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S.W. Shattuck Chem. Co. v. Denver, City & County of

ELR Citation: 28 ELR 21477
Nos. 96-D-2968, 97-D-1611, 1 F. Supp. 2d 1235/(D. Colo., 04/17/1998)

The court holds that a company satisfied the requirements for the issuance of a preliminary injunction against a city seeking to enforce two zoning ordinances that impose disposal fees for the storage of radioactive material. The court first holds that the abstention doctrine does not apply. To the extent that the company has asserted claims that the challenged ordinances are preempted by the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA), these claims arise under CERCLA. CERCLA provides for exclusive federal jurisdiction over all controversies arising under the statute. Thus, the state courts would not provide an adequate forum for them to be heard.

The court next holds that the company is not required to meet a heightened preliminary injunction standard. The injunction would not give the company all the relief that it would receive after a trial. The requested injunction simply maintains the status quo, precluding the city from attempting to collect the fee until the issues raised here have been resolved. The court then holds that the company's equal protection claim is sufficient to prove irreparable injury. There is substantial merit to the equal protection argument, and the company has demonstrated that it will suffer a type of monetary harm that cannot be rectified by a later award of damages. The city stipulated that the company lacks funds to pay the fee. In addition, contrary to the city's assertion, based on the information before the court, the company's corporate parent does not have a clear legal obligation to pay the fee the city seeks to impose under the ordinances. The court further holds that the balance of harms favors the company. The company has shown that it will suffer irreparable harm if the application for a preliminary injunction is denied. The city, on the other hand, has failed to show that it will experience any significant injury from a delay in collecting the fee. The court also holds that the requested injunction is not contrary to the public interest. The bulk of the costs that taxpayers will endure due to the delay in collecting the fees are years away, and the city's delay in enacting the ordinances suggests that problems caused by the interim costs may not be as urgent as the city has suggested. Last, the court holds that the serious questions regarding both the claim that the ordinances are preempted by CERCLA and that they violate the Equal Protection Clause of the U.S. Constitution merit more deliberate examination and are fair ground for litigation.

Counsel for Plaintiff
John D. Faught
John D. Faught & Associates
535 16th St., Denver CO 80201
(303) 436-9110

Counsel for Defendant
T. Shawn Sullivan, Steven J. Cook, Ass't City Attorneys
City Attorney's Office
9500 Civic Center Dr., Denver CO 80229
(303) 538-7210