A judge on Thursday dismissed Lafayette’s condemnation case against 22 acres of Erie land slated for development at the southeast intersection of Arapahoe Road and U.S. 287.
Finding “no public purpose” in Lafayette’s case, the decision now frees Erie to move forward with plans for a mixed-use project that could bring a Lowe’s and new King Soopers Marketplace into the town’s borders.
Thursday’s action comes after two days of arguments this week in the 20th Judicial District court in Boulder, and more than a year after rumors that Lafayette’s King Soopers planned to migrate to Nine Mile Corner, fueling investigations that devolved into an eventual condemnation lawsuit.
“The articulated need of acquiring open space for the purpose of creating a community buffer between Lafayette and Erie is inconsistent with Lafayette’s actions in development of the Hwy. 287 corridor,” Judge Norma Sierra wrote in her verdict. “Instead, Lafayette’s actions are more closely aligned with a previously articulated goal to ensure that Erie does not engage in commercial development on Nine Mile Corner.”
Attorneys on both sides maintained opposing versions of a converging narrative over the two-day hearing: one that detailed two tales of how Nine Mile Corner came to fruition, and in turn how Lafayette came to want to derail it; and how a scaled-down version of the development could exist as a sustainable project.
In the hearing’s closing arguments, however, both sides turned their focus to whether the burden of proof had actually been satisfied.
For Lafayette to “take over the open space planning for an adjacent jurisdiction,” Darrell Waas, attorney for Erie, said in closing arguments on Wednesday, the town must have established three things:
“First, (they must establish) a clear public purpose, that is their burden, that is not our burden,” Waas said. “Second, they have to prove that this action taken is necessary to accomplish that purpose. And third, since there is a third prior purpose, they have to establish that there is an overwhelming necessity.
“Based upon the record,” he added, “you can easily find that they have failed to establish any of those elements.”
According to Lafayette attorneys, the suit sought to establish a “community buffer” and derail plans for the multimillion-dollar development.
On Wednesday, Lafayette’s attorney Don Ostrander argued that while the hearing was a motion to dismiss, the burden of proof was not Lafayette’s to bear.
“It was my understanding that when we set this matter, we were setting it on a motion to dismiss,” Ostrander said. He objected to Erie official’s notion that Lafayette’s argument had not satisfied conditions for persuasion.
“They have the burden of proving what they allege here,” he said.
Lafayette wanted almost half of Erie’s 45-acre property at the corner of U.S. 287 and Arapahoe Road to provide “a buffer through open space” between the towns in order to “protect Lafayette’s unique community character,” according to a condemnation lawsuit filed last summer.
“The court’s decision today validates exactly what we have believed all along,” Erie spokeman Fred Diehl said in a statement Thursday. “In granting Erie’s motion to dismiss, the court found that: ‘Lafayette’s actions are more closely aligned with a previously articulated goal to ensure that Erie does not engage in commercial development on Nine Mile Corner.’
“We truly appreciate the court’s thoughtful and careful consideration of the facts and believe the correct decision was made,” he said.
The case marked the first instance in which a Colorado town or city has tried to acquire land from its neighboring community through eminent domain.
Anthony Hahn: 303-473-1422, hahna@dailycamera.com or twitter.com/_anthonyhahn
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