Lowe's Gets More Complex

The retailer wants the county to be a co-defendant in its SOS lawsuit

With a trial set to begin Tuesday in state district court, Lowe's Home Centers Inc. is now trying to drag a reluctant Travis County into a lawsuit that, judging from a string of rulings already made in the case, doesn't bode well for the retail giant. If anything, the latest maneuver could delay the trial indefinitely. A hearing on the motion will be held at 9am Friday in state district court.

The Lowe's pleading, filed late last week, adds a layer of complexity to a case that seemed to be sailing along on a cut-and-dried course: Two environmental groups and the city of Sunset Valley seek the reversal of a settlement agreement between Lowe's and the city of Austin, allowing for a big box development over the aquifer that doesn't comply with the city's Save Our Springs Ordinance. Under SOS, such a development would ordinarily be capped at 15% impervious cover, instead of the agreed-upon 40%. The plaintiffs, which include the SOS Alliance and Save Barton Creek Association, argue that a super-majority (6-1) City Council vote is required to override the SOS Ordinance under any circumstances; the Lowe's deal was approved on a 4-3 vote. So far, four different judges have sided with that line of thought.

But because Lowe's filed its development plat with Travis Co., which has few environmental restrictions, the retailer seeks to have the county named as a co-defendant in the lawsuit. The county isn't thrilled with the idea but appears willing to align itself with Lowe's to defend the validity of the plat. Lowe's attorney Dan Byrne said his client is obligated to follow through on its infrastructure commitments to the county, such as the construction of a new road at the development site. If a judge issues a permanent injunction against Lowe's, as the plaintiffs have requested, Lowe's would lose its $1.1 million surety bond with the county, Byrne said. (And the county would have one less road.)

If a judge agrees to bring the county into the lawsuit, the county would of course need time to come up to speed. But Byrne strongly denied that a delay was the intent of the motion. "That is certainly not our wish or our desire," he said.

David Frederick, one of the attorneys representing Sunset Valley, isn't certain how much mileage Lowe's could gain from a victory on the motion. "We think Lowe's cannot do anything inconsistent with a court judgment, regardless of what Lowe's may have written on a plat that it filed with the county," Frederick said. "I think some of the reasoning is that, since Lowe's has an infinite amount of money ... it will just throw into the mix any old thing that comes to mind ..."

Watching all of this back-and-forth is the often-overlooked second defendant in the lawsuit – the city of Austin. "We have been laying low and taking a less aggressive posture here," Assistant City Attorney Laurie Eiserloh said. "It's our position that this is an issue between Lowe's and [the plaintiffs]." Even so, the city would still need to make a tough call should a judge rule, for example, that Lowe's needs to comply with SOS. "I can't say whether we would appeal that or not," she said, "but we have not appealed the other rulings that have been made in the case." As the city sees it, the settlement agreement and the SOS Ordinance are two separate beasts. But having it both ways isn't an option. "We stand by our SOS Ordinance," Eiserloh said, "and we stand by our settlement agreement."

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Lowe's, Lowe's Home Centers Inc., Save Our Springs Alliance, Save Barton Creek Association, Sunset Valley, Save Our Springs ordinance, SOS

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