The question of whether an Ohio developer can build a big-box store such as a Wal-Mart in Blacksburg officially shifted from the town hall to the Montgomery County Circuit Court on Friday.

Lawyers representing the town council filed a rebuttal to a pre-emptive lawsuit filed in May by Fairmount Properties LLC of Ohio and Blacksburg landowners Llamas LLC and Diversified Investors XIII LLC.

At issue in the suit is: Did a 2006 rezoning approved by the council give Fairmount and partners the right to develop 40 acres on the town's southern gateway without further governmental regulation?

As expected this week, the council unanimously approved Ordinance 1450, a lighting rod land-use change that requires a special-use permit for any retail building larger than 80,000 square feet. Councilman Don Langrehr proposed the ordinance after Fairmount submitted a site plan in March showing a 186,000-square-foot retail building behind Margaret Beeks Elementary School. The large building was not discussed when the company had earlier applied for and received a rezoning for the property.

Fairmount and partners responded to Langrehr's ordinance on May 10 by filing a suit asking the court to protect their project from it, even before it passed. After a closed hearing in chambers on May 14, Circuit Court Judge Bobby Turk set a first hearing in the case for Tuesday at 2:15 p.m. in Christiansburg.

In its rebuttal Friday, the town argued that because the ordinance had not yet been applied to Fairmount's project, the suit is premature and should be dismissed.

Fairmount must wait for Blacksburg Zoning Administrator Steve Hundley to act on a site plan for the project, according to the town's opinion. That plan is under review, with a ruling expected by July.

If Fairmount disagrees with Hundley's ruling, the company must then take its argument to the town's board of zoning appeals. Only after a ruling from the BZA should the court hear Fairmount's complaint because "courts do not make decisions based on circumstances that may never arise," the town argued.

The town's legal response was "nothing unexpected," Fairmount attorney Jim Cowan said Friday. "We continue to feel confident that the matter is ripe" for consideration by the court.