The city and the owner of the Showbox have agreed to a short delay in their rapidly approaching lawsuit, pushing the trial back from August 26 to September 16, according to previously unreported court documents. The delay comes as reports surface that the two parties might be negotiating a settlement, but both parties said this delay was not related to settlement negotiations.
Dan Nolte, a spokesperson for the City Attorney, said the delay was to "accommodate a scheduling conflict with one of our attorneys." John Tondini, one of the attorneys representing Showbox owner Roger Forbes, also said the delay was due to scheduling.
Councilmember Lisa Herbold told Crosscut last month that attorneys for the Showbox were seeking a delay in the case, but Tondini pushed back against Crosscut's reporting.
"We are proceeding with the litigation and do not see a standstill or settlement as near or likely," Tondini said in an e-mail.
The owner of the Showbox nightclub, Roger Forbes, sued the city in August of last year after the City Council temporarily extended the boundaries of the Pike Place Market Historical District, which blocked redevelopment of the 80-year-old venue. Forbes had intended on selling the building to a developer with plans to bulldoze the Showbox and replace it with a $100-million apartment tower. In his lawsuit, Forbes argued that the city had illegally acted when they extended the market’s boundary and asked the court to nullify the extension and award over $40 million in damages.
Forbes’s lawsuit was significantly weakened in October after a judge threw out one of the major claims in the lawsuit and forced Forbes to run his lawsuit on a more time-consuming lawsuit schedule. Read my post from October to get more wonky details, but the major takeaway is that it became more difficult for Forbes to win his case. Rick Eichstaedt, director of the Environmental Law Clinic at the Gonzaga School of Law, told me at the time that the judge’s decision created a “significant hurdle” for Forbes to get “any substantial damages against the City.”
Herbold's statements to Crosscut—which Eichstaedt recently told me were "strange" considering Herbold's attorneys might be in active, private negotiations—made it appear that Forbes was now ready to play ball and look for a deal, with Herbold allegedly telling Crosscut that Forbes’ attorneys approached the city and asked for a legal stay in the case. Last Thursday’s court documents are not what Crosscut predicted would happen—the two parties have only delayed the trial date, not agreed to a long-term hold on the case—but further delays could be forthcoming. That deadline to further postpone the trial has now been pushed back to July 15, according to the latest case schedule available.
Tondini said the city has talked about finding a different buyer for the venue but has yet to produce any meaningful options.
"We have not seen any specific buyer group emerging from the City or its affiliates. The City has talked since August of last year about finding or forming a buyer group, but nothing concrete has come together. So, we will continue to litigate to invalidate the City’s land grab," Tondini said in an e-mail.
Is this just legal posturing from an attorney who is looking to win a multi-million dollar settlement for his client? Perhaps! But the City's side hasn't offered any other narrative; Herbold has not responded to repeated requests from me to clarify the comments she made to Crosscut, and Nolte declined to comment on Crosscut's reporting.
The city is now facing a mounting list of deadlines even outside of the court case. The venue will lose its Historical District protections—which appear to be the strongest and possibly only effective protections for the building—in July unless the city passes new legislation. The council commissioned a study to look at options for moving forward with the hope that the study would be completed by April, according to the council’s own timeline. It’s not clear if the city is still on track to meet that deadline—a spokesperson for the Department of Neighborhoods did not immediately return a request for comment—but my earlier reporting in February showed that the city was already running behind on the study.
It's also not clear if Mayor Jenny Durkan is interested in saving the Showbox. When she signed the temporary protections for the venue, she indicated in her statement that she was open to eventually tearing it down. When I asked back in August, a spokesperson for the mayor's office declined to comment on whether Durkan was committed to saving the actual structure of the historic venue.
Meanwhile, a separate preservation attempt through the city’s landmarking process is moving forward. The city announced today that the first hearing in the landmarking process is set for June 5. Advocates are pursuing that route even though it doesn’t appear that landmark statutes can actually keep music on the stage of the Showbox. The city’s landmarking code only protects certain physical aspects of a building, like the Showbox’s marquee, not the actual use of the venue, like making sure Thunderpussy can continue delivering their New Years Eve show on the same stage where Duke Ellington once played piano.
UPDATE (3 pm):
Herbold introduced a City Council ordinance today that would extend the market's temporary expansion for an additional six months.
"The City is currently engaging in the analysis necessary to consider a permanent boundary expansion, but this work is not anticipated to be completed by the time the initial ten-month interim expansion expires on July 23, 2019," according to the ordinance's fiscal note.
Herbold told me this afternoon that she did not think the extension would have an affect on the pending lawsuit. She also said she was optimistic that the council, which unanimously voted last year to protect the venue, would agree to the temporary 6-month extension.
“Considering that we all agreed in the previous bill that we would be considering the permanent expansion in July, I certainly hope that they will consider the temporary six month expansion,” Herbold said.
Herbold also gave me an update on her involvement with negotiations over the Showbox’s future. The councilmember told me that she was approached in October by Forbes’ attorneys who proposed a temporary stay on the lawsuit. Herbold described the deal as a stay in two parts: first would be a 3-month phase where the city would form a stakeholder group that would develop multiple options for preserving the venue, the second phase would last a year while that stakeholder group would attempt to accomplish one of those options.
“The whole intention was recognition that we can’t put together folks who might be interested in assisting a preservation effort until we have that space and time to do that,” Herbold said.
Herbold said she was surprised to see Tondini claim (in this story) that the city hadn’t successfully found a buyer—considering the plan they were discussing identified that potential buyers wouldn’t be secured until phase two of that agreement. Herbold said she had reiterated this in a meeting with representatives from the Showbox as recently as three weeks ago.
“In our last conversation I was very clear with them that… we weren’t going to be able to say x, y and z are interested in buying. But what I can do is I can commit to bringing people to the table who are interested and serious about having the conversations,” Herbold said.
Herbold said the city has had discussions with philanthropists regarding the Showbox.
“We have talked to people who are in the music philanthropy community but again you can’t bring somebody to the table to have discussion over what purchase or a long-term lease would look like without the city and the owners and other civic players doing that engagement. And we can’t do that engagement when we are in the middle of a lawsuit," Herbold said.
The city’s landmarking process for the venue, which is now set to begin June 5, could offer one potential bargaining chip against the venue’s owners. Herbold said Historic Seattle, the preservation group that is leading the preservation charge, previously agreed to delay the hearing if the owners agreed to stay their lawsuit. Herbold said even with the hearing set Historic Seattle could still push it back if the venue’s owner agrees to hit pause on their lawsuit.
“Historic Seattle’s ability to hit pause on the landmarks process I believe [is] only up through the hearing, once the hearing happens the process moves forward regardless of how the designators of the landmark status feel about it,” Herbold said.
Correction: An earlier version of this post misstated the end of the market's temporary expansion. That extension expires in July, not June of this year.