After a two-hour hearing that was heavy on technicalities of land-use law and short on drama, King County Superior Court judge Patrick Oishi overturned a city law placing the building that houses the Showbox in the Pike Place Market Historical District, ruling that the legislation constituted an illegal spot rezone; that it violated the owners’ due process rights by dictating the use of their property in a way that was “unduly oppressive”; that it violated their fundamental property rights; and that the owners didn’t get a fair hearing before the city effectively downzoned the land from 440 feet to the height of the two-story Showbox building.
The city council expanded the district to include the Showbox building in response to plans by the property owner, Roger Forbes, to sell the land (which the council rezoned in 2017 to allow buildings as tall as 440 feet) to the Vancouver developer Onni, which planned to build a 40-story apartment tower on the site. The expansion, which meant that any changes to the Showbox building would have to be approved by the historical district (which was established in 1971 to prevent development of the historic market), scuttled the development plans.
The building owners’ argument that the law constituted a spot rezone in conflict with all of the city’s previous zoning decisions seemed to be particularly compelling to Judge Oishi. John Tondini, the attorney for the owners, pointed out that not only did the city upzone the property from 200 feet to a maximum of 400 feet in 2006, but told the owners in 2007 that the building was unlikely to qualify for landmark status— “a giant green light,” he said, that the owners should “‘feel free to redevelop. You don’t even have to go through landmarking.'” Then, in 2017, the council upzoned the property again, to 440 feet, as part of the Mandatory Housing Affordability Legislation. (As my colleague Josh first reported, MHA would have required Onni to pay around $5 million into the city’s affordable housing fund, a sum that could be used as leverage for additional affordable housing funds.)
“This case is not … about whether someone likes the Showbox or not. The case is not about whether someone likes music or does not like music. This case is not about whether historical preservation should be a priority of the city,” Oishi said before making his ruling. “This case is about whether the city’s actions in adopting this ordinance… were lawful.”
“Back in 2006,” Oishi continued, “the city green-lighted [buildings] up to 400 feet. And then, just a year before this ordinance, the city frankly doubled down on that and said you can go up to 440 feet. No one forced the city to do that. That’s decisions they made. But part of the reason we’re here is that the city took those actions previously, and now the city is somehow trying to take back those actions or somehow get a do-over … and they’re targeting one specific property, and that’s the Showbox property.”
In ruling for the Showbox building owners, Oishi also rejected the city’s contention, in the words of assistant city attorney Daniel Mitchell, that the historic district expansion, which the council recently extended through December, was nothing more than a “temporary time out… to maintain the status quo on the ground to come up with long-term solutions to the situation,” as well as their contention that the expansion had nothing to do with Forbes’ deal with Onni and did not take away the owners’ ability to use their property as they wished. Oishi noted that when the market boundaries were originally set, property owners who were now subject to the new restrictions were entitled to sell their property at fair market value to the city, and most of them did. “Those property owners were offered the option of selling and being paid money. This owner is not being given that option,” Oishi said.
After the ruling, attorneys for the owners and a spokesman for the city attorney’s office said that the two sides were going to sit down to discuss next steps before making any additional announcements; the city attorney’s spokesman, Dan Nolte, confirmed that an appeal is one of the options on the table. “We’re evaluating our options and need to confer with our clients before determining what’s next,” Nolte said this afternoon.
Eugenia Woo, director of preservation services at Historic Seattle, said she was disappointed in the ruling, but that her organization was still hoping to purchase the building. The city’s landmarks preservation board, which voted on TK to nominate the building for historic landmark status, will consider the nomination on July 17, but landmarking alone, Woo acknowledged, won’t keep the Showbox itself in business. “We’ve said from the beginning that the best way to save the Showbox is to find a preservation- friendly buyer, and we’ve stepped up and hopefully that’ll be us,” Woo said. “We’re still hopeful. Never give up hope.”