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As Legal Fees Mount, Lafayette Asks Colorado Supreme Court to Hear Condemnation Case

August 2, 2018

Lawyers representing the city of Lafayette have asked the Colorado Supreme Court to hear its case to condemn 22 acres where the neighboring town of Erie has approved the Nine Mile Corner development.

Lawyers representing the city of Lafayette have asked the Colorado Supreme Court to hear its case to condemn 22 acres at the corner of U.S. 287 and Arapahoe Road, an effort that could continue to tie-up Erie’s long-slated Nine Mile Corner development for the foreseeable future.

The litigation, stretching back more than two years, already has cost the two communities more than half a million dollars.

The petition for writ of certiorari, filed last Wednesday, comes nearly two months after a panel of appellate judges ruled against the city’s claim to its neighbor’s land. A Boulder County judge originally dismissed the case in early 2017.

In siding with Erie in June , the appellate court ruled that while Lafayette sold its proposed condemnation as a play for an open-space buffer, it had acted in “bad faith,” and its real goal was to halt Erie’s landmark Nine Mile Corner retail project, and the sales tax dollars the development is expected to generate.

In its petition, Lafayette makes a variety of arguments for why the lower court’s decision may have been wrong, including that the court used the incorrect standard for determining public use, and erred by endorsing the lower court’s overreaching determinations about the condemnation’s impact on surrounding development.

As the two communities remain entangled in litigation, plans for Erie’s landmark development sit in limbo; while Lafayette claims the town could develop a smaller version of Nine Mile Corner on the area not subject to its condemnation efforts, representatives for Erie have continually disagreed. The town has approved several contract extensions with Denver’s Evergreen Devco, the developers behind the project, several times while waiting for litigation to clear up.

Records indicate the project is slated to host a 130,000-square-foot superstore — likely a King Soopers grocery — a 130,000-square-foot home improvement store, an 18-fuel-pump gas station and at least 35,800 square feet of retail and restaurant space.

The latest wrinkle in litigation is likely to delay the project even further. Even if the Supreme Court declines to hear the case — from June of 2016 to July of 2017, the court reviewed less than 10 percent of the roughly 1,300 case requests — the case could continue to stall any official approvals for Nine Mile.

Jon Sarche, a public information officer at the Colorado Judicial Department, said Wednesday that there is no set timeframe for the court to announce whether or not it’s going to take up any case, though often times it can “be a month or longer.

“Nothing is hard and fast when it hits the appellate court,” he added. “And summer is kind of the off time for the court — members are working but generally this is a slower period.”

If the case is taken up by the court, Sarche said the average time for its deliberation can extend to a year or longer.

Meanwhile, as Erie’s development remains stalled, Lafayette has moved forward on several of its own projects across the street. 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.

Before the July announcement that Lafayette planned to appeal the latest court ruling, Tyler Carlson of Evergreen Devco said the company hoped to break ground on Nine Mile next spring.

“Time is money,” Carlson said, “and certainly sitting around waiting for Lafayette to finish wasting its taxpayer dollars on this nonsense has been frustrating for everyone involved. That is the damage, just time.”

Carlson was unable to be reached for comment on the new developments in the case Wednesday.

According to the petition, Lafayette is arguing that the Court of Appeals did not apply Colorado’s “inconsistent” standard for prior public use, but rather applied Utah’s “more necessary public use” standard: “When the proper test is applied,” the petition reads, “Lafayette’s condemnation should still go forward because its use of the property... would eliminate blight.”

The subsequent two arguments focus on the original determinations by the Boulder County judge — which were endorsed by the appellate court — that found Lafayette’s planned buffer would not be the best use for the land, and also considered the economic impacts such a condemnation would have on surrounding development.

“By focusing on the surrounding development and what (Judge Norma Sierra) thought made more sense on this corner,” it reads, “the trial judge (and subsequently the [court of appeals]) chose to ignore the hard evidence and the legislative determination of what the Lafayette City Council decided was the best use for some of the land on Nine Mile Corner for their citizens.

“The lower courts may think that it is too late to create a meaningful buffer between these two communities,” it adds, “but the City Council doesn’t. If this abuse of the separation of powers is allowed to stand, it could have broad implications for the legislative bodies of municipalities across the state.”

While the two municipalities wait for a decision on the next phase of the case, legal fees and costs associated with the case continue to mount; according to a series of public information requests, Erie has spent roughly $381,000 in litigation-related costs since July of 2016. Lafayette has spent more than $200,000.

Both Erie and Lafayette officials were unable to be reached for comment Wednesday; in the past, both municipalities have declined to comment on the litigation.

Anthony Hahn: 303-473-1422, hahna@dailycamera.com or twitter.com/_anthonyhahn

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