A year back we had this come-from-behind Bad News Bears victory over the developer who wanted to get special permission from the city to build a 150-foot-tall condo tower where the law allows merely 35-foot-tall buildings.
The Hearing Examiner - think judge in this proceeding - ruled that the condo "turned it's back on Peaceful Valley" while showing no benefits for the damage it would do to properties, gardens and historical character. So no exception. No tower.
A few weeks ago we got word from the newspaper that the city was about to settle with the developer and just flat out let him build the tower as originally planned. In addition, they were going to also lease him prime real estate in Downtown that is currently the parking lot of a fire station in a weak-kneed groveling attempt to stave off the 7 million dollar lawsuit he filed in Superior Court. How "negotiations" end with one party getting more than he originally asked for is a testament to our city government.
Let's review: Straight Rich White Man sues City for NOT granting him special privileges. Insists that exception from the law IS HIS RIGHT AS A CITIZEN. Calls it a "civil rights issue."
Oh no he didn't. Oh yes he did.
He claims that he is being discriminated against for wanting to build a residential monstrosity as opposed to a business monstrosity - because according to the letter of the law he could build a 150 foot office tower, or, as he so dramatically put it - "a 150 foot rock wall". The law only pertains to residential buildings and that is not fair.
Well, the law exists because no one in their right mind would build an office tower in that area and expect to make money whereas greedy developers have been slavering over it as riverview property & therefore prime residential pickings.
It was written to address one problem only - that of residential developers using the gorge area for personal profit generation while ruining it for the rest of the city - which relies on it for profit generation that benefits everyone. In other words it was written to stop exactly this project, and any project like it.
His second argument is that he should have got personal notice that zoning law changes were going to impact what he could build on his property. He says he had no idea that changes in zoning were imminent or would impact him.
For a man who says he spent millions on "pre-construction" he sure allowed himself to be uninformed. It sounds to me like one of the many people on his payroll - lawyers, accountants, consultants, engineers - fell down on the job. And Mr. McDowell has no one to blame for that but himself.
Especially since city records show a total of 29 instances of notice - including mass mailings. McDowell's attorney testified to City Council that testimony by Peaceful Valley residents introducing documentation of these 29 notices were "the first he'd heard of these attempts." Huh.
Regardless, Peaceful Valley also introduced case law - Central Puget Sound Regional Transit Authority v. Miller for all you law geeks in the room - from February 16, 2006 wherein the Supreme Court of Washington ruled that property owners who lost their land to purchase by condemnation were adequately notified of the process by posting of notice only on the Transit Authority's website. This would appear to support the case that 29 notices in varying forms was sufficient for McDowell who is not in any danger of losing his property, or even the right to develop it.
Not to McDowell, whose lawyer Stanley Schultz testified Monday night that dicta in 9th Circuit decisions - unnamed of course - supported their demand for personalized notice to each property owner impacted.
Now, I was a poor law student as anyone who knows me can testify. But I dimly remember dicta being defined something like "crap judges talk about in their decisions, but which does not legally justify the actual decision". So I looked it up.
Black's Law Dictionary defines dicta thisaway: Opinions of a judge which do not embody the resolution or determination of the specific case before the court. Expressions in court's opinions which go beyond the facts before court and therefore are individual views of author of opinion and not binding in subsequent cases.
And I also was casual about studying the hierarchy of authority, but I think State Supreme Court opinion beats 9th Circuit dicta. I'm just sayin'.
It was great because Stanley Schwartz, Mr. McDowell's attorney invoked dicta as though it meant something more like "really important parts" as in "We find support for this argument in the really important parts of these 9th Circuit opinions." He also said (and I paraphrase) "You lawyers on the city council understand what I mean when I say dicta..." and nodded sagely. As though they all knew what strong juju dicta is.
Sadly, I saw many council members nod as if to say, "Yep, far be it for me to argue with the all powerful dicta.
We testified that this is a choice between two suits, because the neighborhood (with some lawyerly help) is determined to appeal if the settlement is approved. I got to speechify on that point:
"Either way the City is going to be dealing with an appeal and litigation. The question is, will the city side with citizens and with the democratic process, or will it side with one developer and that developer's business interests?" (Pretty good for a speech I wrote entirely at the City Council Meeting, no?)
End result: City Council defers their decision on this matter until next Monday. Which is a win as it was on the agenda with a recommendation to approve, and I think Mr. McDowell and Mr. Schwartz expected a slam dunk.
Stay Tuned for more as we lobby City Council and threaten to sue some more!
...And can I say that it is a sad day when a low-income neighborhood has to get a lawyer to sue the City in order to have the laws enforced as written?