Playhouse Suit Ends with Legal Bill

By Jorge Casuso

August 19 -- After a four-year legal battle, Jacob Levy has his backyard playhouse; his father, David, has an $85,000 legal bill; City Councilman Ken Genser was proved right and residents have a way of addressing zoning grievances.

That was the outcome of a closely-watched legal -- and some would say political -- saga that ended last week when the City Council approved the amount David and Beth Levy would pay the City to cover costs incurred fighting their lawsuit, which questioned Genser’s alleged influence over staff.

“The tax payers should be compensated for the expenses the City incurred in this,” said Genser. “I’m happy that it’s over. It was a frivolous lawsuit that didn’t need to be filed.”

“It should be over,” said Assistant City Attorney Joe Lawrence. “This essentially pays all the City’s expenses related to the case. We’re pleased that it’s over. It’s a little regrettable that it lasted as long as it did.”

David Levy, who sued the City after it ordered him to tear down the playhouse officials claimed violated the code, said he was “dissappointed."

“It was certainly a rough and difficult journey,” Levy said. “The important thing is my son still has his playhouse.

“I’m not a political guy,” he added. "I’ve never been in a lawsuit on either end. My head’s still swimming. We had talked about this as a worst case scenario. We may have to have a fundraiser.”

Ken Kutcher, an attorney for the Levys, said $50,000 has been raised to make the first payment to the City this month. The couple has six months to raise the remaining $35,000, which they hope to do by fundraising.

Kutcher said the plaintiffs will tap “supporters who don’t think the Levy family should have to pay. Hopefully we’ll raise the money sooner rather than later, and we can get it over with.”

The council vote came nearly five months after the California Supreme Court declined to review the case, which charged that Genser violated the City Charter when he communicated with planning department staff on behalf of a constituent.

The decision let stand a ruling by the 2nd Appellate Court, which found in January that the First Amendment protected Genser’s right to communicate with staff.

Genser said the lawsuit was filed shortly before the council was set to meet to decide the playhouse’s fate and that he called the Levys to let them know he would support a decision to allow the structure to stand.

The City’s attorneys also called Levy’s attorneys and said they would recommend allowing the playhouse to remain, Genser said.

“They filed the lawsuit before (the council) ever met,” Genser said.

Levy -- who was told to tear down the approved playhouse after Genser raised questions about its legality -- said he was never presented with an offer to let the structure stand.

“That wasn’t the offer that was presented,” he said. “They said they’d take it up in closed session. The City never asked me my point of view, beliefs, perceptions. The only thing I got were unilateral decisions that basically I had to tear (the playhouse) down.”

Genser has contended that Chris Harding -- who heads the firm representing the Levys -- pressed forward with the lawsuit before the council could take it up in order “to embarrass me.”

Genser called Harding’s interpretation of the charter “wrong and dangerous.”

Harding, who is out of town, has countered that the Appellate Court was “quite extreme in reading the charter” ruling and that the Supreme Court’s decision not to hear the appeal “has greatly enlarged the power of the City Council at the expense of the city manager.”

Kutcher said the firm considered challenging the legal fees by arguing that it penalizes a plaintiff for challenging the government but decided against filing a case despite a legal precedent.

“It’s a question of do we want to spend more time litigating this, or do we want to put it behind us?” he said

Levy said he was disappointed he could not present his case to the State Supreme Court.

“I was hoping we’d be able to present our point if view in court,” Levy said. “I was just hoping to have our day to tell the story.”

Both Levy and his attorneys agree that some good came out of the challenge. After the lawsuit was filed, the City implemented a process that allows an administrative hearing for those facing a real-estate compliance order. Before the change, the cases were handled in criminal court.

“The Levys have some solace,” Kutcher said. “The code change was a partial victory.”

“I feel good,” Levy said. “At the time there was no avenue for appeal.”

The suit began four years ago as a zoning dispute with the City and centered on two emails Genser sent City Planning Director Suzanne Frick asking her to find out the status of a neighbor’s complaint.

The key email was sent on April 2, 2000. Genser wrote, "I just did a 'quick' review of the code. I can't say that I am necessarily accurate… but: Mike's (City building inspector Mike Gruett’s) letter said a 5-ft. rear setback was required.

“I think the code requires the same rear setback as the rear yard -- generally 15 feet (?) I wonder if the space under the first floor should be considered a story. (I haven't found a citation to support this -- yet.)"

The plaintiffs contended that the email essentially argued the neighbor’s point.

In a brief to the Supreme Court Harding stated that the City initially confirmed the Levy’s playhouse was built in accordance with City laws, then reversed its decision after Genser’s emails. Eventually the City said the Levy’s were not in compliance with the City codes and must tear down the structure or face prosecution.

The Levy’s fought the City’s decision and the City eventually agreed the Levy’s could keep the playhouse, but the lawsuit carried on, according to Harding, to “obtain declatory relief concerning the meaning of” the City Charter.

The playhouse case drew widespread interest, with nine cities filing briefs supporting the City and several opponents -- including former mayor Nat Trives and the National Lawyers Guild -- filing briefs on the Levys behalf.

After the four-year ordeal, Levy believes the City should drop the fees.

“If they had to read what I went through, they’d say, ‘Give the guy a break.’ This whole thing is shameful.”