“Save the Showbox” ordinance draws lawsuit from property owner

Last Friday Roger Forbes, the owner of the Showbox music venue, filed a lawsuit in King County Superior Court challenging the legality of the City Council’s recently-passed “Save the Showbox” ordinance that added the property to the Pike Place Market Historical District.

There are two main parts of the legal argument laid out in the complaint. First, it argues that the Council enacted an illegal “spot zone.” Second, it posits that the Council violated the law by not following correct procedures for land use decisions.  Let’s take these one at a time.

According to the Washington Supreme Court, a “spot zone” is defined thusly:

Spot zoning has come to mean arbitrary and unreasonable zoning action by which a smaller area is singled out of a larger area or district and specially zoned for a use classification totally different from and inconsistent with the classification of surrounding land, and not in accordance with the comprehensive plan. Spot zoning is a zoning for private gain designed to favor or benefit a particular individual or group and not the welfare of the community as a whole. See C. Rhyne, Municipal Law § 32-3, at 825 (1957). The vice of a spot zone is its inevitable effect of granting a discriminatory benefit to one or a group of owners and to the detriment of their neighbors or the community without adequate public advantage or justification. Thomas v. Town of Bedford, 11 N.Y.2d 428, 184 N.E.2d 285 (1962). Zoning merely for the benefit of one or a few, or for the disadvantage of some and with no substantial relationship to the public health, safety, general welfare or morals, in conflict with either the comprehensive zoning plan or ordinance is arbitrary and capricious and unlawful. Eckes v. Board of Zoning Appeals of Baltimore Cy., 209 Md. 432, 121 A.2d 249 (1956).

You may have noticed that there are two definitions in there, and both are relevant to the Showbox case. The Council clearly singled out a single parcel of land and modified its zoning to be inconsistent with both surrounding land and the Comprehensive Plan — the latter it had revised only last year to add MHA provisions downtown. But how the second definition applies is up for debate: in this case it hurt the owner of the property, rather than benefited him, and the Council made findings in its ordinance to argue that preserving the cultural significance of the Showbox venue is of importance to the broader community. The state Supreme Court has been crystal clear on what it thinks about spot zoning:

Therefore, it is universally held that a spot zoning ordinance which singles out a parcel of land within the limits of a use district, and marks it off into a separate district for the benefit of the owner, and permits the use of that parcel inconsistent with the use allowed in the rest of the district, is invalid if it is not in accordance with the comprehensive plan and is merely for private gain.

It’s an interesting twist to think about whether the same rule applies if we substitute “disadvantage” for “benefit” and “pain” for “gain.” I’m sure we’ll hear more about that as the case proceeds.

In many ways, the second part of the plaintiff’s argument is more straightforward. The ordinance is a land use decision by the Council, officially an “Amendment to the Official Land Use Map.” According to the Seattle Municipal Code, that makes it a “quasi-judicial proceeding” of the City Council, which must be carried out under the formula set out in state law.  It’s a little tricky to follow because what the ordinance actually does is modify the Pike Place Market Historical District, rather than the underlying zoning. But anything in the Historical District automatically is rezoned to “Pike Place Mixed.” And that’s an amendment to the Official Land Use Map.

Quasi-judicial procedures are governed by the state’s Appearance of Fairness Doctrine. Among the requirements for quasi-judicial proceedings:

• The Council members may not have ex parte communications with opponents or proponents of the proposal, unless they document all of those communications in the official record of the land use decision.
• Any Council members who demonstrate bias or a preconceived opinion in the matter must recuse themselves from the decision.
• The Council may only make its decision based upon evidence entered into the record for the land use decision.
• The parties to the decision, including most notably the property owner, have the right to enter evidence into the record and testify.

The City Council blatantly flouted the rules for quasi-judicial procedures — for all intents and purposes, it proceeded as if this was just another piece of legislation.  It had extensive ex parte communications (Sawant even held rallies to build support for the ordinance), several of the Council members loudly proclaimed their positions long before a vote was taken, they relied on information outside the record, and they didn’t give the property owner the opportunity to provide evidence or to testify.

In addition, Council land use decisions of this type require either a SEPA determination of non-significance or an EIS. They also require a public hearing.

Part of its justification for its process was that it declared an emergency, which under state law allows it to exempt itself from the Washington Administrative Code. That law says:

Actions that must be undertaken immediately or within a time too short to allow full compliance with this chapter, to avoid an imminent threat to public health or safety, to prevent an imminent danger to public or private property, or to prevent an imminent threat of serious environmental degradation, shall be exempt. Agencies may specify these emergency actions in their procedures.

And here’s the relevant text from the ordinance:

Recent development activity adjacent to the District has put potentially eligible landmarks at risk of demolition or alteration before the protections of the district may be applied, thus constituting an emergency pursuant to WAS 197-11-880.

The plaintiff argues that this doesn’t meet any of the allowable conditions for declaring an emergency under state law. And they make an excellent point: it’s hard to argue that it’s an imminent danger to private property when the property owner is the one looking to demolish the existing building, and the building itself was previously rejected for landmark status in 2007.

Out of these two broad legal arguments, the plaintiff lists seven causes of action against the city:

1. It asks the court to declare that the ordinance is invalid.
2. It argues that if the ordinance isn’t invalidated, it’s an illegal taking of private property by the City of Seattle, commandeered for continued use as a concert venue and impairing fundamental rights of property ownership. It suggests that the damages for lost value are around $40 million, though it states earlier in the complaint that the property was recently appraised at $12 million.
3. It argues that the city “acted in an arbitrary and capricious manner and without legitimate fact finding or purpose in violation of plaintiff’s rights to substantive due process under both the state and federal Constitutions.” Acting in a “arbitrary and capricious manner” is a trigger both for due process violations and is specifically called out in the case law as one potential indicator of spot zoning.
4. It alleges the city violated the plaintiff’s right to procedural due process because it did not provide due notice and the right to be heard.
5. It argues that the city violated the plaintiff’s right to equal protection of the law because it treated the Showbox property differently than similarly situated properties.
6. It alleges the city violated the plaintiff’s First Amendment right by compelling speech, in that it required the Showbox property to continue operating as a music venue.
7. It argues that the city violated the Appearance of Fairness statutes in undertaking a land use decision that was required to be taken under the rules for quasi-judicial proceedings.

Because the plaintiff is filing a “land use petition” with the King County Superior Court, the proper (and only) way to legally challenge this kind of land use decision, the request for monetary damages will get split into a separate trial under different rules as required by state law. But other than that, this might proceed quickly through the court: the law specifically expedites land use petitions, requiring the first hearing between 35 and 50 days after the petition is filed and a hearing on the merits within 60 days of the judicial record being complete — and since the Council enacted the ordinance so quickly, there won’t be a lot of judicial record to compile. UPDATE: The court has set the schedule for the case, with the initial hearing scheduled for October 19, and the trial on January 28.