The appeal of the Manning's/Denny's designation as a city landmark has brought into question the fairness of the entire process of how a landmark is decided in Seattle.

The diner's landmark status was decided Feb. 20 and since then has ignited existing sentiments among critics of the city's landmarking process, mostly among property owners and developers who say the criteria are too subjective and overall "unconstitutional."

Some argue the process is anti-development and use as an example the city's plan to nominate more than 37 downtown buildings for landmark status to protect them from demolition.

The lawsuit filed by the Manning's/Denny's property owner, The Benaroya Company, challenges the recent designation on these points. Benaroya wants to sell the property to developers Rhapsody Partners, who want to build a mixed-use condominium there.

The board's designation prevents the demolition of the diner. Benaroya asserts this prohibits their right to make money on the site, which includes the diner and surrounding property.

The lawsuit, filed March 13 with the King County Superior Court, is on hold while the owners negotiate controls and incentives of the building with the landmarks board, said Louie Richmond a spokesperson for the owners and developers. Those outcomes can be appealed to the Seattle Hearing Examiner, who could reverse the board's designation.

Richmond's clients hope they don't end up in court but will take it that far if they have to.

"(Lawsuits) are costly, timely and divisive," Richmond said.

The city's Office of Hearing Examiner online records go back the last 17 years and show a total of 13 landmark cases that were appealed. Three decisions were reversed.

Prior to 1990, the office's docket books indicate there were 14 Landmarks Preservation Board appeals from 1984 through 1989. Of those appeals, none were overturned, according to results of a public information request.

Against its staff recommendation, the board designated the 1960's diner using criteria F:

"Because of its prominence of spatial location, contrasts of sitting, age, or scale, it is an easily identifiable visual feature of its neighborhood or the city and contributes to the distinctive quality or identity of such neighborhood or the City."

Benaroya's lawsuit claims all six criteria used to determine historic status are vague and subjective, and calls the board's decision to designate Manning's/Denny's "sentimental and capricious, but not legal." It also says there's a lack of "substantial evidence" to validate the board's reasoning.

Board chair Stephen Lee is accused in the lawsuit of having a bias toward the building. At a public hearing, Lee commented that he lives nearby the diner and has always thought of it as a "visual landmark."

It further challenges the structure of the board as unfairly designed to preserve buildings, making it impossible for an applicant to obtain a fair hearing, according to the lawsuit.

Though the property owners have repeatedly said they are not anti-preservation, the lawsuit does put the city's landmarking process in jeopardy, saying it is unconstitutional because it's in violation of the state Growth Management Act.

Save Manning's, the group that formed to save the 1960's diner, is upset that Benaroya is challenging the entire landmark process, calling it a "vindictive action by those who feel a great sense of entitlement."

"My one question to them is why they are so anti-preservation?" said Eugenia Woo, a local preservationist and member of the group.

"If they don't 'get' why Manning's/Denny's is significant, then that's fine, but why go after the entire ordinance? The ordinance protects our heritage. The (landmark) criteria have proven to be sufficient to determine landmark status for hundreds of buildings for over 30 years."

"Rather than valuing Ballard's recent past heritage and being creative about including the building in any future development, the owner has chosen a confrontational and potentially destructive path," reads the group's response to the lawsuit.

Save Manning's have asked Beneroya to look at how the site can be preserved and still developed, but the owners have rejected that idea as not financially feasible.

The group asserts they are not anti-development and that the building has actually been a "Ballard icon from the day it was built," first as a Manning's in 1964.

"We are for sensitive and appropriate new development within the context of Ballard and Seattle's existing built environment," said the group.

At last week's City Council planning, land use and neighborhoods committee meeting, several people spoke in support of the landmarks ordinance and the board's work to date. However, some, including preservationists, suggested the city strengthen incentives for property owners.

Art Skolnik, a former Seattle preservation officer who called for a moratorium on designations until the council review's the landmarks process, said the existing ordinance is "abusive to the good will" of citizens and property owners.

"To be a landmark owner in Seattle is something you just don't want to be saddled with," he said.

Sally Clark, chair of the council committee, affirmed the board's role as regulatory but said she was interested in forming a task force to examine bolstering incentives for property owners.

Tim Burgess, vice-chair of the council committee, complimented the city's historic preservation department on its work.

"We don't need a moratorium," he said. "Keep going."

Rebekah Schilperoort can be reached at 783-1244 or rebekahs@robinsonnews.com.