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TOWN OF CLYMAN
BOARD OF ZONING APPEALS MEETING
December 3, 2008

Attendees: Dave Blank, Jeff Kreuziger, Chuck Burkholz, Jean Kreuziger, Chris Spilker, Nancy Schlender, Marylee Peterman, Mary Kreuziger, Donald Schuetz, Bob Tracy, Jr., and Brad and Caroline Bailey

Attorneys: Raymond Roder, Andrew Griggs, and Amy Tutwiler

Board Members: Chuck Joyce, Charlie Zimmerman, Jerome Haase, Leroy Schultz and Jeff Mameyak. Minutes were taken by Jerry Foellmi.

The meeting was called to order at 7:05 pm by Chuck Joyce. The Pledge of Allegiance was said.

Motion by Jerry Haase, second by Leroy Schultz to approve the minutes as presented. Motion carried.

The purpose of this meeting was to continue with the review of the ULWR Conditional Use Permit based on the previous meeting’s comments and meetings, phone conversations and other contacts between the BZA, its representatives and ULWR and its representatives. BZA members were given the latest vintage of the CUP that was boiled down to 45 items.

Open Forum Comments:

Charlie Zimmerman asked who authorized Chuck Joyce and Ray Roder to make the latest round of changes to the C.U.P. Chuck Joyce noted that the board has had full involvement from the beginning in the CUP review. Discussion followed.

Marylee Peterman felt attorneys Griggs and Roder were not representing the township. There should be a line by line review of CUP at this point. She was dissatisfied with the compromise with UWLR. Ray Roder noted there was no BZA request for line by line review. In his judgment $62,000 paid over 24 months was a good compromise. Peterman stated the attorneys must get payments over 24 months also. Ray Roder agreed to get payments for his firm’s work on the
CUP over two (2) years without interest. Andrew Griggs agreed with Ray Roder that this is a good negotiated C.U.P. and he would take his pay on the same basis.

Peterman noted ULWR didn’t show up initially for meetings and were not cooperative and therefore should pay additional costs. Chuck Joyce understands her position but stated that this came to a stalemate situation with no resolution of the issues. Roder stated that ULWR must pay their attorneys plus the compromise figure of $50,000+/- plus C.U.P./BZA processing fees portion.

Roder started working for the Town on this issue in April of 2007. Ray Roder also stated that hopefully this will be one of the last BZA meetings. Finalization is planned within one more meeting. The CUP presented tonight contains a paring down of the language of the CUP that is also included in ULWR’s WPDES permit. The proposed final CUP overall serves the Town well.

Andrew Griggs said that the proposed final CUP contains the most important points of the original CUP. If agreement is not reached, the only other option is litigation, which may get the Town less than what the CUP has in it now.

A request was made to go through the CUP item by item. Nancy Schlender requested a full review. Dave Blank also requested a full review as did Charlie Zimmerman. Charlie Zimmerman also questioned whether the BZA’s proposed modifications were allowable. Ray Roder stated the ordinance allows the BZA to change “wholly or partly” and could act in an error correcting way. Charlie Zimmerman felt that a 4/1 super-majority vote was the ordinance approval format. Ray Roder felt a simple majority was statutorily correct (Retzlaff and Griggs agreed). Statute 68.11 requires only a majority. Mary Kreuziger questioned the super majority issue. Andrew Griggs stated that both the statutes and the courts would support a simple majority.

Charlie Zimmerman questioned why the Town should give ULWR a CUP if their DNR permit has not been renewed. Ray Roder responded that if the DNR doesn’t reissue approval then ULWR/Tracy Brothers have no CUP. There was an appeal filed in February of 2008. The DNR’s wastewater treatment lagoon approval lapsed in September of 2008. Roder noted that both sides accused him of being biased towards the other side so he must be doing his job. Jeff Kreuziger asked who drafted the initial CUP. Roder, Griggs, the Plan Commission and the Township helped create the 65 item CUP. Jeff Kreuziger then asked why this got watered down. Ray Roder said the reason for the CUP was to allow ULWR to build a wastewater treatment plant and reduce odors. They needed to make adjustments in order to finally resolve
the issues and prevent going into a lawsuit.

Roder recommended the CUP review be by asking if there are questions on each paragraph rather than reading each item.

Paragraphs 1 & 2 – No comments.

Paragraph 3, 4th line – Plumbing connections are “connections” within the wastewater treatment plant. A pipe through a culvert under Hwy 26 is not a plumbing connection under this CUP. Amy Tutwiler stated that the CUP covers both the wastewater treatment plant and land applications. Exhibit A contains grandfathered sites. Exhibit B contains March 2000-present approved sites covered by this CUP. New sites will be allowed to be added to Exhibit B through a public process. A question was raised on the Thomas Witte site that does not have landowner approval. Tutwiler stated that ULWR will remove from Exhibit A or B any owners that do not want to be included. Nancy Schlender questioned why the lapse of Exhibit A or B status was set at 24 months. Ray Roder noted application rates and cropping formats create timelines
that are greater than 12 months so 24 months was reasonable. BZA will give a written decision noting that this is a special condition.

Paragraph 4, last sentence – the issue is regarding the municipal sewage sludge. There has been an issue of CWD waste spreading in Clyman in the past. Significant discussion followed. Leroy Schultz motioned, second by Charlie Zimmerman to add statement in CUP that CWD waste shall not be allowed to be disposed of in the Township. Motion passed 3/2.

Paragraph 5, Why was 75,000 gpd maximum flow changed to 97,000 gpd daily maximum with 120,000 gpd weekly maximum? Foellmi noted that the DNR approved these values in its review of the WW treatment lagoon submittal. It is reasonable to follow the same values in the CUP. Early discussions with Randy Wirtz involved the concept of 60 day detention and the lagoon volumes show this concept remains valid.

Paragraph 6, The wastewater treatment plant is not built yet so this item cannot be satisfied until then.

Paragraphs 7 through 12 – No comments.

Paragraph 13, Discussion covered the reasons for the testing requirements.

Paragraphs 14 through 18 – No comments.

Paragraph 19, What happened to the emergency action plan (EAP)? Roder noted that the O & M Manual with the land application management plan is equivalent to the EAP with CUP provisions on requirements for when the wastewater treatment system does not function as designed.

Paragraphs 20-23 – No comments.

Paragraph 24, Ray Roder read this. The Town does not have authority over DNR to approve or disapprove of wastewater treatment plant changes.

Paragraph 25, There were questions on runoff from land spreading on tiled fields. DNR must get involved if the tiled field drainage shows short-circuiting. There was concern for greater restrictions in setbacks over and above DNR requirements. Roder and Foellmi noted there must be logic to change from DNR’s requirements. No reasons were given to make a more restrictive change.

Paragraph 26 – No comments.

Paragraph 27, Questions were raised on why this paragraph exists. Roder explained the DNR can better respond during more typical hours. Mameyak stated that operating farm equipment during “off hours” sometimes creates noise issues and could this paragraph’s restriction transpose to other farming operations? Ray Roder said it would not because the ordinance that is the basis for the CUP applies only to non-agricultural activities.

Paragraph 28 – No comments.

Paragraph 29, The citizen complaint form is not yet developed, but it will be soon.

Paragraphs 30 through 33 – No comments.

Paragraph 34, There was concern noted that ULWR gets to choose the defense counsel for the Town due to claims against ULWR. ULWR pays costs so they pick the attorney.

Paragraph 35, Concern was noted that ULWR could change the DNR approved wastewater treatment plans when they re-submit for approval. Roder/Foellmi noted it would be a costly process to make changes at this point. Bob Tracy Jr. stated he has no intention of changing the approved plans when he seeks re-approval.

Paragraphs 36 & 37 – No comments.

Paragraph 38, The confidentially requirements for a Town representative entering the ULWR site was deemed necessary by the administrative law judge reviewing a related case.

Paragraph 39, It was clarified that this paragraph covers sampling of waste being discharged at a farm field.

Paragraphs 40 & 41 – No comments.

Paragraph 42, The recommended changes to this paragraph were challenged. One concern was that the value of $1,500,000 was reduced down to $720,000. The justification was reviewed. Significant discussion followed about land value, and free and clear land versus a second mortgage position. Why couldn’t ULWR provide a bond? The response was that there was no time frame for the bond; therefore no bond company would deal with it. ULWR needs much of the property mortgaged to finance the project. Foellmi/Roder discussed the likelihood of the failure scenario occurring and noted that there are many scenarios that can be considered but only those involving odorous wastes that were not hazardous substances would involve a Town as opposed to a DNR/EPA cleanup. A scenario was discussed where ULWR had contaminated as opposed to partially treated wastewater throughout the plant and a much greater level of effort/cost would be required to mediate the site. It was painted that this was not a Town cleanup scenario. It was suggested that ULWR wouldn’t logically contaminate their own wastewater treatment plant. There remained concerns that the second mortgage wasn’t a proper pledge. Tracy noted that his business loans are up in 3-5 years, and then the Town
becomes the first mortgager. Questions remained on why reduce the values. Foellmi/Roder noted refined discharge locations (closer) and lower per gallon costs as verified by independent haulers.

Paragraph 43, Concerns were noted over the significant structure to dealing with complaints of non-compliance and their resolution. Roder noted this structure gives the Town a process to follow. There were concerns that the detailed nature of this paragraph was taking away the Town’s ability to set terms to deal with non-compliance. Discussion followed on the basis that bias was perceived by both sides and the possible overlap of DNR and Township authority, the detailed procedure being a way to balance these factors.

Paragraph 44, The unique nature of ULWR’s business is the reason for this paragraph. Charlie Zimmerman said the ordinance already has this information in it, so it is unnecessary. Paragraph 44 should be taken out.

Paragraph 45 – No comments.

Motion by Leroy Schultz, second by Charlie Zimmerman for a secret ballot to vote on accepting the revised CUP with changes noted at the meeting. Foellmi counted the votes. The secret ballot vote was 3 yes and 2 no, motion passed. Attorney Roder was directed to prepare the written final decision.

Motion by Leroy Schultz, second by Jerry Haase to adjourn the meeting. Motion passed.
Meeting adjourned at 11:01 pm.

Respectfully submitted;
/s/ Jerry A. Foellmi
Jerry A. Foellmi
Clyman Zoning Administrator

Attendees: Marylee Peterman, Marjorie Gahlman, Kevin O’Meara, Lynn Zimmerman, Jean Kreuziger, Randy Wirtz, Bob Tracy, Jr., Nancy Schlender, Chuck Burkholz, Steve Hoffmann, Pat Morrison, Brad and Caroline Bailey, and Jeff Kreuziger

Attorneys: Ray Roder, Andrew Griggs, Amy Tutwiler

Board Members: Chuck Joyce, Charlie Zimmerman, and Jerome Haase. Leroy Schultz and Jeff Mameyak were absent.

The meeting was called to order at 7:18 PM by Chairman Chuck Joyce. The pledge of allegiance was said.

Motion by Chuck Joyce/Jerry Haase to approve the minutes as presented. Motion carried.

The purpose of this meeting was to go over the CUP. Chuck Joyce indicated that there have been several meetings between him and the attorneys for both sides. Unfortunately, due to Attorney Griggs’ schedule, the proposed draft of the CUP was not available for the members to review prior to the meeting due to the lateness of its receipt.

Atty. Tutwiler indicated that there were differences of opinion including but not limited to:

Paragraph 5: The last sentence should indicate the month of May to give the parties flexibility.

Paragraph 10, 7, and 53(d): There is a difference as to the town’s and state’s ability to enforce the provisions should the state decide not to enforce.

Paragraph 51: They object to the payment of fees – ULWR agrees with the change in language but does not agree with the amount.

Paragraph 52: There is a need to discuss options.

Paragraph 16: The parties have agreed that Jerry Foellmi would discuss with Randy Wirtz the conception management plan however this has not yet been discussed between the two. No language had been developed to discuss this.

Paragraph 10: The sentence that refers to signatures by a certified Wastewater Treatment operator and a corporate officer should read Wastewater treatment operator “or” a corporate officer.

Both sides have gone over the draft and discussed it extensively.

Chuck Joyce indicated that since the last meeting, he felt certain conditions and language were close to being agreed upon by the parties. There have been a number of meetings between the parties to finalize some of the language in the CUP. The basis has been to maintain the integrity of the town and plan commission. Chuck is hopeful that this is the final draft of the CUP. He feels the few points brought by Amy are minor considering where this started from. He feels that the draft is protecting the interest of the town while allowing the business to operate within the confines of the town in their best interest.

Atty. Roder pointed out the major changes.

1. Individual Spreading Sites – The conception was that all of the sites used by ULWR as of the date the CUP becomes final would become part of the CUP as long as there was approval by the DNR and an owner acknowledgement. If ULWR wants to spread on land in the future, they would have to get the owner’s permission, get DNR approval and amend the CUP. This site would then be subject to all the terms of the CUP. The concession agreed to was that any site that was added from the date of application to the date of the CUP approval would all be approved once the CUP is accepted. Charlie Zimmerman questioned that ULWR did not wait to get approval for spreading on the former Quest farm. Ray felt that this was intended to force a legal issue being municipal waste being mixed with other waste. Ray indicated that this matter is before the court now. Charlie inquired of ULWR why they spread on the property and Atty. Tutwiler indicated that ULWR acted on her legal advice. She indicated that previous CUP’s for land spreading were denied by the board. Charlie pointed out that there have never been a CUP denied, two previous ones were withdrawn because of lack of owner approval.

Marylee Peterman questioned the legality of the meetings because there has not been any motion made to have the attorneys act on behalf of the town. Chuck Joyce indicated that at the previous meeting, the attorneys were directed to try to come up with a final draft. Marylee indicated that no motions were made to have the attorneys act on this matter. Attorney Griggs indicated that this matter can be discussed and brought back to the board which is what happened. Discussion held on this issue. Atty. Roder indicated that he will take the heat on this and that at the last meeting the attorneys were directed by the chairman to try to reach an agreement on the CUP. Atty. Griggs felt that it was much more efficient for the attorneys to meet and streamline the CUP but it is up to the board to decide whether to grant the CUP. Question was raised as to the Zoning Chairman being at the meetings. It was felt that his input was good.

2. The Wastewater Treatment Plant proposal as it was presented to the Plan Commission and Town Board is that its capacity would be 75,000 gal. ULWR advised that they currently do 150,000 gallons per day so this was changed in the draft. Attorney Roder has asked Jerry Foellmi about this but has not gotten an answer as of yet.

3. Enforcement issue - This was compromised as it relates to odor. A complaint process has been developed that segregates several types of problems. The form will be put on the website and will be dictated by the WPDES permit. ULWR would then have five days to get the complaint to the clerk.

4. Emergency Action Plan – All of those provisions got condensed down into an operation and maintenance plan filed with the DNR and included in this will be a plan that states what will happen with a malfunction and what will happen on various sites.

5. Setbacks – In order to avoid a legal issue, a setback provision of 300 feet to a navigational stream was stated but instead referred to the DNR code.

6. Financial surety – The $720,000 figure came from Jerry Foellmi after he talked with comparable companies. The town would accept the $720,000 as either a first mortgage on real estate or a combination of real estate and personal property. The personal property could only be equipment that could be used for land spreading.

7. Town Ordinance – Currently, if a CUP isn’t used for 12 months, it would expire. This would be unique use because sometimes ULWR may not use a field for 12 months, so this CUP says 24 months instead of 12 months.

8. Payment of fees – The Town’s Zoning Administrator has the option to designate a consultant to do the work regarding checking the liners for ULWR. If a consultant does the work then all the fees are paid to the consultant. Should a consultant do the work, that amount is payable by ULWR but is capped at $5,000.

Items to be completed: Exhibit A is a list of the sites that are grandfathered before the ordinance was in effect. Exhibit B is a list of the sites used since the ordinance went into effect. Other attachments have to be completed also.

Pat Morrison asked where the $75,000 fee contribution come from. Attorney Griggs indicated that it came from a significant part of the work that has been done. The original number was $50,000 which included attorney fees, engineering fees, etc. This is an add on to that number which is negotiable.

The terms of the WPDES permit are incorporated into the CUP which compressed the size of the CUP. Atty. Tutwiler indicated that ULWR has made significant concessions in this CUP in order that this CUP will get approved. ULWR is not required by law to restrict the volume that they take in but in the interest of compromise ULWR has agreed to restrict volume. She listed several other areas where ULWR has conceded in an effort to get this approved. ULWR has agreed to make sure that the odors are under control.

Pat Morrison questioned what would classify as a modification of the limits. Attorney Tutwiler indicated that there is some discretion from the start up to a 12 month period. Charlie Zimmerman questioned about this being an expansion project because of the initial request of 75,000 gallons and now 150,000 gallons is being proposed. He indicated that he did not feel the system was not big enough to handle 150,000 gallons per day. Pat Morrison indicated that this is a volume that ULWR and the town may consider, not that it shall really happen. The idea is that ULWR would get the plant operating and then have a grace period to get it on track.

Randy Wirtz stated that he would be willing to discuss the lagoon volume with Charlie Zimmerman if he so wished. The system will not allow them to bring in more waste than the 150,000 gallons per day. The original design was for 125,000 gallons a day. Mr. Wirtz is not sure what the maximum is. It is a very conservative design.

Attorney Roder suggested the board members take the CUP home to go through it and then come back for a meeting to discuss it further. Charlie Zimmerman would also suggest that if any public individual would like a copy of it, they be allowed to take it and that they be allowed to bring up questions they have. The proposed CUP will be posted to the website. This is not a final draft. Cleanup work needs to be done. Nancy Schlender asked about the negotiations. Attorney Roder indicated that these will continue. Pat Morrison asked how the comments will be handled. Chuck Joyce indicated that these will be handled as come up while they continue working on the final draft. Lynn Zimmerman asked what was going to be in Exhibit C. This will contain the forms that need to be submitted to the town.

Chuck Burkholz asked about the details of the town’s enforcement of these provisions. Atty. Roder indicated that the procedure is outlined in Paragraph 53. ULWR is concerned that the town will come up with frivolous things and unfounded complaints. Discussion held on this issue. There is also an exhibit D, which is the owner verification form as it pertains to Paragraph 34 (of the marked up CUP draft). The last step is the drafting of Findings of Fact and Conclusions of Law.

Question was raised if Attys. Griggs and Roder felt they were maintaining the right direction of the Plan Commission and Town Board for the CUP. They indicated that they felt this was being done.

Atty. Roder also indicated that the hours of operation have been changed so that they are in agreement with all parties. Atty. Griggs felt that this represents a very reasonable compromise and still maintains the enforcement concept and will improve the odor problems.

Lynn Zimmerman questioned where it was stated that the Zoning Administrator could hire a consultant or designate someone to do this work and was advised that it was in Paragraph 8.

Chuck Burkholz asked about having a comment form along with the CUP posted on the website. It was felt this was a good idea but the comments will not be answered until the next Appeals meeting.

Chuck Joyce commended the Plan Commission and the Town Board for their efforts in the initial draft of the CUP. It gave the Board of Zoning Appeals a good foundation to work with.

Atty. Tutwiler felt that the final points are within a workable solution. The bond surety issue is unclear. The payment issue is questionable and these two issues need to be intertwined. She feels that a compromise can be reached on the enforcement issue.

They will try to get the final details settled before the next meeting and will be conducting conference calls to do this.

The next Board of Zoning Appeals meeting will be Wednesday, December 3 at 7:00.

Motion by Charlie Zimmerman/Jerry Haase to adjourn. Motion carried. Meeting adjourned at 9:06.

Respectfully submitted:

Kris Kohlhoff
Clerk

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Attendees: Nancy Schlender, Chris Spilker, Mary Kreuziger, Marylee Peterman, Marjorie Gahlman, Bob Tracy, Jr., Chuck Burkholz, Steve Hoffmann, Dave Blank, Jeff & Jeanne Kreuziger, Randy Wirtz, Jerry Foelllmi, Pat Morrison, Caroline and Brad Bailey

Board members present: Chuck Joyce, Jerome Haase, Charlie Zimmerman, Leroy Schultz, Jeff Mameyak

Attorneys Present: Amy Tutwiler, Ray Roder, Andy Griggs

The meeting was called to order at 7:07 PM by Chairman Chuck Joyce with all board members present. The pledge of allegiance was said.

Minutes – Ray Roder noted corrections in two paragraphs of the previous minutes. The first correction is on page 1, the second paragraph under “Minutes,” with the sentence that ends with “the present time,” the words “unless requested by the Board of Appeals” should be added. On page 2, in the sentence that ends with “non-ag waste cannot be spread on ag land,” the words “without a permit” should be added. Motion by Leroy/Jerry to approve the minutes with corrections as noted. Motion carried.

Chuck indicated that the meeting was not for public input except as requested and hopefully they could come to a compromise on the CUP that was agreeable to both parties. Chuck asked Attorney Roder if there were any major conflicts with changes made by Attorney Tutwiler.

Attorney Roder explained that ULWR wants the town to abandon its enforcement by agreeing that if the DNR or state or federal court reaches a conclusion about compliance that that determination would bind the town. ULWR does not want to give the town automatically all documents filed with the DNR. It is unclear what permit terms and conditions the town would be able to enforce, among which would be hours of operation. He knows there is a dispute on hours as it affects municipal sewage sludge. There is a question about providing certain random sampling. There is also a question about the bond, should it be in some other form such as property valued at $500,000. Those are the major disagreements.

Attorney Tutwiler stated that was a reasonable summary of where the parties differed. Paragraph 17 which seeks to set forth limits she feels is addressed in Jerry Foellmi’s proposal.

Atty. Griggs asked about whether this involves other property or just the proposed lagoons. Leroy Schultz asked about what percentage of the waste is gotten from the township of Clyman. Attorney Tutwiler indicated that she does not have an answer to that and asked why it was material. Leroy said that he noticed that the DNR says this or the State says that, doesn’t the town have any say as to what is put in their ground. She indicated that they have a different view of what the town’s role is. Determination of non-compliance should be done by the state because decisions are made every day as to where they draw the line.

Attorney Roder indicated that ULWR needs to identify its non-compliance with the WPDES permit as part of the reporting process. The issue is who will enforce the non-compliance. Is the town willing to concede its enforcement to the DNR. The DNR does not act very quickly in their enforcement as seen by the odor problems in 2004. They basically did nothing until 2006.

Chuck indicated that the town needs something that is not a subjective form of control. ULWR is offering to be in compliance with the DNR however there is a question of whether the DNR will enforce their WPDES in a timely fashion. Chuck mentioned possible fines for violations of the CUP and WPDES. He wants to make sure that if the DNR doesn’t act, that the town has the right to act on the CUP violations. Atty. Tutwiler indicated that the DNR has a stepped process for non-compliance. A letter is first, then further investigation, consultation and at that point the Department decides yes or no on whether to proceed to the next step which is a notice of violation. The challenge is at what point is there a non-compliance issue that has been confirmed. She indicated that there is a big trust issue and the factor that at what point in the process would the town get involved. Chuck indicated that the odor is of great concern to all but also the hazardousness to the well water. With respect to odor, Attorney Tutwiler indicated that there are measures in place and the odor complaints have gone way down. Hazardous waste involves the trust issue. ULWR has agreed to provide for periodic field sampling. Jerry Foellmi’s proposal in his letter of 9/22/08 (Paragraph 60A) is acceptable. She indicated that ULWR does not accept hazardous waste. This plant is designed to address and reduce odor, but is not needed as a step in managing waste. She indicated that this would have a beneficial effect on the soil. If ULWR would take in waste that doesn’t fit into their permit, this would raise not only a local concern but also a state concern.

Chuck indicated that if we find a violation has occurred, we want the ability to say we want something done and that we should not have to wait for the courts to handle it. Chuck indicated that we are asking that if there is a violation as determined by the DNR, does the town have the ability to do something if the DNR does not do something. Atty. Tutwiler indicated that their goal is to be treated fairly and this should occur at the state level. Chuck asked about using a scent meter that could be set up on a calibration process. Engineer Randy Wirtz indicated that they don’t use them currently so he is not sure if they are accurate. Chuck asked about the odor issue being reviewed on a yearly basis.

Charlie indicated that what was being discussed was not the function of the Appeals Board. He indicated that the Appeal Board’s function is to correct any errors and not to re-write the CUP so that it pleases the parties. Atty. Roder indicated that the Board can re-write conditions previously made to correct errors or rephrase the Board’s work but not to undo its policy decisions. The purpose of the Appeals Board is to identify any inconsistencies and rewrite, not override, policy judgment to reach an accommodation. The real issue should be does the town have the power to enforce the CUP. Atty. Roder indicated that they have the right and the obligation to protect the town in their ground water and enforcement. Charlie felt that the town needs some authority to enforce this CUP. Atty. Roder indicated that it will take ULWR a certain number of months to get this up and operating. During this time they will have some upsets, but at the end they should be able to say that when they put stuff on the fields and there are odor complaints it is because the dissolved oxygen is “x”. That tells what would be an enforceable number. Atty. Roder thinks the town should give them the chance to build this and operate it. He feels that the lagoons will go a long way in the odor issue. Charlie did not feel that the Appeal Board was the place for this compromising. Attorney Tutwiler indicated that if the CUP were issued as it was today, there would be litigation. Chuck indicated that we are trying to avoid litigation and keep the costs down for both parties. Charlie indicated that at the last meeting we went through the same thing and now we have to revise it again. Chuck indicated that we are trying to get beyond this and talk with both parties to resolve the issue.

ULWR is willing to consider options to address the town’s concern about odor monitoring. Atty. Tutwiler indicated that she did not have a chance to fully review Jerry’s letter and can only speak in concept. Jerry Foellmi indicated that there needs to be someway to establish an acceptable discharge limit. Once it gets to a stable state that would give parameters of establishing BOD to control odors. He indicated that that will take time but that is what the start up process is about. He thinks that if this thing goes through that it will satisfy the problems we presently have.

Chuck asked about how to get compromise compliance with violations and providing documentation. There is a concern with providing the town with the DNR documents. They want a written request but they want to have a discreet event to provide documents. Chuck indicated the problem with this is that we don’t know when and what to ask for and that we are only asking for duplicate documentation. Attorney Tutwiler indicated that we could work something out about the town being noticed about non-compliance. Atty. Roder indicated that they should make up two envelopes, one to the DNR and one to the town. The fail safe way would be to submit whatever is submitted to the DNR to the town also. Atty. Tutwiler indicated that there is an element of reasonableness to this request. Chuck indicated that perhaps if this is complied with for a certain period of time then trust would be established. Atty. Tutwiler indicated that this would be ok for the town but not with ULWR. Chuck asked Bob Tracy, Jr. if this would cause a problem and he indicated that this was something that could be worked through. Jerry Foellmi asked if the reason they wouldn’t provide this was because of privacy issues. Atty. Tutwiler indicated that documents submitted to the DNR do not contain client information. She would like a description of the documents they want to see. Jerry Foellmi felt that everything submitted to the DNR should also go to him on behalf of the town. He will go through to see what is appropriate and what is not and then take the step beyond that.

Steve Hoffmann asked if the forms received from the DNR would be acceptable to submit to the town. Jerry indicated that those would be acceptable along with any non-compliance notice. Atty. Roder indicated that the town took the language from the WPDES permit and paraphrased it regarding the information to be submitted to us. Jeff Mameyak asked about how many documents are filled out in a month’s time. Steve indicated that there are about 20. Atty. Roder indicated that he felt that these reports only had to be submitted every other month. Atty. Griggs indicated that everything that goes to the DNR should come to the town. There will be a reasonable standard to this so that the trust element is addressed. Atty. Tutwiler indicated that Steve sends routine correspondence to the DNR and wants to make sure we are just talking about reports.

The creation of the lagoons and the BOD odor control would be something that would be developed as this progresses.

Hours of Operation - ULWR objects to the hours of operation. This is a business that receives waste primarily from the food industry. They have a need to receive waste to meet their client’s needs. They need to be able to operate the facility on an as needed basis which could be 24 hours a day 7 days a week. The town’s concern is accepting the waste with all the trucks coming in and involves the noise. Secondly, if the waste is discharged directly on the fields during the middle of the night. Atty. Roder indicated that with the Wastewater Treatment Plant, there should be no need to do that. Bob Tracy, Jr. was asked how often they are asked to pick up in the middle of the night so as to avoid the noise. Bob said that the operation is 24-7. He indicated that this happens all the time, 30-40 percent is ongoing and 5-10 percent is on an emergency basis which provide effluents that have to be dispensed. They have certain clients where they pick up during the middle of the night because they operate around the clock. Discussion held as to when wastewater could be picked up and received. They agreed that they could restrict the field spreading to the hours as requested except for possibly sugar water and they would try to minimize the middle of the night receivings. Bob Tracy, Jr. indicated that they are just looking to do hydraulic loading during the middle of the night. Language could be developed to limit land spreading. Bob indicated that this hasn’t happened in the last four years but that it could happen at any time. Leroy indicated that he felt the town was catering to the company but the company was not catering to the town. Atty. Tutwiler felt that they are going above and beyond to reach this compromise. They are agreeing to limit their land application activities with one exception that doesn’t seem to be a big issue. Attorney Roder asked about possibly parking the trucks received in the middle of the night into the garages so as to minimize noise.

Random Field testing – ULWR will agree to language that random testing can be performed with no further consent needed. Jerry Foellmi indicated that he will be using the samplings as outlined in the WPDES permit. ULWR is acceptable to the cost and they have to maintain the sample.

Bond – Atty. Roder polled people in his firm that do a fair amount of bonding. He indicated that the bond cost of $30,000 is in the correct range. Bob Jr. indicated that he talked to a bond company and they would request 4.5% for the bond. He also checked with the bank and both request a term bond. These companies could not assess it because it wasn’t a term bond. Chuck advised him to investigate additional companies. Chuck asked about a potential combination of the two. Question raised about what it would cost to clean up the site. Atty. Roder indicated that Jerry Foellmi and Sauer independently came up with the $1,500,000 figure. Bob Jr. was questioned about insurance for rebuilding for failure of a lagoon wall which would only cover the cost of the building itself. The town would not be able to access this. Jerry was asked how he came up with this figure. He indicated it was based on rebuilding, repair, and clean up. Atty. Tutwiler indicated that ULWR does not really believe a bond would not be needed but they are willing to look at one for purposes of settlement. Jerry Foellmi will try to get some figures on this issue. Bob, Jr. will provide Jerry Foellmi with names of competitors to check with. Atty. Tutwiler recommended that some discretion be used. There is a need to identify potential costs for abandonment which may or may not affect the total bond issue. In conjunction with the bond guarantee, Bob, Jr. asked if ULWR could give land they own to spread on within a 5 miles radius if they walked away over and above the other land they are offering. The land cannot be sold off.

Atty. Griggs brought up about reimbursement of attorneys fees and costs. He felt this has been completely avoided. He feels that otherwise this cost will fall on the citizens of the Town. Atty. Tutwiler indicated that they do not agree with the costs because ULWR complied with the costs required at the time of filing the CUP. She feels that the town is asking ULWR for a blank check. Atty. Roder indicated that based on experience under the negotiation processes he was previously involved in, this is not beyond the town’s power. Atty. Tutwiler stated that there was no ordinance in place at the time ULWR filed their application. Atty. Roder indicated that the fees do not have to be specified in an ordinance. Discussion held on Section 13 of the Zoning Ordinance. Chuck asked about breaking the problem down. Atty. Tutwiler feels that it is a big issue. She does not feel that ULWR should be paying for on-going inspection costs. She feels this is the role of the state, not the town. If ULWR would consider paying past costs, they would have to go through the items and weed out the negative meetings involved. Chuck asked if any numbers have been discussed. The Town would have to go through and identify what could be worked with. Atty. Tutwiler indicated she needs to discuss this in private with her clients. Chuck requested that she get back to Attorneys Roder and Griggs on this matter. Jerry Foellmi should also put together some figures as to his cost figures.

The permit must run with the land. ULWR will agree to limit the hours of direct spreading but have not discussed anything on other spreading. Leroy indicated that he has run off on his land from ULWR spreading on adjacent land. Atty. Roder indicated that this is to be addressed by the WPDES permit. He suggested that Ken Denow of the DNR be notified . Based on the documentation that has been received some fields have been grandfathered, but many more are not and no CUP has been granted. Atty. Roder thinks that it should be folded into this permit. He informed ULWR that only those fields spread before March 20, 2000, are grandfathered. After that, until May 10, 2004, they are in violation because those fields are not grandfathered. Their position is that the town does not have authority on land regulation at this time. Discussion held on this issue. ULWR is fighting this because of the restrictions being placed on them for land spreading. Under the CUP, the same time they submit items to the DNR they need only submit them to the town. ULWR would provide documentation that they obtained state approval of the site and identification of those lands that are spread on prior to March 19, 2000. Getting required approval from the land owners is not required by the state. Under the CUP, they must alert the land owner that they are going to use their land and they must be in compliance with the WPDES permit. Atty. Roder thought there has to be evidence of the land owner approval. ULWR has a concern about harassment from citizens.

Discussion held on there being consistency within the town if this matter comes before the board again. Mention was made about possibly adding these restrictions to the ordinances. Discussion held on other competitor’s complying with the spreading restrictions.

Atty. Tutwiler indicated that they would like to review Jerry Foellmi’s report. Atty. Roder inquired if the attorneys could sit down together and come up with a draft to present to the Appeal Board. If there are points of disagreement, highlight them. Jeff Mameyak asked if this could be presented the night of the meeting instead of prior to the meeting because of the document being passed around to other people before the meeting. The board was cautioned not to share information received from counsel before the meeting with anyone else.

Atty. Tutwiler indicated the cost issue and cost of clean up would be the sticking issues.

The next meeting date will be October 28 at 7:00 PM.

Motion by Leroy/Jerry Haase to adjourn. Motion carried. Meeting adjourned at 9:55 PM.

Respectfully submitted:

Kris Kohlhoff, Clerk

Top of Page

Attendees: Marjorie Gahlman, Dave Manning, Margaret Johannson, Mary Kreuziger, Lynn Zimmerman, Marylee Peterman, Nancy Schlender, Chuck Burkholz, Jeff & Jean Kreuziger, Robert Tracy Jr., Brad & Caroline Bailey, Steve Hoffman, Dave Blank

Attorneys Griggs, McFarland, Tutwiler and Roder were also present along with appeal board members Chuck Joyce, Leroy Schultz, Jerome Haase, Jeff Mameyak, Charlie Zimmerman.

The meeting was called to order at 7:00 PM by Chairman Chuck Joyce.

Minutes – Bottom of Page 1 – Charlie Zimmerman stated that he did not say that his well was polluted as claimed by Caroline Bailey. Page 2 - Marylee Peterman, ex-plan commission member, stated that there is a lack of cooperation from ULWR and its attorneys. This statement was not listed in the minutes and it was felt it should be included. Motion by Jerry Haase, seconded by Leroy Schultz to accept the minutes as amended. Motion carried.

This meeting was a continuation of the July 15, 2008 meeting. Chuck had requested ULWR and Atty. McFarland to present a presentation of what they are contesting. The copy received from ULWR’s attorney was not in the form that was asked for. Attorney Roder did put the CUP’s in side-by-side comparison form for which Chuck thanked him. Attorney Roder advised that the meeting would not be open to public input at the present time. Attorney Roder requested to add Exhibit 6 to the list of exhibits which is the side-by-side comparison of the CUP’s. Motion by Leroy/Chuck to add the exhibit. Roll call vote taken with unanimous approval.

Attorney McFarland pointed out that Tracy Bros. LLC is the correct owner. The applicant and permittee are ULWR. Attorney Roder stated that the town’s understanding is that ULWR is the owner. Tracy Bros. owns the land, not ULWR. Attorney Roder suggested that ULWR be operator and an applicant. Tracy Bros. would be the owner and an applicant as well. Tracy Bros. LLC does not operate ULWR. The application itself listed ULWR Inc., as the applicant and Tracy Bros. LLC as the owner. Language holding both entities jointly and severally liable was taken out by ULWR attorneys. Question was raised as to who would be bound if there was a violation. Both would be bound. Attorney Roder pointed out that under the CZO the CUP has to be issued to the owner of the land. He felt that both entities should be listed as applicants and owners. Attorney McFarland objected to ULWR being listed as the owner of the property. The language should be reworded to distinguish Tracy Bros as the owner of the land and the equipment. ULWR would be listed as the Permittee along with Tracy Bros. LLC.

Attorney McFarland felt that “property” was a broad term to use. He felt this is inconsistent with state regulations and is an attempt to micromanage ULWR. Attorney Roder pointed out that any application to land spread was not permitted from 2000-2004, thereafter, CUP’s should be obtained. Attorney Roder asked which property owned by ULWR and Tracy Bros. LLC would be grandfathered in. Attorney McFarland indicated that information was never asked for. Jeff Mameyak questioned if all spreading application requests are handled in this manner. Attorney Roder indicated that he had no information about other requests for spreading. Attorney McFarland objects that this CUP applies to all land that ULWR wants to spread on. He felt this CUP should apply only to the CUP for the lagoons. Leroy Schultz questioned if all waste went into the lagoon first before being spread on the land. Attorney McFarland said that there is direct application as allowed by the state permit. Chuck Joyce asked if the DNR identifies the land that is approved for spreading and McFarland stated that he felt they had this information and that the dates were included. McFarland stated that if the town feels that ULWR is spreading on land for which they don’t have a CUP, they should advise ULWR and request that ULWR present proof of the approval. They object to broadening the definition of land other than where the lagoons are. Chuck felt that McFarland was being unreasonable and if ULWR feels that they are grandfathered in, they should present proper proof. McFarland felt that broadening the definition of the property was an attempt to control the land application sites of ULWR. Attorney Tutwiler indicated that they removed terms of applying on any other land that doesn’t apply to the lagoons. Attorney Roder indicated that the burden of proof is on ULWR. He feels there is a dispute between what the ordinance says and what ULWR wants it to say. Roder felt there should be some “tentative agreement” reached so they can move on. Attorney McFarland stated that he did not understand what was the use of approving other lands other than the lagoons. He indicated that this was a CUP to build the lagoon and not doing land application. Attorney Roder explained how the CUP would work with spreading on additional properties. He felt this would bring ULWR in conformance with the law and was a flexible way to do it. ULWR indicated that they have no desire to do it in any other form. Attorney Tutwiler stated that there is nothing in the application that describes land application activities. They did not apply for an application to land apply. Attorney Roder explained that the Plan Commission exercised their logic in the matter and explained that non-ag waste cannot be spread on ag land. Attorney Roder pointed out there are no permits to dispose of non-ag waste by ULWR or anyone for that matter. If ULWR is disposing of non-ag waste in the town, they are not in compliance with the ZO. He mentioned the former Stanton, Doherty and Bremer farms. Attorney McFarland stated that these issues will be resolved in the courts. He feels the activities on those farms were in compliance with the town ordinances. He indicated ULWR has been on the receiving end of a lot of accusations. Attorney Roder stated that ULWR’s chemical process is very odorous. Jeff Mameyak stated that you can’t put control on an agricultural community. Attorney Roder countered that you can put a nuisance control on the odors.

Attorney McFarland stated that Wirtz stated that in his best engineering judgment this system will work and reduce odor. McFarland stated that no one has disputed this point. Attorney Roder pointed out that Sauer and Foellmi can dispute this. Attorney Roder indicated that no one wants this to fail because of the odor reduction. Leroy Schultz asked what happens if it fails. McFarland said that to a reasonable engineering certainty this is likely to work. Disposal of the waste would have to be done according to DNR regulations. Jerry was asked about a success/failure ratio of the lagoons. He stated that no one else in the United States takes this type of waste and he is concerned about the operation of it and the mixed bag of things that might possibly come in that will cause it to fail. That is why there has to be an emergency action plan.

Chuck Joyce asked at what point it becomes identifiable that a failure has occurred. Attorney McFarland stated that any waste that goes in could be directly applied. There could be a disposal problem. It is not land applied until it comes out of the second lagoon. Attorney Tutwiler stated that ULWR will have to prepare an operation and maintenance manual for the lagoons. Jerry Foellmi stated that this manual would have to be written around this particular facilities’ requirements. Attorney Tutwiler indicated they would agree about requirements in a single document. Attorney Roder pointed out that the CUP contains the 5 points requested by the DNR and that these points should be added to the operations manual and the EAP. Attorney Tutwiler stated that the WPDES Permit contains the land application management plan. The operations and maintenance manual is designed to foresee and address the land application process. They will incorporate an EAP plan into the operations and maintenance manual. They have no problems with our engineer’s concerns. Attorney Roder stated that the DNR, Plan Commission and Town Board want this to work but have concerns if it does fail. ULWR must meet DNR’s approval before they can begin the project and they will provide this information to the town if requested. Attorney Griggs felt that the “property” definition should not be narrowed.

Jeff Mameyak asked who was going to be monitoring this. Attorney Roder stated that the Zoning Administrator would be handling this. Roder explained why he didn’t feel DNR should handle this exclusively. Discussion held on this issue. Attorney McFarland stated that ULWR’s record is pretty good. He felt that the town was acting like a satellite DNR office. Attorney Roder stated that the temporary injunction was lifted because of an agreement to certain steps that ULWR has taken which have been effective.

Chuck Joyce indicated that the citizens are concerned about the smell and ground water contamination. He asked about the BOD being a critical level to control the smell. If the BOD level can be modified at disbursement and identified, can a level be established. Attorney McFarland stated that this is a problem because there is no liquid waste company under this limit. Discussion held on whether BOD has to do with odor. Attorney McFarland indicated that the State Statutes are enforced according to DNR. Meeting the BOD does not necessarily mean offensive odor. ULWR would be willing to identify a target BOD number to use to control the obnoxious odor. Jerry Foellmi finds it difficult to understand that they took all of that out of the CUP which would ensure a low odor level.

With regard to No. 17, it was requested that ULWR seek an opinion from their expert and see how they coincide with the DNR’s opinion regarding odor level. McFarland feels that this is not a safe haven for the company. Mr. Wirtz will have to address these issues. They will try to come up with something. Charlie Zimmerman pointed out that all these items should be brought up to the Plan Commission. Attorney Tutwiler indicated that that process was dismissed by the Plan Commission and she takes offense to that statement. She felt that the proposals reached between a smaller group and brought to the Plan Commission were knocked down. Jeff Mameyak did not feel that a number should not be put on this for odor. Attorney Tutwiler indicated that there is a constant trying to restrict odors. ULWR will try to get Mr. Wirtz to come up with a number that would restrict odors. With regard to No. 17, it should state comply with the WPDES permit.

If all parts of the WPDES permit are enforceable by the town, the permit could be much shorter. Attorney McFarland said that ULWR has no problem complying with the WPDES permit and DNR regulations. Attorney Tutwiler indicated that the town should not enforce the State’s requirements. The town should act to enforce the CUP and establish a format for submitting records.

Chuck Joyce indicated that the town would like assurance about their wells. Chuck suggested random sampling be done by Wirtz and Foellmi and sent in for testing for which ULWR would be responsible for payment. Attorney Tutwiler stated that there is a provision in the CUP under No. 60 for well testing but does not include coverage of the cost and inspecting. Attorney McFarland stated that that concept is fine. Bob Tracy Jr. indicated that the sampling cost of metals would be $1,000. Chuck Joyce suggested possibly doing this only 3 times per year in light of the cost. Other samples would be $300 to $400 and done possibly 6 times per year. Jerry Foellmi would provide input as to what the samples should be tested for. Attorney McFarland stated that there is a confidentiality order in place with the DNR. The town is not asking that the contract be breached.

Attorney Roder pointed out that the CUP would expire in one year but the appeals board can change this time line and asked what would be an appropriate time. ULWR should check with Mr. Wirtz and get back with this information.

Also the time frame for spreading municipal sludge should be taken out.

No. 63 – Bonding: Attorney McFarland said that this would be cost prohibitive to the company. He felt that this should not be required because ULWR does not handle hazardous waste. ULWR would be willing to give security in farm land in the town that has a value of close to $500,000. ULWR would provide proof that the land would be free of liens. Chuck Joyce suggested going with that proposal.

Leroy Schultz would like to see identification of the property that is grandfathered in prior to the ordinances being put in place. Attorney McFarland will talk this over with his client and respond. Attorney Roder indicated that the grandfathering doesn’t extend to a new company. Being with Tracy & Sons does not mean that the grandfathering would cover ULWR. ULWR should present their records as to what they feel has been grandfathered in and the Appeals Board can determine whether it should be grandfathered. Chuck indicated that the grandfathering date would be when the DNR established their database. Bob stated that the company change date may not be reflected.

Chuck Joyce asked if Attorney Griggs and Roder had enough information to come up with another proposal.

The next meeting is scheduled for September 23 at 7:00 P.M.

Motion by Leroy/Jerry to adjourn. Motion carried. Meeting adjourned at 9:40 PM.

Respectfully submitted:

Kris Kohlhoff
Clerk

MEETING MINUTES
TOWN OF CLYMAN
April 29, 2008 BOARD OF ZONING APPEALS Clyman Town Hall

The board meeting of the Town of Clyman Board of Zoning Appeals was called to order on April 29, 2008, at approximately 7:00 pm by Chairman Charles Joyce. Also in attendance were Board members Jerome Haase, Jeff Mameyak, Charles Zimmerman and LeRoy Schultz. Also present were Jeff Retzlaff, Jerry Foellmi and about 10 Town residents in the audience.

The initial discussions involved the purpose of the meeting as there was no specific agenda. After some discussions Chairman Joyce stated to the audience that the meeting would not involve discussions or decisions relating to recent appeals requests by ULWR or Tracy Brothers LLC. The meeting is to cover a review of ordinance changes from 2007 to determine any impact on the BZA as well as the consideration by the Board of recommended changes to the ordinances for 2008.

Several Board members had faulty copies of the Town’s Zoning Ordinance. Apparently, only the odd pages were copied. Those with full copies of the ordinance did not have reference information on whatthe ordinance changes were and what the old language was. Discussion followed on whether to continue with the meeting. Jeff Retzlaff, smart growth planner for the Town had the marked up version of the 2007 ordinance on his laptop and offered to walk the Board through the changes. The meeting continued.

Section 17 Table of Revisions on page iv of the ordinance was used as the reference for ordinance changes in 2007.

a) Section 3.6(7) – the question was raised why the control in this paragraph was given to the Town Board and not the Plan Commission. It was a timing issue due to dates of meetings.

b) Section 10.6(2) – this section dealt with changes to the restrictions on signage separation which should reduce the total number of signs allowed.

c) Section 14.2 – the changes involved stipulations that the Town Chair appoints the PC Chair and Town resident members of the PC. Questions were raised regarding the removal of a member by the Town Chair and whether that was allowed. There was a question of the location of certain swearing in documents for BZA members. The location of those documents is not clear.
Comments were made regarding a previous resolution/suggestion the PC Chair and BZA Chair
provide recommendations to Town Chair for vacant positions. Apparently, the resolution did not
get passed on to the Town Board. Discussion involved whether the Town Chair could remove a PC or BZA member. A brief review of the ordinance didn’t find a reference to that authority.
The BZA wanted to make a recommendation to the Town Board that would be included for
consideration in the 2008 ordinance update. The motion was as follows: Motion by Joyce/Haase
that the PC Chair, BZA Chair and the Town Board Chair become the review committee for all
applications to fill vacancies of the Plan Commission and Board of Zoning Appeals positions. Roll
Call Vote, 5 ayes, 0 nays. This is to be recommended to the Town Board for consideration at
their next meeting.

d) Section 6.6 – This is a statue number change and no issues were raised.

e) Section 5.1(3)(a&b) – These sections dealt with allowing an additional accessory building and a higher percentage of building area per lot/parcel. No issues were raised.

f) Section 11.8 – This change involved the requirement of State Approved Plans submittal to Town prior to construction of non-ag/non-residential building. Some discussion ensued involving the necessity of the change. The Board asked that GEC offer an explanation for this change.
Discussion shifted to the ULWR appeals application and whether the BZA has jurisdiction in reviewing this without consideration of the ongoing actions between the Town / its legal council and ULWR / its legal council. Both Jerry Foellmi and Jeff Retzlaff recommended the BZA contact the Town and its legal council to make sure the Town and its committees were all on the same page when dealing with a very complicated issue such as the conditional use permit for ULWR.

Motion by Joyce/Haase to adjourn. Motion carried. Meeting adjourned.

Respectfully submitted:

Jerry A. Foellmi

Jerry A. Foellmi P.E.
Town of Clyman Zoning Administrator