MONROE — In discussing how to proceed in a lawsuit brought against the Green County Board of Adjustment by residents of rural Argyle and Monticello, Lafayette County Circuit Judge Duane Jorgenson noted that whether or not actions by the group were illegal, they somewhat appeared to be. 

“I’m not saying anything done by the board was improper,” Jorgenson said, noting a lack of adequate details provided in the record. “But it gives the impression of it.”

The judge said this in conversation with attorneys during a hearing Feb. 20 at the Green County Justice Center. He said in the name of “practicality,” the central complaint of the case appears to be that a permit issued by Zoning Administrator Adam Wiegel “is somehow illegal.”

“I don’t know who made that choice,” Jorgenson said. “Wiegel is on the notice … I understand his role, but I think given the fact that his actions are central to what the appeal is, I think it is incumbent upon the board,” to keep him simply as a witness.

Proceedings in the case have been ongoing since October 2017, when county residents James Weber, James and Pamela Schneider and Richard and Martha Ladwig brought a suit against the board for its procedures in issuing a conditional use permit to Bytec Resource Management, a waste hauling company based in Monroe. Bytec’s lawyers became involved in the court case in November and have largely sided with BOA special counsel John Bruce of Schober & Mitchell S.C. in New Berlin. 

It began with a well-attended public hearing in July 2016 over a conditional use permit application by Bytec to replace an aging waste tank kept at W7512 County C in the Town of Adams with one 1.8-million-gallon tank for operation of the business. Over 90 people attended. The majority spoke against such a change, objecting to the existence of the tanks because they were negatively affecting their way of life due to fumes from the liquid waste. Homeowners in the rural area noted that during days in the summer, the smell was so overpowering windows could not be left open nor could laundry be hung up outside.

Members of the Board of Adjustment at the time denied the tank, meant to replace a 1-million-gallon tank that had aged and was showing rust next to two others, requesting that Bytec owner Stephan Byrne examine how to improve conditions for neighbors and to re-apply in a year. 

Instead, Wiegel approved a permit application from Byrne to decommission two tanks on the property to be replaced with one of the same storage capacity in October 2016. A hearing in March 2017 was held to discuss whether Weber filed an appeal within 30 days after a permit is posted. 

Weber said neighbors were shocked when they witnessed the ground prepared for building at a site they were told could not be considered for development within that year. Though Adams Township received notice, local officials do not have to distribute it to residents, Wiegel said at the time. 

That lack of notification to land and homeowners within the area is the source of the lawsuit against the Board of Adjustment.

Jorgenson was meant to provide a decision regarding the order to review the board’s decisions, but Weber et. al attorney Peter Kind had filed a request that the judge first decide whether the board had violated open meetings laws. During the hearing, Kind said if Jorgenson agreed with his argument that the board of adjustment likely violated the law, a new hearing could be scheduled rather than giving a decision at separate proceedings.

“I think it would be appropriate to get it all done at the same time,” Kind said. 

Bruce argued that the two were unrelated, with Bytec attorney Jordan Hemaidan echoing the sentiment and adding that if the court was prepared to rule, then it should be done.

Kind argued that the hearings held “obviously” impacted his clients, but it can’t be asserted with absolute certainty because the proceedings weren’t properly recorded. The lack of proper recordkeeping during board proceedings was what prompted the plaintiffs to also claim the body had violated open meetings laws.

Jorgenson said his first concern was the process the board used and the amount of involvement Wiegel had in making the decision which “is clear to the court per statutes … rests with the board.” 

“The problem with that is I don’t know who made that decision because the board didn’t,” Jorgenson said, noting that the process gives an impression to the public and the plaintiffs that Wiegel signed it and that he was the sole decider. “I’m concerned the process is tainted from the get-go.”

He added that it seemed like the board “had trouble sorting through argument versus testimony.”

Jorgenson said he has not heard enough for the court to decide on the issue and that fully developing finding of facts would be preferable to make a decision. The next hearing to decide on both the meetings violations and the legality of the permit will be June 13.