As the Battle Heats Up, Jacob's Playhouse is Still Standing

By Teresa Rochester and Jorge Casuso

A lawsuit filed against the City on Monday to keep Jacob's playhouse standing charges Mayor Ken Genser with violating the City Charter by intervening with staff. Genser, who said he has never advocated tearing down the playhouse, vigorously refutes the charge.

The lawsuit, filed in superior court early Monday afternoon, seeks to "prevent the City of Santa Monica from interfering with the Levy family's use and enjoyment of their playhouse. It asks the court to declare that the Levys "have a constitutional vested right to use their playhouse free from City interference."

In addition, the suit seeks to prevent the mayor from "continuing to violate" the charter, which "prohibits council member intervention with City administrative staff (with the sole exception of the City Manager) when staff is carrying out various administrative duties.

"The Levys are informed and believe that Mayor Genser's intervention in this matter is part of a larger pattern of intervention by Mayor Genser (and potentially other council members) in City staff's performance of various administrative duties," according to the suit filed by land use attorney Chris Harding.

City officials declined to comment on the lawsuit, which will be taken up by the council during Tuesday night's closed session.

The mayor denounced the suit shortly before it was filed calling it "politically driven" and saying that, "There's nothing to this." Genser added that his inquiry into the status of the playhouse was not only legal but the duty of an elected official.

"My role in this is absolutely above board," Genser said. "There's nothing wrong with it. I did not give orders and I did not do anything but inquire. It's my responsibility to support the laws and if I see a violation of the law, I should say what I think."

Genser cited a resolution unanimously approved by the City Council on May 19, 1998 that allows council members to request information and research from staff and to pass on citizen complaints.

According to the resolution, "A Council member may directly request routine, easily retrievable information from a staff member regarding an issue pending before the Council, an issue which the Council member intends to bring to the Council or an issue previously established as Council policy. Such direct requests should be made with the knowledge of the City Manager, City Clerk or City Attorney as appropriate and within departmental or administrative policies."

The resolution also covers a council member's role in forwarding complaints. According to the resolution, "Complaints about the administrative affairs of the City should be directed by the Council member to the City Manager or to the appropriate Department Head with a copy or appropriate notification to the City Manager. Council members may request that staff respond directly to the constituent or back to the inquiring Council member so that he or she may personally contact the complainant."

Genser said he has always complied with the official policy.

"I obviously can talk to staff people," Genser said. "I don't direct staff. That's not in my culture. I just don't do it that way. I know I'm 100 percent in conformance with the law."

Genser said that he routinely sends a copy of all of his correspondence with staff to the City Manager. The only exceptions are when the issue deals with RAND, in which case City Manager Susan McCarthy is prohibited from being involved because her husband works for the think tank. In those cases Genser said he forwards a copy to assistant city manager Gordon Anderson.

The only other exception, Genser said, is when he communicates with the City Council's office manager and council staff to ask for supplies or to take care of routine business, such as responding to an invitation or typing a letter.

Monday's lawsuit comes after Harding issued the City an ultimatum last Thursday: Reverse a decision that the Levy family's playhouse is out of compliance or face a suit. City officials didn't respond.

"We are seeking injunctive relief to prevent the City from interfering with the Levy's constitutional vested right in the use of the playhouse," Harding said.

The drama surrounding Jacob's playhouse began in January when David Levy set out to build the olive green structure for his son. Levy was given confusing and contradictory information by the City, which he followed in good faith. After meeting the requirements the structure was deemed non-compliant and the City issued an order for it to be torn down or shortened or moved.

Harding's ultimatum came one day after he sent City officials a pointed letter criticizing Genser's role in the matter and lambasting the city for sending an inspector out to inspect the playhouse for a second time.

"We have recently learned that Mayor Genser did not simply forward a complaint received by his office to City Staff," Harding charged in his letter dated Sept. 13. "Rather he personally developed and advocated the zoning theory ultimately adopted by City Staff as the basis for the notice of violation served upon the Levys.

"The Mayor's active involvement, which triggered both the City's change of position concerning Jacob's playhouse and its on-going enforcement action, raises serious questions about the fairness and integrity of the City's zoning enforcement process," the letter continued.

While Genser and Harding have long been political rivals, a City official close to the case said that Genser's influence was "100 percent" responsible for the City's about face on the playhouse. The official, who asked to remain anonymous, said that the first mention that the playhouse may be a two-story structure (thus making it non-compliant) appeared in one of the complaints sent to the City by the Levy's neighbor Tunde Garai, an associate of Genser, who had also complained to the mayor.

Genser flatly denied the allegations.

"I never advocated tearing the playhouse down, and assuming what he (Levy) is saying is correct, I don't think it should be torn down." Genser said. "That's what's so political. They're saying I pulled the strings. All I said is, 'Doesn't the law say this?

"This is absurd. I wasn't involved in the complaint," said Genser, who added that he did alert staff to the zoning issue in an email. "My profession is zoning code. It wasn't unusual for me to know what code…I never did help her with a letter. I may have discussed it [the code] with her when she called to complain. Tunde's an architect she understands code."

On April 2, Genser sent an email to Planning Department head Suzanne Frick asking about the status of Garai's complaint. In the email Genser notes that he did a quick review of the code and found it to be inconsistent with the information City staff gave to the Levys.

"Tunde called me again on Friday, and I told her that I thought it was still under review, and that I would get back to her," Genser wrote. "So what's up? (Besides the tree house.) PS: I just did a *quick* review of the code. I can't say that I am necessarily accurate, (in part, because there are obvious typos in the code*) …

"I think the code requires the same rear setback as the rear yard - generally 15 feet (?)," Genser wrote. "Also it requires that the design of the accessory building should be similar to that of the main house. Finally, I wonder if the space under the first floor should considered a story. (I haven't found a citation to support this - yet.)"

Four days after the email was sent, Frick emailed Genser back stating that staff had reexamined the complaint and concluded that the playhouse was technically a two-story structure. The playhouse either had to come down or be shortened to no more than three feet above the ground.

"It's clearly not a pressuring email," said Genser. "I also think you need to look at the tone of voice that it's written in and look at it in the context that I am a professional. There's a big difference saying please look at it. That's my job to say that and that's a very different thing from saying you guys are wrong and you should change your mind."

Genser pointed out that he has advanced zoning theories before. One example, he said, included the Maguire Partners building, whose developers hired Harding. The proposed building was six stories and Genser found that only four stories were allowed. Another time, Genser found a project to have parking shortage, something that staff had over looked.

Last Wednesday Genser called the Levy family twice to "set the record straight." In his message Genser said that had no personal position on whether the playhouse stays up or comes down and that he would probably be in support of having the playhouse stay up once he knew all of the facts.

Genser also offered to share correspondence he sent on the matter. Harding said he had filed a freedom of information request for the documents more than two weeks ago and has yet to hear from the city.

The response to Genser's voice mail message was a curt email from Harding directing the Mayor to send all correspondence to the Levys via the attorney's office.

The same day Genser called, a city inspector showed up at the Levy house asking to inspect the playhouse. The same inspector had inspected the playhouse in March. His previous finding: The playhouse was in compliance and the Levy case was closed.

The Levy's denied the inspector's request. In his letter, Harding said the visit constituted harassment.

"We hereby demand that the City cease and desist from contacting the Levys any further in this matter," Harding wrote. "If any City officials wish to communicate with the Levys, please have them forward such communication to the Levys in care of our office."

Building officer Tim McCormick said the inspector had been sent out to see if the Levys had followed the notice of violation letter that required them move and shorten the structure or demolish it.

The playhouse is still standing.