of Zoning Appeals
*Note: The July Board of Zoning
Appeals meeting was a long one, the minutes
were posted in .pdf format, will require Adobe
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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
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
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
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
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
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
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
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
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
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
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.
/s/ Jerry A. Foellmi
Jerry A. Foellmi
Clyman Zoning Administrator
Board of Zoning Appeals Meeting Minutes
|TOWN OF CLYMAN
BOARD OF ZONING APPEALS MEETING
October 28, 2008
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
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
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
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
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
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
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
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
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
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
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.
Top of Page
|TOWN OF CLYMAN
BOARD OF APPEALS MEETING
September 23, 2008
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
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.
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
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
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
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
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
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
Motion by Leroy/Jerry Haase to adjourn. Motion carried.
Meeting adjourned at 9:55 PM.
Kris Kohlhoff, Clerk
Top of Page
|TOWN OF CLYMAN
APPEALS COMMITTEE MEETING
August 19, 2008 – 7:00 PM
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,
The meeting was called to order at 7:00 PM by Chairman
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
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
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
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
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
Motion by Leroy/Jerry to adjourn. Motion carried.
Meeting adjourned at 9:40 PM.
original in .pdf
TOWN OF CLYMAN
July 15, 2008 BOARD OF ZONING APPEALS Clyman Town
The board meeting of the Town of Clyman Board of
Zoning Appeals was called to order on July 15, 2008,
at approximately 7 pm by Chairman Joyce. Board of
Zoning Appeals members in attendance were
Jerome Haase, Jeff Mamayek, Leroy Schultz, Charles
Zimmerman, Chuck Joyce. Also in attendance
were First Alternate Mary Kreuziger and Second Alternate
Richard Green, Town Board Chairman Dave
Blank, Town Zoning Administrator/Engineer Jerry
Foellmi and Town Attorney Ray Roder. Attorney
McFarland would be representing ULWR. There were
about 20 additional people in the audience and an
attendance sheet was passed around.
ULWR has arranged for a stenographer to be present
to record the entire proceedings. In addition, the
Town has arranged to have the meeting audio taped.
Motion to accept April minutes by Zimmerman, 2nd
by Haase, motion passed 5/0.
Public Hearing regarding appeal by ULWR and Tracy
Bros., Inc. concerning conditional use permit issued
by Town Board for wastewater treatment at the N2797
STH 26 property and land spreading operations at
the N2797 property and elsewhere in the Town of
Clyman. A key issue in these proceedings is that
proposed ULWR processing and treatment system by
all accounts is different from most other liquid
waste land application formats. On that basis, this
facility requires a high level of review and
Background structure for meeting was established
by Town attorney Ray Roder. The following will testify:
• Robert Tracy, Jr., owner
• Randy Wirtz, Strand Associates – engineering
• Steve Hoffman, ULWR Compliance Manager
The BZA will be assisted by Roder, Griggs, Foellmi
to help the process move smoothly. Exhibits were
provided to the BZA including the ULWR Appeal document,
a reference document prepared by Roder
(Black Notebook) and a request by ULWR for recusing
certain board members, (a document submitted
the previous Friday by ULWR Attorney).
Attorney Roder reviewed the structure for hearing.
ULWR submitted a request for Zimmerman to recuse
himself. The Judicial Code of Ethics basis was
reviewed and Zimmerman was asked three questions
regarding his involvement with ULWR:
Statutory (746.12 & 13) - $15,000/year involvement?
Common Law (financial gain, family or individual)?
Any bias to the case with ULWR ? NO
ULWR attorney McFarland stated that Charles Zimmerman
had stated to Carol Bailey that he thinks
ULWR polluted groundwater due to their operations.
Zimmerman disagreed and was allowed to remain
on the board for the proceedings.
The following is a synopsis of the hearing proceedings
and will refer to ULWR’s response to specific
Town conditional use permit (CUP) items at times.
This part of the meeting is documented in an outline
Witness #1 - Robert Tracy, Jr., Owner of ULWR:
• Exhibit 5 presented – 65 terms to
CUP and his comments on them.
• Tracy stated that ULWR will comply with
all conditions of WPDES permit.
• Upon request by the Township, ULWR will
provide the requested information to the Township.
does not want to be required by the C.U.P. to provide
information to the Town.
• CUP Item #63 – A Bond is not necessary;
they can offer property as an exchange.
- Chuck Joyce asked about insurance coverage for
- Jeff Mamayek asked about superfund type clean-up
monies available if spill occurred.
- There were comments about the beneficial impact
of ULWR treated product because it has
• CUP Item #62 – ULWR is concerned that
the Town will have an open check on reimbursement
• CUP Item #61 – ULWR is concerned that
the Town will have an open ended ability to charge
for special services/equipment/materials.
• CUP Item #60 – ULWR doesn’t
want to give the Town open access to inspect their
routinely samples ULWR and provides this information
to the DNR.
- Charles Zimmerman stated ULWR didn’t specifically
raise issue when the Plan Commission was
formulating the CUP. Tracy says yes he did.
- Test America does the sample analysis for ULWR.
- Robert Tracy is willing to work with Town to modify
#60 to suit both parties.
• CUP Item #52/53 – ULWR took issue
with these stipulations.
- Foellmi noted that it is reasonable to videotape
the impacted roads prior to and after major
construction activities as noted by #52 and have
the owner pay for damages as necessary.
Operational Traffic can be documented in a similar
• CUP Item #57 – ULWR states there is
no time to complete the lagoon construction project
2009. Roder stated that permit is not issued yet
so the clock has not started yet.
• CUP Item #29 – ULWR wants the EAP
included in with their overall facilities Management
• CUP Item #20.4 – ULWR does not want
the Town to impose volume limits on the treatment
why is 75,000 gpd necessary. No other business has
this limit. ULWR meters the amount of waste
knifed into ground like all other similar businesses.
- Audience comment: What about significant rain
events connected with land spreading?
- Joyce stated that ULWR needs to be proactive on
spreading prior to anticipated rains.
- Zimmerman noted that ULWR had stated that they
would not exceed 75,000 gpd. What is the
• ULWR noted there were very few DNR verified
complaints by land owners.
• Audience: ULWR applied on tiled fields which
created concerns. ULWR noted that DNR walked the
fields with ULWR prior to spreading.
• Joyce: Have there been any citations or
allegations against ULWR? ULWR - NO.
• Audience: Does Mr. Tracy actually drive
the field application trucks? ULWR – NO, five
to six drivers
do this work and get training on application techniques.
• Audience: Who owns “ULWR” acreage?
ULWR: ULWR owns 14 acres; Tracy Brothers, Inc. has
large amount and so does his brother and father.
• Audience: How many trucks active? ULWR:
They have 8 – 10 applicators/trucks. A concern
noted that there are only 5 -6 operators so who
else might be driving. Not all trucks out at once.
• Schultz: Why don’t human consumption
crops get to be placed on lands that they spread
Tracy was not sure of the answer but this question
would be answered by others testifying.
• ULWR noted that the Township’s land
spreading requirements are far over and above the
WPDES permit requirements.
Witness #2 - Randy Wirtz – Strand Associates
• Wirtz is not an employee of ULWR.
• Wirtz has been with Strand from 1994 to
• Wirtz designed the ULWR Anaerobic Lagoon
• Wirtz noted that there are similar types
of lagoon systems in state.
• Wirtz noted that many CUP items are inconsistent
with the WPDES permit.
• Wirtz is not aware of other Townships imposing
similar restrictions to business that Clyman is
• The WPDES permit doesn’t cover the
CUP’s 300 mg/l requirement stated in item
#5. Wirtz was
reminded that he had stated the lagoon’s ability
to treat to that level in a previous meeting
presentation. He didn’t recall making that
• The DNR satisfied with design according
to Wirtz. After questioning by Foellmi he noted
are no other lagoon systems in the US that treat
this complex and variable type of waste. There is
operational data to compare with to anticipate how
the anaerobic lagoon system will operate on a
routine or emergency basis.
• CUP Item #8 – It is anticipated that
Strand will do lagoon construction inspection with
review and inspection by the Town’s engineer.
• Wirtz felt the leakage detection system
was not necessary. Foellmi noted that the cost to
groundwater detection and protection was very minor
compared to the overall cost of the facilities.
• Wirtz noted the lagoons will operate in
series which gives better results and protection
• Discussion on the water quality of the lagoon
final effluent with comments that an effluent quality
restriction could be 300 mg/l BOD5. The anaerobic
lagoon effluent could typically be 1,000 mg/l
• Roder noted that volatile fatty acids (VFA’s)
are often problems at the existing facility and
anaerobic systems in general and questioned Wirtz
on how these would be dealt with in the new
facilities. Wirtz noted the new facility will significantly
Witness #2 - Steve Hoffman – ULWR Compliance
• Hoffman has been the ULWR Compliance Manager
since September 2007.
• Hoffman has reviewed the 65 item CUP.
• CUP Item #9 – Hoffman noted that spray
irrigation is allowed by DNR for land application
• CUP Item #24 – Regarding the records
retention issue, Hoffman feels the Town may be contrary
• Hoffman noted that DNR will require written
notice of most all wastes accepted by ULWR for
treatment or land application. A discussion followed
regarding the allowance of certain food wastes
to be directly applied without written notice.
• Hoffman noted that some CUP provisions are
“old” compared with the possible final
• Hoffman noted that some CUP provisions are
opinion based and not qualitative and could be
• Hoffman noted that the DNR gets specialized
training for WPDES permit enforcement. He works
is in contact with DNR on weekly basis.
• CUP Item #40 – There seems to be some
separation issues of what the DNR requires versus
the CUP requires (300’ vs. 200’ horizontal
separation from streams and 5’ vs. 3’
from groundwater). Hoffman feels the CUP is inconsistent
with DNR regulations.
• CUP Item #42 – ULWR typically gets
a sign off from property owner but there is no requirement
DNR to provide that information to them.
• The question of food crop restrictions regarding
ULWR applications came back up. There are time
restrictions relating to when human consumption
crops can be grown after certain types of wastes
land applied, such as human waste.
• CUP Item #44 – ULWR has an issue with
the time restrictions imposed by the CUP. No other
townships or DNR have time restrictions on field
application. ULWR is concerned with the financial
impacts due to the restrictions.
• CUP Item #45 – This restriction contradicts
• Discussion followed on the operation and
maintenance manual requirements per the DNR. This
treatment facility will be required to have an O&M
Manual prepared as part of project.
• The emergency action plan (EAP) as covered
in the CUP will be part of O&M manual.
• Hoffman discussed the bypass conditions
issue. He noted that wastes that they land apply
specifically require treatment so bypass conditions
don’t require CUP coverage. Much of ULWR’s
accepted industrial waste is food process waste.
They also accept shampoo manufacturing product
• Discussion regarding the application operations
followed. According to Hoffman, the DNR doesn’t
require owner sign-off information at specific land
application sites. ULWR submits a site application
request to DNR then the DNR reviews and approves
or approves with conditions ULWR’s request.
• Discussion followed regarding the application
of wastes just prior to major rain events. People
concerns that application times did not account
for eminent rain events. Hoffman noted he has not
received complaints about land applying onto soggy
Attorney. McFarland’s closing arguments
• ULWR is trying to do the right thing by
constructing a wastewater treatment facility.
• The Township is standing in way of ULWR
by placing undue CUP stipulations on them.
• ULWR feels the Township Board members are
against this company.
• ULWR will state they are going to follow
WPDES permit which they feel is sufficient and no
the CUP stipulations. They are concerned that the
CUP will allow the Township, for some
miscellaneous reason, to close down the ULWR facility.
• ULWR feels the DNR staffing that is in place
is sufficient to handle any of the issues with ULWR.
• Chuck Burkholz commented that there is a
lack of trust of ULWR and this needs to be re-attained.
• Audience comment was that this process is
several years old and should not be delayed any
Motion by Schultz, 2nd by Haase to close hearing
at 10:40 p.m.
The Board took a short recess and reconvened at
Leroy Schultz is now absent from the Board.
It was noted that the ULWR property is in the Ag
District which allows for the wastewater treatment
facilities and Non-Agricultural waste land spreading
but by Conditional Use only.
Chuck Joyce noted that the Hearing was shotgun review
of CUP. ULWR needs to prepare line by line
comparison of what they are willing to do vs. what
McFarland wants until August 1 to prepare the comparison
Joyce referred to and allow BZA to make
decision within 30 days of that receipt date.
The Board decided to reconvene Tuesday, August 19,
2008 at 7”00 p.m.
The Appellant (ULWR) has waived 30 day rule regarding
the BZA’s decision on this matter.
Motion to Adjourn by Jeff Mamayek, 2nd by Jerome
Haase at 11:06 p.m.
Jerry A. Foellmi
Jerry A. Foellmi P.E.
Town of Clyman Zoning Administrator
TOWN OF CLYMAN
April 29, 2008 BOARD OF ZONING APPEALS Clyman Town
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
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
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.
Jerry A. Foellmi
Jerry A. Foellmi P.E.
Town of Clyman Zoning Administrator