MONROE — Green County is on the hook for over $22,000 in legal fees, in addition to about $45,000 already spent on a private attorney, after a judge found the county Board of Adjustment violated open meetings law.

Judge Duane Jorgenson’s ruling on Sept. 18 brings to close almost two years of litigation between the Board of Adjustment and Green County landowners.

But the underlying issue that led to the civil suit remains: concern over open wastewater tanks at the corner of County C and Locust Road in rural Argyle. Neighbors contend noxious fumes from the tanks, owned by Bytec Resource Management of Monroe, are affecting their health and quality of life.

The tanks smell like “a combination of vomit and chlorine,” and it’s worse in humid or wet conditions, said Michelle Olson, who lives about a mile from the tanks.

“Lately it’s been pretty mild, but the thing is, it can be mild and still cause you issues,” she said on a clear, sunny day at her home in August.

The tanks have been the focus of legal battles for several years — and continue to be. 

In October 2017, several landowners filed a complaint that the Board of Adjustment did not give proper notice of appeal hearings related to a permit for Bytec to replace two tanks on the site. Over 90 people turned out to a July 2016 public hearing on a Bytec request to replace one tank, with the majority of those who spoke voicing opposition to the permit. The Board of Adjustment denied the permit and asked Bytec to examine how to improve conditions for neighbors and to re-apply in a year. Instead, about three months later, the county approved a permit application from Bytec to replace two tanks on the site, which neighbors tried to appeal.

Jim Weber and his neighbors James and Pamela Scheider and Richard and Martha Ladwig contend the board violated a state law that governmental bodies publish notice of certain meetings for two consecutive weeks, the second of which must be published at least one week before the meeting.

“It’s completely ignoring the people’s voice,” Weber said.

Jorgenson sided with Weber and his co-plaintiffs at a hearing in July but did not get into the substance of the meetings.

Open meetings law is “concerned with the process of public decision-making” and protecting “the public’s right to be informed to the fullest extent regarding the affairs of government,” Jorgenson said. In bringing their complaint, Weber and his co-plaintiffs “are representing the interest of the general public.”

At issue was the Board of Adjustment’s practice of conducting formal meetings in the evening and “informal” hearings in the morning. Notices of these morning meetings were not properly published, nor did the board keep notes or transcripts from the meetings, the plaintiffs said.

“I agree with the plaintiff that the Board of Adjustment’s practice, as it’s been presented to the court, of conducting two different types of hearings at different times, violates both the spirit and the intent of the open meetings law and in fact violates the plain language of the statutory provisions required under the open meetings law,” Jorgenson said.

At a final hearing Sept. 18, Jorgenson ordered Green County responsible for $22,548 toward the legal fees of the plaintiffs’ attorney, Peter Kind of Monroe.

Jorgenson made the decision after hearing several hours of testimony from Kind and the Board of Adjustment’s attorney, John Bruce of New Berlin, over how to tally Kind’s hours spent working on the case. In the end, Kind requested just over $33,500.

Adam Wiegel, Green County zoning administrator, also testified at the hearing. He said the county has paid Bruce about $45,000 over three years to represent the Board of Adjustment in the case.

“The last three years, we’ve been over-budget,” Wiegel said.

Payment of Kind’s legal fees, as ordered by Jorgenson, will come out of the county budget, according to Art Carter, chair of the Green County Board. The chair of the Board of Adjustment, Ted Fahey, and the board’s four members are not current county supervisors and are not under the authority of the county board, Carter said.

Kind mentioned several times in court and outside the courtroom that the lawsuit could have been avoided had the Board of Adjustment listened to warnings that it was not following open meetings law.

Court records show that about a month and a half before the case was filed, Kind wrote a letter to the Board of Adjustment detailing his “significant concerns about procedural fairness.”

Outside the courtroom after the hearing, Bruce described the case as “very complicated” and said it came down to a dispute over “what is or is not covered by the open meetings law.”

“I’m certain they thought they were complying,” he said of the Board of Adjustment.

One case over & another settled, but litigation ongoing

For his part, Weber said Jorgenson “found justice” in the case.

“I hope the county handles their meetings more professionally ... and other people don’t have to go through what we went through,” he said.

Weber was also part of a separate lawsuit brought by a dozen neighbors against Bytec, alleging the company’s tanks were harming the health and quality of life of nearby residents.

It settled out of court in May. According to a joint statement on the settlement, Bytec agreed to remove two tanks within two years and install a cover and air-filtration system on the remaining third tank. The company also agreed to “continue its years-long effort to develop a waste-to-energy system that would result in the creation of renewable natural gas from the waste, addressing odor issues at the same time.”

Once this system is in place, “Bytec will no longer need the storage tanks in Argyle, and they will be removed from the site.”

Weber and his fellow plaintiffs are gagged as part of the settlement. But the battle is not over.

James Harden Jr., a neighbor who was not part of either lawsuit, filed a lawsuit in July 2018 against the man who sold him and his fiancé, Michelle Olson, their home on Walnut Road.

Among other allegations, the complaint claims the seller intentionally failed to disclose the “significant foul odors and stench which regularly permeate the property” from the Bytec tanks about a mile away. The case is currently slated to go to jury trial, with a status hearing next March.

Olson said the couple started suffering health problems like headaches, dizziness, sore throats and “goopy eyes” soon after they moved into the home in 2017.

Olson and Harden were delighted with the property when they found it. Built in 1999, it overlooks a wooded valley and offers the amenities they sought, including pasture for her two horses and a large garage to use as her art, woodworking and interior design studio.

Looking back now, she questions the seller’s motives: “Why would somebody sell such a beautiful house and move somewhere else?”

Olson started a public Facebook page called Healthy Wisconsin to inform and coordinate with other neighbors concerned about the Bytec tanks. The page soon turned into a “fighting ground,” and “it was just too stressful” to moderate, she said. She has since removed it.

“I felt like it was losing the original intent,” she said.

Ten days after Harden filed his lawsuit, Bytec filed a defamation lawsuit against Olson, claiming she made false statements on the Facebook page that “harmed and continue to harm Bytec’s reputation in the community and have damaged Bytec in connection with its trade and business.”

Bytec dropped the defamation case in April, days before it settled out of court with Olson’s and Harden’s neighbors. Olson said the defamation case cost her nearly $7,000 in legal fees.

Olson is happy with the judge’s decision on the open meetings law violations. As for Bytec’s promises in the settlement agreement, she’s waiting to see what happens.

“Everyone’s just kind of holding their breath,” she said. Meanwhile, “we still have our bad days where (odors are) blowing this way and stinking.”