The City vs.Jacob's Playhouse

By Teresa Rochester

He plops into an inflatable Star Wars chair across from a smaller chair for friends. Inside, Jacob has decorated the walls with pictures of the Lakers' championship, fake skeletons and bugs, a rubber bat that dangles from the ceiling and toys that sit on a little blue bookcase that doubles as a secret door leading to an enclosed slide. Jacob grabs a portable light and slides down the darkness.

"I like to play a lot," said Jacob, who started kindergarten last week.

But as of last Thursday, the kindergartner's innocent child's play was technically an act of civil disobedience. Last month, City officials ordered Jacob's parents, David and Beth, to tear down or shorten the 12 foot six inch playhouse to three feet, saying that it technically is a two-story structure and, therefore, is in violation of zoning codes.

But Jacob's parents aren't budging. The City's order to demolish the $11,000 playhouse arrived months after other City employees physically inspected it, approved it, closed the case and commended David Levy for working with them.

"One of the reasons I bought the house was for this [the playhouse]. The backyard is so kid friendly," said Levy, who moved with his family into the house early last year. "At least five City officials knew about this. I'd understand if one person didn't know the zoning code and process. But I did what they asked in good faith."

Levy's lawyer, prominent land use attorney Chris Harding, says the City's handling of Jacob's playhouse is not an isolated case and underscores the problem with how Santa Monica's planning department gets things done.

For months, Harding said, Levy was given confusing and contradictory information, which he followed in good faith. And now, after complying with all the rules and obtaining all the necessary approvals, City staff is doing an about face and forcing the psychologist to tear down the playhouse that his son has grown to love.

"The ball's in their court," said Harding. "We made it very clear that the playhouse will stay. If the City takes legal action we will vigorously defend our clients. I would hope the City (officials) wouldn't embarrass themselves.

"Why we've taken a strong interest in what appears to be a small problem is because the principle is not small," Harding added. "It comes down to how the government treats people. Can you trust the word of government and rely on it?"

The odyssey of Jake's Place, as the family calls it, began in January when David set out to fulfill his dream of designing and building a playhouse for his son. With the help of a family friend plans were drawn up for the structure and builders were hired.

Twice, Levy had the builders contact the City -- once over the phone and once in person at City Hall -- to ask about guidelines, restrictions or limitations regarding the structure, according to a sworn declaration written by Levy. And twice Levy's workers were told that since the playhouse was less than 120 square feet no permits were necessary. They also were told that there were no specific guidelines or regulations pertaining to the playhouse.

As builders poured concrete and put up the playhouse's frame Levy met with his neighbors to the north, who had no problem with the playhouse. Another neighbor, Tunde Garai, whose backyard abuts the Levy's property, complained to builders about the project, according to the written statement by Levy. Levy and Garai, who is an architect, agreed to meet to discuss the project.

While Garai declined to comment for this article, Levy said she told him that she was concerned about privacy, the size of the playhouse and aesthetics. In response to her concerns, Levy said he cut the size of the playhouse nearly in half, minimized the exposure into Garai's backyard, lowered the proposed ceiling height and offered to let her inspect the playhouse during and after completion.

Levy also said that he let Garai pick the color of the playhouse. He also moved the window that faced her home (which is more than 50 feet away) and offered to buy trees or other plants for her yard to obscure the view, an offer Levy said Garai refused. At her request Levy also said he gave her copies of the playhouse's redesigned plans, which she approved.

Nine days after Levy's builders contacted the City for a second time, the City's code compliance supervisor Mike Gruett, stopped by the Levy home with a message scrawled on the back of his business card. Halt construction, the message said, until the planning department grants approval.

Gruett, who was unavailable for comment, told Levy's wife, Beth, that a neighbor had filed "more of a concern than a complaint, primarily about the safety of the structure."

Levy's playhouse was put on the agenda of a March 1 zoning meeting. In an email, Gruett told Levy that there was no need for him to attend the meeting since staff would only determine the status of the playhouse under the zoning code.

City staff found that the playhouse was out of compliance and notified Levy that the structure under construction would have to be moved at least five feet from any side or rear lot line and its height dropped to less than 14 feet.

After checking a third time about regulations or restrictions that might apply to the playhouse, Levy complied, paying $2,000 to have the structure moved with a forklift, cut down, shortened, relocated and secured.

On March 14 as builders began to relocate the playhouse, Mayor Ken Genser received a phone call from Garai about the playhouse. Genser, who works for a development consulting firm, said he has worked with Garai's partner, who also lives in the Sunset Park house, though never directly with Garai.

Genser emailed Planning Director Suzanne Frick, inquiring about the structure. In his email Genser wrote that Garai had filed a complaint a month before and was told that no permits had been pulled for the playhouse and that a stop work order would be issued. When Garai called the city again she was told staff had no record of an earlier complaint, according to Genser's email.

City staff also told Garai that structures up to 14 feet in height could be built with a permit, a direct contradiction to what staff had told Levy. Genser requested that Frick look into the matter and contact Garai directly.

The following day Frick emailed Genser back saying she would look into it. That was also the day Levy received an email from Gruett regarding a new complaint about the construction and asking him to modify the playhouse.

Levy responded to Gruett: "As I've indicated to you on several occasions, I have taken great care to talk with my neighbors to address any potential concerns on their part and to make any reasonable modifications. I wish to emphasize that I was in NO WAY 'required' to take any of these steps; rather I willingly volunteered to do so in the interests of maintaining good neighborly relations."

Gruett emailed Levy back thanking him for his prompt response and his efforts to comply with the zoning code. Gruett also sent out an inspector who measured the playhouse and found it in compliance. The case was closed and Jacob's playhouse was complete.

Gruett's office sent a letter to Garai stating that the playhouse was in compliance. Gruett also sent an email to Levy stating that he didn't anticipate any more complaints and if more were received, the complainant would be told the playhouse was not in violation.

Genser also received a copy of the letter sent to Garai. Around the same time, he bumped into Frick at City Hall and mentioned the letter to the planning director, who said it was sent by mistake.

In an email to Genser on April 6, Frick wrote that staff had re-examined the complaint and concluded that the structure was two stories tall and would have to be lowered to no more than three feet above the ground. Genser phoned Garai with the news and told her she would hear from staff.

Eleven days later Gruett emailed Levy that there had been an additional complaint and that the playhouse was technically a two-story structure. The playhouse either had to come down or be moved 15 feet from the rear of the lot. It was the first time Levy had heard about any such regulation.

When Levy called to find out what happened Gruett told him that this time "the neighbor's complaint was made directly to the mayor's office" and forwarded to zoning administrator Jay Trevino and principal planner Amanda Schacter. After reviewing the case, the two officials had determined that the structure was two stories and that the space from the lawn to the floor level was considered a basement, according to Levy's statement.

Two months later, in August, Levy received a call from building officer Tim McCormick, who informed him that due to a technicality in the code the playhouse was in violation and an official notice would be mailed. In his statement, Levy wrote that McCormick told him the situation was the City's screw up but despite this, "he had no choice but to go ahead with the notice, due to pressures from other unnamed city officials."

"That's where I feel the most ripped off," Levy said sitting in the dining room of his home. "I met with my neighbors…. I bent over backwards…. I try to shield it from him [Jacob] but when he overhears conversations about his playhouse he breaks into tears and asks, 'Daddy will they tear it down?'

"What do you tell him? You can't trust government? I'm trying to teach him you have to follow the rules," Levy said. "I love Santa Monica because it's always been very family friendly but this is anti-family to me."

In a strongly worded letter sent to the city last week, Harding blasted officials for their decision.

"The City's enforcement action against the Levy family's playhouse is one of the more egregious, patently unfair and troubling matters in which we have been involved," Harding wrote in his letter. "Given the City's prior directions to Dr. Levy regarding the location and construction of the playhouse and the City's approval of the playhouse, for the City to send such a notice is outrageous."

Harding also charged that it was inappropriate for a City Council member to influence City staff's decisions.

"When Mayor Ken Genser takes an interest in an enforcement matter it tends to impact City staff," said Harding, adding that he was not accusing the mayor "of doing anything inappropriate." "I also believe City Staff's ability to exercise professional judgment is all too frequently compromised."

Genser dismissed allegations that he had any influence on the decision, saying that the charges were politically based and unfounded. The City's zoning administrator also denied the allegations.

"I think it's very much my job to forward complaints when we get them from residents," Genser said.

In August Genser said he met with the city attorney and city manager to discuss the general issue of code enforcement. One issue raised was how the City staff communicated with residents who file complaints and how the complaints are processed.

Harding said this is not the first time the City has second-guessed itself in land use matters at residents' expense. He cited three cases he's represented this year alone.

In each of the cases neighbors complained after work got underway. In two of the cases once the complaint was filed the City found mistakes it had made and halted construction. And in all but one case, which is still ongoing, the city has rescinded its halt order.

"I do have a fundamental problem with the way Planning has handled it [the playhouse] and on three other occasions," Harding said. "If most people understand the City doesn't have any compunction about the City changing its mind people would be disturbed. The Levy family shouldn't have had to hire a lawyer to have the City keep its word. He shouldn't have had to hire our firm to convince the City of what is obvious."