The city of Seattle is asking a judge to throw out many of the claims in a lawsuit filed last month by the owner of the Showbox, arguing that the venue’s owner has no legal standing to demand $40 million in damages and a reversal of the city’s temporary protections for the venue. The lawsuit’s first day in court is set for Oct. 19.
The City Council voted in August to temporarily expand the Pike Place Market Historical District to include the Showbox, effectively blocking the owner’s plan to sell the venue and develop a $100 million, 44-story apartment building in its place. Any change to the building or how it's used now must be approved by a commission overseeing the market's historical district.
The building’s owner, Roger Forbes, responded by suing the city in August, claiming the council had violated a variety of laws and infringed on his rights when they gave the venue temporary protections. Forbes’ lawsuit makes a long list of arguments, including: that the city is violating his right to free speech by compelling him to keep the property a venue; that the expansion goes against the city’s policy for the Pike Place Market Historical District; and that the council violated a law requiring an appearance of fairness when making building use decisions.
The city’s response, filed on Sept. 21, hangs most of its claim on the fact that the city has not actually denied any permits for the project, meaning Forbes has no standing to sue over something that hasn’t happened yet. The city also argues that the Forbes lawsuit incorrectly treats the district's expansion as a land use decision specific to one project permit, when in the city's analysis, it affects all future projects included in the expansion.
The city says that Forbes' free speech has not been violated because, if he wanted to, he could ask the Pike Place Market Historical District’s commission to change the building’s use.
The city doesn't try to argue against Forbes' claim that councilmembers acted in a biased way when they gave the venue temporary protections. That would be a difficult argument to refute considering various councilmembers have actively campaigned for the issue, Councilmember Kshama Sawant has even organized benefit concerts for it. Instead, the city claims the law Forbes is citing only applies to contested case proceedings like a permit application. While the expansion certainly had an effect on Forbes' building permit, the ordinance that the council passed didn't actually make a decision on Forbes' permit. The city argues this distinction means the council doesn't need to act in a non-partial way.
I’ll get into some more details of the city’s claims later in this post, but it looks like the city has made some valid responses to at least some of Forbes’ grievances. When I asked three attorneys about the case last month, they said it wasn’t immediately clear who would win in court.
It’s going to be a nail biter!
The irony is that even if the city triumphs in this lawsuit, we are still far away from actually protecting the venue. The city’s protections expire after 10 months, and the city needs more than just a historical district expansion to keep music on the stage of a dilapidated, 79-year-old venue.
City's Legal Response
The bulk of Forbes' lawsuit is based on the state's Land Use Petition Act (LUPA). His attorneys are using this act to ask the court to reverse the ordinance and pay his attorney fees. But the city argues that LUPA only applies to cases where the government has made a decision on a specific building permit. They don't think this case qualifies as that.
“No one applied to temporarily extend the Pike Place Market Historical District to the Showbox site; the Council did it of its own accord. The Council made no decision to license or permit a project; it amended the regulations applicable to future project applications," the city's attorneys write.
While the council wasn't literally deciding on a specific building permit, their action did ultimately affect one and only one building: the Showbox. This may weaken the city's argument that the council wasn't making a quasi-judicial claim about a specific building permit, and the city's attorneys appeared to be aware of that during the council's deliberations. The council's original proposal including surrounding properties in the expansion, but they ended up trimming down their expansion to just the specific building.
The city's legal response directly confronts this question, going back to the point that Forbes has not applied for a permit and thus is not covered by the law his attorneys are citing.
"That the Ordinance affects one site does not alter this conclusion. A local jurisdiction could effect a site-specific rezone as a project permit decision under the Local Project Review Act, which could be appealed under LUPA, but only if it results from an application for a project permit," the city's response states.
Forbes' lawsuit claims that the city's temporary protections for the venue has effectively taken property away from him, to the tune of $40 million. His attorneys write that the city has fundamentally deprived him of property rights by "commandeering of the property for continued use as a concert venue."
The city responds that Forbes can't claim his property has been taken from him until his building permit has been denied. Since there doesn't appear to be any permit denials yet, only a new layer of regulations put on top of the property, the city argues he can't claim his $40 million. That begs the question—will Forbes be able to get his payout if he goes through the permitting process and the Pike Place Market Historical Commission does what we all predict they would do and denies bulldozing a 79-year-old venue?
We'll have to wait and see what the court thinks. Or we could just wait a few more months when these temporary protections will likely fade and Forbes will be back in control of his property.