Judge says owner of historic Union Block building got ‘ample due process’
AI-generated summary reviewed by our newsroom.
- Federal judge ruled the city provided ample due process and the closure was justified.
- The judge said former city building officials were entitled to qualified immunity.
- State claims were dismissed without prejudice, allowing them to be refiled in state court.
More than two years ago, the owner of the Union Block building in downtown Boise sued the city after it condemned the historic building over structural safety concerns. Kenneth Howell, a local developer and the owner of Parklane Management Co., had been excavating underneath the building with the hopes of adding basement space that could be leased to new tenants.
But the project was plagued by delays, and an inspection by city officials turned up large cracks, a crumbling facade, and temporary shoring posts bowing under the weight of the nearly 125-year-old building.
The city cordoned off the building and ordered Howell to repair it. Instead, he sued.
Howell and his company, Union Block Associates, which he formed in 1995 to own and develop the building, sought damages for the loss of tenants and alleged reputational harm. The building, he argued, would continue to be regarded as a dangerous building, lowering its market value.
On March 31, a federal judge closed the case. U.S. District Court Judge David Nye admitted that he wasn’t sure whether there had been a renewed inspection, report or timeline for repairs, as he had previously assigned to help Howell and the city move toward a resolution, despite their “acrimonious relationship.” Nye noted on several occasions that he found himself taking an unusually active role in the day-to-day issues of the case, because the parties were “continually at an impasse.”
“The court is unsure whether those assignments were ever completed, what the result was, and the current overall status of the building,” Nye wrote. “It does not know if the city had taken further action. Or if any repairs have been done.”
Yet he ruled in favor of the city and two building officials named in the suit: Tim Keane, the city’s former planning and development services director who left Boise in March 2024 for a city planning job in Calgary, Canada; and Carl Madsen, the city’s former assistant building official, who died in March 2025. Nye said there was ample evidence to support the city’s decision to temporarily close the building at 730 W. Idaho St.
Howell had argued he wasn’t afforded due process, and the city the contrary.
“There simply is no case in which a building official was liable for violating a building owner’s substantive due process rights for declaring a building dangerous and ordering it temporarily vacated to protect the public health and safety,” the order said. “Plaintiffs have not pointed to any authority clearly prohibiting that conduct. They simply disagree with the result.”
The judge wrote that Keane and Madsen, the former city building officials, are entitled to qualified immunity, which protects government officials from liability for acts performed within the scope of their jobs. Whether the building was in fact safe or unsafe is not relevant, he added.
Nye noted that the city’s notice and order declaring the building “dangerous” outlined a timeline for the required work and explained the pathways Howell could take if he wanted to appeal the decision, which he did on Nov. 23, 2023. But neither Howell nor his attorneys showed up to a Boise City Council hearing on the appeal.
Howell told the Idaho Statesman then that he had informed the city’s attorney in advance that neither he nor a representative would be there. In his absence, City Council members voted unanimously to deny the appeal following a presentation from the city’s building department detailing numerous structural issues stemming from the basement construction project. The slideshow included photos of several cracks, the shoring posts bowing, and areas where the facade had separated from the exterior of the building.
“We didn’t feel that there was any productive outcome that would come from a presentation-style hearing to hear our case,” Howell said.
The move didn’t do him any good in court. Nye wrote in the order that Howell’s failure to engage in the appeal process undercut his claims. The judge even speculated that “who knows — this lawsuit might not have even come to fruition” had Howell or a representative appeared at the hearing.
Nye wrote that the city had given adequate notice, that there was no need for a hearing before condemning the building, and that the hearing held after the building closed was adequate.
“The city provided them with ample due process,” the order said. “Some of which plaintiffs outright rejected. There is no evidence in the record that plaintiffs would not have received a fair opportunity at that hearing to present evidence, make arguments and express their concerns in the way they desired.”
Nye also denied a request from Howell’s attorneys to strike certain evidence the city submitted in support of its motion for a summary judgment. Howell and Union Block Associates said the court should not consider statements made by Madsen about the building’s integrity because he had since died and as such they would not be able to cross-examine him.
“Plaintiffs ask too much,” the order said. “Madsen was inspecting a building where problems had already been documented — and had just caught on fire — and made a reasonable determination as to the soundness of the structure. That was his job. He is allowed to express those opinions.”
Nye said some claims made in the lawsuit, specifically related to torts, would have to be dealt with at the state level. He dismissed them without prejudice, meaning Howell can refile the claims in state court.
Howell served notice of a tort claim the same day he filed the lawsuit. A tort claim is typically a precursor to a lawsuit and must be filed against a city within 180 days of when the claim was accrued.
Maria Ortega, a spokesperson for the city of Boise, noted that the court left Howell the option to file a new lawsuit at the state level. Howell did not respond to a question about whether he plans to do so. He said Tuesday by text that he is unable to comment on Nye’s decision due to ongoing litigation.
“I can tell you that the city’s priority is focused on opening the street and sidewalks,” Ortega said Tuesday by email.
