By Jorge Casuso

July 12, 2019 -- Tenants who violate the City's zoning code in their units should be allowed to mount a challenge even though the citation was filed against the building owner, the Rent Board decided Thursday.

The Board voted 5-0 to recommend that the City Council amend the municipal code after a tenant was evicted earlier this year for refusing to remove a trellis from her first floor patio after the owner was cited.

The Board's General Counsel J. Stephen Lewis said it was the first time such a problem had arisen in the Board's 40-year history and that it was not likely to arise again "before a similar period has passed."

Lewis also said information had come to light since his staff report was written indicating the tenant had also been cited but declined to challenge the three citations she received.

Still, Board Vice chair Nicole Phillis said the "core issue" was worth fighting for.

"Allowing a tenant to fight a battle that benefits both tenants and landlords is an admirable, appropriate and just goal," Phillis said.

If the code is not changed, she said, "tenants can continue to be evicted."

Before voting in favor of the recommendation, Board member Anastasia Foster said she was worried that changing the municipal code would open "a can of worms."

"This recommendation would open it up to hundreds of codes," Foster said. The incident, she added, is "one very clear niche problem that exposes a plethora of other problems."

The item came to the board in May after the tenant was evicted from her unit for maintaining a trellis that violated the City's zoning ordinance, Lewis said in his report.

After the owner was given the first of two citations, the tenant was asked to remove the trellis but refused, he said.

"After the landlord took down the trellis, the tenant put it back, knowing that the City had determined it to be a zoning code violation, and knowing that her landlord might again be cited for the violation, but still believing the City’s violation determination to have been erroneous," staff wrote.

Once again the landlord was cited, and this time gave the tenant a three day notice to remove the trellis or be evicted, Lewis said. The tenant again refused.

During the meeting, landlord Mathew Millen warned that the City could be held liable if it prohibits a landlord from correcting a violation that leads to an injury.

Several Board members acknowledged the concern was valid but said the issue at hand needed to be addressed.

"One time is one time too many," said Chair Caroline Torosis. "We want to ensure this doesn't happen to anyone else."