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Magnolia to appeal ruling on farm

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GINA R. HEINE
July 8, 2010
— The eight-year battle between the town of Magnolia and Larson Acres appeared to be over.

But only for a moment.


Silence filled the muggy Magnolia Town Hall on Wednesday night as board member Dave Olsen waited for a second to his motion to continue the fight to the state Supreme Court.


Town attorney Glenn Reynolds offered the board a flat fee of $2,000 to file a petition to the Supreme Court challenging last month’s court of appeals decision on a conditional-use permit.


Chairwoman Fern McCoy and board member Kurt Bartlett said $2,000 would just be the start—if the Supreme Court agreed to hear the case—of thousands more dollars the town doesn’t have.


With no second, Olsen’s motion died.


Olsen pounded on the table and burst out, “For 2,000 bucks, that’s it?”


He pointed out how he doesn’t have any children, but other people’s children and grandchildren would be paying for clean water.


“Absolutely, absolutely ridiculous. Absolutely ridiculous,” he said, tapping his pen on the table. “It’s my duty to protect the environment. I can’t walk away from this. This is just too bad, too bad.”


He said it was the board’s duty to the residents of the state to push the case forward.


He asked if the board was going to let “three people on the appellate court” interpret the law as they did “with this bogus decision.”


Discussion continued with Olsen persuading Bartlett and McCoy that they could raise funds, possibly through special interest groups, to help pay the possible $30,000 bill if the Supreme Court were to hear the case.


Olsen even offered to put his own $10,000 down because it’s such an important issue, he said.


Moments later, the board unanimously approved paying Reynolds $2,000 to move the case forward, along with appealing the state’s livestock siting board’s decision on the farm’s latest conditional-use permit.


The board had met in closed session with Reynolds last week before Wednesday’s special meeting. It was the latest episode in the battle over conditional-use permits for expansion at Larson Acres, the county’s largest dairy farm.


An open records request by the Gazette shows town expenses related to Larson Acres total about $150,000 from 2002 to April 2010.


After the meeting, Mike Larson expressed his family’s disappointment.


“I thought this was all behind us,” he said.


People don’t have to look to state or national government for wasteful spending, he said.


“We have it right here in the town of Magnolia,” he said.


“They’re fighting for the right to duplicate services the state already provides for us taxpayers who have to pay for it twice,” he said referring to monitoring by the state Department of Natural Resources.


McCoy and Bartlett had argued that the $2,000 would only tell the board if the Supreme Court would hear the case. Olsen said that still gives them “one hell of an answer,” because the court only accepts about 10 percent of the cases it receives.


Board members threw around $30,000 as the cost of defending the case if the court decided to hear it. While Bartlett and McCoy argued the town did not have the money, Olsen said repeatedly that other people likely would be interested in supporting the town and that they would cross that bridge when they came to it.


He said funding could be “taken care of in many, many different ways,” just like other litigants who receive money from special interest groups.


If the court decided to hear the case, Bartlett said, the town would need money to continue or be forced to back out.


“We can’t start raising money as soon as they say we’ll hear it. We need to start raising money now,” Bartlett said.


He said he would be willing to go ahead with the case if Olsen could commit to the town raising at least $10,000 in a new bank account by the time the Supreme Court decides whether it will hear the case.


Olsen quickly agreed and said, “If I have to put my own $10,000 (down), I will do it, because I think it’s a worthwhile cause, and I think we could raise the money.”


Bartlett said the town would be expecting Reynolds to continue to donate some of his time to the case.


Magnolia’s permit battles total $150,000

The town of Magnolia has spent about $150,000 in eight years of battle over conditional-use permits for Larson Acres, according to town invoices.


The Gazette filed an open records request for all invoices the town received related to Larson Acres since the farm applied for its first permit in May 2002. Invoices show the town paid $149,209 through April 2010 for legal fees, soil and water experts, water testing and other expenses.


“It was a lot more fuss than it needed to be,” town attorney Glenn Reynolds said. “The expense wasn’t just this litigation-crazed town. It had a lot to do with Larson’s strategy of fighting everything and punishing the town for standing up for the water.”


Ed Larson responded by saying if the town was really concerned about the groundwater, it would have pursued the real cause of contamination in seven wells east of Norwegian Creek. When test results cleared Larson Acres of any problems related to those wells, town officials “just forgot about those seven.”


“It’s still about the large farm,” Larson said. “That’s what they’re fighting.”


The town board voted Wednesday night to spend $2,000 to file a petition for review to the Wisconsin Supreme Court to challenge the state Court of Appeals decision. The board also voted to appeal in circuit court the state livestock siting board’s decision over the farm’s latest permit. If the Supreme Court decides to hear the case, town officials said it could cost another $30,000.


The bulk of the town’s expenses were from 2006 to present because the town’s insurance covered legal fees from 2003 to part of 2005, town officials said. The town’s insurance policy included coverage when Larson Acres sued the town over its decision on the farm’s permit, Reynolds said.


The Larsons agreed in October 2006 to pay a $72,500 fine for operating in violation of the town ordinance. That payment was placed in a town certificate of deposit and later used to pay Larson-related bills, town Clerk/Treasurer Graceann Toberman said.


The $150,000 does not include postage, meeting notices published in local weekly newspapers or per diems of $25 or $50 paid to town board and planning and zoning committee members.


Toberman said those costs are meant to be covered by the $1,000 application fees the town charges for the kinds of permits Larson Acres was seeking.


In 2002, only $585 in legal expenses was clearly marked on an invoice from the Brennan Steil law firm as being related to Larson Acres. It is unclear from the invoice how much of the remaining legal expenses billed after Larson’s May application—about $2,385—were Larson-related.


The documents show the town received no invoices related to Larson Acres during the first seven months of 2009, when the latest case was in the court of appeals.


Invoices show Reynolds gave the town 10 to 20 percent discounts and sometimes worked for free. The town received at least $12,400 in discounts from Reynolds and at least $9,800 from other experts.


“If the bill got too high, I would just sometimes discount it,” Reynolds said. “I know what their budget story is; (it’s) just to help them out. This (case) was a big deal for them.”


He said his discounts depended on what was done or accomplished.


A big reason the town had to spend so much money was because the farm did not cooperate “on any level,” he said. If the town wanted to take water samples, it had to sue, he said.


“Everything was litigated to make it expensive so they could get the neighbors upset,” he said.


Larson said Reynold’s comments are false. He said the only reason they ended up in court was to follow the law. To legally get water samples, Larson said, you have to go to court for an inspection warrant.


CASE HISTORY

The dispute started in 2002 when Larson Acres applied for a conditional-use permit for a heifer facility at its County B farm in Magnolia Township.


Conditions the town imposed on the permit in March 2007 pushed the farm to appeal the town’s decision to the state livestock siting board, which ordered the permit be reissued with fewer conditions. The town and a group of neighbors appealed in Rock County Court, where Judge James Welker vacated the board’s decision.


Larson Acres and the livestock siting review board appealed, and the court of appeals released its 26-page decision June 24 after hearing oral arguments in February.


The appeals court decision said the livestock siting board acted within its powers when it reversed some of the conditions the town had placed on the permit.



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