property for the benefit of themselves and other tenants, without as a great a potential for enormous legal fees just to deal with a problem tenant. Smaller landlords, who are the ones most concerned about the financial costs of being trapped in and getting out of a bad tenancy know that the City will not be there to pay the landlord’s legal fees if the landlord prevails after being forced through the additional “just cause” legal procedures that the Council amendment would have required.

    Smaller landlords also make up the majority of landlords in Alameda. The Council should be very concerned not to scare away from participating in the rental market, if the goal is in fact to keep rentals available. Tenants of larger buildings will suffer if it becomes more difficult to deal with problem tenants, but tenants and potential tenants of smaller buildings (second units in a duplex, single family houses, or the second unit someone might have been considering building in the future) are even more at risk from landlords deciding to quit the business when those units can easily be removed from the market and instead used for very valuable owner-occupied housing.

    If the Council addresses this issue again, I hope they do it in a way that addresses the specific problem as it exists in Alameda (and not as it exists in Berkeley or in slogans) and does not give more reasons for people to be less willing to stay in, or enter, the rental market. The number of evictions before the Council decided to amend L1 was very low. A solution that ends up increasing the number of evictions because more small owners decide Alameda is becoming too risky and quit the rental business is a solution that itself causes evictions for “no [good] reason”.

    Comment by MP — July 10, 2017 @ 10:37 am

    • Well stated! Thank you.

      Comment by Nancy Hird — July 10, 2017 @ 5:28 pm

  4. The “ghost ship” example is a red herring…

    Many reasonable people believe council members blatantly placed their own personal political interests ahead of their fiscal responsibilities by voting to amend thereby undercutting our tax base in this mini “wealth transference” scheme. The economic effect is predictable- to drive landlords out of the rental market, discourage developing or building new units, or encourage the sale of existing rental units for single family homes. This will have the effect of raising rents by reducing availability further pricing tenants out of the Alameda market. Ironically, this occurs at the same time the City is supposedly encouraging development because of the “housing crisis.” What three council members needed was an economics lesson. The market will provide it.

    A reasonable post by Ms. Aschcraft would have addressed this elephant in the room.

    Comment by Nowyouknow — July 10, 2017 @ 1:20 pm

  5. The Councilmember writes, “In November two competing measures, L1 and M1, were placed on the ballot. L1 was approved by the majority of voters (55.5%) thereby ratifying Ordinance 3148, which included a provision granting the City Council the authority to amend or repeal the Ordinance without going back to the voters.”

    Didn’t the renter group’s M1 have a provision on ‘just cause’, meaning that a significant majority of Alameda (perhaps far higher than the 55.5%?) in voting down M1 rejected ‘just cause’ as well? I’ll have to look at M1 again but I’m sure there was a voter-rejected ‘just cause’ provision there.

    Comment by anonymous — July 10, 2017 @ 6:21 pm

  6. L1 enacted the existing ordinance, and left it as an amendable ordinance. The Council amended a section of it .

    M1 had more stringent rules, and was in the former of a Charter revision. It could not be amended by our elected representatives, but could be changed by a vote of the electorate.

    There was a great deal of discussion during the campaign about how L1 was a better solution, in part because it was more flexible. L1 was supported by the real estate community. After L1 became law, the Council revised it in a way the real estate community felt was not what the voters intended. I do not believe that anyone has been betrayed or that the Council misbehaved in any way. I think they voted as their information and consciences dictated.

    I have declined to sign all petitions, as I routinely do when confronted in parking lots. Think about it: we do not have the time to read the printed matter thoroughly; the signature gatherers cannot answer questions and often do not know who is financing initiative efforts, or who will benefit, or be made to suffer because of them. The often will tell you anything to get you to sign, because they get money for your signature.

    Comment by Kate Quick — July 10, 2017 @ 7:16 pm

  7. I’d like to see an ordinance passed that inhibits petitioning efforts from outside of Alameda. If you want to petition Alamedans, you gotta either pay Alamedans, or convince enough of them to volunteer. Otherwise, it’s just going to be the people with the most resources paying for whatever laws benefit them. Just because something shows up on the ballot does not mean it’s a fair and accurate representation of what a majority of the voters want. We were deluged by mailers for the L1 campaign, much of it purposely misleading. We can expect more of the same with this charter amendment the landlords are going to be pushing soon. If the council is essentially toothless in this matter, then perhaps they can at least ensure that local matters stay local.

    Comment by Johnny Alameda — July 11, 2017 @ 10:07 am

  8. Thank you for opening this discussion with your post Ms. Ashcraft. I will try to keep this brief and direct. Regarding the passage of Ordinance 3148, yes, the city did a great job in listening to concerns of both tenants and property owners. Since its passage there have been fewer complaints about the abuses that were happening before.  When you as a Council decided to put 3148/L1 on the ballot in November and were solidly backed by the voters, it certainly delivered a mandate. The voters were satisfied that action had been taken to help the community as a whole.
     
    You also mention that when 3148/L1 was passed by the council and subsequently affirmed by the people of Alameda it included a provision granting the City Council the authority to amend or repeal the Ordinance without going back to the voters. However, the fact sheet of comparison of 3148/L1 to M1 clearly states that it permits City Council to amend the Ordinance to address “changing concerns and conditions”. These are your words, not those of others. I offer up again that in the passage of 3148 by the Council on March 31, 2016 and in the affirmation by the voters in the November election of 2016, that statement conveyed to the community that if the law it did not work we would look at it and do better.

    Ordinance 3148 has done a great job of eliminating no cause evictions for financial gain. Owners must would be subject to about $13000 in associated costs to exorcise no cause and cannot increase the rent beyond the 5% that could have been charged to the terminated tenant. One year of data makes it clear the law is working. There have only been 26 tenancy terminations from in Alameda’s 14889 rental units (.0017%). 26 Terminations of tenancy were for the following reasons 15 for the sale of the property, 3 to accomplish major improvements to the property, 1 owner move in and 7 no-cause terminations). 3148/L1, has also done a great job of eliminating the 20-30-40% increases. All in all, it has done all that it was supposed to and there was no need for major changes.

    Apparently, some people disagreed and based upon political considerations, they changed the law. Both the substance of the change to Just Cause and the process were questionable.  In a meeting with the Assistant City Attorney and staff in early May, groups of both renters and property owners were told that clean up changes were being contemplated for the May 16 meeting of the city council. We were also told that some wanted to revisit the idea of Just Cause and asked staff to develop a RFP to get a consultant in who could help analyze whether Alameda should go that route.

    That never happened. At the May 16 meeting, eliminating No Cause did not appear on the published. Then suddenly and without warning, you and your colleagues passed it Just Cause on May 16 as a first reading. You never studied the issues as promised.

    You state that you talked to property owners and asked about No Cause and were told they hardly ever use it. Did you say “good, then you won’t mind us voting to take it away.” Did you ask them how often they use their insurance, the fire extinguishers in the hallway, or if they ever participated in a referendum? I bet almost every single property owner you talked to would have said “NEVER” to all those questions. Nevertheless, no one would want these things taken away. 

    You suggest that Just Cause will allow owners to evict problem tenants. Well think about it, if it is true as you say that tenants are reluctant to report needed repairs, how willing do you think they will be to come to court and testify against a neighboring tenant that the property owner is evicting for nuisance or criminal behavior?

    The opportunity always exists for people to sit down and discuss issues. However, in these meetings people need to be honest and respectful to all, with a commitment to negotiate what is best for the community, not for themselves. More important, once we have reached consensus, as we did last year, the people who talked, listened and reached agreement, should honor their commitments and stand by their word.

    Looking forward to your constructive dialogue on this issue

    Thank you

    Comment by Joe LoParo — July 11, 2017 @ 3:23 pm

  9. Out-of-town landlord lobby interests and money have invaded Alameda–not once, but twice in the past year.

    Does anyone remember the widespread community outrage that met SunCal’s petitions and attempts to buy an election in 2010?

    The 2016 election saw landlord-supported groups spend about $1,000,000 to push Measure L1 and oppose Measure M1 and there was
    silence from the community at large. Now the same outside interests appear to be paying signature gatherers $8 per signature to buy changes in
    Alameda’s governance.

    Doesn’t being awash in outside lobbyists’ money just a wee bit disconcerting to homeowners and landlords as much as it is to renters?

    Of course, it is not surprising that statewide landlord groups want to ensure that they are not required to be fair to renters: why change a good thing when
    landlords have all the power? Never mind that there is no real justice for tenants and that renters always lose in the struggle for fair treatment.

    Comment by Jon Spangler — July 11, 2017 @ 10:31 pm


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