PORT TOWNSEND — A federal judge will decide within the next three weeks whether a lawsuit filed against the city of Port Townsend over one of its controversial new roundabouts on Sims Way will go forward.

Ken Kelly, owner of Vintage Hardware on Sims Way, filed the lawsuit last May challenging the city for eliminating one access to his business and claiming the city made promises it did not keep about its plans.

The lawsuit was amended in the summer to claim the city illegally took his property and violated due process when building the roundabout at the intersection of Thomas Street and Sims Way.

He dropped the assertion that city officials made false promises.

The lawsuit was originally filed in Jefferson County Superior Court but was moved to Federal District Court in Tacoma last summer at the city’s request after Kelly amended his claim.

Federal jurisdiction can be invoked when the underlying issues involve matters of federal law, said city attorney John Watts.

Watts said it is city policy to not comment on active lawsuits.

Kelly’s attorney, Shane Seaman of Port Hadlock, said the case turns on the issue of whether the city violated Kelly’s property rights.

“The city’s pretty convinced there is no case. We’re convinced there is a case,” he said.

“Where we go from here depends on how the judge looks at this legally.”

Both parties filed motions late last week that federal Judge Ronald B. Leighton is scheduled to decide by Feb. 11, but Watts said the judge could decide anytime.

The city asks the judge to dismiss all claims, arguing that the basis for Kelly’s lawsuit is without merit and the arguments “absurd on their face.”

“At bottom, the plaintiffs [Kelly and his wife, Jane] want something that they are not entitled to, that is, a means of access deemed unsafe and not of sound design,” it argues in its motion.

“In fact, the plaintiffs retain the exact same access onto their property in almost every direction,” the city argues.

But not direct access onto Sims Way.

Retail sales are about 12 percent of the $2 million-a-year antique fixture and accessories business, according to documents filed by Kelly.

Loss of the Sims Way access prevents large vehicles such as tour buses and RVs from getting into his parking lot, discouraging sales, the lawsuit argues.

Kelly’s lawsuit asks for unspecified damages due to loss of business, which would be determined at trial.

Kelly fought for continuation of the Sims Way access when the roundabout was in the planning stages, but the city denied that option, one of several points of contention that continue in the lawsuit.

Kelly’s motion for partial summary judgement asks the judge to rule that a so-called “takings” occurred when the city used portions of the underlying right of way for an undeveloped street — Fifth Street, which paralleled Sims Way in front of Vintage Hardware’s entrance — for the roundabout.

His motion claims ownership of the underlying right of way, an argument the city says conflicts with established legal precedent.

The Fifth Street corridor was only a dirt path when Kelly bought the eight lots upon which Vintage was built in 2004.

Part of it was developed into a parking lot along with portions of adjacent Thomas Street as part of the city’s permitting requirements for the store.

Kelly claims he spent about $300,000 on improvements demanded by the city, some of which were later torn up for the roundabout.

His lawsuit also contends the city infringed on his ownership rights to underlying rights of way on Fifth and Thomas streets, an assertion the city’s motion calls “novel.”

The city’s motion for summary judgement asks the judge to dismiss all claims.

It says the roundabout was built entirely on public right of way “and does not preclude reasonable access,” which includes entrance and exit on two adjacent streets.

“The city’s decision to undertake public roadway improvements was a reasonable legislative decision, subject to all of the appropriate democratic processes.

“There was no nefariousness, nor capriciousness — merely plaintiffs’ subjective disagreement,” the city’s motion contends.

Each side has two weeks to file a response to the other’s motion, and Seaman said he will respond to the city.

The case is scheduled for trial in October.

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Julie McCormick is a freelance writer and photographer living in Port Townsend. Phone her at 360-385-4645 or e-mail juliemccormick10@gmail.com.