The site of a derelict Kmart building that went up in flames in the Parkrose neighborhood two weeks ago had an open code enforcement violation with the city.
Records show the Portland Bureau of Development Services (BDS) sent RFC Joint Venture, the property’s owner, a violation notice on July 6, directing owners to “board-up or otherwise secure” the “open and vacant” building. A city inspector was scheduled to re-inspect the property on or after July 21—two days after the building caught fire.
The blaze spewed debris around the surrounding neighborhood–some of which initially tested positive for asbestos–prompting the state’s environmental agency to issue health and safety warnings
The Oregon Department of Environmental Quality (DEQ) eventually downgraded warnings to outer Northeast Portland residents about asbestos in the debris but some weren’t entirely soothed by DEQ reports. One Parkrose resident took his concerns to court.
Stephen Vandervort, who lives less than a mile from the old Kmart site that caught fire July 19, thinks the companies who own and operate the vacant lot at Northeast Sandy Boulevard and 122nd Avenue should be held responsible for neglecting the property. Vandervort filed a class action lawsuit last week against RFC Joint Venture, Zygmunt Wilf, and Prologis, alleging the three companies failed to maintain the property “in a safe condition,” resulting in “harmful debris spewed across plaintiff’s neighborhood”
“Defendants—not the residents of the surrounding neighborhood—should be responsible for the nuisance emanating from their Property,” Vandervort’s complaint states.
RFC Joint Venture is a real estate entity owned by Zygmunt “Zygi” Wilf, a property development mogul and co-owner of the Minnesota Vikings. RFC is part of larger New Jersey-based real estate company Garden Homes. RFC Joint Venture and Wilf leased the lot on 122nd and Sandy to freight warehouse company Prologis for use as a freight storage site, much to the dismay of neighbors concerned about the impact nearby diesel truck traffic will have on their health and the safety of surrounding streets. Vandervort’s class action lawsuit holds all of those entities responsible for the fire and resulting damage.
Michael Fuller is a partner at Oregon civil rights law firm OlsenDaines and Vandervort’s lead trial attorney on the class action suit. Fuller told the Mercury in the days after the fire, his client felt compelled to hire outside remediators to test the debris that fell all across his lawn and garden. Even though none of the debris Vandervort tested came back positive for asbestos, the risk of toxins from the ash was enough to warrant the suit.
“He shouldn't have to go out of pocket to test for debris that came from the derelict management from these property owners,” Fuller said. “The owners knew quite some time in advance of the dangers that were posed, and they did nothing about it. That’s why they’re being subjected to class action claims.”
An emailed statement from Prologis to the Mercury on August 1 said the company “had not yet been served but will review it when we are.”
“The July 19 fire was an unfortunate and unexpected event. Since it happened, we’ve been working closely with local, state, and Federal agencies and helping to remove large fire debris from community parks, schools and nearby residences,” the statement reads.
Who should be held responsible?
Fuller said RFC Joint Venture’s cloaked status within other out-of-town corporations has made it more difficult for city officials to monitor what they’re doing. Since the entity’s address is formally listed as the vacant lot at 12350 NE Sandy Blvd, they may not have received city notices of code violations.
“What is RFC Joint Venture?” Fuller asked. “From our perspective, they’re not necessarily following corporate formalities, and it’s making the process even harder.”
People made other complaints about the property before BDS sent the July 6 code violation notice. According to court documents, a “nuisance” complaint for “trash, debris and non-trash items littering property” on March 6. On June 12, a complaint was filed alleging unhoused people were active on the unsecured site.
An investigation about who started the fire is ongoing.
Fuller said the code violation notice should’ve been enough to prompt action from property owners.
“From all I can tell, the city has responded to complaints as they’ve come in…I don’t know what more they would do unless they’re going to condemn the property,” Fuller said. “Fires happen, trespassers trespass…From our perspective, the responsibility falls on the landlord when a very foreseeable fire starts.”
Angela Baker is a member of the Parkrose-Argay Opportunity Coalition, an organization opposing the Prologis warehouse. In an interview with the Mercury the week of the fire, Baker expressed a similar sentiment, saying she didn’t want the blame to be placed on individuals who had access to the site, and the corporations should be held accountable.
“I'm really anxious to not have our homeless community blamed for this fire. We don't know the cause of the fire. And for me, if somebody is desperately trying to seek shelter, I'm not blaming them if it was an accident that happened,” Baker said. “The property owner or the renter was responsible for securing the property. It posed an attractive nuisance.”
Other people who live near the former Kmart site think the city has a responsibility to ensure safety on the property, now and in the future.
In a July 24 town hall meeting hosted by Portland Commissioner Mingus Mapps, who oversees the Portland Bureau of Transportation (PBOT), Parkrose resident Ben Batti called on Portland City Council to act.
“There's ash and debris all over [the Parkrose and Argay Terrace neighborhoods]. The city has done nothing, and nothing has been cleaned up,” Batti said. “I'm sure that if we were in a more affluent area, this wouldn't be an issue at all.”
Mapps said all city bureaus have been involved in trying to mitigate the damage caused by the fire, but a lot of the work is now in the hands of the state. He said the Bureau of Environmental Services, which he oversees, has been testing stormwater drains and bioswales and “are not seeing high levels of pollutants.”
But Mapps recognized the problems in outer Northeast Portland extend beyond the recent fire.
“I recognize in the larger picture that Parkrose has been neglected for far too long, and this is deeply problematic,” Mapps said. "Once we get Parkrose right, that is the key step to getting the rest of Portland right. The tragic situations that we see in that neighborhood really break my heart."
Mapps addressed the controversial Prologis freight warehouse development, telling Batti that while “there’s no way for City Council to actually kill this particular development,” he wants to use his power to make sure it doesn’t negatively impact neighbors.
“One of the things that I can do as the director of the Portland Bureau of Transportation (PBOT) is to go through and make road improvements and various changes to make it safer to actually have that kind of truck traffic coming in and out of the neighborhood,” Mapps said.
The class action complaint was filed on July 27. That same day, Prologis took over the cleanup effort. According to a Prologis spokesperson, the company contracted with Farallon Consulting to help with removing debris larger than an inch, and teams have visited more than 3,200 residences near the fire site so far, with plans to continue cleanup throughout the week.
Some residents have said Prologis’s cleanup efforts have so far been insufficient. In the comments of several posts on the Parkrose Argay Opportunity Coalition’s Instagram, neighbors have claimed Farallon Consulting contractors “are not doing a thorough job,” and ignoring the gutters and roofs of their homes, which are “littered with pieces of debris.” Nearby residents also expressed concern about signing consent forms in order to have cleanup crews access their property, and said they didn’t know who the contractors were before they showed up at their door.
But Fuller said the outreach is a good sign.
“It's unfortunate that it apparently took a class action lawsuit to cause them to do the right thing, but it's never too late. We’re accepting the offer in good faith and encouraging tenants to work cooperatively with anyone who’s willing to come out and help clean up this mess,” he told the Mercury.
It’s unclear whether or not Prologis planned to take over cleanup efforts before the lawsuit was filed.
Fuller said if Prologis offered fair compensation to everyone in the community who was harmed, his client would never have to file the lawsuit. Right now, the complaint is a lawsuit for an injunction that requires them to “clean up the mess” within 30 days. If they “do the right thing,” as Fuller put it, “there would be nothing for the jury to decide.”
Outcomes of the lawsuit
If the lawsuit does go forward and is put in front of a jury, Fuller said his client “hopes a jury will compensate him for the harms and losses he experienced.” He also said it might send a message to the property owners, Prologis, and other would-be Portland developers.
“If you want to come to do commerce in Portland and you want the benefits of owning land in Portland, then you need to take the responsibilities that come along with being the landowner,” Fuller said. “In this case, that's complying with the city code.”
Baker told the Mercury that while she isn’t involved in the lawsuit, she “thinks its concerns are valid.”
“The residents were really worried about the lack of security at the site, especially given the proximity to the school and apartments,” Baker said. “I hope with the fire and the lawsuit, the city will exercise their discretionary authority to stop the cycles of harm around this site. I hope Prologis will realize this was a very poor place to choose to build an industrial freight warehouse and will back out of their lease, and I hope Garden Homes will realize their tenant is a huge liability for them.”