Better Plan, Wisconsin

VILLAGE OF CASCADE FACING LAWSUIT OVER OPEN MEETINGS VIOLATIONS

Written by Eric Litke,

SOURCE www.sheboyganpress.com

November 15, 2011

Cascade officials were more than happy to talk publicly about their two wind turbines last summer, when the 120-foot generators made the village the first in the state to power its wastewater treatment plant solely by wind.

But one resident says village government was too quiet in the months leading up to construction, alleging in a lawsuit that the seven-member board violated state open meetings law by repeatedly discussing the $500,000 expenditure using vague agenda items that gave residents no warning or chance for input.

Susan Lodl, 60, of Cascade, filed the lawsuit in November 2010, and her effort garnered some judicial backing last month when Sheboygan County Circuit Court Judge Terence Bourke ruled there was enough evidence to proceed toward trial on the core allegations.

Lodl said she didn’t set out to sue the village that has been her home since 1974, but she was left with no recourse when the board responded to her initial objections with indifference and even hostility.

“A number of us started going to meetings, and we were treated quite rudely. A friend of mine was even called names,” she said. “I even told them at one of the board meetings, ‘Your agenda and your minutes do not coincide.’ And they just kept doing their thing. … They just blew me off as a disgruntled village resident.”

So Lodl decided to take a stand.

“It’s been a haul, let me tell you. It’s been very hard, very time consuming and nerve-wracking and hard for some common Joe Citizen to do this,” she said. “I (hope) the Village Board — and I’m hoping other municipalities — will learn from this that they have responsibilities to their constituents to be specific on what they’re going to do and vote on at meetings, and they have to abide by the laws that govern them. The public has a right to know.”

‘Their meetings have been a sham’

The lawsuit alleges an array of open meetings law violations from November 2008 to February 2011, but the wind turbines are at the heart of Lodl’s concerns.

The pair of 100-kilowatt generators went into service in June 2010 next to the wastewater treatment plant, located on Bates Road on the east side of the village. Cascade received $400,000 in grants but still had to borrow about $500,000 to finish the project.

The turbines were projected to save $30,000 in electricity annually and generate additional power for sale to WE Energies, meaning they should pay for themselves in about 12 years, officials said at the time. The Sheboygan Press filed an open records request Nov. 4 seeking documentation on the cost and savings to date, but the village has not yet responded.

Lodl, who lives just over 1,000 feet from the turbines, was unaware of the project until the village sent a letter in May 2009 advising residents of a special meeting. By then, she said, the time for input had clearly passed.

“Our president informed me and everyone else sitting in the room, that yeah, this was basically a done deal,” said Lodl, who was on the Village Board about 10 years ago. “We’ve been sold a bill of goods all the way down. This was planned. They had this thing staked out. Their meetings have been a sham.”

When Lodl objected to the lack of prior notice, she said one board member “very snidely turned and said, ‘It’s your responsibility to go to the meetings, and everything is posted on the agendas.’” So Lodl looked back at those agendas, and what she found — allegedly — were meetings where the turbines and other topics were discussed with little or no mention on the agenda.

The lawsuit, filed Nov. 11, 2010, names as defendants the Village of Cascade, the Village Board, the village’s Sewer and Water Committee, Village President David Jaeckels, Village Clerk Sherry Gallagher, the six village trustees, one former trustee and one other citizen who sits on the sewer committee. An amended complaint was filed March 10 that contains a total of 19 purported violations.

Meetings cited in the complaint include a Feb. 10, 2009, board meeting where a discussion about purchasing the wind turbines and land took place under an agenda heading of “sewer and water — 2nd well / facility plant update.” Similar discussions occurred under the same heading April 14, 2009, the same day the board declared the meeting was a public hearing regarding floodplain and shoreland ordinances even though the agenda made no mention of a public hearing, the complaint said.

On March 10, 2009, the sewer committee discussed hiring a consultant for the turbine project without any mention in the agenda. The committee also discussed the appraisal and purchase of property for the wind turbine without agenda notice on May 12, 2009.

The board also discussed a truck purchased in January and February 2009 although there was no mention of the truck on the agendas.

Judge rules lawsuit has merit

The village claimed in court filings that the agendas were sufficient because items discussed without notice were listed in previous agendas, meaning residents had sufficient notice that the issues would be discussed at some point. Judge Bourke rejected that claim.

“Looking at other agendas to understand what’s in a particular notice I don’t believe would reasonably apprise an individual of what was going on at that particular meeting,” Bourke said.

Raymond Pollen, an attorney representing the village in the lawsuit, would not elaborate on the village’s defense in an interview last week.

“I think the village has a long history of trying to prepare agendas that completely and accurately communicate what they’re going to be talking about,” Pollen said. “I think they tried to do that here.”

The village made a motion for summary judgment — asking Bourke to rule in their favor without going to trial — and on Oct. 18 Bourke ruled the wind turbines and the truck objections were sufficient to go to trial.

“I believe there’s a genuine issue of fact for trial regarding those allegations,” Bourke said, according to a court transcript. “If I had appeared in Cascade at that particular time and I was unfamiliar with the issues going on in the village, I would not know what the notice meant.”

Bourke ruled Lodl’s complaint was not sufficient in its objections to numerous discussions from 2009 to 2011 under vague headings such as “committee reports,” “old business,” “new business” and “letters.” He then dismissed 10 of the 19 counts in the amended complaint.

“Those counts (that remain) really address the issues that were most dear to my client,” said Matthew Fleming, Lodl’s attorney. “The other things we just kind of threw in there to address what we thought was a pattern of not living up to what the open meetings law required.”

State statute says “every public notice of a meeting of a government body shall set forth the time, date, place and subject matter of the meeting … in such a form as is reasonably likely to apprise members of the public and the news media thereof.”

A brief filed by the village said Village Board and committee members were not aware general topic headings “may not be sufficient to give public notice under all circumstances” and did not intend to violate open meetings requirements. It said the village has since changed its procedures to provide more specific notice.

Fleming noted in a reply brief that state statute does not allow ignorance of the law as a defense and that the village’s response “implicitly admitted” to violating the law.

“Intentional or not, the village has at least been willfully negligent in how it noticed its meetings,” Fleming’s brief said. “Because of its shoddy practices, two wind turbines were all but approved for purchase for use across from Ms. Lodl’s home before she or many other concerned members of the public ever knew about the plans.”

Lodl open to resolving case

Lodl’s complaint said she is asking that each defendant be ordered to pay a forfeiture of $25 to $300 for each violation, and Lodl is seeking reimbursement for her court costs and any other payments “as the court deems just and equitable.”

But Lodl and her attorney said they may settle for simply better government.

“The real goal here is to get the village to start following the open meetings law the way they should and give better notice on their public meeting notices,” Fleming said.

Added Lodl: “They have to change and they have to start learning things and they have to start conducting their meetings differently.”

To this point, however, Lodl said her objections and her lawsuit have been met only with enmity.

“The village president won’t even acknowledge me standing next to him in a public building,” she said. “Now we go (to meetings) and they just glare at us — just glare. You do not feel welcome, and that’s sad.”

Pollen, the village’s attorney, said he was unaware of any proposed settlement but would be happy to pass word to the village.

“I’m encouraged … that Mrs. Lodl and her counsel are looking at alternatives to continuing the litigation, and I hope that they will be able to speak with me so that I can communicate that back to the village,” he said. “That’s a very positive thing.”

Pollen said his firm has so far accumulated $33,500 in legal fees from the case, costs that have been billed to the village’s insurance company, Rural Insurance.

Village officials refused to discuss the case, so it was not clear what deductible, if any, the village has been responsible to pay.

NEXT STORY

From Illinois

BEEF UP LAW; END TRESSPASSING BY WIND FARM CREWS

By the Sauk Valley Media Editorial Board,

SOURCE www.saukvalley.com

November 16, 2011

It’s bad enough when poachers or irresponsible hunters trespass on a farmer’s property. But when a wind farm company is alleged to have done the trespassing, that’s worse.

A Compton farmer, Gale Barnickel, told the Lee County Zoning Board of Appeals recently about his beef with contractors building Goldwind USA’s 71-turbine Shady Oaks wind farm in eastern Lee County.

Barnickel told board members that wind farm construction crews had repeatedly trespassed on his family’s property. Transit of construction equipment over farmland caused crop damage, he said.

Barnickel posted signs that prohibited trespassing at various places along his property line. Workers who entered the property should have been aware of what they were doing.

After all, what part of “no trespassing” would they not understand?

According to a Goldwind spokesman, the whole situation was a mistake. The contractor apologized to Barnickel, and the contractor took “concrete steps” to clearly mark the farmer’s land so no further trespassing would occur.

But, as the saying goes, it’s like closing the barn door after the horse ran away.

Goldwind and its contractor should have had a better plan in place to avoid trespassing on a non-participating farmer’s land.

Barnickel filed two reports with the Lee County Sheriff’s Department about the trespassing incidents. He decided not to file any more, as they apparently weren’t doing any good, and he wanted to avoid wasting taxpayers’ money.

The whole situation should be a wake-up call to county governments near and far – especially in Whiteside and Ogle counties, where new wind farms are contemplated.

Are there strong enough trespassing laws in place to keep wind farm construction crews in line?

Are enforcement provisions ready so that if construction crews trespass, authorities can mount a swift and effective response?

Are the fines large enough to discourage construction crews from ever entering private property unless they are absolutely certain it belongs to a participating landowner?

Farmer Barnickel stated: “It’s nerve-wracking being pushed around. Why should I have to put up with that?”

He shouldn’t.

Neither should anyone else.

Goldwind spokesman Colin Mahoney said his company was committed to minimizing the impact of wind farm construction.

We think area counties should strengthen their ordinances so landowners are better protected when wind farm companies stray from such commitments.