By Katie Stallcup

Published: March 21, 2008

Auburn developer Tom Hayley has filed a lawsuit against the state seeking $21 million in damages and access to Shell Toomer Parkway for a large commercial development he plans off I-85 at Exit 51.

The state has filed for a change of venue to move the case from Lee County to Montgomery. Lee County Circuit Judge Jacob Walker has scheduled the venue hearing for 1:30 p.m., April 3.

Russell Balch, Hayley’s attorney, said the previous property owners had access to the parkway, but the Alabama Department of Conservation and Natural Resources denied access to Hayley, operating as West Pace LLC.

The state has not yet filed a response on the substance of Hayley’s lawsuit.

Plans for the development include car dealerships, retail shops and possibly a movie theater.

According to court documents, West Pace applied for access to the parkway in July. The department denied the request, saying “we do not grant easements across our property when other access points may be available,” according to a letter included in those same court documents.

“Those rights are covenants that run with the land,” Balch said. “… Then, all of a sudden, after the property was sold, now they deny the access.”

The developers can’t use alternative access points, Balch said. The state transportation department denied access to U.S. 29 because of the proximity to interstate acceleration and deceleration lanes, he said.

The lawsuit alleges that the department’s actions were “intentional, wanton, and done with knowledge of the substantial economic injury which would result…”

In its request for a change of venue, the department’s lawyers cited state law that says if a state agency is a defendant in a case, the case could be heard only in Montgomery County. The department won’t file a response to the suit until after the venue hearing, department attorney Will Gunter said.

“At this point, I’m not in a position to discuss the facts because we’ve not answered the lawsuit yet,” Gunter said.

West Pace is not disputing the change of venue, Balch said. “If the state wants to get sued in Montgomery County, we’re not opposing that,” he said. “It doesn’t affect the merits of the lawsuit.”

Balch said he was confident in his clients’ position in the suit. “I don’t see a time when West Pace won’t have access to Shell Toomer Parkway,” he said.

In a separate issue, an agreement between West Pace and the City of Auburn’s Commercial Development Authority is scheduled to come before the city council at its April 8 meeting.

The agreement would allow the developer, through an administrative board, to issue $20 million in bonds. The bonds would fund the project’s infrastructure and be repaid with portions of the development’s future taxes.