I am writing to express my opposition to the granting of a zoning modification for the southeast corner of Birmingham Crossroads.  My focus is not on what should or should not get built on the SE corner, as such issues pale in comparison to the issues of 1) gutting and ignoring Milton’s 4-part variance test and 2) legislative fiat—the usurpation of Council’s powers by City staff to enact legislation without a proper public hearing.

Because the proposed plan is essentially the same plan that Council previously and unanimously denied (and in my opinion, a bit worse), the same arguments against the first plan apply to this revised plan.  Given that the 2 plans are nearly identical, it would seem that any Council member that votes to approve the proposed plan has an obligation to citizens to explain why his/her vote has changed.

I would also point out that the developer has owned this property for 3 years.  He claims that he loses $1000 for every day that he does not develop this property.  By his reckoning, this property has already cost him over $1M in property taxes, insurance payments, mortgage payments, etc . . . and he has yet to move any dirt.  By right, the developer could have built 33 town homes on this property, but has not done so.  This strongly indicates that the developer and/or his investors know that town homes at this location do not fit their risk/return investment criteria.  So it would seem that this developer’s threats to build townhouses are empty.  That is why he keeps returning—this is the third time—to council for variances.  Council needs to call his bluff once and for all.

This gets me to my main concern about this Zoning Modification.  The only substantive change between tomorrow’s hearing and the April 23^rd hearing is that staff has made a determination that it will ignore Milton’s variance ordinance to reverse its recommendation that Council deny this zoning modification.  Staff now claims that it can ignore Milton’s 4-part variance test to achieve a better outcome (an inherently subjective determination) for the community.  Staff contends that its expertise, training, and “professional judgment” trump the requirements of Milton’s variance ordinance.  Unfortunately, Milton’s variance ordinance does not provide such authority to staff.  Therefore, staff has violated Milton’s variance ordinance.

Staff is attempting to (radically) change Milton’s policy for granting variances.  Staff’s unilateral actions to change Milton’s variance laws constitutes legislative fiat.  Changing Milton’s variance ordinance can only be accomplished by Council and only through a public process that includes public hearings and opportunities for public input.  And in fact, Milton’s City Attorney advised City Council at the April 23^rd hearing on the SE corner that Milton’s strict variance test gives Council little flexibility.  And he further advised Council that to give itself more flexibility, Council (not staff) would need to relax Milton’s variance criteria—i.e., Council would need to legislatively address the issue, including holding public hearings.  And most importantly, the City Attorney explicitly states that Milton’s variance ordinance precludes granting variances to “make  developments better” . . . just the opposite of what staff is now contending.  I urge council members to visit my blog to watch the 4-minute video of the City Attorney’s advice to Council.

As with war, the first casualty of politics is truth.  So Council, let’s be honest.  Nothing has changed here.  It is common knowledge that the developer has been advised by some in our City government that council regrets its April 23^rd decision to deny the Zoning Modification for the SE corner.  The developer has been further advised (again by some in our city government) that a majority of council will vote for his new proposed plan.  (Of course, this collaboration with a developer raises all sorts of issues about ethics, transparency, etc. but those are topics for another day.)  Understood in this light, staff’s epiphany about its right to apply its “professional judgment” to trump Milton’s variance ordinance is a transparent attempt to provide cover—the proverbial “fig leaf”–to those council members seeking to reverse their vote on this zoning modification.  It will be interesting to hear how the City Attorney might square his support for staff’s ignoring Milton’s variance law with his advice from 6 months ago.

Council, I implore you to consider the implications of sanctioning such gross violations 1) of our variance ordinance and 2) of our process for enacting legislation.  Council’s acceptance of these violations represents a serious violation of the public trust.  It is the sort of action that alienates citizens and erodes public confidence.  Milton’s citizens deserve better.  If we are going to relax our variance criteria, let’s do it the right and legal way (the way recommended by the City Attorney on April 23^rd ):  through enacting an ordinance, including holding public hearings.

Council, I urge you to only consider application of Milton’s 4-part test for variances in your decision.  Clearly, the requested variance does not meet the criteria of that test.  And accordingly, this variance should be denied.

Thank you for considering my perspectives in this matter.

Advocating for clean, competent, courageous, and citizen-centric governance

Tim