Legal games are over for City Hall and SM family
A nearly four-year court battle over a child’s playhouse ended in City Hall’s favor Tuesday when the Supreme Court refused to hear the lawsuit, levied by a Santa Monica family.
The high court denied a petition to consider an appeal, brought by lawyers for David and Beth Levy, who earlier this year failed to prove Councilman Ken Genser violated the law when he responded to a neighbor’s complaint that a playhouse next door to her was too tall.
The 2nd Appellate District Court ruled in January that Genser didn’t violate the city charter when he asked staff to check into the legality of the 12 1/2-foot-tall playhouse, built by David Levy for his son, Jacob. That’s when prominent land use attorney Chris Harding, who represented the Levys pro bono, took the case to the Supreme Court.
The Levys sued City Hall in September 2000 after building inspectors backed out of their decision that the playhouse was a legal one-story structure. The reversal came after the Levy’s backyard neighbor, Tundai Garai, complained to then-mayor Genser. Harding argued that Genser influenced city staff’s decision.
Genser said that he only asked staff through two e-mails to check on the legality of the playhouse and never directed staffers to take a position on it, which is what the lawsuit alleged. And the appeals court’s ruling was clear that Genser didn’t advocate that the playhouse be deemed illegal, but that he just asked about it.
“I was absolutely confident that I did nothing wrong,” Genser said. “I inquired about it, I didn’t instruct them to do anything.”
Genser said he thinks Harding filed the suit for two reasons — to try and embarrass him politically, and to try and get the city charter interpreted in such a way that council members cannot discuss issues with city staff, therefore making government less effective. Genser said the suit was so potentially dangerous in stifling government officials from communicating with city staff that nine other cities in the region filed legal briefs in support of Santa Monica.
Harding said he’s disappointed with the Supreme Court’s decision and it now leaves the door open for further government intrusion.
“We think it will create a more hostile environment for staff to work in,” he said. “The city charter was set up to insulate intrusion from government officials to city staff and an environment of favoritism.”
Harding has in the past denied that the suit is politically motivated, but is an issue about how politicians hold sway over staff, and how citizens are treated by government agencies.
After City Hall deemed it legal and David Levy, a psychiatrist who lives in Sunset Park, spent $11,000 to have it meet specifications, the playhouse was in jeopardy of being torn down. However, City Hall eventually deemed the structure legal and the playhouse was treated as a “non-conforming use.” But the Levys moved forward with the suit, saying the process was unfair and illegal.
The issue before the three-judge Appellate panel earlier this year was 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. The law exists so that city employees don’t feel their jobs are on the line if they fail to comply with an elected official’s request.
The appeals court ruled that Genser is protected under the First Amendment to respond to constituents’ complaints.
Genser hopes City Hall will counter sue Harding and the Levys for attorney fees, which are unknown.
“They wasted taxpayer funds and we have a duty to recover that money,” Genser said.
Collecting attorney fees will likely go before a judge in Los Angeles Superior Court, a battle Harding plans to fight.
“We believe they are not entitled to legal fees,” he said. “We think the issues were important and worth pursuing.”
Harding, who said the case garnered the support of several trade associations concerned with governments acting within the law — including the National Lawyers Guild — is adamant the approval process for the Levys’ playhouse was illegal, despite the court’s ruling.
“If this was anyone else’s playhouse, not next to a neighbor who was friends of the mayor, it would not have gone down this way,” he said.
Originally published in the Santa Monica Daily Press print edition on March 31, 2004. Read the original PDF.