10/02/2013 05:10 pm ET Updated Dec 02, 2013

Town in Michigan Whacks Homeowners for Appealing Wal-Mart Decision

A tiny community on the western edge of Michigan has placed a high price tag on the First Amendment in order to protect the Walton family.

According to angry homeowners in Whitehall Township, Michigan (pop. 1,739), local officials are trying to choke off residents' right to petition government for redress of grievances -- in defense of a Wal-Mart superstore.

A group called BOW NOT (Back Off Wal-Mart - Not Our Town) charges that the Township has created a financial barrier to the First Amendment to discourage an appeal of their recent approval of a Wal-Mart superstore. Right after the Whitehall Planning Commission approved Wal-Mart's plans for a superstore, the Township passed a hefty financial fee for anyone filing an appeal of a Planning Commission decision.

The Township Board levied a $1,650 fee on appeals. Before this new fee was imposed, the Township charged much less for an appeal.

"They are specifically attacking our group and trying to prevent our group and individual citizens in this township and in this area from appealing their decision," Dave Frederick, an opposition leader, told Wood TV. "I can't see any other conclusion. Citizens have the right to redress the actions of their government. This makes it very obstructive in terms of citizens being able to do that."

The Township's supervisor explained to Wood TV that the timing of the new appeal fee and the Wal-Mart approval was purely coincidental. But his remarks were contradicted by one Township Trustee, who said the new fee was passed in response to Wal-Mart's plans.

We've never had an issue where that could be appealed. We've never been in a position for that to happen. It's very expensive. We have to publish it in the paper and that's like $200 or $300. We have to hire an attorney, and all those fees add up. Somebody's got to pay for it, other than our tax dollars.

But according to Wood TV, the fees charged in surrounding communities range from $0 to $100. Whitehall's supervisor denied that the fee was set to discourage opponents from appealing. The new fees are not even posted on the Township's website, which shows a ZBA appeal fee of $425.

Opponents of the plan cried foul. "We want Wal-Mart and the people of this community and Whitehall Township, we want them to know we're not going away," David Frederick said. "We're even more committed to stopping it now because of this kind of action that they've taken."

On September 25th, members of the group BOW NOT contacted Sprawl-Busters again with this update: "As expected, the Township Board upheld the Planning Commission's recommendation to approve Wal-Mart's site plan. So now, we move on to filing a ZBA appeal, again another FEE of $2,020."

BOW NOT chairman Dave Frederick said the Township's Supervisor confirmed that a fee of $2,020 will be due with the application for an appeal. The $2,020 fee to appeal to the ZBA was added at a meeting in June and made retroactive to April. "We have to appeal to the ZBA in order to get to the Circuit Court," Frederick told me. "Today I asked them for an accounting of the $1,650 fee we had to pay to appeal to the Board of Supervisors."

Just to appeal Township decisions, local homeowners have had to come up with $3,670 -- and they have not even reached Circuit Court yet. The First Amendment in Whitehall, Michigan has become a luxury item.

The Township has other options. It could repeal the fee on Planning Commission and ZBA decisions, and instead build the cost of handling an appeal into the fee charged to developers who file plans. In this way, the developer pays for the freight for a potential appeal caused by its own project.

Many communities warn developers that if there is any litigation following the granting of a special permit or zoning approval -- it will be entirely up to the developer to defend its permit. Taxpayers should not be required to pay for appeals designed to protect their properties from incompatible proposals.

If the cost of a Wal-Mart zoning appeal in Whitehall is thousands of dollars, what is the fine for an overdue library book?

I have suggested to BOW NOT that they apply to the Walton Foundation for a grant to cover the cost of these appeals.

Al Norman is the founder of Sprawl-Busters. This month marks 20 years that he has been helping communities across America and the world fight big box sprawl. His latest book is Occupy Walmart.