November 3, 2018
Buried in this week’s City Council packet (on pages 209 and 210), the Milton City government surreptitiously instituted a radical change to its policy for evaluating variances, essentially gutting the strict 4-part test for variances that had been previously applied. This change was effected to provide cover for city council members that are planning to vote to approve a zoning modification for the SE corner of Birmingham Crossroads, which all 6 council members previously voted to deny. The revised policy also allowed city staff to reverse its previous recommendation to deny the zoning modification for the SE corner. The new proposal for the SE corner is nearly identical to original proposal. (In fact, I believe it is worse, as the developer eliminates a commercial building to allow room for an additional home, although he does add also add a bit more greenspace.)
Following is the City Attorney’s advice to City Council about application of Milton’s variance ordinance to the SE corner of Birmingham Crossroads. The City Attorney clearly states that Milton’s variance ordinance applies, and that granting a zoning modification would violate the law. He further advises council to change the variance criteria if council requires more flexibility. However, he does NOT advise city staff to unilaterally change our variance policy to allow for the “professional judgment” of our city staff to circumvent or supersede Milton’s 4-part test for granting variances. This policy change is a clandestine act of legislative fiat by our city government that I believe to be illegal. Such changes need to be accomplished through an ordinance passed by City Council, thereby requiring public notification and public input.
Citizens, it is important that we stand up for the rule of law in Milton. This action is the sort that leads to corruption in government and cynicism about government. Please write to our City Council members and demand that this policy be rescinded and accomplished by local legislation, requiring public hearings and allowing public comment. Please consider attending Monday night’s city council meeting to express your opposition to this policy change. Thank you.
Following is an email that I sent to our City Council about the policy change. I think that most are likely unaware of the change. However, I suspect at least one council member, operating behind the scenes, is responsible for the change.
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Dear City Council, City Manager, and City Attorney:
I am writing to express my dissatisfaction with fundamental changes made to the policy for granting variances in the City of Milton. The changes effectively gut the long-standing, strict 4-part test that Milton has applied to the granting of variances—albeit somewhat inconsistently. The 4-part standard is replaced by a subjective and squishy standard that is ripe for manipulation and corruption. These policy changes were crafted in a back room at City Hall, with no opportunity for public review and comment. The new policy provides the basis for staff to reverse its recommendation to deny the zoning modification for the SE corner. The new policy is buried in staff’s analysis of the proposed zoning modification for the SE corner of Birmingham Crossroads, so I suppose meant to escape public attention. That is no way to implement and disseminate important government policy. Furthermore, I assert effecting such changes in our laws in this fashion is illegal. And let’s be honest. The new policy is a transparent effort to provide cover for City Council members that might plan to vote for approval of the Zoning Modification for the SE corner—a zoning modification that all 6 council members denied just 6 months ago. At that time, in the April 23rd hearing, the City Attorney was clear that the 4-part test for variances needed to be applied to the zoning modification. And more importantly, the City Attorney advised that, if the City wanted more discretion, it should consider revising the 4-part standard for variances through an ordinance, which would require formal public hearings. The City chose not to follow his advice, but rather chose to surreptitiously institute a new policy through a zoning modification. This new policy is a blatant end-run around Milton’s variance ordinance. Lastly, this shift in policy represents a major shift of power from citizens—who I assert are protected by strict application of the rule of law—to politicians. This shift of power is diametrically at odds with the sentiment expressed by voters in 2017 when we elected candidates for City Council running on a platform of “shifting power back to citizens.”
Council members, I urge you 1) to read closely the City’s rationale for the shift in policy and 2) to watch the City Attorney’s comments at the April 23rd council hearing about Milton’s variance ordinance.
The City’s rationale for the policy shift is obviously carefully crafted and seems reasonable . . . on the surface. However, I ask you 1) to look past the flowery language and think about the substance of the issue and 2) to consider the importance of the rule of law. In abandoning its long-held policy of applying a strict 4-part test, the City asserts that henceforth:
“. . . planning staff is to proactively apply their subject matter expertise and extensive training; ensure best planning practices are adhered to; and to interpret and apply long-range planning documents and local ordinances . . . thorough review and thoughtful analysis, not just exclusively applying the letter of the law, but also accounting for sound planning practices and using professional judgment to determine whether a modification and/or variance requested ultimately delivers a higher quality project for the community.”
In the phrase “not just applying the letter of the law,” the City is referring to the strict 4-part test for variances and asserting that a host of other factors, like “thoughtful analysis” and “professional judgment” will be applied. While such phrases sound good on the surface to an undiscerning citizen, the City is effectively stating that variance determinations henceforth will be subjective judgments about the “best possible development for the Milton community” . . . with such subjective judgments falling ultimately to Council. And of course, in the past, city council members’ judgments of “best possible development for the Milton community” have varied dramatically. Furthermore, the use of the phrase “exclusively applying the letter of the law” is deceptive. Our the City Attorney has asserted that Milton’s variance ordinance does allow for the exercise of judgment in the application of the 4 variance tests. However, that judgment needs to occur within the boundaries of the rule of law. These boundaries have been strictly drawn in Milton . . . to protect citizens from arbitrary application of the law. And that is a good thing. In adopting its new policy, Milton is essentially erasing all legal boundaries and essentially creating a “wild west scenario” for future variance proceedings—a highly variable, consuming, and politicized process vs. a consistent, streamlined legal process. Under such a policy, more than ever, everything depends on getting your guy/gal on Council . . . a very poor governance model.
I request Council view the video from the April 23rd where the City Attorney advises Council on Milton’s variance ordinance and its inappropriateness. In that meeting, the City Attorney is crystal clear about our ordinance. The City Attorney advises City Council that if more flexibility is required, then Council should consider changing the City’s variance criteria. He further states that granting a variance “simply to make developments better” would violate our zoning ordinances. So I cannot square the City’s current policy with the advice previously given by the City Attorney. Furthermore, I do not know how the City can apply any standard other than the original standard in this case; it would seem that this case would certainly be grandfathered under the original interpretation, especially considering that the developer’s current plan differs little in substance from the original plan submitted on April 23rd. While I am not in favor of the new policy, I am also not in favor of changing our city’s variance criteria. Rather the City needs to focus its efforts on improving its zoning laws and processes, including improving its capabilities and requiring increased staff accountability.
Implicit in the city’s new policy is the notion that good process and good outcomes are antithetical. Joe Lockwood goes further and asserts that “citizens do not care about process, they only care about outcomes.” That is a direct quote. I reject this notion. Joe’s belief is wrong, dangerous, and an insult to citizens, who are more intelligent than Joe implies. In fact, through my long experience in business, I know that good process not only results in good outcomes, it a guarantor of such outcomes. And I think most citizens (at least implicitly) understand that fair application of the rule of law is foundational to good governance. Citizens understand the importance of honoring the process, wherever it might take us.
Unfortunately, Milton’s has many deficiencies in its community development processes that have led to poor outcomes for citizens. And rather than fix its processes, Milton has decided to gut the variance process with the purported goal of achieving better outcomes; this makes no sense. And rather than shifting power to citizens, which was the main theme of the 2017 elections, the new policy concentrates power in city employees and ultimately in city council. Such lawlessness will certainly lead Milton to a worse place, as the proposed new policy will invite corruption and influence of Special Interests.
It is ironic that bad process actually resulted in the current request for a zoning modification for the SE corner of Birmingham Crossroads. It is widely known, but not publicly acknowledged, that staff’s failure to properly clean up the conditions of the 2014 rezoning actually required the City to fall back to the townhouse limit established by Fulton County. And the developer is now using this technicality to bully the City into approving a zoning modification. And what is the City’s response? Its response is to further rely on staff “to determine whether a modification and/or variance requested ultimately delivers a higher quality project for the community.” This adds to the irony as we all know that staff has made quite a few serious errors in the past, in addition to the SE corner error, that have resulted in poor outcomes for the City. Remember the fiasco at the corner of Thompson and Hopewell? And it is widely acknowledged that the form-based code for Crabapple has resulted in many poor outcomes (with more to come). So a policy that de-emphasizes our 4-test variance process in favor of increasing reliance on staff’s “subject matter expertise and extensive training” seems imprudent at best and reckless, at worst. I also worry that some staff do not maintain an arms-length relationship with developers. On multiple occasions, I have witnessed staff and developers celebrating victories achieved by those developers at Council . . . one celebration clearly visible in the lobby through the glass.
The problem for Milton is that so much time is wasted on indulging developers’ requests (for zoning modifications, etc.) and fixing staff’s mistakes that little time or resources are available for reforming our processes. We need to focus on improving our processes. This includes making our processes more citizen-centric. On many occasions, I have witnessed unhappy and dispirited citizens streaming out of zoning hearings, not because of the outcome but because they were not treated fairly. Nearly a year ago, discontented citizens voted overwhelmingly to “shift power back to citizens.” However, I have not witnessed any changes to our zoning hearings that are helpful to citizens . . . changes that shift power back to citizens. Nothing has been done, and there is much that can be done. For starters, let’s allow citizens another opportunity to speak after initial public comment. It is not fair that once initial comments are made, only the developer then has an opportunity to speak. And Council needs to stop Mayor Lockwood’s allowing developers to freely approach Council and speak without being called to the podium. At the Matilda’s hearing, once a motion had been made, Mayor Lockwood allowed the applicant to interrupt the proceedings to protest the motion, and his plea resulted in an amended motion that deleted a condition. We need to end double standards that disadvantage citizens. We need to level the playing field for citizens.
City Council, as you know, I have invested much time and effort in promoting good governance in our City. I am driven only by my love for this community, Milton, that I am proud to call my home. My greatest blessing has been getting to know so many fine citizens of Milton, many of whom I consider friends . . . and that includes several of you included on this email. Our citizens are what make Milton great. And they deserve great government–much better government than they now receive. Over the past year, I have witnessed our city government putting more and more distance between itself and citizens, and it saddens me. Citizens are disengaging. The city’s clandestine change in its variance policy is just the sort of action that alienates citizens. It is the sort of action that makes citizens cynical about government and causes them to disengage. Council, our citizens deserve better. Council needs to reject this policy change. And if we need changes in our land use processes, let’s do it in a way that honors our citizens and good governance . . . by changing our city ordinances through public hearings that allow citizen input.
Advocating for clean, competent, courageous, and citizen-centric government,
Tim Becker
November 23, 2017
Milton Coalition 