Fate of playhouse could go to the Supreme Court
The fate of an 8-year-old Santa Monica boy’s playhouse will be decided by the state court of appeals by the end of this year. It’s a battle which pits a Santa Monica family against City Hall.
At the center of the bizarre controversy is a backyard playhouse built for Jacob Levy, 8. The handling of the playhouse has raised questions about how politicians hold sway over staff, and how citizens are treated by government agencies.
Lawyers representing both City Hall and the family of David and Beth Levy squared off earlier this month with oral arguments.
The Levys sued City Hall in September 2000 after building inspectors backed away from their finding that the playhouse was a legal one-story structure. The reversal of that decision came after a neighbor of the Levys — Tunde Garai — complained to then-mayor Ken Genser.
But City Hall claims Genser only asked staff to check on the legality of the playhouse.
Several months after the lawsuit was filed, city officials changed their minds again. This time, they said the playhouse could stay. But the condition they attached caused the case to go to court. The city would legally treat the playhouse as a “non-conforming use,” under which the city reserved the right to change its mind yet again if someone else complained.
The Levys, who felt mistreated by City Hall, complained that there was no public forum in which to appeal the decision. Their subsequent lawsuit sought to make the playhouse legal, as well as mandate that City Hall create an appeals process for building department decisions.
During the past two years of legal wrangling, City Hall officials have allowed the playhouse to stay indefinitely. It’s now regarded as a legal 12 1/2-foot tall structure, said Chris Harding, the Levys’ attorney. An appeals process also has been initiated, he added.
425,“There is due process now and had we had that then, this wouldn’t have happened,” Harding said. “We accomplished part of what we set out to do.”
Now the issue before the three-judge panel is whether Genser violated the law when he communicated with city staff. City law mandates that elected officials not order or request a city employee to carry out any action. It also states that all inquiries go through the city manager first, the Levys argue. The law exists so that city employees don’t feel their jobs are on the line if they ruffle the feathers of an elected official.
The Levys argue that the city charter gives public officials ample communication channels to advocate for their constituents — through the city manager, city attorney and public hearings. But Genser used none of them, they complain. They contend the city violated its own laws because Genser influenced city staff to change their minds and rule the playhouse was two stories, making it illegal under zoning codes. (The first “story” was open — a space under the elevated playhouse).
31D, Genser and the city say he didn’t pressure staff at all. They have found nine other cities to support them in court. City attorneys argued that public officials shouldn’t be prevented from responding to legitimate requests from constituents and citizen-free expression shouldn’t be impaired.
West Los Angeles Superior Court Judge Cesar Sarimento denied the city’s motion to dismiss the case in March 2002, saying the Levys had proven the merits of their case sufficient enough to go to trial.
But the city appealed the judge’s decision to the appellate court, which will decide whether or not the case should go to trial. Once the panel decides, either side can appeal the decision to the California Supreme Court, Harding said.
Originally published in the Santa Monica Daily Press print edition on October 17, 2003. Read the original PDF.