Saturday in the park...I think it was the Fourth of July
Here's the latest on a case we've been following, about the blocking off of a neighborhood in Seattle and making it a no-go zone for those whom the takeoverers wanted to keep out.
Yes, the CHOP/CHAZ case is still a thing. [And before we go on a disclosure: our law firm is participating as amicus curiae in the case.]
Business owners in the zone sued the City in federal court, alleging that the government actively aided or facilitated the takeover, or at minimum did nothing to end it. Claims asserted include Due Process, Takings, and state and local law claims. The takings claim was based on two theories: first, that the City facilitated a physical invasion by third parties of plaintiffs' properties; second, that the City action or inaction resulted in a loss of access by plaintiffs and their invitees to their properties in the zone.
We posted the federal court complaint and court's earlier denial of the City's motion to dismiss:
In this Order, the court granted the City summary judgment on the due process claims and one of the takings claims, but importantly denied summary judgment on the denial-of-access takings claim.
The court rejected the temporary physical invasion claim, concluding that the City had neither formally invited, nor authorized, the protesters to enter plaintiffs' properties, and "[u]nlike in Cedar Point and Loretto, the City did not adopt a regulation or ordinance granting protesters a 'formal entitlement' to enter Plaintiffs' properties. Order at 24.
But the court didn't see it the same way with the loss-of-access takings claim. First noting that "[a]n owner's right of access to his or her property is recognized in Washington[,]" which cannot be "eliminated or substantially impaired," Order at 24, the court concluded that "the parties do not dispute that some plaintiffs were able to access their properties during CHOP." Order at 25 (footnote omitted). The declarations submitted by plaintiffs in opposition to the City's summary judgment motion alleged "that access to their properties was significantly diminished or impaired during the CHOP period." Order at 26.
This action does not involve the typical exercise of police power to regulate the flow of traffic in the Capitol Hill neighborhood, such as for routine road maintenance or construction. Further, Plaintiffs have presented evidence that the City’s actions actually interfered with or prevented their access to their properties. Drawing all justifiable inferences from the evidence in Plaintiffs’ favor, the Court concludes that genuine disputes of material fact preclude summary judgment on Plaintiffs’ right of access theory of liability. The Court therefore DENIES the City’s motion as it relates to Plaintiffs’ right of access taking claim. Whether Plaintiffs can present sufficient evidence at trial to support the City’s liability for a taking under these circumstances is a factual issue that cannot be resolved on a motion for summary judgment.
Order at 27.
For your next visit to Seattle
So the beat goes on. We'll bring you updates as they occur.
Hunters Capital, LLC v. City of Seattle, No. C-20-0983 (W.D. Wash. Jan 13, 2023)
