Erie Asks Supreme Court to Reject Hearing Lafayette’s Condemnation Case
Attorneys representing Erie’s interests in staving off a bid to further stall the town’s planned Nine Mile Corner development on Wednesday asked the Colorado Supreme Court to reject hearing Lafayette’s condemnation case. They cited two previous court rulings surrounding the motivation behind the city’s claim to its neighbor’s land.
The briefing — filed in response to a writ of certiorari filed last month by Lafayette — argues those previous rulings should be upheld. The previous rulings found the lawsuit to condemn roughly 22 acres at the corner of U.S. 287 and Arapahoe Road — under the pretense of protecting open space — was initiated in “bad faith” and is a ploy to protect Lafayette’s sales tax revenue by keeping a grocery store from moving across the street.
″“This case is about whether Lafayette was truly motivated by the desire to protect open space or the desire to block Erie from developing and taking the King Soopers,” attorneys Mikaela Rivera and Darrel G. Waas of the Denver firm Waas Campbell Rivera Johnson and Velasquez, LLP, wrote.
The brief takes aim at two of the claims attorneys for Lafayette made in arguing for a higher court review, including that the Court of Appeals applied the incorrect standard for prior public use. That argument, Erie attorneys wrote, “is a red herring ... the (Court of Appeals) never analyzed the question of prior public use because it did not have to.” Suggesting that Lafayette had acted in “bad faith and could not condemn” made the applicable legal standard in prior public use analysis “irrelevant,” they stated.
Additionally, the brief refutes Lafayette’s claim that the Court of Appeals erred by endorsing a lower court’s determinations about the case’s impact on surrounding development. The panel of appellate judges “cited numerous cases demonstrating that property may not be taken under the ‘mere pretext of public purpose’ and that it is proper for courts to examine the motives of condemning authorities,” it states.
The brief spends a portion of its 19 pages detailing conflicting efforts stretching back nearly a decade by Lafayette leadership to preserve the land in question, including internal correspondence between top staff and King Soopers representatives that indicate the city was ”‘prepared to acquire land’ to ensure the future of King Soopers in Lafayette,” which Erie’s attorneys allege nullifies Lafayette’s most prominent arguments.
Attorneys point to the fact that Lafayette has moved forward on several of its own projects across the street as evidence of duplicity. Apart from a series of smaller pad stores such as a Tractor Supply, the city plans to install a Kohl’s on the western side of U.S. 287 in the coming months. Those actions are consistent with the city’s efforts to protect sales tax revenue rather than open space, Erie’s attorneys argue.
“Lafayette’s open space aspirations proved to be subordinate to development when it served Lafayette’s economic agenda,” they wrote. “Lafayette had no interest in preserving open space until King Soopers indicated it was moving to Nine Mile Corner. Not until Erie’s development plans directly threatened Lafayette’s tax base did Lafayette claim any need for open space at Nine Mile Corner.”
Tyler Carlson of Evergreen Devco said Thursday that despite litigation still hanging over the project, activity is ramping on the site in wake of the Court of Appeals ruling.
“We don’t anticipate (litigation) moving forward because it’s a pretty straightforward set of findings,” he said. “I think as far we’re concerned the courts have spoken pretty strongly in favor of Erie and our project, so we’re moving forward.”
He added that if all goes according to a new set of plans, ground-breaking on the site could begin as early as next summer.
Carlson would not speculate on what would become of the project in the unlikely event the Colorado Supreme Court takes up the case — from June 2016 to July 2017, the court reviewed less than 10 percent of roughly 1,300 case requests — or, assuming “the nuclear option,” if it rules in favor of Lafayette.
Representatives for Erie and Lafayette could not be reached for comment Thursday.
Anthony Hahn: 303-473-1422, firstname.lastname@example.org