When the Seattle City Council and mayor used a temporary zoning law to shield the Showbox music venue from a planned development, they put the city in a legal purgatory between two opposing realities: a decrepit, two-story building in Connecticut and the Fifth Amendment of the U.S. Constitution.

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The first, a small commercial building on the boundary of a Norwich historical district, is central to a court case about property owner’s rights within historical districts. The eventual decision to deny the owner’s plan to raze the building helped anchor local governments’ authority to use historical districts to control zoning – sometimes even outside the boundaries of the district.

But it’s the second point, legal experts said, that might win the day in the ongoing lawsuit over the city’s desire to preserve The Showbox and prevent a 44-story luxury apartment building on its First Avenue. Roger Forbes, owner of The Showbox property, has sued the city for $40 million in lost value due to the rezoning.

“I am sympathetic to the desire to preserve culturally important things in a city undergoing rapid change,” said Charles Wolfe, a lawyer, professor, and expert on land use and zoning laws. “But nostalgia is not above the law.”

Zoning laws

But it was nostalgia that ruled the day six weeks ago when preservationists, musicians, politicians including King County Executive Dow Constantine, and an online petition with 30,000 signatures spurred the city council to find some way to save the 80-year-old music venue.

Wolfe, who has written books on urban planning and taught land-use law at the University of Washington, said when the council voted 8-0 to temporarily extend the boundary and building restrictions of the Pike Market Historical District, it made a reasonable political calculation, but not a bulletproof legal one.

“The zoning was the tool they had at hand,” Wolfe said. “But it might create more problems.”

The reason, he and other attorneys said, fall within a quasi-legal term called “spot zoning.”

At its root, zoning law typically holds that a city or municipality has to treat similar properties similarly. So one waterfront property, for example, would face the same zoning restrictions as other properties along the same section of waterfront.

Generally, a single property within a swath cannot be easily plucked out for different zoning. When it happens, critics call it spot zoning.

This, land use experts said, appears to be what happened when the council decided to temporarily include The Showbox parcel in the historical district; the plots directly adjacent to it were not included in the zoning change. In fact, the parcel isn’t even connected to the existing district.

For a government, the legal liability can be significant.

Fifth Amendment protections

Much of the history of land-use case law, particularly when it comes to zoning, reaches directly back into the U.S. Constitution’s Fifth Amendment protections against “takings” by a government. A rezoned plat of land can lose much or all of its value. And depending on the circumstances (and judicial decisions) this loss of value is then owed to a landowner by the government that changed the zoning.

Noted one attorney who does significant business with the city and didn’t want his name used, “the council created a giant bullseye here.”

Wolfe read the lawsuit and he said the plaintiff’s use of the term “spot zoning” isn’t accidental or off-base.

“We’re only talking about the inclusion of this building on a temporary basis in the Pike Place district,” Wolfe said. “Spot zoning, that’s a short-hand way of saying it’s being arbitrarily and unreasonably and differently from similarly situated buildings.

“Spot zoning is a short-hand dirty word of land use.”

The Showbox lawsuit

City Attorney Pete Holmes declined to comment on the lawsuit because of the pending litigation. In court filings, the city said it was well within its authority to modify the district; it has done so twice since 1971. Also, The Showbox is a “significant cultural resource” and under threat of development so emergency measures were required.

Asked if, as city attorney, he would have advised the council to push this specific legislation and if he would have told them it was legally sound, Wolfe said no.

“I would have pointed out the weaknesses,” he said. “No way I would have said this was a great idea.”

But Wolfe and other land use attorneys said there also is an indication that city’s own attorneys saw the liability of the council’s legislation. By giving the zoning a 10-month window, the council got a temporary stop to the development and in doing so might have slightly insulated itself against a takings violation because the zoning expires.

Maybe. Wolfe is not so sure.

There is a chance, he said, that the city will use the temporary zoning change to push for a deal with Forbes and Onni (the developer): Keep The Showbox as the bottom story and the zoning will return to what it was in July. But for a deal to work, Forbes’ attorney Keller would have to believe that he might lose in court.

“They have a good claim,” he said. “This is going to be interesting.”

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