Showbox Attorneys Respond to City's Filings, Attempt to Depose Councilmembers

The owner this building wants to depose Seattle's most famous socialist. Kelly O

The owner of the Showbox, Roger Forbes, wants two city councilmembers to give sworn depositions for his lawsuit against the city, which is seeking $40 million in damages and a reversal of the ordinance that temporarily protected the historic venue from demolition.

The new court documents, which were filed on Monday and Wednesday and were first reported on by Erica C. Barnett last night, also respond to the city's attempt to have a judge dismiss the majority of the claims in the lawsuit. The first court hearing for the lawsuit is scheduled for Oct. 19.

Forbes's attorneys make some compelling arguments against the city's latest claims. I'll discuss those claims later in this post. But first, is the city going to fight the depositions?

Forbes wants to get sworn, 3-hour interviews from City Councilmembers Kshama Sawant and Sally Bagshaw, plus members of three city departments. Dan Nolte at the city attorney's office declined to comment on Friday.

"We’re planning to file our response motion later next week, and that’ll be our reaction/comment," Nolte said in an e-mail.

Nolte said it was unusual for city councilmember depositions to be requested in property lawsuits.

"Parties to land use disputes almost never seek to depose local legislators," Nolte said.

Forbes claims that he needs to depose the city councilmembers because the city violated its own laws when they passed the ordinance. The interviews will give necessary insight into how they crafted the temporary protections for the nightclub. Forbes's attorneys claim that the normal information concerning this kind of land use decision is not otherwise available to them.

"Because the city bypassed the typical channels for considering a rezone, there is not the typical Hearing Examiner’s record in this instance," the attorneys write in their motion for discovery.

We'll see next Friday what the judge thinks about Forbes's request to get Sawant and Bagshaw under oath.

The Response To The Response

Yesterday, I summarized the city's initial response to Forbes's $40 million lawsuit. They're attempting to have the judge throw out the majority of Forbes's claims, largely because Forbes has not actually been denied a building permit for his project. They argue he can't petition the court under the state's Land Use Protection Act (aka LUPA, the law that Forbes’s attorneys are resting many of their claims on) because the city’s ordinance was not a contested land use decision on a building permit. The city argues that the lack of a permit denial makes LUPA irrelevant.

Forbes’s attorneys are firing back, saying that the city’s action fits squarely under LUPA. They cite instances described in the law where where land use decisions were made through a city ordinance, which is exactly how the council acted (as opposed to rejecting a building permit).

The attorneys also invoke a 2009 case where a court defined "land use decisions" as any “zoning or other ordinance or rules regulating the improvement, development, modification, maintenance, or use of real property.” That case involved the city of Tacoma putting additional requirements on a specific property, which the court decided was a “land use decision.”

That's just one of the many arguments taking place in these legal posturing battles. Forbes's lawsuit incldues an array of arguments against the city's actions this summer. That's one reason attorneys I have spoken with consider Forbes's lawsuit a strong one—he has a multiple legal avenues that he can pursue against the city. We'll see if the judge on Friday starts to throw out any of his various claims.

The city is attempting to have Forbes's largest monetary claim dismissed by saying that the city has not yet denied any building permit, thus they have not yet taken anything from him. In this latest filing Forbes's attorneys say the claims is valid because, before the City Council acted in August, the building had no landmark protections and could have been developed without any historical controls. The council's ordinance changed that, thus changing the rules, and, in effect, potentially taking money out of Forbes's pocket.

The attorneys also cite the recent King County Superior Court decision that struck down Seattle's first-in-line ordinance, which required landlords to consider renter applications in the order that they are received. The landlord that sued the city brought their lawsuit before they had been penalized by the ordinance, instead arguing that the law's effect was already depriving them of their property. According to Forbes's attorneys, the judge ruled in that case that the effect of the new regulations constituted "a taking."

Ultimately, Forbes's attorneys are arguing that the court needs to consider what the council was trying to do: protect the venue by blocking the construction of a $100-million, 44-story building.

"There is nothing speculative about the effect of the ordinance. Thwarting the development and circumventing the prior zoning was precisely the goal of the 'Save the Showbox' ordinance," the attorneys write.

Forbes's attorneys argue that the city’s actions fit into a classic pattern of eminent domain – where the government takes private property for a public use – and was accomplished by illegally singling out the zoning of this particular property. The lawyers describe this action as “spot zoning,” which they define as “applying a different set of rules to one property compared to other similarly situated parcels."

Forbes has also argued that the council violated a law called the Appearance of Fairness Doctrine, which demands strict disclosure requirements and recusal of biased voting members during property zoning cases. The city previously argued that this doctrine did not apply in this case because it wasn't an actual quasi-judicial proceeding based on a specific building permit.

Forbes's latest filing claims that the doctrine should apply because the city's own municipal code considers rezones of specific parcels as land use decisions. The attorneys argue that the city then violated their own rules by not giving a public comment period and other procedures. They argue that the city violating its own rules shouldn't give the city cover from following the appearance of fairness doctrine.

"The doctrine should apply with that much more force when the City violates its own Municipal Code procedures causing its decision-making here to barely resemble the hearing that should have happened," the filing states.

There's a number of other aspects of this court case that either the city hasn't responded to or I don't totally understand at the moment. I'll add analysis of this case in the coming week, and we will of course report what the judge decides on Friday.