PORT TOWNSEND — A U.S. District Court judge has dismissed a merchant’s suit against the city of Port Townsend, ruling that the city should not be held liable for a perceived loss of business resulting from a newly installed road project.
The suit, filed by Vintage Hardware and Lighting owners Ken and Jane Kelly, asked for unspecified damages from the city, claiming that the Thomas Street roundabout restricted access to the store and resulted in a loss of business.
Judge Robert A. Lasnik of the federal Western District Court in Seattle dismissed the Kellys’ claim Monday with the caveat that “the court is left with the general impression that plaintiffs got the short end of the stick in this development process.”
In his opinion, Lasnik wrote, there is not a judicial solution for every wrong, even when the alleged wrongdoer is the government, and so the remedy lies in the political arena.
“We were trying to do the right thing for the city and not for anyone’s special interests,” said City Manager David Timmons, who said the purpose of installing the roundabouts — to reduce accidents — has been accomplished.
Kelly was out of town and not available for comment.
“This is a real disaster for property rights,” said Shane Seaman, the Kellys’ attorney.
“Private property doesn’t mean anything if the city wants the land.”
Seaman said a decision to appeal has not been made but said his client did not regret filing the lawsuit.
“Ken is a businessman who is trying to make a living who decided that he didn’t want to just lie down and take it when the government took this action,” Seaman said.
The argument centered around Fifth Street, which was a dirt path when Ken Kelly built the store in 2004 and was turned into a city right of way for tour buses to park next to the store.
Ken Kelly said he spent about $3,000 fixing the road and opposed the city’s proposal to turn the street into a dead end.
Ken Kelly said the city would not consider his alternative proposals and filed the suit three months prior to the roundabouts’ scheduled opening.
At that time, Ken Kelly said, he did not expect the area to be restored to its pre-roundabout condition but continued seeking damages.
His business had suffered, he said, but he did not provide percentages or specific numbers as to the amount.
In a written statement, Port Townsend City Attorney John Watts described the judge’s statement about the short end of the stick as a “token” for the Kellys.
“As the court noted, there were no promises made, and any assumption on their part that the city would not change or reconfigure city streets was unreasonable,” Watts wrote.
Seaman said the Kellys’ “largest display of Victorian light fixtures in the country” is a tourist attraction.
“This business is what Port Townsend is all about,” Seaman said.
“That the city would shut down a source of its revenue is appalling.”
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Jefferson County Reporter Charlie Bermant can be reached at 360-385-2335 or at charlie.bermant@peninsuladailynews.com.
