RiNo neighbors are raising a stink about factory smells in their ’hood
The air smelled like a dead body, the woman said. And she isn't the only one who thinks so. Over the past eight years, the city has received no fewer than 150 complaints about a fetid odor emanating from a brick factory at 33rd and Walnut streets that makes dog chews and pet treats.
August 13, 2002: Caller reports "bad odor in the air. Smells like dead animals or rotten meat."
April 18, 2005: "Caller left message regarding terrible odor. Said he was 'throwing up.'"
May 24, 2010: Caller reports an "odor that smells like a dead rodent. A lot of dead rodents."
June 14, 2011: "Yet again, I report...nauseating odors in my community," a neighbor wrote in an e-mail. "For years, residents have complained to no avail. The RiNo community feels defeated."
Defeated, but not ready to give up. Despite their frustration, the residents of River North — a gritty industrial area with a cute nickname (RiNo) that's also home to artists and an increasing number of young professionals with barbecue grills and chocolate labs — kept complaining.
For more grievances, read "'Smells like dead animals' and other complaints made about a pet treat factory in RiNo."
In April this year, the city took action. It issued an odor citation to Kasel Associates Industries, known to its neighbors as the "Pig Ear Factory" because it uses pig ears in its products. The state and city had attempted the same in 2005, but Kasel fought it and won. This time, the inspectors had a new weapon: a clause added to Denver's air-pollution ordinance that allows a citation to be issued if the Department of Environmental Health receives five smell complaints from different households within a twelve-hour period and "verifies the source of the odor."
That's what happened in RiNo on March 19. After confirming the complaints, the city told Kasel Associates Industries that the smell of cooking pet treats was going to cost it $500.
But the company's owner, Ray Kasel, wasn't about to roll over. He hired a lawyer and appealed the citation, arguing that the complaining neighbors were untrustworthy and that the wind direction on the allegedly smelly day made it impossible for the odor to be coming from his factory. The hearing officer assigned to the case didn't buy it. Neither did the city's Board of Environmental Health, which upheld the citation.
Now Kasel is suing the city in federal court for conspiring against him, harassing him and violating his constitutional property rights. Also named in the lawsuit are three employees of the Department of Environmental Health, including manager and former city councilman Doug Linkhart; three complaining neighbors; city councilwoman Judy Montero; and Montero's former assistant, Stephanie Syner, whom Kasel accuses of drumming up the complaints.
Their actions, Kasel asserts in the suit, "constituted an unlawful conspiracy to defame [his] reputation" and led to "annoyance, inconvenience, stigma...[and] litigation costs."
But the neighbors insist it's Kasel who really stinks.
"We know we live in an industrial area and there is some give-and-take," says Jennifer Kramer-Wine, who owns a condo in RiNo across the street from the factory. "This was over the top. Upton Sinclair kept popping in my head. Like, 'What were they doing?'"
Kasel Associates Industries was founded in 1986, as Kasel Mechanical Service, "to serve the refrigeration and boiler needs of the local food processing industry," according to its website. It moved to 33rd and Walnut three years later. Over time, the company diversified and changed names. In addition to making pet treats that are sold at Costco, Sam's Club, Petco and Target, Kasel Associates manufactures meat slicers.
Back then, the area — two blocks from the railroad tracks and less than half a mile from the South Platte River — was a sea of old industry; zoning maps show a mostly homogenous neighborhood set aside for "heavy industrial." Today it's still home to a sausage factory, a company that cleans septic tanks, and a corned beef processor.
Artist studios are allowed in industrial areas, and RiNo boosters say there were several at the time that Kasel Associates moved in. But new residential dwellings are forbidden. In 1985, however, developer Jerry Glick and his business partner won a zoning change for a project they dubbed Silver Square, at 33rd and Blake streets, across the street from where Kasel is now located. It involved transforming a brick complex once used to manufacture sugar-refining machinery into lofts where artists could live and work.
"It was a junkyard at the time we bought it — literally a junkyard, with junkyard dogs," Glick says. He'd admired live-work lofts in other cities and realized there were none in Denver. Unsure if the idea would take off, Glick and his business partner started slow, building just a dozen lofts. "We didn't know if anybody would live in the neighborhood," he says now.
It turned out they would. Rex and Sharon Brown, an educator and a painter, respectively, were among the first of a new wave of creatives to make their homes in RiNo, an area defined by I-70 to the north, I-25 to the west, Park Avenue West to the south and Lawrence Street to the east, and bifurcated by the river and the train tracks. In 1991, the Browns bought a building in the middle of Silver Square where woodworkers used to make patterns for iron and steel machine parts. It was boarded up, full of feral cats and without plumbing or electricity. Over several months, they converted it into a stunning residence, studio and gallery that they named Pattern Shop Studio. "Artists are not afraid of raw spaces," Sharon Brown once said. Or cheap ones.
Though it took some time, others followed. Ironton, an artist community housed in a former garage, opened in 2000 across the train tracks. Weilworks, the home and gallery of artist Tracy Weil, came next. Back near Silver Square, Glick won another zoning change from the city that allowed his development team to build the Fire Clay Lofts, a hip, two-block-long condo project just south on Blake Street. In 2005, several galleries banded together to form their own art district — called RiNo, "Where Art Is Made" — and began hosting First Friday events.
Today RiNo is an eclectic place where loading docks still outnumber cupcake shops, but residential momentum is building. There are few sidewalks, even fewer streetlights, and more than a couple of panhandlers. But there are also new businesses; the neighborhood recently welcomed a vegan market, a couple of hip restaurants, a nanobrewery and a winery.
"It has a much more grainy texture than anything in the city," says developer Mickey Zeppelin, who's responsible for turning an old Yellow Cab headquarters near the river into a mixed-use development called TAXI that's home to photo studios, cafes and tech companies — not to mention the urban pioneers who like the feel of the place. "Hopefully, as it develops, it doesn't become overly gentrified but maintains that character."
Kasel, who was here before most of them, traces his troubles to those changes. Although he didn't return phone calls for this story and a receptionist told us he wasn't available when we stopped by the factory, a company representative sent this statement: "Mr. Kasel has endured years of inspections by government entities from all levels far beyond the normal protocol. Kasel Associates Industries is a small business that employs over 100 people from the Denver area. They are American manufacturers of high-quality pet treats using USDA-approved meats. Mr. Kasel has finally decided to take legal steps to protect his company by filing this suit in federal court."
In the lawsuit, Kasel claims that the development of new residences "exacerbated the harassment" and subjected his factory to "an unremitting barrage" of "unwarranted inspections" by city and state agencies. In 1994, he was charged with a noise violation after Silver Square residents complained that he was operating loud cooling equipment after 10 p.m. A few months later, he was cited for operating an illegal junkyard. A judge acquitted him of both charges and, Kasel claims, even scolded the city for attempting to impose residential standards on an industrial area. Though the plots around the factory were changing, the land it sat on was still zoned for heavy industrial.
But by May 2005, the city had received dozens of complaints about a nauseating, "extremely putrid" stench coming from the factory. Readings taken with a handheld odor measurer — called a scentometer — found that the air around Kasel's factory was too smelly, and he was cited for violating the state's law on air-quality control. But the law included exceptions for manufacturers. Though Kasel admitted to doing nothing to mitigate the odor, the state dropped the charges after more than a year of legal wrangling.
But the complaints kept pouring in. "Strong odor coming from Kasel Industries," one caller reported in 2007. "Pig ears roasting odor is especially bad today," said another in 2008.
One e-mailer was particularly graphic: "Over the past two weeks, the smell of a rotten grease trap filled with decomposing bodies has filled the air," a man wrote to the city in 2010. "I have gotten home from school and gotten out of my car and literally dry heaved into my mouth. I am not one to be a whistleblower and...they were in the 'hood well before me, but there is something messed up going on over there."
City inspectors diligently responded, but they never detected odors above the legal limit.
In January 2011, Matthew Palmer of the Dry Ice Factory artist studios and Ice Cube Gallery, which are located across Walnut Street from Kasel, e-mailed Emily vonSwearingen, a Silver Square resident active in a newly formed neighborhood organization called RiNo Neighbors, about the odor. In her reply, vonSwearingen copied councilwoman Montero's assistant.
"I am copying...Councilwoman Montero's office because what we have been doing thus far per city instructions is not working," vonSwearingen wrote. She said she'd struck up a verbal agreement with city investigator Ben Siller, who agreed to monitor the smell. But vonSwearingen wasn't happy with the results. Siller's scentometer, she wrote, "is a piece of crap. It is a plastic apparatus with a filter that he puts up to his nose and breathes through to determine if he 'senses' the smell. Ridiculous. I would be standing next to him gagging, and he would be sniffing through this thing and then tell me that it wasn't enough to warrant a ticket.
"I simply no longer know who to contact or trust," she added. "That is why we are wanting our city councilwoman to get involved."
VonSwearingen declined to speak to Westword for this story, citing the ongoing lawsuit. And she's not the only one. Montero, her former assistant Syner, city Department of Environmental Health and city zoning officials, and the other neighbors that Kasel is suing, Michael Ensminger and Sharon Brown, also declined interviews.
But judging from e-mails and other documents obtained through an open-records request, neighbors continued to log complaints. "Smells like rotting animal," one reported. "The problem is not going away, and we wish someone would take care of this," another said. "We can smell it even with the windows closed," vonSwearingen herself complained in May.
In February 2012, Syner organized a meeting at Brown's house with Brown, Linkhart and state representative Crisanta Duran, who represents RiNo. Montero had invited her to discuss state-level remedies, but Duran showed up early, chatted with Brown and was gone by the time the others arrived. (Duran subsequently asked a staffer to draft a memo outlining the state's air-quality-control law and how it interfaces with city ordinances. She says she sent it to the neighbors but never heard back from them.) It was a productive meeting nonetheless — and, Kasel would later argue in his lawsuit, the beginning of an odor-complaint assault against him.
That week, Syner sent an e-mail to vonSwearingen, asking her to disseminate a message to the RiNo Neighbors group: "While meeting with Doug Linkhart, we learned the city has a policy that if there are five or more complaints received on a particular property, we can actively pursue a violation," she wrote. "Councilwoman Montero is requesting your help to take action against the Pig Ear Factory. We are asking when you smell the odor to call 311 and send us your tracking number. We are hoping to get five complaints within a day or two to begin the violation process."
The five-complaints clause was added to the city's air-pollution ordinance in late 2008 as part of an extensive revision of the rules. The reason, says Celia VanDerLoop, the director of the Environmental Quality Division of the city's Department of Environmental Health, was that inspectors were having a hard time responding to odor complaints.
"Odor happens any time during the day or night, and we have inspectors who basically work 8 to 5," VanDerLoop says. By the time an inspector is available to respond, the smell may be gone. "Odor is notoriously fickle that way," she adds.
The clause specifies that for a complaint to be considered valid, it must include the complainant's name, address and phone number, the time and date of the call, a description of the odor, and an estimation of where it's coming from.
Finally, the neighbors had recourse. On March 19, seven people complained about the stench. That afternoon, Syner e-mailed the tracking numbers to Gary Lasswell, a supervisor with the Department of Environmental Health and Siller's boss. "Hi Gary," she wrote. "Can we verify the complaints below? Will these be sufficient?" Five were deemed valid. On April 18, Kasel was served with a Notice of Violation and instructions to pay a $500 fine within thirty days.
Two days later, Brown sent an e-mail to the RiNo Neighbors and copied Siller: "We have just celebrated twenty years living across the street from Kasel Industries, and a more frustrating experience I can't imagine. In the '90s, the annoyance was a loud screeching from a refrigerating fan that ran unabated all summer. Only after three years did we finally meet with Ray, personally contribute $2,000, Silver Square paying $6,000, to replace the old fan with a new quieter one.
"The switch to pig ear processing several years ago was the next assault on our senses. I have been reporting the stench for YEARS. There is no 'pattern' because it happens on weekends, at night, anytime that our environmental folks aren't working. Any fine would be negligible to a millionaire like Ray, and he has a lawyer on retainer who shuts down communication.
"I believe the best hope lies in a concerted neighborhood effort."
On May 15, Kasel's lawyer, Kevin O'Toole, filed a petition for review with the Board of Environmental Health, arguing that the city ordinance was unconstitutional, arbitrary and unreasonable. The neighbors were besmirching Kasel's reputation, he wrote, and organizing an effort to shut him down. City officials were helping, he added, and he quoted from an e-mail that Linkhart wrote to Syner after their meeting, reiterating the five-complaints clause: "As you know, we have spent a lot of time on this particular facility, with many visits to test the air for odors and many meetings," Linkhart wrote. "Please let us know if you have any questions or suggestions."
O'Toole also made mention of two fliers posted around RiNo. One quoted from the message Syner asked vonSwearingen to send to the RiNo Neighbors in February. But in e-mails to each other, Syner, vonSwearingen and Brown all denied posting the flier. Another flier called Kasel an "unethical businessman" and the smell from his factory "repugnant" and "funky."
Funky or not, O'Toole argued that the odor violation should be dropped. Because Kasel's property is zoned industrial, O'Toole wrote, Kasel could bake all the pig ears he wanted.
On June 14, Kasel met face-to-face with the three complaining neighbors he's now suing. They were witnesses at the administrative hearing his lawyer requested to appeal the violation, at which O'Toole faced off against Katie Wilmoth, a lawyer from the Denver City Attorney's Office.
Siller, the city investigator, took the stand first. He testified that he verified the five complaints against Kasel by calling the complainants and asking what they smelled on March 19. He also made a map of the area and denoted the wind conditions that day: 10- to 20-mile-per-hour winds out of the southwest. But he admitted that he made no effort to determine if there was anything stinky in that direction that could have caused the smell.
"The data I was finding on wind wasn't conclusive enough to rule out that the wind was either upwind or downwind," Siller explained. "It didn't matter, because there were moments where there was no wind.... Wind wasn't a factor in where the odors were determined."
Ensminger, the neighbor who made the final complaint on March 19, took the stand next. A photographer who lives and works at Silver Square, he described the smell that day as "putrid." "It's this horrible thing that sticks in your nose," he added. "It's not like a garbage smell; it's not like the Purina plant. It's this burnt smell. I can't describe it, but it's unique, and it never varies."
At the end of his testimony, Ensminger asked the hearing officer if he could add one more thing. "I just want to say that when I was looking at Mr. Kasel, he mouthed 'Fuck you' to me," Ensminger said. "I just wanted to make sure that that's in the record."
Kasel denied it, but the hearing officer warned him anyway. "Although this is an administrative hearing, I guarantee you I can get sheriffs up here and you'll have an afternoon where you don't want to be, okay?" the officer said.
Brown and vonSwearingen also testified. Brown admitted that she'd met in February with Linkhart, who told her about the five-complaints clause, and that she'd sent an e-mail to her neighbors on March 19, encouraging them to complain about Kasel.
"Ms. Brown, you personally dislike Mr. Kasel, correct?" O'Toole asked.
Brown's answer was short. "No," she said.
The man Brown swore she didn't hate took the stand next.
Kasel testified that he was indeed cooking pet treats on March 19. But not pig ears. "We can't get any pig ears," Kasel said. "We haven't been able to get pig ears or cook pig ears for a long period of time.... They're human-consumable, and they're very, very expensive."
Instead, the company's main product for the past six months had been chicken jerky.
"Are the chicken breasts that are used somehow spoiled or odorous?" O'Toole asked.
"It's 100 percent human-consumable, fresh, boneless, skinless chicken breast," Kasel answered. "It's human-grade — comes right from the same plants you get your chicken that's at Kroger, King Soopers, Safeway. Same chicken."
Kasel explained the cooking process. First the frozen chicken is sliced into strips. Then it's put into ovens, where it's baked at increasingly hotter temperatures for twelve hours. On March 19, his records indicate that the first oven was turned on at 10:32 a.m. But Kasel pointed out that the first two complaints came in at 9:40 and 9:53 a.m. — before he even started baking.
"When the product comes out of the ovens," O'Toole asked, "does it generate a putrid smell?"
No, Kasel answered. "If people open the bag [of pet treats] and it stunk the way it's been described here, do you think we would sell?" he said.
The hearing officer listened to the testimony and recommended upholding the violation. The facts were plain, he wrote: Five people filed complaints within a twelve-hour period identifying Kasel's factory as the source of a "terrible, awful, disgusting" smell. While Kasel argued that the complaints were bogus and that the city had "predetermined to cite him," he'd failed to prove it.
Kasel continued to fight. His lawyer appealed the hearing officer's recommendation to the Board of Environmental Health, which scheduled a review of the case for September 13. But Kasel didn't show up, and the board sided with the hearing officer. Kasel, who by then had likely spent much more money on attorneys' fees, would be stuck paying the $500 fine.
But he wasn't about to let the city have the last word. Kasel hired a different lawyer, Dick Campbell, to file a lawsuit in U.S. District Court on September 27 against Montero, Syner, Linkhart, Lasswell, Siller, Brown, vonSwearingen, Ensminger and the entire city of Denver. He's seeking "compensatory, consequential, incidental and punitive damages" plus attorneys' fees.
Campbell declined to comment for this story, saying, "I'm not going to be any help to you."
Three neighbors were unlucky enough to get sued, but they're far from the only ones who complained. An open-records request turned up fourteen complaints in 2010, 47 in 2011 and 33 so far in 2012. Several complainants did not want to talk on the record, saying they were afraid of making Kasel mad. If he sued other people for calling 311, they figured, he could sue them, too.
But Misha Morrow wasn't shy. A tattooed project manager, Morrow rents a townhouse at 34th and Larimer, about a block east of Kasel Associates Industries. The place has a rooftop deck with a bar and a great view that he doesn't use as much as he'd like to because of what he calls "the funk."
"On a good day, it smells like a grease dumpster," says Morrow. "On a bad day, I'm not sure what causes it, but it straight-up smells like a dead body or an animal that's rotting."
Morrow says he's stopped into Kasel's offices to try to talk to him but has never gotten past the receptionist. He's called 311 to complain, fliered the neighborhood three times and e-mailed city council members. He says he's never heard back from anyone.
"I moved in here because you get left alone, kind of a live-and-let-live situation," Morrow says of RiNo. But the smell, he says, "is completely unacceptable, in my opinion. Those people are reducing property values and negatively impacting people's lives."
Kramer-Wine, who now lives in Ohio but still owns her condo in RiNo, says she and her husband didn't notice the smell before they moved in. They had just relocated to Denver from New York City and were amazed that they could live in a 1,200-square-foot loft with hardwood floors and modern appliances in an up-and-coming neighborhood for $1,000 a month — peanuts compared to what they would have paid in New York. But it didn't take long before they realized their new home had a hidden cost. "When you start to smell it, you're like, 'What the hell is that?'" Kramer-Wine says. She made use of 311 as well, and while hers was one of the five complaints on March 19, she never intentionally got involved in neighborhood-wide efforts. "If I knew they were producing food for people, I would have raised much more of a stink," she says.
The first time Lauren Alesso caught a whiff of the factory, she was hosting a housewarming barbecue to celebrate her new Silver Square condo. "I was like, 'What is that horrible smell?'" she remembers. "It was kind of embarrassing, having all those people over."
Alesso eventually opened a modern-furniture showroom in RiNo, which has since moved to South Broadway, and moved in with her boyfriend at the Fire Clay Lofts next door. But she still owns her condo at Silver Square and loves the neighborhood. The smell isn't enough to drive her out, but, she says, "it would have deterred me from buying, possibly, if I knew ahead of time."
Noah Price isn't bothered enough to complain. The owner of two of RiNo's hippest eateries, the Populist and Crema, where the breakfast burrito comes with Muenster and the PB&J includes date-balsamic jam, Price says the smell is "part of opening up shop in the ghetto." It doesn't affect his business at Crema, which is five blocks from the factory, but he suspects it'll be a problem come patio season at the Populist, which opened last month just two blocks away. "If there was a way they could make it so it didn't stink, that'd be awesome," Price says, "but it's not something I'm going to push for. I'll support the people who are pushing for it."
The guys at Shit Bird Customs, a motorcycle shop in an old marijuana grow house on Blake Street that shares an alley with Kasel, aren't willing to go that far. They think the complainers should shut up and move out. "People who have the money to live somewhere nice should live somewhere nice," says Rick Corage.
It's a warm Friday afternoon, and Corage is outside, drinking cans of Coors Light with his co-proprietors. A faint grease smell hangs in the air. Corage identifies the source as a stack of what look like large animal cages without tops, or big McDonald's fry baskets, lined up next to Shit Bird's driveway; he says they belong to Kasel. He walks over to them and points to a shriveled orange-ish triangle stuck in the bottom corner of one of the otherwise empty cages. He nudges it with the toe of his sneaker and says his dog goes crazy for the scraps.
As for him, he doesn't mind the smell. "I've gotten used to it," he says.
In September, the same month Ray Kasel was fighting the odor violation and filing suit against his neighbors, batches of his products were being recalled. An inspection of Kasel's factory by the Colorado Department of Agriculture found that some of his American Beef Bully Stick dog treats were contaminated with salmonella. The treats had been sold under the Boots & Barkley label at Target stores starting in April, and three lots already in stores were contaminated, too.
The U.S. Food and Drug Administration posted a notice that Kasel was voluntarily recalling the treats. The FDA warned owners to watch their pets for fever, vomiting and bloody diarrhea. They cautioned that humans could be poisoned, too, especially if they didn't wash their hands after handling the treats, but said no illnesses had been reported.
Follow-up testing by the FDA and the state found more contaminated products, including batches of pig-ear and chicken-jerky dog treats, as well as a Kasel-made Boots & Barkley American Variety Pack, whose ingredients include pork femur bones, cow hooves and beef trachea. The FDA issued voluntary recall notices for each.
According to the Department of Agriculture, Kasel stopped production and made efforts to clean up the factory. He resumed production on October 8, and inspectors visited the next day to test the products being made, which included chicken jerky and pig-ear dog treats. No salmonella was detected, says Steve Bornmann, the director of the inspection division.
But Kasel still has battles to fight. The city and his neighbors have asked a federal judge to dismiss the lawsuit against them, saying his factory "has not been harmed or diminished" by receiving a single odor violation and therefore has no claim.
The neighbors were left to hire their own attorneys. Thus far, Brown is the only one who's done so. Her attorney, Randy Paulsen, is moving for dismissal on the grounds that Brown and the other neighbors were simply following the city ordinance. Even if they had an ulterior motive — which he claims they didn't — their actions were sanctioned by the city.
"He was convicted," Paulsen says of Kasel. "So how can you say that [what the neighbors did] is a wrongful act?" The entire thing, he says, "sort of smacks of a guy with a lot of money who wants to aggravate his neighbors because they aggravated him."
However, Kasel maintains that he has suffered, and estimates the cost of years of unwarranted inspections, legal fees and damage to his reputation at more than $1 million. In his response to the request to dismiss the lawsuit, Kasel's lawyer argues that the city ordinance is a back-door way to punish Kasel and that the way the neighbors used it is unlawful, "the latest in a long line of...antagonistic acts" toward him. The question, he says, is not whether Kasel can operate his factory at all, but whether he can operate it free from harassment.
The decision now rests with a federal judge, as neither side seems likely to back down from this legal brawl. And what better setting for it than the gritty streets of RiNo, which attracted Kasel and his dog-walking neighbors for some of the same reasons?
But as longtime developer Zeppelin, who's not involved in this particular fight, says, "All grittiness is not good. Some of it is big lumps."
And some of those lumps smell like pig ears.
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you'll never miss Westword's biggest stories.