Legal fight brewing over HANC Recycling Center eviction

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HANC's lawyer says its old lease got recycled into a new lease.
photo by Rebecca Bowe

The Haight Ashbury Neighborhood Council (HANC) Recycling Center, located at the Kezar Triangle in Golden Gate Park, received a 90-day eviction notice following a Dec. 2 Recreation and Park Commission meeting approving plans for a community garden in its current location. However, tenant lawyer Robert De Vries, who is representing HANC, submitted in a Dec. 2 letter to Rec & Park Commissioners that HANC could not legally be made to vacate until the end of June.

The eviction has prompted an outcry from progressive groups, environmental organizations, and other HANC supporters, who turned out en masse at the Dec. 2 meeting and voiced strong disapproval over the proposal. It now appears that the issue may wind up in court.

“HANC has no intention of vacating the premises any earlier than legally required,” De Vries wrote to Rec & Park Commissioners. “HANC is also not willing to allow disruptive construction work or other activities to go forward on the leased property while it is in possession.”

In an earlier memo to Rec & Park Commissioners, city staff proposed issuing HANC a 30-day eviction notice, which would have ousted the recycling center by the end of December. That timing was significant, because it would have occurred under the administration of Mayor Gavin Newsom, a proponent of the eviction, who will vacate office Jan. 8 to be sworn in as Lieutenant Governor. Citing advice from the San Francisco City Attorney, the memo noted that Rec & Park could proceed with a 30-day eviction without commission approval.

But that initial advice was erroneous, City Attorney spokesperson Matt Dorsey told the Guardian, because it did not take into account HANC’s quarterly rental payments. Since the organization pays rent once every 90 days, instead of once a month, it cannot be evicted with just 30 days notice, according to state law. Once it was informed of HANC’s quarterly payments (by city staff, not De Vries’ letter, Dorsey said), the City Attorney advised Rec & Park that it should extend the eviction notice to 90 days.

The extra 60 days doesn’t just buy HANC time, it gives them hope. Newsom will be in Sacramento by then, and it’s possible that he could be replaced with an interim mayor who’s sympathetic to their cause.

De Vries, however, contends that 90 days is still too soon, and that HANC can't legally be evicted until June 30, 2011. HANC’s original five-year, fixed-term lease ended on June 30, 2001. Since then, it’s been paying rent to the city every 90 days. De Vries wrote that under state law, this arrangement means that "the lease is automatically renewed" for one year, and that it's renewed annually since 2001. California courts have found that “a tenancy from year to year is created where a tenant holds over after the expiration of a former lease for one or more years and pays rent,” De Vries wrote in his letter. His analysis is based on his reading of California Civil Code Section 1945.

“I don’t really see any other interpretation, frankly,” De Vries told the Guardian. In his view, by issuing a 90-day notice, “they’re putting something into the statute that isn’t there.”

The City Attorney’s office rejects De Vries’ analysis, and insists that the eviction notice is legal. “The lease does not expire on June 30,” Dorsey said, “and Rec & Park delivered a proper notice of termination.”

If this dispute winds up in court, it’s possible that the question won’t be settled until June of 2011 anyhow.