There were some tense moments at the court-ordered joint meeting of the Bridgeport Town Board and Plan Commission, when questions about the process of the town’s frac sand mine permitting decision were discussed.
The meeting held at the Rural Bridgeport & Prairie du Chien Fire Department on Wednesday, May 28 was continued from a joint meeting held on May 15.
The purpose of the continuance was to give the town’s board and plan commission time to review documents submitted about the process used to arrive at the frac sand mine permit decision. Opponents of the permit decision and the process that led to the decision are the plaintiffs in a lawsuit seeking to invalidate that decision. The submitted documents were intended to address several topics, including conflicts of interest on the board and plan commission, limits on public input at meetings and exclusion of the public from meetings pertaining to the frac sand mining permit process.
The meetings were ordered by Grant County Judge Craig R. Day to develop the public record on those subjects.
Day is the substitute judge in a Crawford County Circuit Court lawsuit brought by the Crawford Stewardship Project and Bridgeport landowners Arnold Steele, Mark Fishler, Loren Fishler, and Dan Linder against the Town of Bridgeport. The plaintiffs seek to have the conditional use permit that allows Pattison Sand to mine frac sand on property leased from three township landowners voided and the permit application reheard.
Town of Bridgeport Chairperson John Karnopp noted that the first item on the agenda was a discussion and disclosure of conflicts of interest.
“We discussed that last time. If any board member or any plan commission member has anything to add to that, this would be the time to do that,” said town attorney Eileen Brownlee.
Town supervisor Rod Fishler responded that he had questions. He began by asking town clerk Linda Smrcina to clarify what legal expenses Pattison Sand was responsible for covering.
“As far as I know, there are some that they will pay, if it is something directly related to the mine itself,” Smrcina responded.
“So they are paying reimbursement fees?” Fishler asked.
“That is absolutely incorrect,” Pattison Sand lawyer Peter Conrad interjected over the clerk as Smrcina began to respond.
Smrcina continued, explaining that the permit, which held Pattison Sand Company responsible for covering legal fees, specifically relating to the reclamation permit process, did not cover town legal fees relating to the lawsuit.
Fishler then asked Smrcina at what point the questions submitted by the public at the November 14, 2012 and March 13, 2013 meetings were answered.
“A lot of the questions were answered when we went through them, (while) we were accepting anything on the conditional use. And from Delta 3’s review that they did,” Smrcina said in response to Fishler.
Citizens attempting to ask questions at the March 13, 2013 meeting were told the questions would be answered the following day at the plan commission meeting since the town attorney was absent, according to Fishler. He went on to say that those questions were not answered nor were the citizens asking those questions allowed to have any input at the March 14 meeting of the township plan commission.
Conrad again spoke up to say that the questions were outside the scope of the remand ordered by the judge and should not be part of the record.
Fishler responded to Conrad by saying that, as a member of the board, he had the right to ask questions.
Fishler went on, reading from a sheaf of questions, asking how requests for mine information were answered and when the comprehensive plan was changed and the process for doing so. And then…
“Hey John, how many months out of the year do you reside in Bridgeport?” Fishler asked of Karnopp, the Bridgeport Township Chairperson.
“I think that’s irrelevant, I really do,” Karnopp answered. “I find it pretty insulting that you sit here and ask questions for the people, the Concerned Citizens, the lawsuit people. I don’t think I have to answer. Do I have to answer this, Eileen?”
“He’s free to ask them, you’re free to answer them or not,” Brownlee responded.
Fishler went on to ask each of the plan commission members present how they came to be on the commission. Each answered that Karnopp appointed them.
Then focusing on Alan Flansburgh, currently a plan commission member, Fishler asked a series of questions about the extent of his relations with Pattison Sand Company.
Flansburgh confirmed that he had been paid for test holes drilled on his property, that he had a confidentiality agreement, but did not have a contract with the company for sand mining on his property. Flansburgh also stated that his property was not being used by the Pattison Sand Company in any way.
Fishler asked township supervisor Mike Steiner when he first learned about the mine.
“Probably not until they (the landowners and Pattison sand company) came in here to have a meeting with us as to whether we were going to let them,” Steiner said.
Steiner leaned over and asked Karnopp when that meeting occurred. Karnopp replied that it would have been October.
“I don’t have time to go out to the coffee shop, talk to all the people, do this kind of stuff, play this kind of stuff. I don’t do that. I have a job besides,” Steiner said. “So, if you try to bring up all kinds of thing that I knew before, (that) I was getting something from it, (that) I was getting under the table, all this kind of stuff… your way out there, son.
“As far as I am concerned what this is set up for, what Judge Day plans… I would rather see this go to court and see him take care of it and see what happens. I have never, never done anything under the table, got anything from anybody, even though this might be how your faction sees this,” Steiner said in response to Fishler.
“Let’s not make this personal,” Brownlee said. “And, the specifications in the order deal with conflicts of interest deal for Linda, for Troy, and for Alan, so exploring other areas is really not part of this. It’s not part of the judge’s order and it is not part of what the judge is looking for.
“The judge is looking for the town board to supplement the record in a couple of areas,” Brownlee continued. “One is pertaining to conflicts of interest pertaining to those specific people he named in the order. He is also looking to determine whether or not somebody was deprived of the opportunity to speak at the meeting.”
Brownlee suggested that there might be a better forum for seeking answers to the questions Fishler was asking to have addressed than the current meeting.
“At this point this record should not be going to the judge,” Conrad said. “This record is tainted enough.”
Steiner refused to answer additional questions.
Fishler began to question Karnopp, who also refused to answer questions on the basis that they were not on the agenda, nor did they address what the judge was seeking.
Fishler then returned to asking Smrcina questions, asking her who set the agendas.
“John (Karnopp) does,” she replied.
Time limits on public input were set on the advice of the town attorney, Todd Infield, she told Fishler, and all meetings were public. She also told Fishler that the first she knew of Rodney Marfilius’s plans was at a meeting when Pattison Sand Company filed a report of intent to pursue a permit.
Fishler asked Smrcina about disclosure of her son-in-law’s employment with Pattison Sand Company.
“I believe probably everyone knew it and everyone in the crowd knew it,” Smrcina said. “It wasn’t a secret.”
Fishler asked the same questions of Smrcina’s son Troy, also a member of the plan commission.
“If they didn’t in this community, well then they should have,” Troy Smrcina replied. Smrcina also told Fishler it should not have made a difference since he and his brother-in-law do not provide financial support to one another.
As Fishler continued to ask questions, members of the board and plan commission sat silent.
Brownlee reminded Fishler that they were not required to answer.
“Are there any citizens that were present at these meetings to tell their story?” Fishler asked.
“No,” said Brownlee. “There has to be a specific discussion and only a specific discussion.”
The town’s attorney informed Fishler that a single board member couldn’t decide to include public input in the meeting.
“I want to take this back to the court order,” Brownlee said, who noted the purpose was to address conflict of interest and exclusion from comment or attendance at a meeting.
Brownlee went on to ask the board and plan commission if anyone had made a written submission in the interval between the court’s order at the end of February and now.
“Yes,” said Fishler.
He presented Brownlee with nine letters and an email referenced in one of the letters.
Brownlee instructed the board to read each letter as they met the criteria of the order and then had the letters marked as evidence. After the plan commission and board members read them, Brownlee asked if there was anything in the letters that would have changed their mind in the decision or re-evaluate their decision.
Mike Steiner, John Karnopp, Linda Smrcina, and Troy Smrcina, as the only members who were on the board or plan commission at the time the decision was made, all answered in the negative.
Fishler said he had one final question for Rodney Marfilius, who was in attendance in the audience.
While pausing during a question about a conversation prior to the informational meeting in October 2012, Conrad again spoke up to ask if the board had authorized the question.
“That is a point of order,” Conrad said. “I don’t know how it can occur, there is a motion to adjourn on the floor.”
“I guess my question would be if it has to do with a conflict of interest or a person being unable to attend a meeting,” Brownlee said.
The attorney suggested proceeding when Fishler affirmed that it did.
“So that was that (conversation) just strictly informational… to let people know what was up?” Fishler asked.
“No, I asked you if you had any...” Marfilius began to answer. Standing next to the attorney for Pattison Sand Company, Marfilius then bent down and asked, “May I answer this?”
“You can answer, but you also have the choice of not answering,” Conrad advised.
At that point, Marfilius chose not to answer and the meeting was adjourned.
The original date scheduled for oral arguments was set aside when Grant County Judge Craig R. Day ordered the certiorari hearings. The new date had not been set, as of Tuesday, June 3.