story and photo by Mike Blain
The Free Press
When the L.C. Jergens Painting Company was spray-painting this August and September at its facility in the Jackson Place neighborhood in South Seattle, Russell Puschak said the fumes from the business just up the street from his house almost nauseated him. "When you smell it," he says, "it's like you have your head over a paint can."L.C. Jergens' vice president, Tim Jergens, maintains that equipment at the facility, which primarily refinishes and paints furniture, is "state-of-the-art" and meets all fire and air pollution codes. The company has bent over backwards, he says, to accommodate concerns about fumes and is constantly searching for more environmentally conscious products. "Eventually, we'll dial it in so we won't have an odor impact on this community."
Many of the paint company's neighbors don't buy Jergens' rosy predictions, and say the city of Seattle never should have let the company locate in the residentially-zoned area in the first place.
The Neighborhood Rallies
When the city of Seattle posted notices in the Jackson Place neighborhood in the fall of 1990, requesting comment on an application for the building at 415 18th Ave. S. to be used as a spray-painting facility, many area residents were aghast. Longtime inhabitants of the low-income, ethnically-diverse neighborhood noted that the site, despite its status as a plumbing warehouse with a "non-conforming" use permit in a residentially-zoned area, had not been the home of any commercial activity for more than 15 years.
Fearing increased noise, traffic and odors from a paint facility, at least a dozen neighbors wrote letters to the Department of Construction and Land Use (DCLU) expressing their concerns about the business. Seventy-seven people signed a petition stating their opposition to the zoning variance that could allow the painting business to "grandfather" in the non-conforming use and operate in their midst.
With neighborhood opposition mounting, Tim Jergens met with the Jackson Place Community Council in the summer of 1991. Residents say he reassured the community that if they didn't want his plant there, he would not proceed. The council unanimously expressed its opposition to the project.
But according to 40-year-old Fran Blumenstein, an active participant in the community council, Jergens was already proceeding. "He lied to us," she says. "The guy has lied and been so deceiving. And he's very nice about it."
Jergens contends that while the company never wavered in its intention to put a spray-painting facility at the site, he "tried to work with the neighborhood."
In October of 1991, Abigail Lee, an air pollution engineer with the Puget Sound Air Pollution Control Agency (PSAPCA), sent a letter to DCLU stating that "even a well-designed spray booth in a residential neighborhood will cause problems."
In December of that year, DCLU denied the company a Master Use Permit, which would have required an "administrative conditional use" to switch from one non-conforming use (a warehouse) to another (the paint facility). Citing community opposition and the PSAPCA letter, DCLU determined that "anticipated odors from the proposed spray paint facility represent material detrimental to the surrounding residentially-zoned properties."
Jackson Place residents who had opposed the project breathed a collective sigh of relief. They had fought to keep the company out of their neighborhood and had won. Or so they thought. "When you think you've stopped a project and you've been told by the city it's stopped, you believe them," says Puschak.
Soon after the denial, L.C. Jergens submitted an appeal to the city hearing examiner. The company's lawyer argued that DCLU "ignored a slew of relevant factors" about relative odor impacts, including the height of ventilation stacks and the type of spray booth technology to be used.
Abigail Lee testified that her letter warning of the impacts of a spray booth on a residential neighborhood was generalized in nature and she was not referring specifically to the L.C. Jergens proposal.
Jackson Place residents found out about the appeals hearing the day before it was to occur, and were not allowed to be properly named as parties to the case. Even though 77 residents had submitted DCLU a petition opposing the project, the city did not notify any of them that the denial of the Master Use Permit had been appealed.
"We learned of it by chance," says Blumenstein. "The city does not inform neighborhoods when it's making decisions about those neighborhoods."
Although a half-dozen residents, including Puschak, testified at the hearing, all of their testimony was discounted because they were not officially parties to the hearing. City Hearing Examiner Guy Fletcher reversed DCLU's denial of the permit, saying that in the absence of detailed testimony from DCLU to the contrary, "allegations of air quality and odor impacts are, at best, speculative."
While some Jackson Place neighbors may have felt Tim Jergens had been less than honest with them, they now thought DCLU had completely deceived them. "The community was totally hoodwinked," says Puschak.
The Painting Begins
By the spring of the next year, the facility was running at full-steam. Neighbors complained of odors almost immediately, and the business began receiving the first of several citations from PSAPCA.
When L.C. Jergens was granted its permit, several conditions were attached, including a directive that the company limit its hours of operation to between 7 am and 3:30 pm. On April 5 and April 12, 1993, L.C. Jergens was cited for operating outside of those hours, and fined $12,000. Half of the fine was suspended on the condition that the company agree to start using water-based paints in lieu of several solvent-based products. The fine was eventually lowered to $2,000.
In the next few months, PSAPCA received a slew of complaints from area residents about odors at the site. More often than not, the reporting inspector could not verify odor complaints. Residents say it often took hours for an inspector to show up, if they showed up at all, and by then the company had stopped causing odors.
A sample of four complaint forms filed by inspector Harriet Bryant in August of 1993 show she was "unable to respond in a timely manner" each time due to 1) being on another inspection, 2) having the day off, 3) being in a meeting, and 4) having another day off. "By the time the inspectors came out," says Blumenstein, " the fumes would be gone and there was nothing we could do."
The only equipment PSAPCA uses to determine if there are excess odors in an area is the inspector's nose. The agency does not use any air quality sampling devices to monitor the L.C. Jergens site. In one instance, inspector Bryant noted she did not detect any odors, but was congested due to a cold.
Complaints about L.C. Jergens have gone down substantially since the company began switching to water-based paints, according to James Nolan, manager of compliance for PSAPCA. As for verifying complaints, he says: "We do our best in terms of response." He added PSAPCA has watched L.C. Jergens like a hawk - conducting numerous unannounced inspections - and that Tim Jergens has acted in "good faith" with the agency all along.
Although area neighbors say the frequency of the odors has declined, they believe it still occurs often enough to degrade the quality of life in the neighborhood. "You go out with your kids," says Blumenstein, who has lived in Jackson Place since 1988, "and you have to run back in the house because it burns your nose."
Headed for court?
Tim Jergens insists he has done everything he possibly can to lessen his company's impact on the neighborhood. "I did have some problems," he says. "I had to ID what products I was using that were causing problems."
He says water-based paints are twice as expensive as solvent-based ones, but he is switching over as quickly as the company's finances will allow. In addition, the water-based paints have longer drying times and don't sand as well. Not only is it costly, he says, but he has lost work because some clients want paints he does not use. "We're trying the best we can in a very difficult situation."
Most recently, the Sierra Club Legal Defense Fund has been providing the Jackson Place Community Council with legal advice. Adam Berger, an attorney for the Legal Defense Fund, said the community's ability to go back and challenge any zoning decisions is very limited. Neither residents nor the Legal Defense Fund would divulge what specific legal tactics might be used at this point, but they did not rule out the possibility of a class-action or nuisance abatement lawsuit.
Jergens says he wants to maintain open lines of communication with the neighborhood, but says if litigation does come "they've got one helluva fight on their hands."
Berger believes the city of Seattle did a miserable job of communicating with the neighborhood. "Zoning laws are meant to protect a community and its inhabitants," he says." They didn't work that way in this instance."
Many neighborhood residents think it's no coincidence that the city allows the company to operate the painting facility in a low-income neighborhood, where a large percentage of the residents don't speak English.
"It's a textbook case of environmental racism," concludes Puschak, who says he's leaving the neighborhood because he can't take the fumes anymore. "Put it in a neighborhood where property values are low."
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Contents on this page were published in the December/January 1995 edition of the Washington Free Press.
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