City of Lafayette, a home rule municipality and a Colorado municipal corporation, Plaintiff-Appellant,
Town of Erie Urban Renewal Authority; and Town of Erie, Colorado Defendants-Appellees.
Boulder County District Court No. 16CV30791 Honorable Norma
A. Sierra, Judge
Rodriguez, Ostrander & Dingess, P.C., Donald M.
Ostrander, Richard F. Rodriguez, Stephanie Ceccato, Denver,
Colorado; Williamson and Hayashi, LLC, David Williamson,
Boulder, Colorado, for Plaintiff-Appellant
Campbell Rivera Johnson & Velasquez LLP, Darrell G. Waas,
Mikaela V. Rivera, Denver, Colorado, for Defendants-Appellees
1 This dispute stems from the attempt by the City of
Lafayette (Lafayette) to condemn a parcel of land owned by
the Town of Erie (Erie). Lafayette appeals the district
court's order granting Erie's motion to dismiss for
lack of jurisdiction. Because the record supports the
district court's finding that Lafayette had an unlawful
motive for the condemnation, we affirm.
Background and Procedural History
2 Lafayette, a home rule municipality, and Erie, a statutory
town, were signatories to the East Central Inter-Governmental
Agreement (IGA), a comprehensive plan that sought to maintain
some rural development as community buffers. The agreement
lasted from 1994 to 2014. Lafayette and Erie were also
signatories to the Super IGA - a comprehensive development
plan for Boulder County. Erie and Lafayette withdrew from the
Super IGA in July 2013.
3 After the two IGAs ended and the land along Highway 287 was
no longer designated for rural preservation, commercial
development by Erie and Lafayette ensued along Highway 287.
The map below shows the relevant corridor of Highway 287. The
Tebo property is part of unincorporated Boulder County.
Lafayette annexed Weems, a residential community. The Safeway
above Nine Mile Corner - the property at issue - is in Erie.
Beacon Hill, located below Nine Mile Corner, is residential
property within Lafayette.
4 Erie formed the Town of Erie Urban Renewal Authority
(TOEURA) in 2011. In 2012, TOEURA purchased the Nelson
property and the Kuhl property - together, they form Nine
Mile Corner. Erie annexed Nine Mile Corner from TOEURA in
5 In 2013, Erie commissioned a geotechnical investigation of
the property which determined that the property was suitable
for development. Two blight studies commissioned by Erie, in
2012 and 2015, found that Nine Mile Corner was a blighted
area. Erie then began to develop an urban renewal plan for
the property. Erie, TOEURA, and the Nine Mile Developer
signed a disposition and development agreement on March 22,
6 Erie hired a consultant to examine the property and
identify potential tenants, including King Soopers. King
Soopers had a location in Lafayette, but it had developed a
larger store prototype. In early 2016, Lafayette became aware
that King Soopers might relocate to open a larger store. In
February 2016, Lafayette engaged in discussions to keep King
Soopers (and its corresponding tax revenue) in Lafayette.
Lafayette offered King Soopers a potential development site
north of the Walmart on the west side of Highway 287.
7 In May 2016, Lafayette's city council passed an
ordinance declaring, "[a]cquisition of [part of Nine
Mile Corner] is necessary for the public purpose of open
space and benefits associated with open space, as well as
preservation of Lafayette's local and unique character,
and buffering of Lafayette from development activities in
neighboring communities." Lafayette determined it would
condemn twenty-two acres of the southern portion of Nine Mile
Corner to create an open space community buffer and leave the
remaining twenty-three acres of Nine Mile Corner for Erie.
8 After attempting to purchase the property,  Lafayette filed
its petition in condemnation and motion for immediate
possession in July 2016. Erie responded by filing a motion to
dismiss arguing that Lafayette's condemnation lacked a
proper public purpose, thereby depriving the court of
jurisdiction. After a two-day evidentiary hearing, the