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Judge sides with Smokebrush 

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Smokebrush Foundation for the Arts has received a green light to continue its lawsuit over a city property, formerly home to a coal gasification plant, that may have polluted the site of its former headquarters.

Smokebrush, which for a couple years occupied the Trestle Building immediately north of the suspect site at 25 Cimino Drive, alleged that during demolition of two buildings there earlier this year, pollutants migrated onto its property. Testing showed the same contaminants found on the city site were present at the Trestle site, both on the surface and up to six inches below ground ("Chemical reactions in downtown Colorado Springs," April 24, 2013).

The city sought the lawsuit's dismissal, asserting governmental immunity. But immunity is waived if a property is operated for the benefit of the public, which it was, according to the ruling that Fourth Judicial District Judge Timothy Schutz issued Friday.

"The Court finds and concludes that the migration of these alleged contaminants onto a neighboring property constitutes an unreasonable risk to the health or safety of the public, which dangers were known to the city," Schutz writes. As a result, "the Plaintiffs are entitled to pursue the full panoply of relief available under such claims, whether equitable or monetary."

Schutz's decision allows the case to proceed to be litigated, but the judge notes that it doesn't resolve whether Smokebrush will ultimately prove its assertions or its right to damages.

Smokebrush moved its operations, including a yoga studio, from the Trestle Building to Manitou Springs in July. Founder Kat Tudor says in a news release she's "extremely pleased" with the ruling.

For its part, the City Attorney's Office says in a statement that the city has acted "with great care" in remediating the site and "has no liability in this matter." A decision will be made soon whether to appeal the ruling to the state Court of Appeals.

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