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And yet, within that lease agreement is the following provision: "the Agreement will be null and void unless the Mayor and Board of Supervisors approve this Agreement."
This did not happen. This has still not happened.
So, in summation: The city's attempt to raise rents could lower rents unless it's agreed an agreement whose provisions render it null and void is not null and void.
But, per Gross, this text within a city contract rendering it "null and void" is, itself, null and void. It's just "boilerplate" — the prewritten verbiage cut-and-pasted into contracts as needed, or, in this case, as-not-needed-nor-wanted.
Month-to-month contracts, says Gross, do not require board or mayoral approval — even though this one contains language specifically stating it does. "It's not applicable, just like a lot of other boilerplate provisions are not applicable in city leases," he told the judge. "The validity of the Mercy lease is irrelevant, even under the scenario the Mercy lease is not valid. Which it is."
The legalistic notion that so-called "boilerplate" provisions within a contract are, somehow, less binding than non-boilerplate provisions is an intriguing one. SF Weekly relayed the City Attorney's argument to, perhaps, a dozen figures throughout San Francisco — lawyers, housing experts, technocrats.
The reaction was unanimous: maniacal laughter.
Over on the side of the nonprofit developers and affordable housing activists, however, there's more of a noticeable silence.
Virtually any group Midtown and its advocates would think to turn to for support is part of the "City Family" — the diverse range of politicos in this one-party town who can be expected to demonstrate remarkable political cohesiveness. Nonprofit development and affordable housing activism involve a family within that family. And no one wants to irritate their relatives.
"If you don't play by the family rules," explains a veteran city employee focusing on affordable housing development, "then you're out of the family.
"They have their debates within the family," he continues. "But when one of the family members is picked to do this development, everyone else lays off. Eventually, it'll be your turn at the trough."
Mercy Housing is the nonprofit developer tapped by the Mayor's Office of Housing to develop Midtown into "an oasis for this intergenerational community," per the plan's architectural firm. Mercy is a respected outfit — but, in a sign of this city's insularity, Mercy's executive director, Doug Shoemaker, was Olson Lee's immediate predecessor as director of the Mayor's Office of Housing.
This level of clubbiness typifies the city's affordable housing establishment. Mercy is, perhaps, the key member of the San Francisco Council of Community Housing Organizations (CCHO, pronounced, incongruously, "choo-choo"), the umbrella organization for most of this city's nonprofit developers and affordable housing activists. This group anoints itself "the voice of San Francisco's affordable housing movement;" many of its activist members are regularly observed shouting into bullhorns on City Hall's steps and bemoaning evictions and displacement.
But anyone bemoaning the fate of Midtown's tenants is running headlong into an affordable brick wall. Because anyone lining up with Midtown is crossing not only his or her city benefactor but some of the loudest voices within "the voice of San Francisco's affordable housing movement."
As such, CCHO and its members have every reason to remain above the fray. A written statement regarding Midtown it released earlier this year attempted to placate all sides. The four-paragraph missive called for "no displacement" and a "binding commitment" to affordable rents — but also acknowledged that low rents put Midtown in its current bind. This would, it said, explain Midtown's "long-overdue repairs of elevators."
But that left Midtown residents even more bewildered — because Midtown Park has no elevators. "I have been here 44 years, and we have talked about elevators," says tenant Mary Watkins. "But we ain't never had none here."
Repairing nonexistent elevators ought to be a simple procedure. Deciding how many of the buildings they aren't in to knock down is not.
Earlier this year, Natacha Yarbrough, a 34-year Midtown resident and current S.F. State MBA candidate, logged onto the Planning Department website. And while the publicly disseminated plan for Midtown is to raze and replace two buildings and renovate the remaining four, the "Project Description" listed on the site stated all six buildings are to be "removed."
The Planning Department in January informed Midtown tenants this was the result of a clerical error. February emails exchanged between the city, Mercy, and a development consultant, however, bandied about the possibility of demolishing three or even four buildings.
Plans for Midtown, it seems, remain undetermined. Residents are currently undergoing income verifications; their future rents — and, they worry, their futures, period — also remain undetermined. And if the tenants win their petition — freezing rent in place — that will be all the more so.
The residents, however, lost their first battle. In his April 22 ruling, Kearns found that Midtown is not covered by the Rent Control Ordinance. Per the judge, the lease with Mercy fulfills the requirement of units "being controlled or regulated by a government agency" — but then he claimed he didn't have jurisdiction to determine the validity of this lease in the first place.
The tenants this month appealed Kearns' ruling: "It is paradoxical to conclude on the one hand that he cannot make a decision on the validity of the lease, while on the other hand concluding that a provision of that very lease renders Petitioners' tenancies exempt from the Rent Ordinance," reads their brief.
Winning this argument likely grew more difficult on May 5, however, when the city amended the Mercy lease to correct its "clerical error."
The "Lease inadvertently included boilerplate City language that is not applicable to the Lease," reads the amendment. "The parties now amend the Lease to remove the language."
The claim the city "inadvertently" included language rendering its contract "null and void" was never made by the city's attorneys during the April 1 Rent Board hearing. But they're making it now. In legal terms, the offending provision is now a mere "scrivener's error," notes Utrecht. If including it was truly a mistake, he continues, its removal will likely be permitted.