RiNo odors lawsuit: Judge throws out dog-treat-factory complaint against city, neighbors
A federal judge has dismissed a lawsuit filed by the owner of a pet treat factory in the River North neighborhood, who sued the city and three neighbors for conspiring against him. As explained in our cover story, "Raising a Stink," Ray Kasel of Kasel Associates Industries took issue with the fact that his neighbors complained about bad smells coming from his factory -- and he suspects city officials had a hand in his getting slapped with an odor ordinance violation last April.
For years, Kasel's neighbors had been griping about the odor from "the pig ear factory" -- so nicknamed because Kasel makes pig ear dog treats. Their descriptions of the smell were often graphic. "Smells like dead animals," a neighbor once reported. But odor complaints are hard to verify, and none ever resulted in an official violation.
Until last year. On March 19, 2012, the city Department of Environmental Health received five smell complaints about Kasel's factory from different households within a twelve-hour period. A clause in Denver's air-pollution ordinance allows for a citation to be issued when that occurs -- though it hadn't been used before Kasel's case.
Kasel appealed the citation and lost. But he wasn't about to give up. In September, he sued the city in federal court for conspiring against him, harassing him and violating his constitutional property rights. Also named in the lawsuit were three employees of the Department of Environmental Health, including manager and former city councilman Doug Linkhart; three complaining neighbors, including Sharon Brown; city councilwoman Judy Montero; and Montero's former assistant.
Kasel alleges that the city officials named in the lawsuit helped the neighbors get him in trouble. Their actions, he asserted, "constituted an unlawful conspiracy to defame [his] reputation" and led to "annoyance, inconvenience, stigma...[and] litigation costs."
The city asked the court to dismiss the lawsuit, arguing that Kasel's constitutional rights were not violated by receiving a single odor violation and a $500 fine. Sharon Brown -- an artist who, along with her husband, was among the first wave of creatives to move into the then-mostly industrial RiNo during the early 1990s -- also hired a lawyer, who maintained that she and the other neighbors were simply following the city odor ordinance.
On Tuesday, the case had its first day in court. U.S. District Court Judge Richard Matsch heard arguments from both sides about whether to dismiss the lawsuit. His most pointed questions were directed at Kasel's lawyer, Phillip Parrott.
"What is the violation of the Constitution?" Matsch asked.
Parrott said the city and neighbors had deprived Kasel of his right to operate his business and "selectively enforced" the city's odor ordinance to punish him. He added that the odor violation was just one method used to antagonize Kasel and that the neighbors had a long history of complaining about the pet treat factory.
"This was one of multiple attacks they were using," Parrott said.
But Matsch said he didn't care about the contentious history between Kasel and his neighbors. "You can't just throw all this stuff against the wall and hope that somewhere in there, there's a Constitutional tort," he said.
Instead, Matsch was concerned with whether the city has a fair process for issuing and appealing an odor violation, and whether it was followed in this case. Assistant City Attorney Joseph Rivera argued that it was, as did Brown's lawyer, Randy Paulsen.
"From Ms. Brown's perspective, the city passed an ordinance...." Paulsen said.
"And she exercised her rights as a citizen...." Matsch interrupted.
"And for that, she ended up in this courtroom," Paulsen concluded.
In the end, Matsch dismissed the lawsuit. "My jurisdiction to deal with this matter is under the United States Constitution," he said, adding, "You don't have a federal claim."
Brown and her husband attended the hearing, as did neighbor Emily vonSwearingen, who was also named in the lawsuit. Even though the neighbors were successful in dismissing the lawsuit, vonSwearingen says it was also a victory for Kasel.
"Everybody is afraid to file complaints," she says. "He accomplished what he wanted to with regard to the residents of RiNo" -- who she says fear being sued by Kasel and having to spend money to hire a lawyer to defend themselves, as the Browns did.
"He is a bully," vonSwearingen says of Kasel.
Kasel hasn't made a statement about the dismissal of the case or whether he will appeal.
As for the odor violation that spurred the lawsuit, Department of Environmental Health spokeswoman Meghan Hughes reports that Kasel has yet to pay his $500 fine.
More from our Follow That Story archive: "Kasel Associates Industries, subject of smell complaints, recalls more pet treats."Follow me on Twitter @MelanieAsmar or e-mail me at firstname.lastname@example.org
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