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Downey Woman Gets $100,000 as City Settles Suit

September 13, 1987|RICHARD HOLGUIN | Times Staff Writer

DOWNEY — The city paid $100,000 to settle a lawsuit filed by a resident after an appellate court found Downey improperly stopped construction on a home addition, which left the house unfinished for more than four years.

The city settled the lawsuit with Marcia Davis earlier this month after it failed to convince a judge that it should not be held liable and tried for damages, attorneys for the city and Davis said. Trial had been scheduled for Dec. 30.

Thomas D. Rowley, Davis' attorney, said he would have sought $250,000 in damages, including compensation for the death of Davis' husband, W.J. (Jack) Davis, a former senior vice president of Community Bank of Los Angeles. The suit alleged Jack Davis' 1983 death from a heart attack was related to stress from the matter.

"Mrs. Davis fought City Hall and she won," Rowley said. "It was a long, painful trail."

City Atty. Carl Newton said that although Downey decided against taking its chances with a jury, the city had acted properly all along but had been stung by some "crazy" court decisions.

"They contended his death was related to the city's actions in denying their development," Newton said. "A jury could believe their claim and award substantial damages even though the city felt it didn't have any liability."

Lee Powell, director of administrative services, said the city spent $36,899 on attorney's fees related to the case during the past 12 months. A full accounting of legal expenses in the case was not available, Powell said.

The Davises began work on the addition to the living room of their Smallwood Avenue home after the city issued a building permit on Feb. 4, 1982. Brick planters and an exterior wall were torn out, and a foundation for the addition was trenched, Rowley said.

Three days later, the city issued a stop-work order after former Planning Director William Goggin inspected the house and determined the addition, with a setback of just 24 feet, would be too close to the public right-of-way.

The city requires a standard residential setback of 20 feet, but larger setbacks may be required under the so-called "arbitrary setback" ordinance, which is designed to protect an established pattern of construction in older neighborhoods, Newton said.

According to the city, the Davises' setback should have been no less than a neighborhood average of 35 feet, said Virginia R. Pesola, another attorney representing the city.

Asked why the city issued the work permit in the first place, Pesola replied: "One of the building officials screwed up."

Approved Variance

On March 17, 1982, the Planning Commission approved a variance to permit construction. But that decision was appealed to the City Council by neighbor Arthur W. Knievel, who complained the addition blocked the view from his home. The City Council voted unanimously to deny the variance on July 27, 1982.

The Davises filed a Superior Court lawsuit asking the court to order the city to issue a building permit. It also sought damages for a violation of their civil rights.

Superior Court Judge Leon Savitch found in favor of the city on Dec. 20, 1983, but the state's 2nd District Court of Appeal reversed the trial court and ordered the city to issue a building permit in December, 1985.

The court ruled the city improperly applied the ordinance in question, noting setbacks on Davises' block ranged from 24 feet to 39 feet.

"We are unwilling to hold the average setback qualifies as the minimum setback which is to be enforced against residents on this street," Associate Justice Earl Johnson wrote for the court. "A homeowner should not be penalized because of a decision of a neighbor to have his house set back to a greater extent than is required."

The city sought but was denied a review of the case by the California Supreme Court.

After denying motions to find the city not liable for damages, Superior Court Judge Warren Deering ordered the case to go to trial to determine damages.

Ruled on Issues

Deering ruled the issues in the case included:

- whether the Davises were denied due process when their building permit was revoked without a hearing;

- whether the Davises were denied due process when the City Council failed to decide the variance appeal within 40 days as required by the Municipal Code;


- whether the Davises were denied due process because two new council members voted on the appeal without having heard the evidence at the public hearing.

In court documents, Rowley alleged the City Council delayed its decision on the variance until the two new councilmen were installed in June, 1982, replacing two members who favored the Davises' addition.

The two members installed were Randall R. Barb, who is still on the council, and former Councilman Bob Davila, who was defeated by Councilman Roy L. Paul in 1986.

Councilmen Replaced

Replaced were former Councilmen Milton Mackaig and Lyell Swearingen, both of whom favored the Davises' addition, Rowley said.

"We had petty politics going on here," Rowley said.

In court documents, Rowley also alleged two City Council members may have had a conflict of interest when they voted against the Davises' addition, information which he planned to present at trial.

Knievel, the Davises' principal opponent, owns a company called L&F Industries in Huntington Park. His business allegedly had one business with Councilman Robert G. Cormack's business, Delta Industries in Santa Fe Springs, and also with the late Councilman Theodore Jackman's business, Pacific Conveyor Co. in Downey. Both voted to deny the variance.

Mackaig said in a sworn deposition last month that he understood Cormack's company had done business with Knievel's firm.

Said Newton: "There was absolutely no evidence that was produced to substantiate those contentions. It was not produced up to the time the case was settled."

Knievel was out of town last week and unavailable for comment, his secretary said.

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