A joint meeting of the Town of Bridgeport Board and the Plan Commission was held Thursday, May 15 to address conflicts of interest, meeting space insufficiency and public comment problems, which may have been encountered during last year’s frac sand mine permitting process.
Ultimately, the joint meeting was continued at the request of the plaintiffs’ attorney Glenn Reynolds, in order to give the board and plan commission time to review submitted documents.
The meeting had been initially ordered in January by Grant County Judge Craig R. Day, acting as a 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. Their lawsuit seeks to have the conditional use permit, which allows Pattison Sand Company to operate a frac sand mine in the township, voided and the permit application reheard.
Reynolds made a continuance request at the end of the meeting, noting that his office was not directly notified of the meeting until 24 hours before it was held, impairing their ability to be fully prepared.
Eileen Brownlee, the township’s attorney, approved Reynolds’ request for a continuance.
At the meeting last Thursday, Brownlee interviewed former Bridgeport Township Supervisor Rodney Marfilius and Bridgeport Township Clerk Linda Smrcina, as well as Bridgeport Township Plan Commission members Troy Smrcina and Alan Flansburgh, about their possible conflicts of interest.
Marfilius told the attorney he abstained from all voting and discussions at the meetings he attended as a town board supervisor “because I did have a conflict of interest.”
Marfilius is one of the landowners leasing land to Pattison Sand Company for the frac sand mine.
Linda Smrcina, the township clerk, and her son Troy Smrcina, both served on the planning commission board.
The Smrcinas have a family member employed by Pattison Sand Company—Linda’s son-in-law and Troy’s brother-in-law.
Asked about the relationship by Brownlee, Linda replied, “My son-in-law works for Pattison. He had been with them over a year before this started. He does not reside in my household. He has his own household. He doesn’t support me and I don’t support him.”
She confirmed that she also did not give financial support to either her daughter or her grandchildren.
“I was involved in discussion and voting both,” Linda Smrcina said. “I did not see any conflict.”
“My brother-in-law works for Pattison Sand, yes,” said Troy Smrcina. “Do they live with me? No. Do I live with them? No.”
Troy told Brownlee that he and his brother-in-law had no mutual financial dealings, nor did he see his brother-in-law working for Pattison Sand Company as having an influence on his decision-making.
Alan Flansburgh was questioned about conflict of interest as a member of the plan commission. He became a member of the plan commission in August of 2013.
“The only thing that came up was about planting trees at the sand mine,” Flansburgh said. He confirmed that he participated in both the discussion and the vote to table the decision.
Flansburgh denied having a business relationship with Pattison Sand Company, though he does have a confidentiality agreement with the company.
In October 2012, the Crawford County Independent and Kickapoo Scout reported that Flansburgh was among those landowners in negotiations with Pattison Sand to lease land for the proposed frac sand mine. However, he was not among the landowners named in the Town of Bridgeport conditional use permit application when it was presented at a public meeting the following month.
Flansburgh is named in the sand mining permit application under litigation between Pattison Sand Company and the Lower Wisconsin State Riverway Board. If that permit gains approval, Flansburgh would need to be granted a conditional use permit from the Town of Bridgeport Plan Commission before his land could be mined.
The second issue Brownlee raised at the request of Judge Day was the issue of whether the meeting spaces were adequate.
In response to Brownlee’s question on the capacity of the town hall, board supervisor Mike Steiner answered that the fire code limit was 52 total.
“There have been, again, some concerns expressed that some people that attended or tried to attend meetings in November of 2012 and in March of 2013 were unable to get into the meetings," Brownlee said. “Has anybody come to you individually or collectively and said ‘I did not have an opportunity to hear what was going on, I did not have an opportunity to speak although I wanted to speak?’ Has anything like that arisen since those meetings were held?”
“I’ve had nobody approach me at all,” Steiner said. “And at that time, some of the meetings where we had room up by our table and we had chairs and we said you can sit up here—there were ones who didn’t want to sit up there.”
Rodney Fishler, currently a town board supervisor, attended those meetings as a citizen.
“It was packed,” Fishler said. “There were a lot of people there. I got stuck back in a vestibule.”
The building was overloaded with people, as Fishler recalled, saying he heard people talking about the issue.
“I remember having conversations, but I just can’t remember the faces,” Fishler said.
“I never had an individual contact me or speak to me after a meeting that they were unable to speak,” said Bridgeport Plan Commission Chairperson Ryan Stram. “We had one meeting down here at the fire station to accommodate for the crowd issue. It’s certainly a challenge to determine how many folks are going to come to a meeting.”
“A lot of that kind of happened during the meetings,” Fishler said. “At times, people would speak up during the meeting, they really wanted to get their message out, but they couldn’t.”
“Because the board prevented them?” Brownlee asked.
“At some points, yeah, it was kind of shut down,” Fishler responded. He explained that the commission held all their meetings in open session, so they were trying to work out ‘the nuts and bolts,’ which is difficult to do with many interruptions.
Brownlee then asked if anyone had written comments to submit, specifically if anyone had a comment that had been barred from entering the meeting room due to lack of space or from not being given an opportunity to speak.
It was then that Reynolds requested the continuance, while giving Brownlee a small stack of written comments.
“We only got one day notice of this hearing and we are requesting on behalf of the plaintiffs of this case that you adjourn the hearing and take time to consider the comments that your constituents have made,” Reynolds said.
Reynolds noted that it was an important issue and had divided the community. As such, he included a list of questions that he hoped the board and plan commission would consider and ask of themselves and each other.
At that point, Peter Conrad, the attorney for Pattison Sand raised objections and asked that the information being received be limited strictly and not include the list of questions presented by Reynolds.
“For the record, my name is Peter Conrad and I am an attorney for Pattison,” Conrad said. “For the record, we object to the board receiving any information that goes beyond the court order. We would note this is a certiorari proceeding. A certiorari review is based on the record previously created. This is not a discovery type of proceeding.”
The information the court was looking for was of a very limited and specific scope, according to Conrad, and should only include comments from those physically excluded from comment.
Brownlee took a short break to confer with a colleague.
“It is fair that the board and the plan commission have an opportunity to review these submissions,” she announced upon resuming the meeting. “We will reconvene this meeting at some future date not too far down the road.”
Steiner asked Brownlee what physically restrained meant, to which she replied that it is an issue of context – it could be physically prevented, lack of access, overcrowding, etc.
Stram made a final note for the record to Brownlee before the meeting adjourned.
“During our break here, Greg Webster accused me of perjury regarding the question that not all residents or individuals got to comment during our meetings,” Stram said. “He said that he discussed after a meeting people not being able to attend. I don’t recall it.”
Webster offered up a correction, saying that his comment was that he had told Stram that would be perjury if he were testifying in court since he himself had spoken to Stram after a meeting on the topic.
Thirty-two people attended the meeting last Thursday, according to Ted Pennekamp, associate editor of the Courier Press in Prairie du Chien. Pennekamp confirmed he had received notification of the meeting through an email sent out by FLOW (Friends of the Lower Wisconsin Riverway).
The Independent-Scout did not receive notification of the meeting, although the newspaper is regularly notified of Bridgeport Township Board and Bridgeport Township Plan Commission meetings by e-mail 24 hours prior to the meetings. In answer to questions from the Independent-Scout, township clerk Linda Smrcina confirmed an e-mail notifying the newspaper of the special joint meeting had been sent out on Monday, May 12 via the township’s email list. However, a review of Independent-Scout email records showed no such email had been received.
Smrcina was uncertain why some notifications were not received or were received late.
“The Deputy Clerk is sending out the notices,” Smrcina said. “They all go out at one time on a list.”
Reynolds provided a letter for court record detailing objections from the plaintiffs on insufficiency of notice.
Reynolds Oliveira attorney Marcel Oliveira wrote on May 15:
“Providing merely two and a half days notice is contrary to the purpose and spirit of this meeting. As the court ordered, and as the Town’s agenda recognizes, the purpose of the joint meeting is to provide public input and disclosure. Providing such short notice for this meeting entirely contravenes that purpose. The Town gave the public no more than two and a half days of notice for the meeting – in the middle of the week. That provides little to no time for citizens to prepare their written submissions.”
Oliveira also stated that the restrictions on comments made in the Town agenda exceeded the restrictions placed in the court order, which was to receive submissions from anyone unable to attend or speak at a meeting, as opposed to the agenda’s restriction that comment was only for anyone excluded at either the Town Board meeting held on March 13, 2013 or a Town Plan Commission meeting held on March 14, 2013.
State statute sets the notice requirement at 24 hours, according to the town’s legal counsel Eileen Brownlee. When municipalities notice longer, it is generally because it is a specific type of hearing with other notice requirements or by choice. And if citizens request longer notices, the municipalities are not under a legal obligation to comply.
The meeting will reconvene on Wednesday, May 28 at 6 p.m. at the Rural Bridgeport & Prairie du Chien Fire Department, 63176 Vineyard Rd., Prairie du Chien.
Oral arguments in the lawsuit are scheduled to begin on June 20 at the Grant County Courthouse.
