Milton council tables decision on appeals ordinance

Milton Town Council has tabled a decision on an ordinance that would set rules and fees for appeals of decisions from the town’s planning and zoning commission.

Council did not set a date on when it would resume discussion of the ordinance; the next scheduled council meeting is Monday, Dec. 6.

The proposed ordinance would lay out the procedure for appeals of decisions made by planning and zoning, the board of adjustment and the project coordinator. The most controversial part of the ordinance, though, is a proposal to institute a fee for appeals to be brought. While the fee would be determined annually when council sets the year’s fee schedule, the first proposed fee, should the ordinance be implemented, would be $400 to file plus at least $1,000 to be held in escrow to cover appeal costs. 

Appeals of planning and zoning decisions specifically became an issue after two appeals were filed within a month of each other. The first, which challenged the commission’s decision to grant a special permitted use for Verizon to build a 140-foot cellphone tower on town-owned land on Front Street, was decided by council in P&Z’s favor. 

A second appeal was filed after the commission granted preliminary site-plan approval to Cypress Grove, a 240-unit, mixed-use development on Route 16. In that case, surrounding homeowners challenged that they were not given adequate notice of the project. Their appeal was withdrawn after it was agreed that the homeowners would be noticed and allowed input as the site-plan process moves along. Town officials have said that the two appeals were both paid for by the town; Mayor Ted Kanakos said the Verizon appeal cost the town $8,000. Seeking to put liability for costs on the appellant and discourage frivolous appeals, the ordinance was crafted.

Citizens in opposition to the ordinance say it would discourage appellants of limited means from filing an appeal. To address that concern, during review by planning and zoning, language was inserted into the ordinance saying if an appeal was successful, the appellant would get their escrow deposit back.

At council’s Nov. 1 meeting, citizens weighed in on the latest version of the ordinance.

James Welu, who owns several properties in Milton, questioned whether a contract purchaser of a property – someone who has a property under contract but has not closed the sale – would be considered an interested party or a property owner in an appeal. Town Solicitor Seth Thompson said whoever was the owner of the property would be responsible for filing the appeal. 

Steve Crawford, 216 Ridge Road, said he thought the issue isn’t necessarily the imposition of the fee but the amount. He suggested the town should defer the imposition of a fee until it sees how many appeals are filed within a 12-month period, and then come back and impose a fee commensurate with the number of appeals per year. 

“Why not wait and gather data, and learn the scope of the problem?” Crawford asked.

He also suggested council pass the ordinance to establish the rules governing appeals, but make the fee $0 until the town has the data to make a more informed decision.

Keith Steck, 210 Lavinia St., said, “I think what’s important is that the language is very clear so that the public understands what the process is and it doesn’t come across as bias in favor of the town or an applicant. That it will be a fair and balanced hearing.”

He said the town should also give serious consideration to the fee to ensure citizens are not priced out of their rights of appeal, and suggested the town budget some funds every year to cover the costs of potential appeals. 

“I think trying to use a fee structure to discourage litigant filings is the wrong way to do it,” Steck said.

In a letter to council and published in the Cape Gazette, Union Street resident Allen Sangree said, “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.”

In another letter, Barry Goodinson, who filed the Verizon appeal, said, “This is tantamount to charging residents an admission fee for a right that is freely given by the Constitution to all Americans.”

Following the public hearing, council had questions on how to move forward with the ordinance, specifically the language around how the escrow would work.

Councilman John Collier said, “I’m not 100 percent happy with what the language is.”

Wanting to absorb public comment and allow for changes, council decided to table a vote on the ordinance until a later date.