Lawsuit over Lowe’s filed against Town of Silverthorne
September 24, 2010
SILVERTHORNE – A lawsuit claiming the Town of Silverthorne incorrectly categorized a Lowe’s Home Improvement Warehouse plan for the town was filed Thursday. The suit was filed by attorney Rob Waterman on behalf of two Silverthorne residents and two individuals who claim they’ll be negatively affected by the development.
Named plaintiffs in the case are Deborah Fort and Pamela Bent of Silverthorne and Timothy Reidy and Margaret Schweri of Mesa Cortina, an area of unincorporated Summit County located above the Lowe’s site.
The suit centers on a planning technicality, claiming the town incorrectly categorized Lowe’s as a hardware store, according to the documents Waterman filed Thursday. Labeled as a hardware store, Lowe’s is considered a “use by right” entity and is guaranteed the right to conduct business in Silverthorne. Other designations for a C-1 Light Commercial Zone District, such as “lumberyard” or “building materials,” would put Lowe’s in a “conditional use” category that does not guarantee the right to do business and gives town officials more negotiating power, Waterman said. His argument is based on town ordinance, section 4-4-17, which outlines designations for C-1 and C-2 zones.
The new Lowe’s is slated to begin construction next spring and open its doors in early 2012, but the approval process has not gone uncontested. Some local residents have voiced disapproval of the project based on claims that traffic will increase, the town will lose aesthetic charm and the local economy will be affected by the big-box running out smaller competition. On Sept. 22, the Silverthorne Town Council approved the final details of the site plan, allowing Lowe’s to proceed with construction.
Now that the complaint has been filed, Silverthorne officials have 20 days to issue a response, Waterman said. He added that he’ll ask for an injunction – a halt on Lowe’s progress until the lawsuit plays out in district court in Breckenridge – once the response is filed.
“I expect this should happen fairly rapidly because all my facts are Lowe’s facts,” Waterman said. “They can’t dispute it.”
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Silverthorne Town Manager Kevin Batchelder said Friday “the town intends to vigorously defend the lawsuit, and we’re confident it will be dismissed.”
Batchelder said the lawsuit premises is based on misinterpretation of town ordinance.
“The use-by-right decision made by Mark Leidel, the community development director, is the right decision and is based on the town code – the definition in our land use schedule – and is consistent with past determinations on both the BigHorn Lumber project and the Home Depot project,” Batchelder said.
The lawsuit points out that the initial designation determines all subsequent planning decisions. Both designations provide different paths, with one giving more leeway to town officials and the other giving them less flexibility in negotiations, Waterman said.
The lawsuit further states that Lowe’s annual 10-K report – a document filed with the Securities and Exchange Commission and includes the company’s business description – designates its business as “lumber and other building materials dealers.” Waterman pointed out that hardware is 5 percent of Lowe’s revenue, according to the 10-K report. Building materials and lumber are 6 and 7 percent, respectively.
The lawsuit demands a “mandamus action,” which asks the court to determine whether the Silverthorne town government has exceeded its authority or abused its discretion, Waterman said.
“The lawsuit seeks the matter go back to square one and make a designation based on facts, of what the business should be,” Waterman said.
SDN reporter Janice Kurbjun can be contacted at email@example.com or (970) 668-4630.