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Milton appeals proposal raises many questions

October 29, 2021

Having just reviewed the advisory report from Milton’s Planning and Zoning Commission on the proposed legislation regarding appeals, to be presented to town council Monday, Nov. 1, I’d like to share a few of my many concerns.  I am not an attorney and don’t pretend to be a legal scholar, but I am a concerned resident who has a strong caution to what is being proposed. 

• What will this cost a resident who seriously believes there has been a violation of law and they lose the appeal? According to the proposed legislation if a non-pauper resident files an appeal the appellant must first pay a $400 filing fee and then put up an escrow amount starting at $1,000, and capping at an undetermined amount. 

“Unless the appellant is the prevailing party in the appeal, the appellant shall be responsible for reimbursing the town for all expenses incurred by the town related to the appeal for engineering fees, attorney fees, transcription fees, and any other professional fees incurred by the town as a result of said appeal; the reimbursement responsibility shall not exceed the amount of the escrow established in the currently effective Town of Milton fee schedule.” When one looks at the fee schedule, you’ll find on the last page in very small print the following!

“The town may, at its own discretion, increase the initial required escrow funds upon review of the application and determining that the particular application is likely to substantially exceed the standard initial escrow amount.”

Who is the town you may ask? Good question, because no one I’ve spoken to can tell me. I’m assuming it’s got to be the office of the mayor seeing he sits at the top. So here we have an undisclosed person dictating an uncapped amount a resident must put up to receive the benefits of what the first amendment guarantees every citizen. 

• Why was planning and zoning tasked with composing an advisory report on such a complicated legal issue?

I have a lot of respect for the hard-working members of the planning and zoning commission. This board is probably one of the hardest working boards in our town. Having served on the board, I know how much time is required. Preparing and implementing our town’s comprehensive plan as well as site-plan review and approval are the bulk of the work P & Z is authorized to do. 

With all due respect, P & Z members are mostly trained engineers, construction experts, and planning specialists, but they are not trained constitutional law experts. One has to ask themselves why were they charged with putting together an advisory report for the council to consider and not a constitutional scholar? Many residents believe something this important and controversial should have gone before a recognized independent constitutional attorney for expert legal advice and guidance.  

Planning and zoning decisions are the very thing likely to be appealed! Why were they tasked to advise on the new law? 

• What is ‘forma pauperis’?

“An appellant may file with the appeal a request to proceed in forma pauperis.” According to the proposed advisory report from P & Z, forma pauperis residents will be able to make appeals at no charge. What is forma pauperis you ask? According to Merriam-Webster, a pauper is, “a person destitute of means except such as are derived from a charity. Some synonyms are hobo, pauper, tramp, vagrant, derelict, mendicant, bum, supplicant, deadbeat.” 

If this legislation as written is passed, a town resident who truly believes they have a legitimate grievance against the powers over them may file an appeal, but if they lose the appeal, they will be forced by law to pay all costs of all parties involved, unless of course, you are a pauper. How many property-owning voting paupers do we have in Milton?  

• What is a legitimate appeal? An appeal is not an opportunity for a resident to challenge a decision they don’t like because of personal reasons or aesthetics or any other nonlegal reason. An appeal should only be heard when it is asserted a previous legal determination was in error, interpreted wrong, or misapplied. It’s been asserted by the mayor that an undisclosed former appellate who lost their appeal has threatened the town with countless frivolous appeals.  

“We recently had an appeal and the individual lost the appeal and said that at every juncture, planning & zoning, he would file an appeal, right, wrong or indifferent.” 

If our town set up a board, made up of retired attorneys, they could review any proposed appeal and after review either recommend going forward or rejecting it on grounds of not having legal standing. There is no greater threat to liberty than a government free to interpret and apply laws without oversight with no accountability to the people. To be effective and fair, the mechanism for that oversight must not be unduly burdensome.  Untold scores have died to provide the freedoms guaranteed to every American in our Constitution and now the residents of Milton may be forced to give some of their rights because of potential financial oppression. What non-pauper resident is going to possibly risk thousands of dollars to petition the government for a redress of grievances? The significant changes to our town’s code being proposed regarding fees for appeals are very disconcerting on many levels. While the desire to save the town money is being put forward as one of the main reasons for the changes, as well as a perceived threat of nuisance appeals, I believe it will have a chilling effect on the democratic process, restricting a resident’s ability to redress a legal decision by a town official, employee or board. If there has been an unlawful or erroneous decision made, or the misapplication of a code, the whole town would benefit from the appeal. Freedom isn’t free, and some things like honest town governance, police protection, and roads ... are costs the whole town must share.

Let’s hope our town council does not rush through this very important piece of legislation as it now stands. At a minimum, this should first be reviewed by a competent constitutional lawyer for constitutionality and fairness. Otherwise, the Town of Milton may find itself in a very costly legal battle which is undoubtedly something everyone would like to avoid. Please come out Nov. 1 and let your voice be heard.

Allen Sangree
Milton
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