Category: Arts

City’s Decision to Deny Permit for Event Commemorating Art at CHOP Could [UPDATED: Did] Backfire

By Erica C. Barnett

UPDATE: On Thursday afternoon, the ACLU of Washington and Public Defender Association sent a letter to the city attorney’s office, along with several city department leaders, calling the decision to deny CHOP Art’s permit “unconstitutional” and saying “we may need to take emergency legal action” if the city doesn’t act. The says the denial was clearly based on the content of the event itself rather than any legitimate “safety” concerns.

The city, as we reported this morning, has claimed that community members have said that any event commemorating CHOP, including an event celebrating the art of the protest, “would be disturbing or even traumatic” and that they applied a higher-than-usual safety standard because of violence that occurred during last year’s protests.

Original story follows.

Mark Anthony doesn’t know why the city declined his permit for an event in Cal Anderson Park after working with his group, CHOP Art, for the last eight months, but he has a theory: “I think that it got up to the mayor’s office, and I think they’re trying to say that CHOP itself is something that’s violent or negative, which isn’t true,” he said.

Capitol Hill Seattle was first to report on the city’s last-minute decision to deny a permit for a long-planned street fair this coming weekend commemorating the one-year anniversary of last year’s Capitol Hill Organized Protest. CHOP turned into a longstanding, entrenched protest area after Mayor Jenny Durkan and her police chief, Carmen Best, responded to protests against anti-Black police brutality by indiscriminately tear-gassing protesters and targeting them with blast balls, pepper spray, and other “less-lethal” weapons.

CHOP Art was formed to store and steward the art created at the event, which the city removed but promised to display at some later date. The location of the art is now unknown after a dispute between the organization’s founders that is still ongoing.

“They completely didn’t respond to me for over a week and a half, and then [Tuesday], three days before the event, they finally got back to me saying that due to the violence that has gone on in Seattle and the violent groups [at CHOP], they said that it was not going to be a safe environment.” — CHOP Art event organizer Mark Anthony

Anthony said his intent was to have a kind of “Black renaissance fair” on the site of the protest, with the blessing of the city’s Arts in the Parks program. “They’re the ones that reached out to me,” Anthony said, adding that he’s been meeting with Randy Wiger from the Parks and Recreation department regularly for at least six months to discuss the event. When the city told him they wouldn’t support “anything in relation to CHOP,” Anthony said, he changed the name of the event, “removed every reference to CHOP,” and reframed it as a Juneteenth celebration.

“They completely didn’t respond to me for over a week and a half, and then [Tuesday], three days before the event, they finally got back to me saying that due to the violence that has gone on in Seattle and the violent groups [at CHOP], they said that it was not going to be a safe environment,” Anthony said.

The Parks Department responded to PubliCola’s questions by providing a brief statement saying that they denied the permit because of community concerns. “We have heard from community members expressing concerns that any events celebrating or commemorating the events that occurred at Cal Anderson in summer of 2020 would be disturbing or even traumatic to the community,” the statement said.

In response to a followup question about which community members had opposed the event, a Parks spokeswoman said, “We heard from neighbors, artists who had previously worked with the CHOP Art group, and other members of the general public that the proposed event would be traumatic considering both the destruction to the park and the acts of violence that took place last summer.”

Charlotte LeFevre, an organizer of the Capitol Hill Pride March and Rally, said she was disappointed but not surprised that the city denied Anthony’s permit. “It’s infuriating that the city did the same thing they’re doing to Anthony they did that to us in 2017,” she said, when “the city yanked our permit before our scheduled National Pride march.” (The controversy over that event got wide coverage at the time.)

“The city does not have the right to deny a person or an organization the right to schedule a community public event in a public park based on so called perceived security risks,” LeFevre said. Continue reading “City’s Decision to Deny Permit for Event Commemorating Art at CHOP Could [UPDATED: Did] Backfire”

Maybe Metropolis: Seven Must Dos for Seattle’s Recovery

Public right-of-way isn’t just for cars anymore.

by Josh Feit

In a recent opinion column for the Seattle Times, Seattle Metro Chamber of Commerce President and CEO Rachel Smith and Downtown Seattle Association President and CEO Jon Scholes published “7 ‘must dos’ for downtown Seattle’s recovery,” a prescription for renewing downtown after the pandemic. Their list is premised on the idea that, “Every great city has a great downtown. Downtowns are the heartbeat of a region.” In other words, downtowns make the city go.

I like a lit-up downtown as much as anyone, but their column represents pre-pandemic thinking. The focus on “saving downtown” that’s emerging right now (most recently as a nascent local campaign issue) is a revamped version of a bygone Seattle policy agenda dressed up as urbanism; while it appears to be about bright lights and big cities, following this fussy narrative will simply drag us right back to where we’ve always been stuck: In a mindset that promotes suburban seclusion within the city itself.

There are certainly some important ideas on Smith and Scholes’ list, especially their calls for a robust transit system and for keeping shovels in motion on major infrastructure projects (which repeats the mass transit shoutout). Additionally, two of their seven agenda items, which I see as intertwined—activating public space and making it easier for entrepreneurs to set up shop—are also smart.

But these concepts are more urgent and relevant in the rest of the city; promoting them as downtown ideas runs the risk of reiterating and re-instituting a false dichotomy that has set Seattle off course for decades: The old-fashioned idea that downtown, not the rest of the city, is the only place for growth and energy.

The post-pandemic focus for making Seattle vital again should be on harnessing the new neighborhood energy—not sending it back downtown.

What we’ve actually learned during the past year not spending much time downtown is this: neighborhoods are the magic quadrants of cities. I don’t mean this in the trite, anti-downtown tribalist way of the old neighborhood movement, which saw every public-private partnership as some elitist conspiracy to crush the Wedgwood Community Council and rob the city of its authenticity. What I mean—as I’ve documented before—is that the past year has energized business districts outside the city center and alerted us to a new Seattle model. The post-pandemic focus for making Seattle vital again should be on harnessing the new neighborhood energy—not sending it back downtown.

Our past strategy of channeling city action to core neighborhoods such as downtown and Capitol Hill has prevented density in other sectors of the city, which has led to a housing shortage, and thus untenable housing prices. It also makes for dull neighborhoods.

The good news is: There are signs we’re moving in a new direction. Talk of sticking with outdoor street dining is already afoot. And just look at one of the key items on the DSA/Chamber list: “Completion of major infrastructure projects.” This item (unwittingly?) pinpoints where the real focus already is and should be.

Their first example? Light rail expansion. Well, light rail already exists downtown. The bulk of the expansion is coming to the non-downtown neighborhoods. Starting this year, that means the University District, Roosevelt, and Northgate. In 2023, that means Judkins Park (perhaps the most underrated and overlooked transformative capital project in the city!) After that, it means four stations from SoDo out to West Seattle and nine stations from the International District out to Ballard.

Continue reading “Maybe Metropolis: Seven Must Dos for Seattle’s Recovery”

Shakeups at the City: Durkan Announces New Interim Directors for Human Services and Arts Departments

By Erica C. Barnett

Seattle Human Services Department interim director Jason Johnson—interim, since 2018, because the city council declined to approve his nomination after a series of contentious hearings—is leaving his position at the end of the year. In his place, Mayor Jenny Durkan is appointing King County Housing Authority senior policy director Helen Howell on an interim basis “while the City embarks on an inclusive, nationwide search for the permanent director,” according to a press release announcement the appointment.

Interim deputy mayor Tiffany Washington—who just replaced Shefali Ranganathan in the mayor’s office—will head up the search for a permanent director.

Johnson will officially leave the city on January 15, but will be taking a “long planned vacation” starting next Monday, he told staff in an email. “My work throughout 2020 has been on borrowed time,” Johnson’s email continued. “As you may recall, I delayed an earlier announced departure from HSD in order to help the City and our partners respond to COVID-19, develop the department’s 2021 budget, and to ensure the governance structure of the regional homelessness authority was launched and positioned to hire a CEO. … This was not an easy decision for me to make—especially given how much the department is holding at this time—but with these priorities accomplished and in good hands, it is time for me to step away. ”

Howell, the new interim director, is also the former executive director of Building Changes, a Seattle-based group that focuses on homelessness.

Howell is In 2016 and again in 2018, Howell wrote op/eds for the Seattle Times promoting diversion—programs to move people from homelessness to better housing situations, such as “getting back in the good graces of a previous landlord or negotiating with a relative who can offer a place to stay”—as “a common-sense and cost-effective strategy that helps families identify immediate options for housing without relying on housing provided by or subsidized through the homeless system.”

In 2005, she stepped down from her position as director of the state Department of Financial Institutions. According to a Seattle Times report, she was popular with consumer advocates—and unpopular with the institutions she regulated, including payday lenders—because of her focus on consumer protection. She was also the head of Washington state’s Obama delegation in 2008 and one of 11 applicants to fill Dow Constantine’s county council seat when he was elected county executive in 2009.

The Human Services Department is transferring much of its role overseeing Seattle’s homelessness system to the King County Regional Homelessness Authority next year, although HSD will continue to oversee outreach to unsheltered people through the new HOPE team established in the 2021 city budget. Encampment removals, once the purview of the Navigation Team and largely halted during the pandemic, will likely resume to some extent next year, although it’s unclear how the responsibility for future removals will be distributed among the various departments that are responsible for them now.

Johnson officially resigned his position at the end of February, but stayed on because of the pandemic, which required major shifts in how the city responded to homelessness. The city council decided not to approve his appointment, in part, because several members felt he did not respond adequately to questions about his willingness to make decisions independent from Mayor Jenny Durkan, his commitment to race and social justice, and his lack of responsiveness to questions about layoffs at the homelessness division, among other issues.

In a statement, Mayor Jenny Durkan praised Johnson’s decision to stay on board during the pandemic. “His quick and decisive actions kept our most marginalized communities safe throughout the pandemic,” Durkan said. “Because of his vision and leadership, the Human Services Department is primed to build on these efforts for years to come.”

Although the job of HSD director will be less directly focused on homelessness in the future than it has been under Johnson, the new director will also be in charge of a perpetually dissatisfied Homelessness Strategy and Investment division that has been bleeding staff due to uncertainty over whether and when they’ll get jobs in the new RHA; the delayed hiring of a CEO for that authority has exacerbated the uncertainty.

Durkan also announced two other departmental shakeups this morning: Randy Engstrom, the longtime director of the city’s Office of Arts and Culture, will be replaced by current deputy director Calandra Childers on an interim basis. According to Durkan’s announcement, Engstrom “will turn his attention to teaching, advocating for national cultural policies, and spending time with his family.”

Durkan is also replacing the acting director of the Office of Emergency Management, Laurel Nelson since longtime director Barb Graff left (only to come back temporarily to head up the city’s COVID emergency response) in 2019, will be headed by Curry Mayer, who was most recently director of Bellevue’s Office of Emergency Management.

Maybe Metropolis: Night Vision

by Josh Feit

Mayor Jenny Durkan’s proposed 2021 budget eliminated a position that the city’s cultural community believes is essential, particularly as the COVID-19 crisis is strangling city nightlife: The Nightlife Business Advocate, also known as the Night Mayor. Fortunately, city council member Andrew Lewis took quick action to restore the position last month, getting four more council members—a majority—to sign on as cosponsors to his budget amendment.

The $155,000 save is on track to be part of  next week’s budget deal. I point out Lewis’ pivotal role because he’s the youngest council member (he just turned 31 this week), and still values nightlife as an attribute of city life. “It’s always bothered me that nightlife is seen as something that needs to be managed,” Lewis told me. “I think it’s something that needs to be cultivated.”

That’s essentially what the position, a formal liaison between nightlife businesses and city regulators, was created to do: Nightlife Advocate Scott Plusquellec helps music venues navigate the city’s complex licensing and permitting bureaucracy as well as helping with state regulators such as the Washington State Liquor and Cannabis Board. (Plusquellec was a legislative staffer in Olympia before coming to work at the city.)

The position was created in 2015 and housed in the Office of Economic Development’s Office of Film + Music under the office’s then-director Kate Becker. A veteran of Seattle’s music scene (and its storied battles against things like the Teen Dance Ordinance), Becker was both a founding member of all-ages venue the Vera Project and the Seattle Music Commission. When Becker left in early 2019 to take a job with King County Executive Dow Constantine as the County’s first Creative Economy Strategist, Plusquellec lost his high-level ally.

Becker was never replaced. After Becker left, Plusquellec reportedly had to write up a memo explaining his position to Mayor Durkan’s new OED director Bobby Lee, who started heading up the department in the summer of 2019. Judging from the mayor’s proposed cut, the new regime was not convinced.

Continue reading “Maybe Metropolis: Night Vision”

Maybe Metropolis: Improvising in the Time of COVID

by Josh Feit

A dazzling array of posters adorns the entrance to the Crocodile, Seattle’s destination music venue on 2nd Avenue in Belltown. The colorful posters are an eerie museum of ghostly show bills announcing 2020 concerts that never happened: Wye Oak March 20; Vundabar March 30; Lords of Acid April 13; Patoranking April 26; Juana Molina May 5, Gioli & Assia May 6.

For your convenience, I made a Spotify playlist called “Museum of Lost Shows” commemorating the Crocodile’s spectral season.

“A survey of 51 King County music venues revealed that in the first few months of [COVID-19] 2,100 events were canceled, 650 staff were laid off, and 17,000 musicians’ paid gigs were canceled,” according to Keep Music Live, a relief fund started by local music community advocates who have a goal of raising $10 million to keep Washington state’s small venues (under 1,000 occupancy) open through and after the pandemic.

Their rallying cry that “music venues are hubs of a cultural and economic ecosystem that make Washington’s cities vibrant” is borne out by the numbers. According to the National Independent Venue Association’s 2019 Seattle impact report on live music venues, Seattle clubs generated nearly $67 million in direct economic impact, employed 1,200 people, and sold 1.3 million tickets last year. In short: When it comes to the defining attributes of successful cities, creative music scenes are on the list right alongside dense housing, jobs, universities, mass transit, restaurants, regional medical facilities, cultural diversity, and the fine arts.

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A line around the block for a music show is a political win for any city planning office. Be it Seattle’s Comprehensive Plan or a Saturday night out, SDOT planners and Kremwerk DJs are both trying to figure out how to make things last.

When it comes to the arts, you make it last by getting creative.

So, it’s with some Seattle pride that I note this bit of city planning news: Despite the empty stages, quiet dance floors, lonely box offices, and locked club doors, Seattle’s Earshot Jazz Festival is improvising this year’s programming by partnering with Town Hall Seattle, the Royal Room, and the Langston Hughes Performing Arts Institute to make sure the festival goes on with a series of virtual shows.

With outstanding local jazz acts like the Johnaye Kendrick Quartet (Friday, October 23), Marina Albero (Sunday, October 25), the Benjamin Hunter Quintet (Saturday, November 7) taking the stage for live feeds from the aforementioned venues, Earshot will be streaming a series of 25 shows over four weekends this month and into November. It’s a scaled-back version of the festival’s typical 60-concerts-in-30-days tradition, but the resilience of our nationally recognized festival, which debuted in 1989, is an example of Seattle’s crafty and incorrigible arts scene. Continue reading “Maybe Metropolis: Improvising in the Time of COVID”

Showbox Property Owners Respond to City, Seek Depositions from Council Members Bagshaw, Sawant

A lot has happened since I wrote about the city’s response to a lawsuit by the owners of the Showbox last month. (The lawsuit, in very brief, alleges that the city council violated land use processes in spot-downzoning the Showbox property when they expanded the Pike Place Market Historical District to include the property on a temporary basis, preventing a 44-story development, and that the historic designation represents a taking of about $40 million—the amount for which the owner, Roger Forbes, planned to sell the land to the Vancouver developer Onni.)

Back in September, the city asked a King County Superior Court judge to dismiss Forbes’s land use claims claims (technically,  an LLC created by Forbes that owns the property, but we’ll stick with Forbes for clarity’s sake) on the grounds that Onni hadn’t formally sought any permits from the city, that inclusion in the historic district didn’t constitute a land use decision restricting how Forbes could use his property,  and that in fact nothing in the “Save the Showbox” legislation said that the Showbox must be saved.

The property owners—sounding spitting mad—filed a brief last week objecting to the city’s motion to dismiss the land use claims in the lawsuit, arguing that the decision to add the Showbox property, and only that property, to the historic district—effectively reducing its development potential from 44 stories to two—constituted a “reverse spot zone” and therefore was a “classic taking.” In their defense, they cite a number of cases that reducing the height of what can be built on one piece of land is considered a zoning decision, regardless of whether a permit has been filed. (The council made it much less likely that Onni would file a permit when they started talking about killing the development immediately after the developer started a pre-application process with the city, and passed fast-track “emergency” legislation barely one week later to ensure that Onni couldn’t go forward with its plans.)

Violating almost all of its own rules for a property use decision, the City enacted an “emergency” ordinance – not to abate a public nuisance – but rather because it wanted a private music venue to be an asset of the City. To try and accomplish that, it had to circumvent and carve this parcel – and only this parcel – out of its own prior and lawful zoning actions that previously upzoned the property and surrounding properties twice for high-rise development. The most recent upzone occurred just last year when the property (and other similarly situated properties) were upzoned by the City to allow additional floors if property owners provided certain financial support to the City’s efforts to increase affordable housing. The City’s reverse spot zoning of this property, stripping only this property of the same development potential similarly situated parcels enjoy, was not an exercise of “police power” to protect the public. It was instead an eminent domain powerplay to appease a vocal “Save the Showbox” group at the expense of a single property’s development and use rights.

Forbes’ attorneys also lays out the case that the city violated the state appearance of fairness doctrine, which requires officials like council members to keep an open mind on so-called quasi-judicial land use decisions (like zoning changes for a specific property) until after all the evidence has been presented and to make their deliberations in public, not behind closed doors. If the court finds that they did, it will mean that all the public hearings and rallies and open discussions about the need to “Save the Showbox” as a music venue in  perpetuity will have happened in violation of the law.

The response to the city makes one novel point: The Pike Place Market Historical District was not only created to protect small farmers and craftspeople from commercial development in the 1970s, it was formed by the city under the power of eminent domain—and, to this day, almost every single property in the district is publicly owned by the Pike Place Market Public Development Authority. That PDA has the right to regulate virtually every aspect of all businesses in the district, down to which tenants are allowed in each building, the size and materials on their signage, and what their storefronts look like on the inside. The Showbox building across the street, in contrast, is privately owned, making its inclusion in the historic district, the plaintiffs argue, even more of a taking than if the city had simply said Forbes couldn’t sell to a developer for an apartment tower.

This week, Forbes’ attorneys also filed a request to depose five city officials, including city council members Sally Bagshaw and Kshama Sawant, to get “information about the decision to single out this property, and only this property, for inclusion in the Pike Place Market Historical District, the process that the City employed in drafting, introducing and passing the ordinance, and the City’s real intentions in passing the ordinance (to maintain the property as a music venue in perpetuity).

“This information,” the request continues, “is relevant to Plaintiff’s contentions that the ordinance is invalid as an illegal spot zone, is otherwise procedurally invalid, was improperly passed because the Council violated the Appearance of Fairness statute, and violates Plaintiff’s First Amendment rights by forcing Plaintiff to maintain the property as a music venue.”

The hearing on that motion will be held next Friday, October 19. The trial is currently scheduled for February.

Note to readers: The reporting I do isn’t free! For example, court records cost 25 cents a page—a charge that can really add up when a case involves hundreds of pages. The time and effort it takes to bring you stories like this one, not to mention all my in-depth, on-the-ground reporting on the Showbox and other city issues, is made possible only by support from people who read this site. So if you enjoy my work and want to see it continue, please continue becoming a sustaining or one-time donor. Thanks for reading, and for your support!

Evening Crank: Showbox Supporters Get Extra Notice of Upcoming Hearing; Anti-Head Tax Consultant Spady Seeks Funds to Kill Education Levy

1. “Save the Showbox” activists, including city council member Kshama Sawant, put out a call to supporters  this past Tuesday urging them to show up next Wednesday, September 19, for a “Concert, Rally, and Public Hearing” to “#SavetheShowbox!” at 4pm on Wednesday, September 19, to be followed by “the City of Seattle’s formal public hearing on the Showbox.” That notice to activists went out three full days before the general public received notice of the hearing, at which the council’s Civil Rights, Utilities, Economic Development and Arts Committee will take public testimony on whether to permanently expand the Pike Place Market Historic District to include the building that houses the Showbox. That official public notice went out Friday afternoon. (A post rallying supporters on Facebook (or any other social media) does not constitute a formal public notice of an official city hearing.)

Advocates who favor the Showbox legislation, in other words, appear to have received an extra three days’ notice, courtesy of a city council member, about an opportunity to organize in favor of legislation that council member is sponsoring. This advantage isn’t trivial—it means that proponents had several extra days to mobilize, take time off work, and organize a rally and concert before the general public even received notice that the hearing was happening.

Sawant’s call to action, which went up on her Facebook page on Tuesday, reads:

At the start of the summer, the Showbox, Seattle’s 80 year-old iconic music venue, seemed destined for destruction. Then the #SavetheShowbox movement came onto the scene, gathering more than 100,000 petition signatures and packing City Hall for discussions and votes. By mid-August, our movement had pressured the City Council to pass an ordinance put forward by Councilmember Kshama Sawant temporarily saving the Showbox by expanding the Pike Place Market Historical District for 10 months.

This was a historic victory and a huge first step, but the movement to #SavetheShowbox is far from over. The current owners of the building have sued the city and we know the developer Onni will do everything in its power to bulldoze the Showbox, and corporate politicians will certainly capitulate, unless we keep the pressure up.  

Why does it matter if a council member gives one interest group advance notice of an opportunity to sway public opinion (and to bring pressure to bear on her fellow council members) on an issue?  For one thing, the city is currently being sued by Roger Forbes, the owner of the building that leases space to the Showbox, who had planned to sell the land to a developer, Onni, to build a 44-story apartment building. Forbes’ lawsuit argues, among other things, that Sawant and other council members  violated  the state’s Appearance of Fairness Doctrine, which requires council members to keep an open mind on so-called quasi-judicial land use decisions (like zoning changes for a specific property) until after all the evidence has been presented. Organizing a rally, and giving one side several extra days to mobilize for a public  hearing, could be seen as evidence of bias in violation of these rules.

A key question will be whether adding the Showbox to the historic district, and thus dramatically restricting what its owner can do with his property, constitutes a land-use decision that is subject to quasi-judicial rules. In the lawsuit, Forbes argues that by including the Showbox in the historic district, the council effectively downzoned his property, and only his property, from 44 stories to two, the height of the existing building. Forbes had planned to sell the land to Onni for around $40 million, and is seeking that amount in damages.

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2. Dick’s Burgers scion Saul Spady, whose PR firm, Cre8tive Empowerment, took in $31,000 during the four-week campaign to defeat the head tax, is hoping to raise $100,000 to oppose the upcoming Families and Education Levy and to fill the seven city council seats that will be up for grabs next year with “common sense civic leaders.” The money would, according to the email, go to Spady’s firm for the purpose of “digital outreach.”

In an email obtained by The C Is for Crank, Spady says he held a meeting last week with a group of potential 2019 candidates, with the goal of “engag[ing] likely candidates & potential donors to build support for a digital outreach campaign partnering with my advertising agency Cre8tive Empowerment to engage likely Seattle voters via Facebook & Instagram to help them learn more about important city issues in late 2018 and 2019 ranging from:

• 2018 Education/Property Tax Levy [$683 million over 6 years] • Did you know increasing Property Taxes increases your rent?
• 2018 Ballard Bike Path Costs rising to $25 million for 1.4 miles
• Lack of Safety, Property Crimes, Affordable Housing & Homelessness [2019 Core Issue]”

The first two bullet points are about the Families and Education Levy, a property tax measure which funds preschool, summer school, early childhood and school-based health services, and other programs aimed at closing the achievement and opportunity gap for students in Seattle Schools. That levy passed in 2011 with 63 percent of the vote. Part of the strategy to kill that levy, apparently, will involve informing renters, who make up 53 percent of Seattle households, that their landlords use their rent to pay for things.

The rest of the initial $100,000 would go toward “build[ing] strong & vibrant grassroots communities in Seattle that want to engage on major issues & will vote for common sense civic leaders in 2019,” described elsewhere in the email as  “candidates focused on common sense, fiscally responsible & accountable government mixed with active citizens who are concerned about the continuing slide of Seattle into the ‘corruption of incompetence’ that we’re witnessing across all sectors of city hall.” The campaign, Spady writes, will aim to place “positive articles from local leaders” in the Seattle press and to “deliver 3,000,000+ targeted Facebook/Instagram impressions among core targets” over the next three months. Just something to think about the next time you see a slickly produced Facebook ad opposing some proposed homelessness solution, or explaining to you in patient, simple language that when your landlord’s costs go up, your rent does, too.

Emails Reveal Council Drafted Pro-Showbox Talking Points; City Lawyers Expressed Concerns About Landmark Status Based on “Popularity”

Emails obtained by the C Is for Crank reveal the extraordinary measures city council members and staff took to promote legislation that expanded the Pike Place Market Historical District to include the Showbox on First Avenue in downtown Seattle, scuttling a planned apartment building on the site and prompting a lawsuit claiming that the council violated numerous state and city laws when they voted to effectively downzone the Showbox property from 44 stories to two. The emails also reveal that the city attorney’s office advised the council against pursuing landmark status for the Showbox based on the “popularity” of the venue, and warned that making such a designation based on popular sentiment in favor of the Showbox, a tenant, could raise legal concerns about whether the decision was “arbitrary and capricious.”

Among other machinations, the emails reveal that the city council’s public information officer drafted talking points for Death Cab for Cutie singer Ben Gibbard, who testified in favor of the legislation in early August, based on comments he made to an NPR reporter about the Showbox the previous week. Gibbard was listed as one of the “advocates” for the legislation in an email from the spokeswoman, Dana Robinson Slote, suggesting actions council members could take to promote the legislation; the advocates were listed in contrast to the “‘pain point’ players” in the debate, which included Onni, the developer that planned to purchase the land and build a 440-unit apartment building; Seattle Department of Construction and Inspections director Nathan Torgelson; and Mayor Jenny Durkan.

In the email, Robinson Slote writes,

Ben— Thanks for your time by phone yesterday. As promised, below you’ll find suggested talking points for Monday’s Full Council meeting. In short, I summarized many of the themes from an interview you gave in June this year, which seems to fit well with the Resolution and Ordinance CM Sawant will introduce to #SaveTheShowbox

Also as discussed:

• I’ll plan to meet you on the first floor of the City Hall lobby approx. 1230p (Lyft can bring you to the 5th Ave entrance), and feel free to call if I can help guide you here.

• We’ll meet first with Sawant for fewer than 15:00; and,

• Then I’ll take you to O’Brien (Ballard, Fremont) and Herbold (West Seattle), followed by Citywide elected Gonzalez & Mosqueda (and the remaining Councilmembers Johnson, Juarez, Bagshaw and Harrell) as time allows. Public comment begins at 2:00 p.m., so we can decide in advance if you’d still like to speak (and sign you in) or watch from the Green Room. Thank you once again for sharing your time and talent on this important occasion and for this critical cause.   

Slote then lays out a full page of potential talking points, many of which focus on Gibbard’s experience growing into middle age in Seattle after moving here and falling in love with the city in the 1990s.

Kshama Sawant and  her staff used private gmail accounts, rather than their official city of Seattle email addresses, to discuss the Showbox legislation and the lobbying campaign to promote it, which was run out of Sawant’s office.

Robinson Slote says she did not give Gibbard special treatment during the Showbox debate, and points out that the “talking points” she wrote for Gibbard were based on his own previous comments. Gibbard ended up writing his own testimony, which differed significantly from the draft  Robinson Slote provided. However, the council’s solicitous treatment of Gibbard—which also included shepherding him from council member to council member and offering to host him in the council’s “green room,” away from the general public, during the council meeting—is not the standard treatment accorded to most members of the public, who must line up to speak, write their own testimony, and sit or stand in council chambers along with the rest of the general public.

Also unusual is the fact that legislation sponsor Kshama Sawant and her staff used private Gmail accounts, rather than their official city of Seattle email addresses, to discuss the Showbox legislation and the lobbying campaign to promote it, which was largely run out of Sawant’s office using city resources. It is standard practice for elected officials and public staffers to use their city email addresses to do public business, both because this practice just makes sense (all the other council members and staffers who are cc’d on the email use their public @seattle.gov addresses for all communications), and because private emails can more easily be withheld from public disclosure. If a journalist or member of the public requests email communications from an elected official or government staffer, it’s up to that staffer to volunteer their private emails for disclosure; the city’s public disclosure officers have no authority to go searching through people’s private email accounts. Additionally, public emails are archived by the city; private emails are not.  Sawant and her staffers’ email addresses all use the naming convention Firstnameatcouncil@gmail.com.

Seattle Ethics and Elections Commission director Wayne Barnett says the city’s ethics code is silent on the issue of whether city officials and employees are allowed to do city business using personal email addresses. The city IT department’s policy on use of city resources, however, does prohibit “The use of personally owned technology for conducting City business, where official City records are created but not maintained by the City.”

In another email, Sawant’s staff discusses the wording of a poster, ultimately produced by Sawant’s council office, urging the council to vote to “save the Showbox” by including it in the historic district. An early version of the poster included the suggestion to “Call in sick – go protest!”

The fact that Sawant and her staff, as well as Robinson Slote, were discussing how to influence the legislation could—if the inclusion of the Showbox in the historic district is deemed to be a spot downzone of the property—give the owners of the property important evidence in their case that the council and staffers engaged in illegal “ex parte” discussions and failed to remain impartial on a zoning decision.

In another exchange that could help the Showbox’s owners make the case that the council intervened improperly on a zoning decision, the city’s own attorney cautions against seeking landmark status for the Showbox based on the “popularity” of the venue. (The inclusion of the Showbox in the historic district is different from landmark status, but the emails demonstrate that the city’s attorneys cautioned against such a political approach to historic designation.) In an email dated July 31, assistant city attorney Bob Tobin told city council member Lisa Herbold that it would be “premature” for the city council to “take the position that the [Showbox] qualifies as a landmark, without first allowing the (expert) Board’s process to play out, and without applying the standards in the code, seems premature at best. From a legal perspective it is preferable for the Council to consider the designation decision in due course, pursuant to City ordinances. And certainly if a resolution is being considered, it shouldn’t suggest (as CM Sawant’s letter apparently did) that designation should be based upon popularity rather than the legal standards in the code, or that the City should apply the code to exert ‘leverage’ over the applicant. Those types of references invite legal challenges based upon the ‘arbitrary and capricious’ nature of the Council’s ultimate decision.” The Showbox owners’ lawsuit, of course, claims precisely that the council’s decision to include the property in the Pike Place Market Historical District was “out of step with the founding of the Pike Place Market redevelopment and is the definition of arbitrary and capricious.”

The city’s own attorneys advised the council against making the argument that the Showbox should be granted formal landmark status because of its “popularity” with the public: “And certainly if a resolution is being considered, it shouldn’t suggest (as CM Sawant’s letter apparently did) that designation should be based upon popularity rather than the legal standards in the code, or that the City should apply the code to exert ‘leverage’ over the applicant. Those types of references invite legal challenges based upon the ‘arbitrary and capricious’ nature of the Council’s ultimate decision.”

One day after sending the email to council member about landmark status, Tobin responded to an email from Sawant staffer Ted Virdone, who had posed several questions about what would happen if the city included the Showbox in the Pike Place Market Historical District, rather than seeking to make it a landmark on its own. Virdone’s questions are in italics.

Hi Ted. Here is a quick response to your questions below, in red.

  1. Is it possible to extend the boundary of the historical district to cover a property if the property owner objects? I believe the answer is yes, as owners typically can’t veto regulatory measures.
  2. If the Historical District is extended to cover this property, could it effect this development, or would the develop be vested in some way that would trump the procedures of the historical district? I believe that vesting of such a project would likely occur at the time that the Design Review process begins (SMC 23.76.026), and I doubt that process has begun. If the district were enlarged before the projects vests, then the applicant would be subject to historic district regulations, but that doesn’t necessarily mean that the Showbox would be preserved.
  3. Are there any other considerations we should be aware of? There likely are, but I would need more focus on your questions and goals. Bob

Five days later, Virdone’s boss, Sawant, introduced legislation to extend the Pike Place Market Historical District to include the Showbox and about a dozen other properties on the east side of First Avenue. After property owners ultimately objected, that legislation was scaled back to encompass (and effectively downzone) just the Showbox property. Less than a month after that, the owners of the Showbox sued the city, seeking $40 million in compensation for legislation that, they say, drastically devalued their property.

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Lawsuit: Council Violated Numerous Laws When It “Saved the Showbox”

In a move so predictable it hardly even merits an I-told-you-so (but I did tell you so), the owners of the building on First Avenue that houses the Showbox have sued the city in response to a land-use decision that effectively downzones their property from 44 stories to two, arguing (among other things) that the move constitutes an illegal spot zone and a taking of private property worth $40 million—the sum for which the owners had planned to sell the land.

To unpack the story—which David Kroman broke on Crosscut earlier today—it helps to recap a bit of the whirlwind history that led us to this point. Last month, news broke that a Vancouver developer called Onni Group planned to tear down the Showbox and redevelop the property as a 440-foot-tall apartment building with 442 units, which could have included a new ground-floor music venue. The city council had just upzoned  the property as part of the city’s Mandatory Housing Affordability plan, which grants developers in some areas, including downtown, the right to build taller and denser in exchange for building or funding affordable housing. However, a public outcry—spearheaded by music fans and amplified by anti-development council member Kshama Sawant, who saw the controversy as an opportunity to stop a “greedy developer” from profiting from a new high-end development—prompted “emergency” legislation that expanded the Pike Place Market Historical District to include the Showbox property for at least the next ten months. (The property is owned by strip-club magnate Roger Forbes, who also owns the Deja Vu Showgirls club down the street; the Showbox itself is operated by a tenant, AEG Live, which describes itself as “the world’s second largest presenter of live music and entertainment events.”)  Initially, Sawant proposed a dramatic expansion of the historical district that would have effectively downzoned a dozen existing properties and forced property owners to obtain permission from a historical commission before renting to new tenants or making any visible changes to their property, but that was eventually scaled back and only the Showbox property got the “historical” designation. The new rules last for ten months—long enough for the city to decide whether to extend them and make the two-story Showbox building a permanent part of Pike Place Market, and long enough (or so the “Save the Showbox” crowd hoped) to convince Onni to go away and for supporters to put together a plan to preserve the space as a music venue in perpetuity.

That brings us to the present, and the lawsuit filed last week. The suit claims that the city council violated the owners’ property rights by passing a spot rezone that reduces its value by tens of millions of dollars; that they violated  the state’s Appearance of Fairness Doctrine, which requires officials like council members to keep an open mind on so-called quasi-judicial land use decisions (like zoning changes for a specific property) until after all the evidence has been presented and to make their deliberations in public, not behind closed doors; that the inclusion of the Showbox in a historical district designed to protect farmers and small-scale artisans is “the definition of arbitrary and capricious”; and that the “illegal spot zone” violates the city’s comprehensive plan, which calls for more density in places like downtown Seattle.  “The Decision [to expand the historical district to include just the Showbox] bears no rational relationship to promoting a legitimate public interest; it singles a small area out of a larger area for use and development restrictions that are not in accordance with similarly situated neighboring properties and not in accordance with the City’s Comprehensive Plan.”

The fairness doctrine allows council members to have a general opinion on land use questions; it doesn’t allow them to go into a land use discussion with their minds made up, and it certainly doesn’t allow them to actively campaign on behalf of one side or another in a quasi-judicial land use debate.

The argument that the council’s vote to put the Showbox in the Market historical district represents a spot rezone—that is, that it effectively turns a property with a 440-foot height limit into one with a limit of just two stories, the height of the existing Showbox building— is critical. If the court accepts this argument, they may also be inclined to accept the property owners’ argument that council members, particularly Sawant, violated the law by discussing the decision outside the public eye, and participated in a campaign in favor of the rezone. The fairness doctrine allows council members to have a general opinion on land use questions; it doesn’t allow them to go into a land use discussion with their minds made up, and it certainly doesn’t allow them to actively campaign on behalf of one side or another in a quasi-judicial land use debate. (If this argument sounds vaguely familiar, you probably remember it from Strippergate—a scandal that contributed to the defeat of two city council members who violated quasi-judicial rules when they discussed, and voted for, a rezone to allow strip-club owner Frank Colicurcio to expand the parking lot at his Rick’s strip club in North Seattle. In an odd turn of fate, Showbox property owner Forbes purchased Rick’s from Colacurcio in 2011.)

The lawsuit echoes a point that I have made numerous times at The C for Crank about basing policy on the wishes of a vocal few—in this case, music fans and industry employees who sign petitions and hold signs that say “Save the Showbox” and write songs bemoaning the inexorable fact that cities change:  “When politicians cater to populist calls – whether those calls are ‘lock her up,’ ‘build the wall’ ‘ban Muslims,’ or ‘Save the Showbox’ – civil and other rights are placed at risk. Populism, and politicians’ desires to appease their loudest constituents and generate headlines must, however, yield to the rule of law. Luckily for those who prefer protection of civil, constitutional and property rights, the courts exist to preserve, protect and enforce the rule of law.”  Indeed, the suit argues that the council caved to public pressure in order “to enhance its political popularity” and “enacted an unlawful ordinance that was intended to, and did, place all the burden of providing a public music venue to City residents onto the shoulders of a private landowner. The ordinance greatly and instantly devalued the property and will scuttle its redevelopment unless the City’s improper spot down zone is declared unlawful.”

The owners of the Showbox property don’t mention race and social justice in their lawsuit. But had they done so, I suspect that the city would have trouble making the case that protecting the Showbox, a venue where tickets typically start at $35 once all of AEG’s “convenience” and other fees are included, advances its race and social justice goals. Particularly when doing so means foregoing $5 million to build housing for people who can’t afford $35 concert tickets.

The complaint also takes a swing at the notion—which several council members, particularly Lisa Herbold, made explicit during the debate over the historical designation—that the squat, repeatedly remodeled Showbox building itself is “historic.” The city, the lawsuit notes, hired a consultant to consider the Showbox for historic landmark status in 2007, but found that the building lacked “any redeeming landmark features.” This, the complaint continues, “was partly because the building had been remodeled during its many uses in the past including as a comedy stage, an adult entertainment arcade, a furniture store and a bingo hall.” When Showbox preservationists talk about “silencing the ghosts of Seattle’s history,” as one of the venue’s bartenders did last month, is that the history they’re thinking of?

One final note. Ordinarily, when the city makes land-use decisions, it puts those decisions through a rigorous Race and Social Justice Initiative (RSJI) analysis to determine what impacts the decision might have, positive or negative, on marginalized and low-income communities. As far as I can tell, the city did no such analysis when it decided to effectively downzone the Showbox block—a decision that also meant foregoing about $5 million in funding for affordable housing under MHA. The owners of the Showbox property don’t mention race and social justice in their lawsuit, perhaps because such goals are hard to quantify (and harder still in the absence of the usual analysis). But had they done so, I suspect that the city would have trouble making the case that protecting the Showbox, a venue where tickets typically start at $35 once all of AEG’s “convenience” and other fees are included, advances its race and social justice goals. Particularly when doing so means foregoing $5 million to build housing for people who can’t afford $35 concert tickets.

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The Showbox Is “Saved.” Now What?

When I lived in Austin, back in the 1990s, there was this bar called the Cedar Door that kept getting displaced by development. The proprietors just couldn’t catch a break: As soon as they opened in a new location, it seemed, some developer would come along and announce a new condo or apartment or office building and the Cedar Door had to go. By the time I lived in Austin, the bar’s peripatetic nature was part of local lore: The bar that never stays in one place for long.

Let me tell you another story: There was this club, also in Austin , called Liberty Lunch, where I saw some of the most memorable shows of my young adult life, including the Pixies, Failure, Clutch, and a bunch of other bands whose names are lost to time. In the late ’90s, despite a concerted local effort to save it, Liberty Lunch shut down—a victim, it was said, of development run amok. (You can still visit it virtually, on the “I Still Miss Liberty Lunch” Facebook page.) Many of the bands I saw there are now on their second or third reunion tours, playing at $30-and-up venues like the Showbox.

A final story, from Seattle. A beloved cultural institution, the Museum of History and Industry, was forced from its location in Montlake by the need to rebuild the floating bridge across SR-520. The old bridge was, in a way, itself a victim of development: Massive suburban growth that state highway planners said necessitated a wider bridge to carry commuters swiftly back and forth across Lake Washington. The museum struck a deal with the city and state, and opened in a new (and arguably more apt location): South Lake Union, where old history rubs shoulders with new industry.

What did the city council vote for today, when it voted to “Save the Showbox” by making it part of the Pike Place Market Historical District?  To the mostly middle-aged crowd who testified about the value of the venue, the vote was about the musical heritage and cultural future of Seattle. To the Pike Place Market preservationists who see the Showbox debate as an opportunity to relitigate the city’s decision to upzone First Avenue to allow taller buildings—an upzone that today’s vote partly reversed—the decision was about protecting the “entrance to the market” from towers near the Market, which they have long opposed. (The Showbox, notably, was not included in the Pike Place Market historical district in 1971, when the district was created after a lengthy citizens’ effort to save the market from development, even though it had been around, at that point, for more than four decades.) To residents of the Newmark Tower condos on Second Avenue, the vote was an opportunity to preserve their views of Elliott Bay and limit traffic in the alley behind their building. “Past city councils shouldn’t have upzoned,” attorney and Newmark condo owner Dan Merkle said. He wore a “Save the Showbox” T-shirt. (Opponents of theoretical “luxury apartments,” in one of the day’s many ironies, were in league with the owners of actual luxury condos.) And to density advocates like council member Teresa Mosqueda, it was a symbolic vote to “protect” one downtown block that came with an implicit bargain: If people who showed up over the past week to “Save the Showbox” really want to preserve cultural institutions and build affordable housing, she said, they need to show up for future debates about development, too—to advocate for more density all over the city.

The council has shown that they will overturn major land-use policy decisions that took years to develop in response to concerted public pressure from vocal interest groups, without regard for whether doing so violates the spirit of prior land-use policies that resulted from lengthy, and often hard-fought, public processes. This week, it was the Showbox. Next month, it could be  an industrial business that stands in the way of a bike lane, or a single-family house whose preservation could prevent the development of dense housing in a neighborhood.

The legislation the council adopted today adds the Showbox property, owned by strip-club magnate Roger Forbes, to the Pike Place Market Historical District for the next ten months so the city can “review the historic significance ot the Showbox theater, study the relationship between the Showbox theater and the Pike Place Market, consider amendments to the Pike Place Market Historical District Design Guidelines related to the Showbox, draft legislation, conduct outreach to stakeholders, and conduct State Environmental Policy Act (SEPA) Review on permanent expansion of the Historical District, as appropriate.” In plain English, that means that the city has effectively downzoned the block on which the Showbox is located from about 450 feet to its current height of two stories on an “emergency” basis while the city decides whether to include the Showbox in the district permanently. Inclusion in the historical district means that any alterations to the building—from the tenants who occupy the first floor to the lighting and signage—will have to be approved by the historical commission that oversees the market. (Proponents have argued that this will force the Showbox to remain a music venue in perpetuity, but the city cannot legally force a private business to stay in business or renew its lease.) For now, the legislation effectively precludes demolition of the Showbox and prevents the building’s owner, Roger Forbes, from selling the property to Onni Group, the developer that wants to build a 44-story apartment tower on the site.

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In theory, the legislation provides some breathing room for the city to work out a deal to preserve the physical structure that houses the Showbox—a two-story unreinforced masonry building—while allowing Onni to build its tower on top of the venue. However, as Mosqueda acknowledged after the “this vote today makes a negotiated resolution more challenging.” Even if Onni and Forbes want to reach such a resolution, building a new tower on top of the Showbox itself may not be possible, and could be prohibitively expensive if it is. At today’s meeting, council members repeatedly cited a project built by developer Kevin Daniels that saved the now 111-year-old First United Methodist Church sanctuary on Fifth and Marion as an example of preservation that allowed a new development to co-exist with a historical structure. But that development did not involve actually placing a new building on top of the church—and it cost an estimated $40 million. (Daniels has said that from a purely financial perspective, he regrets saving the church building.)

In any case, neither Onni nor Forbes has indicated that they plan to spend tens of millions of dollars to “save” a music venue in which neither party is actually invested, in any sense of that word. Moreover, the uncertainty created by today’s legislation may lead Onni to abandon the project. That could “save” the Showbox until its lease ends in two years, but does not guarantee its continued existence; AEG, the multinational company that operates the Showbox, could decide to leave, or Forbes, the building’s owner, could decline to renew their lease or raise the rent to a  prohibitive level.

Would anyone who was at city hall today declare victory if the Showbox was “saved,” only to become a new Tom Douglas restaurant, or an actual museum? Or if it ends up sitting empty, the victim of economic forces that can’t be altered by a million signatures on change.org petitions?

Or Forbes could sue. On Sunday, the law firm that represents Forbes, Byrnes Keller Cromwell, sent a letter to city attorney Pete Holmes and council president Bruce Harrell noting that Forbes has the legal right to redevelop the Showbox property as a high-rise; in fact, the lawyers note, the city implicitly endorsed its redevelopment when it upzoned the land in both 2006 and 2016, when the zoning capacity of downtown Seattle was increased as part of the city’s Mandatory Housing Affordability program. “That zoning and up-zoning were and are entirely consistent with the City’s high-density urban plan and goal of promoting affordable housing,” the letter says. (If Onni does not move forward with its development, the city will  forego about $5 million that would have gone toward affordable housing under MHA.)

The letter continues:

As you are aware, property owners, the City and the courts all have respective rights, obligations and oversight related to the significant economic interests that arise from real property and re-zoning issues. Just this last Thursday, the State Supreme Court unanimously issued an opinion on land use rights in a case where a property owner was not given a fair opportunity to use a property. [That case upheld a decision finding that Thurston County illegally delayed the sale of a piece of land owned by the Port of Tacoma and awarded total damages of $12 million].  Of course, you know that case does not stand alone, but is part of a larger body of state and federal law addressing these kinds of significant economic and constitutional issues.

It is important for all parties involved to be heard fairly and accorded consideration and for rights to be recognized and protected. Process should be afforded and both procedural and substantive fairness observed.  We understand that a more considered  approach may be underway for the Monday, August 13, 2018, City Council meeting at which these issues are to be considered, and we sincerely appreciate a path toward working through the issues in a way that avoids unnecessary entanglements, missteps and interference with contractual and other expectations of the parties involved.

Whatever ultimately happens with the Showbox, the ramifications of today’s vote will be far-reaching. Although council member Mosqueda told me after the vote that she did not intend for the decision to set any kind of precedent, that’s exactly what it does. The council has shown that they will overturn major land-use policy decisions that took years to develop in response to concerted public pressure from vocal interest groups, without regard for whether doing so violates the spirit of prior land-use policies that resulted from lengthy, and often hard-fought, public processes. This week, it was the Showbox. Next month, it could be  an industrial business that stands in the way of a bike lane, or a single-family house whose preservation could prevent the development of dense housing in a neighborhood. For all Mosqueda’s optimism that the “Save the Showbox” crowd will turn out in the future to advocate for density all over the city, it’s important to note that council members who often advocate against density, including Lisa Herbold and Sawant, see the same people as an opportunity to advance their own anti-development agendas.

At today’s meeting, while Herbold was talking about the need to save the physical structure of the Showbox, rather than preserving its spirit by rebuilding or revamping the venue, someone shouted from the back. “The soul is in the walls, it’s in the stage, it’s in the floor!” But he was wrong.  The Showbox isn’t the Lincoln Memorial, or La Sagrada Familia, or the Louvre. Its cultural relevance comes not from the squat, architecturally unremarkable building in which it is located, but from the music that has been made, and continues to be made, inside its walls. And cultural institutions sometimes move, or are rebuilt, or even close only to reopen later in a different form. (Moe’s, a once-shuttered institution whose rebirth as Neumos helped to spur the reinvention of the Pike-Pine corridor as a nightlife district, springs to mind.) Would anyone who was at city hall today declare victory if the Showbox was “saved,” only to become a new Tom Douglas restaurant, or an actual museum? Or if it ends up sitting empty, the victim of economic forces that can’t be altered by a million signatures on change.org petitions? Twenty years ago, Liberty Lunch was replaced by a generic office building. But Austin remained a music destination, largely on the strength of the new venues that emerged on the other side of town after the Lunch shut down. Cities rarely grow and improve by preserving their culture in amber. Almost always, they do so by letting things change.