Roger Forbes, the owner of the Showbox, sued the city in September after the City Council temporarily included his historic nightclub in the Pike Place Historical District, effectively delaying Forbes’s plan to demolish the venue and replace it with a $100-million apartment building. Forbes’s lawsuit asks a judge to nullify that ordinance and give him more than $40 million in damages.
But in his first day in court on Friday, Judge Mary E. Roberts dismissed Forbes’s $40 million takings claim and diverted the lawsuit onto a slower, and more complicated legal track.
Rick Eichstaedt, the director of the Environmental Law Clinic at the Gonzaga School of Law, said Friday’s hearing poses significant challenges to Forbes.
“That [court hearing] is a significant hurdle in any effort of the petitioner to receive any substantial damages against the City,” Eichstaedt said.
Forbes’s attorneys had hoped to run their lawsuit against the city under the state’s Land Use Protection Act (LUPA), a state law that allows a quicker and simpler route for property owners to appeal land use decisions. But on Friday Roberts ruled that because the $100 million apartment building in question was not actually rejected—Forbes had only just started the pre-application process when the council intervened—he could not sue under LUPA. Forbes still has other due process and equal protection claims against the city, but Eichstaedt said those other legal claims “will be a tougher route to win…”
Roberts also dismissed Forbes’s claim that the council’s action amounted to illegally taking $40 million of property from him. The judge ruled that it was too soon for Forbes to say that the city had deprived him of anything because, again, the $100 million development has not been formally rejected. The council had worked at a breakneck speed to pass the ordinance before Forbes could formally apply and receive what is called “vested” property rights. The council's quick action to fend off Forbes from "vesting" was heavily criticized by city politics insiders as unnecessarily moving too quickly, but Roberts directly cited this lack of vesting as a reason for dismissing Forbes’s $40 million takings claim.
Forbes is still seeking damages based his claim that his due process, equal protection, and first amendment rights were violated. Brad Keller, one of Forbes’s attorneys, downplayed the importance of Friday’s court hearing.
“The [city’s Showbox] ordinance is as legally vulnerable today as it was prior to last week’s court hearing,” Keller said to me in an e-mail. “Every substantive challenge the property owner is bringing is moving forward—the only difference is that it is moving forward as a conventional lawsuit for declaratory judgment rather than as a more accelerated LUPA proceeding.”
Forbes has also sued the city claiming that the City Council violated a state law called the Appearance of Fairness Statute, which requires governments to act openly and in an unbiased way when deciding on certain types of land use matters. The city had asked Roberts to throw out that claim, but the judge refused that request on Friday, writing that there “are material issues of disputed fact in regard to this claim.”
This Appearance of Fairness claim has gotten a lot of coverage in certain media circles in Seattle, probably because the council members were so clearly acting in an unbiased way. Multiple councilmembers vocally supported saving the Showbox, and Councilmember Kshama Sawant even used her office to organize rallies and communicate directly with Showbox supporters. But Eichstaedt said that even if Forbes wins his Appearance of Fairness claim and the city is forced to re-vote on the matter with biased numbers recused, the law could still be passed again.
“…If they prevail in the appearance of fairness claim and it is declared invalid, the City could conduct a new hearing without the participation of the disqualified decision-maker. Because the result of conducting a new hearing is often reinstatement of the original decision, the practical result of an appearance of fairness case is often just delayed and duplicative work for all the parties,” Eichstaedt said in an e-mail.
Forbes’s lawsuit was originally set on an expedited LUPA schedule with the trial set to begin on Feb. 4 of next year, but after Roberts dismissed the LUPA claims the trial will now be pushed further out. Roberts did not set a trial date in her written order on Friday.
Dan Nolte, a spokesperson for the city’s legal department, said they were happy with Friday’s court hearing.
“We’re thankful to the Court for clearing the field of the claims not even worthy of discussion. Now that we have clarity, we intend to address the remaining claims in the proper manner,” Nolte said in an e-mailed statement.
Forbes still has plenty of fight left in his lawsuit, with pending claims of equal protection, due process, and first amendment violations. But it looks like the city may have dodged the most potent legal bite Forbes was sending their way.