Family Expected to Turn Down City's Offer in Jacob's Playhouse Suit

By Jorge Casuso

The family of Jacob Levy is expected to turn down an offer by the City to settle a lawsuit over the five-year-old boy's playhouse, which City officials contend is in violation of the zoning code.

The offer was made after the City Council discussed the suit - which demands that the City rescind the notice of violation -- in closed session Tuesday night.

"Notwithstanding the fact that the play structure is out of conformity with the Code, it may be retained in its present form and location so long as no plumbing or electrical wiring is installed," said a letter from City Attorney Marsha Moutrie to the Levy's attorney Chris Harding.

"If the Levy's sell the property, the nonconforming structure must be removed," Moutrie wrote. "This offer is based upon the equities of the situation, including the fact that City personnel apparently inadvertently gave the Levy's incorrect information about the applicable Zoning Code requirements."

Harding quickly dismissed the settlement offer, saying that City officials approved the playhouse then reversed their decision after Mayor Ken Genser questioned whether the structure conformed to code.

"The Levys strongly disagree that the playhouse is illegal," Harding said. "They believe it was constructed consistent with the law.... Thus, we are very troubled by the response from the City, especially their refusal to rescind their notice of violation.

"We don't think there's any basis for the Levys to tear down the playhouse if they move," said Harding, adding that the family has no plans to move. "If a family with children were to move in, they wouldn't deprive them of the opportunity."

The City's settlement proposal does not include compensation for civil rights violations alleged in the lawsuit.

"The civil rights issue is a different matter," Moutrie wrote. "You apparently contend that the federal constitution is violated when an elected official forwards a neighbor's complaint about an illegal structure to staff and subsequently directs staff's attention to an applicable code section."

Harding said he expects to press forward on charges that Genser illegally intervened after an acquaintance, who lives behind the Levys, complained to the City about the structure. Genser has vigorously denied he did anything wrong, calling the lawsuit "political."

Moutrie said City officials are "doing an assessment" of the claim that the mayor violated the City Charter by intervening directly in the case.

"The Charter section, which establishes the City Manager form of government, is very important and must be respected," Moutrie wrote in the letter. "However, it is certainly not clear that a violation... occurred in this case. Moreover, even if it did, it would not rise to anything approaching the level of a violation of the Levy's federal civil rights."

Harding said it was "encouraging" that the City Attorney was looking into a potential violation of the charter.

"We were pleased to see that the City Attorney is looking into the issue very seriously," Harding said. "That's very encouraging."