Variances in Milton (Part 1): Radical Departure From Law and Historical Practice.

In my last post, I promised to discuss variances and how they are used (or often misused/abused) in deciding Milton’s land-use issues.  Granting of variances is a critical element in how Milton gets developed.  My position on variances has been consistent: variances should be granted according to 1) the law and 2) historical variance practice.  This means:

  • Variances should only be granted for minor discrepancies (e.g., allowing a home to be built a foot or two closer to a lot line than zoning allows)
  • Undue hardship must be demonstrated.  And in Milton, proving hardship is especially difficult as Milton’s variance law is strict and involves a four-part test for hardship; each test must be “passed.”  That is to say that our law gives staff and Council very little discretion within the boundaries of the rule of law; DO NOT believe Council members who tell you otherwise.

My position on variances–insistence on adherence to the rule of law and historical zoning practice–is NOT a radical position.  Actually, what is radical (and sometimes unlawful) is Milton’s granting of copious variances that sanction major zoning deviations and/or don’t involve undue hardship . . . sometimes to repurpose a use permit for an impermissible (and hence unlawful) use.  (This will be discussed later in this post.)

In my community advocacy, I aligned myself with a number of likeminded citizens (like current Council Members Paul Moore and Laura Bentley) who took similarly parsimonious stances on variances.  Following is a video of Laura advocating (as a citizen) against the granting of variances to a developer of a property on Providence Road, who was seeking variances (13 in all) for 80% of his unbuilt lots. Laura states correctly that “council’s granting of variances undermines our AG-1 standards” . . . and that is why I opposed every one of the 28 unjustified variances/zoning modifications (and the use permit for a music venue) that have been granted at Birmingham Crossroads.

Laura Bentley Comments Against Variances at June 20, 2016 City Council Meeting

To understand variances it is necessary to step back and to understand the lawful (and also unlawful) avenues for developing land in Milton.  There are 3 lawful ways to develop land in Milton (all of which might or might not involve variances):

  1. By-Right Development means a developer agrees to develop a property in accordance with state and local zoning conditions and standards.  The use for which he/she intends to develop the property is permitted by zoning, without having to meet any additional conditions beyond what underlying zoning requires. Such development usually requires only a land-disturbance permit (and some subsequent inspections to verify compliance), which provides notification to the city that a developer is going to disturb a property for development purposes and that he/she understands the standards (e.g., installation of soil fences) he/she must follow.  In some cases, a review by the Design Review Board or Planning Commission might be required.  These bodies will ask questions, might make suggestions, and might even identify a need for variances.  Some by-right development is defined locally; however, some by-right development (e.g., farm-wineries) is defined by the state, thereby putting limits on municipal government’s jurisdiction.
  2. Use Permits (sometimes also called Special Use Permits or Conditional Use Permits).  Localities designate certain uses as permissible (not to mean permitted) subject to meeting certain conditions for that use specified by law.  These conditions are in addition to the baseline conditions/restrictions required by underlying zoning.  Use permits come before City Council for discussion and approval/disapproval.  Council can levy additional conditions beyond those required by the use permit and underlying zoning.  Alternatively, Council can outright deny a use permit, even if all use permit/zoning conditions (or additional conditions recommended by staff, the Planning Commission, etc.) are accepted by the developer.  This is important and bears repeating . . . Council can deny a use permit that meets all the conditions specified in municipal code for a specified use.
  3. Rezoning.  In situations where a developer desires to put a property to a use that is not by right and for which no use permit exists, a third (usually more onerous) option is available:  rezoning, whereby the developer applies to have a property re-classified to a zoning designation that does allow the intended use either by right or through a use permit.  Often, such rezoning involves reclassifying a property from lower density zoning to higher density zoning or from residential zoning to commercial zoning (or occasionally, vice versa) . . . so that the developer can capture greater profits, often to the detriment of nearby property owners and the broader community.

Note:   In Milton, the rezoning process can be circumvented through the Comprehensive Land Use planning process (by changing the land use designation), with little/no transparency and public input, so that developers (later) can much more easily rezone a property.  This bypass of the law has resulted in several instances of rezoning to higher density, involving sewer extension.  This blatantly dishonest and unfair mechanism is known to council members, but thus far they have refused to fix the issue.  (I will devote an entire blog post to this issue).

Are there any other ways to (lawfully) develop a property?  The answer is NO, other than successfully lobbying the City to change its zoning ordinances to modify zoning restrictions or to add additional special use permits.  This is a key point, because in Milton, we have seen properties approved for uses for which no special use permit exists . . . this is known as spot zoning and is patently unlawful.  (Example:  approval of the music venue at Birmingham Crossroads.)

So how do variances apply to these 3 methods for developing property?  And how are variances being used to circumvent the rule of law (as reflected in our zoning laws)?  Well, that is a topic for the next blog post.  Stay tuned . . . the business of granting variances is a particularly sordid affair in Milton that involves favors for friends and establishment of dangerous legal precedents that will eventually come back to haunt Milton (in the form of unsightly future development).

Advocating For Granting Variances According to the Law and Historical Practice,