City, Family Hit Brick Wall on Playhouse Suit

By Teresa Rochester

The parents of Jacob Levy and the City of Santa Monica are continuing to lock horns over attempts to settle the family's lawsuit over the five-year-old's backyard playhouse, which City officials contend is in violation of the zoning code.

The legal battle ended in a stalemate this week when both sides shot down the other's offer for an out-of-court settlement of the lawsuit, which calls for the City to rescind a notice of violation. The City and the family have been unable to agree on a number of issues including compensation for the family's attorney's fees and the role of City Council members when dealing with City staff.

In a letter dated Oct.10 and sent to the Levy's attorney, Chris Harding, City Attorney Marsha Moutrie said the City was willing to pay some of the fees even though the family did not have to file suit to keep the playhouse.

"Both the City Manager and I assured you that, at the first opportunity, we would advise the City Council to seriously consider allowing the structure to remain in place," Moutrie wrote. "The Levys chose to file suit rather than waiting a few days for the Council's decision.

"Nevertheless, in the interest of conserving our resources by achieving a speedy resolution, the City will pay any fees incurred up to the time when you received those assurances," Moutrie wrote.

Moutrie added that if an agreement were reached, the City would be flexible in its requirement that the Levys would have to tear down the structure if they choose to sell their Sunset Park home.

Harding quickly dismissed the offer. In a five-page letter, also dated Oct. 10, Harding argued that there were several reasons for the suit, including the staff's position that the playhouse is illegal and the City's refusal to rescind the Notice of Violation.

"Indeed, the Notice of Violation remains outstanding notwithstanding the Levys' repeated requests that it be rescinded," Harding wrote. Harding noted "the attempted City re-inspection of the playhouse on Wednesday, September 13."

Harding wrote that it was only fair for the City to pay for the family's legal costs. He noted that despite a claim that their civil rights were violated, the family is only seeking $2,000 in damages for the cost of having to modify the playhouse in compliance to the City's directions.

Moutrie had written that the alleged civil rights violation is not a valid claim "because their allegations, even if true, do not rise to the level of a violation of the federal constitution."

In his letter, Harding wrote that the family also turned down the City's settlement because it does not address what they believe is the underlying reason for their current situation. The Levy's and Harding believe that council members have violated a section of the City Charter by "intervening with City administrative staff (other than the City Manager) in matters within administrative staff's jurisdiction."

"City Staff reversed its position on the playhouse's legal status after Mayor [Ken] Genser intervened on behalf of a personal acquaintance," Harding wrote. "In this regard, I was personally informed by a knowledgeable member of City Staff that Mayor Genser was 'behind the whole thing.'"

The Levys are calling for the City Attorney to issue a formal opinion setting forth guidelines for council member conduct under that section of the City Charter.

"Thus far, we understand the City Council has been unwilling to authorize you to prepare such an opinion," Harding wrote to Moutrie. "The only conclusion we can draw from this is that the City Council is afraid of what its own attorney will have to say concerning the legal limits on council member intervention with City administrative staff. This fear speaks for itself."

In her letter, Moutrie wrote that the City does not agree that such a violation occurred.

"We do not agree either that there was a violation or that the Levy's appropriate recourse is a civil action for money damages," Moutrie said.

The Levy's also rejected the settlement offer, Harding said, because it did not address the theory that the playhouse is two stories, a contention that prompted the notice of violation. Harding wrote that his clients would dismiss the lawsuit if and when the City enacted a zoning ordinance amendment providing that playhouses no more than 14 feet in height shall be treated as one-story structures.

On Tuesday night the City Council once again took up the matter of Jacob's playhouse in closed session but did not reach any conclusion. Harding said that discovery will probably begin next week if no settlement is reached.