Is Jacob’s backyard hideaway one story or two? A judge will decide
A bitter three-year legal dispute, which began over an 8-year-old boy’s playhouse, is headed to trial this fall. The case has Santa Monica attorneys squaring off against Beth and David Levy, who sued the city in September 2000 after a neighbor complained the playhouse they built for their son, Jacob, was intrusive. Shortly after, City Hall ordered the structure to be torn down.
Land use attorney Chris Harding, who has taken on City Hall several times, represents the Levys. He will argue the case before a Ventura County judge in the next few months.
The Levy family, who live in the Sunset Park neighborhood, sued City Hall after building inspectors reversed their decision that the backyard playhouse was a legal one-story structure after neighbor Tunde Garai complained to then mayor Ken Genser.
The Levys claim Genser directed building inspectors to declare the playhouse illegal. City Hall did this by deeming it a two-story structure, with the first story as open space beneath the playhouse.
Genser disputes the Levys’ claim. He said he merely asked about the legality of the playhouse and passed along a citizen complaint to city staff via e-mails after they failed to respond to Garai’s repeated complaint that the structure was too tall.
City law prohibits elected officials from ordering a city employee to carry out any action. It requires that all inquiries go through the city manager first, the Levys argue. The law exists so city employees don’t feel their jobs are on the line if they differ with an elected official.
The Levys say City Hall’s flip-flop from legal to illegal cost thousands of dollars and forced them to choose between tearing down the playhouse or face criminal charges. Instead, they sued City Hall.
Tangling legal matters, City Hall eventually softened. It said Jacob’s playhouse could stay as a “non-conforming use.” But the decision left the family open to any other complaints about the structure.
Both City Hall and the Levys believe the other side is delaying the case. David Levy, a psychologist, said he’s frustrated that the dispute has taken so long.
“This started when Jacob was 4 and a half. He is now 8,” Levy said, adding Jacob still uses the playhouse. “It’s an issue of fairness. I wasn’t treated fairly and neither was my family. I don’t want that to happen again.”
The Levys rejected City Hall’s offer, and instead are seeking a public forum where they, as well as others, can appeal building inspectors’ decisions. The current law provides no appeals process. The suit also seeks to make the playhouse legal, with no restrictions.
“All I got was a series of conflicting statements,” Levy said. “I had no right to appeal. This all could have been avoided four and a half years ago. We are not going to back down.”
At the center of the suit is Levys’ claim that when Genser sent his e-mails, he was pressuring city staff to change the original approval.
In an attempt to throw out the suit, the city invoked a legal maneuver claiming neighbors, in this case, can’t be punished for complaining to City Hall.
To do this, they cited an anti SLAPP-suit initiative, named for “Strategic Lawsuit Against Public Participation” suits. These are usually decoy lawsuits often used by big developers to chill the public’s freedom of speech when speaking out against a project.
In response to those suits, the Legislature enacted California’s anti-SLAPP law, to protect people who want to speak out.
But West Los Angeles Superior Court Judge Cesar Sarimento denied the city’s motion to dismiss in March 2002, saying the Levys had proven the merits of their case well enough to go to trial.
The city has appealed the decision, moving the case to Ventura County due to a backlog of cases in Los Angeles Superior Court.
Nine other cities have filed briefs backing Santa Monica’s position. They argue that public officials shouldn’t be prevented from responding to legitimate requests from constituents and citizens shouldn’t be impaired in their right to free expression. The cities also argue that if the court upholds Judge Sarimento’s decision, it will set a precedent that would limit city officials throughout California from adequately responding to their constituents.
The Levys say their lawsuit has nothing to do with free speech. The crux of the suit is that City Hall broke its own rules. They say that Genser’s communications were tantamount to influencing city staff to change its mind and make Jacob’s playhouse illegal under zoning codes.
“It’s inherently intimidating when a council member comes in requesting something even if it’s done politely,” Harding said.
The Levys also argue that the city charter gives public officials plenty of room to advocate for their constituents — through the city manager, city attorney and public hearings — none of which Genser used.
“A councilor can help a constituent, but our argument is how you help a constituent,” Harding said. “They are making a first amendment argument and we have some concerns that the city attorney is not upholding the city charter. If you don’t like your charter, then change it but we’re comfortable that they’ve violated it.”
Originally published in the Santa Monica Daily Press print edition on September 22, 2003. Read the original PDF.