Rescind a failed Motion?

[BenjaminLevine]

   Our county held a first and second reading for a rezoning request in January. At the second reading there was a motion and second to rezone the property, and the vote was 3 in favor, 4 against. Our county has a 12 month moratorium on requesting a rezone the same parcel, and the type of zoning (PDD) will not exist after the 12 month moratorium, so we assumed the property would not be rezoned PDD.

   Now our county has an interest in rezoning the property before the 12 months is complete (developer donating some land), and the county decided to bring back the rezoning request by rescinding the vote that was made at second reading in January.

   From everything I can see in Robert's rules it looks like the motion to rescind is designated for motions that were approved. There is one section of Robert's rules (newly revised 11th) states that the motion to Rescind or to Amend Something Previously Adopted can be applied only to a motion on which the vote was affirmative. I asked our county attorney about this and I received the following response.

****************

"Your error with the language on page 78 of Robert's is your interpretation of the word "affirmative". Affirmative should not be read to mean "passed favorably" in the context of that sentence. "Affirmative" should be read to mean "passed by a majority of the body". Whether the majority favorably passed the motion or denied the motion, the vote was by the majority."

*************** End quote

he then references page 305 where it talks about using this meaning of affirmative when reading sentences which state that motions to rescind apply to adopted motions. As far as I can tell, an adopted motion is a motion where there are enough positive votes for the needed majority.

Are they out of order by rescinding a failed vote on a motion? The county attorney has a law degree and I don't, but it seems like you wouldn't need to rescind motions which failed usually because you should be able to just place them on the agenda again at a later date. Thanks,

 

 

[BenjaminLevine]

FYI, The county does us Robert's Rules Newly Revised 11th Edition

[Hieu H. Huynh]

You are correct in that a defeated motion could simply be renewed.

[George Mervosh]

See RONR (11th ed.), p. 336ff  regarding Renewal of Motions.

What needs to be determined is, does the rule you mention  - Our county has a 12 month moratorium on requesting a rezone the same parcel - prohibit renewing the motion?  I have no clue, but you need to check to be sure.

 

[BenjaminLevine]

Thank you Hieu and Goerge,

   Our county's Development Ordinance provides the rule on 12 Months between rezoning requests. Therefore, I don't believe it could be renewed during that time. This seems to be the only way the county can bring it back to council. Are they out of order by attempting this motion to rescind?

[George Mervosh]

Just now, BenjaminLevine said:

Thank you Hieu and Goerge,

   Our counties Development Ordinance provides the rule on 12 Months between rezoning requests. Therefore, I don't believe it could be renewed during that time. This seems to be the only way the county can bring it back to council. Are they out of order by attempting this motion to rescind?

The motion to rescind would not be in order.  RONR (11th ed.), p. 305, ll .28-31

[BenjaminLevine]

Any organizations that can help with something like this, or have I done what I can by letting the county attorney know my objections? I am in South Carolina.

[George Mervosh]

21 minutes ago, BenjaminLevine said:

Any organizations that can help with something like this, or have I done what I can by letting the county attorney know my objections? I am in South Carolina.

RONR could not be clearer as to what a motion to rescind can be applied to, but if he's hell-bent on misinterpreting it there's probably not much you can do.

[Kim Goldsworthy]

I wanted to have the text of the bullet item on page 78 handy, so I clipped it.

Quote

Again, the motion to Discharge a Committee (as applied
to a motion that was referred) and the motion to Take
from the Table have the common feature of proposing that
the assembly take up a matter still “within its control”
(see pp. 90–91, 340–41) that was temporarily disposed
of. On the other hand, the motion to Rescind or to
Amend Something Previously Adopted and the motion    
to Reconsider are both applied to a motion that has been
finally voted on. However, the latter motions differ from
each other in that the motion to Rescind or to Amend
Something Previously Adopted can be applied only to a mo-
tion on which the vote was affirmative, and it proposes a
specified change in a decision that may have been made
at any time previously. By contrast, the motion to Recon-
sider can, with certain exceptions, be applied to a vote that
was either affirmative or negative, within a limited time
after that vote, and it proposes no specific change in a
decision but simply proposes that the original question
be reopened.

While I am at it, I should clip your lawyer's interpretation, for convenience sake.
 

Quote

 

>> "Your error with the language on page 78 of Robert's is your interpretation of the word "affirmative".

>> Affirmative should not be read to mean "passed favorably" in the context of that sentence.

>> "Affirmative" should be read to mean "passed by a majority of the body".

>> Whether the majority favorably passed the motion or denied the motion, the vote was by the majority."

 

Here is a wild guess at what your lawyer's interpretation might have been based on.

• If the legal language uses the phrase "majority of the quorum", then your lawyer's interpretation might have been influenced that "majority of the body" implies "majority of the quorum".

I have been told by legal people, that as long as affirmative votes or negative votes prevail with a "majority of the quorum" involved (somehow), then that carries some kind of legal weight.

That is one wild guess on my part. It is based on your lawyer's strange interpretation of what should have been crystal clear.

 

[Joshua Katz]

The fact that your attorney has a law degree doesn't suggest he's knowledgeable about parliamentary procedure.  It does suggest that his professional training is to advocate for his client's desires, though.  In any case, why do you need to convince your county attorney of anything?  He is staff and, I presume, not a member of whatever body approves (or not) these requests, and certainly not the chair of said committee, hence he doesn't make rulings on these questions, he gives advice.  You need to convince the body that this motion is out of order.

[Kim Goldsworthy]

Idea #1: Get a second legal opinion.

Idea #2: Get a written opinion from a credentialed parliamentarian.

[BenjaminLevine]

Thank you all,

   I have tried to argue this point during my citizen's comments portion of the County Council meeting, and the County Council is dead set on listening to their county attorney who uses the exact reasoning explained by Kim Goldsworthy, that the majority, whether affirmative or negative is still the majority.

I have contacted a parliamentarian for more information.

[Greg Goodwiller, PRP]

Greetings, Benjamin. We communicated earlier today by email about this, without the details. I completely agree with my colleagues. By parliamentary law and standards, a defeated motion is simply lost. Period. And your requirement of a 12 month moratorium on a new request would preclude the motion to rescind or amend something previously adopted from being in order until 12 months have passed. 

 

[Dan Honemann]

9 hours ago, Greg Goodwiller said:

Greetings, Benjamin. We communicated earlier today by email about this, without the details. I completely agree with my colleagues. By parliamentary law and standards, a defeated motion is simply lost. Period. And your requirement of a 12 month moratorium on a new request would preclude the motion to rescind or amend something previously adopted from being in order until 12 months have passed. 

 

I have no idea what this county's Development Ordinance provides, and so I suppose it's possible that it may preclude the making of a motion to rescind the grant of a zoning request within a twelve month period from the date of adoption of the motion granting the request, but I'm inclined to think it much more likely that it precludes renewal of a zoning request within a twelve month period from the date of its denial.

In any event, although it does appear, based upon what Mr. Levine has posted, that this county's attorney doesn't know much at all about the rules in RONR relating to motions to Rescind or to Amend Something Previously Adopted, I'm sure that he knows much more than I do about this county's Development Ordinance. 

I suppose I should add that I do not mean to imply that I think it likely that zoning requests that have been granted can be rescinded. 

 

[BenjaminLevine]

Thank you all again Mr. Goodwiller for the contact information for a NAP member in SC. I have made contact and will await a response.

Mr. Honemann, you are exactly correct, the UDO states:

"However, no such amendment shall be initiated for the same change of zoning request affecting the same property or any part thereof within 12 months of a hearing and decision on such zoning change by the county council, as provided in section 18.7 "

I have respect for the County Attorney so I will ask him in private first if he would consider discussing this with a Parliamentarian before allowing this motion to continue at the next County Council meeting. My intention is not to embarrass him, but rather to see the county follow proper procedure.

[Shmuel Gerber]

Besides the plain fact that there is no such thing in RONR as rescinding the rejection of a motion, it seems to me that the whole question about whether the original decision can be rescinded is a red herring. When an action is rescinded, that doesn't change the fact that the original decision to take that action was made when it was made.

(By the way, the OP seems to have neglected to mention the next sentence of the ordinance: "This 12-month period does not apply to actions initiated by either the county council or the planning commission." I don't know what it means, but it seems like it might very well be relevant.)

[BenjaminLevine]

Hi Shmuel Gerber,

   Thank you for posting the following sentence in the ordinance. I tried to explain this sentence to my County Council member. It sounds like this means the county can attempt to rezone this property if they initiate the rezoning instead of the applicant. This would mean abandoning the rescinding, and starting their own rezoning attempt. What further complicates the matter is that the county is under a rezoning moratorium in this area while a new development ordinance is being adopted.

   The County did attempt to initiate a rezoning process last year with a different property that was originally zoned incorrectly. Unfortunately they were trying to rezone a property that was zoned as residential to light industrial. It was always being used as light industrial, but had originally been incorrectly zoned as residential, and since the original zoning a lot of higher priced residential has been sold adjacent to that property. Residents of that higher priced residential property were not thrilled about a light industrial neighbor. The Council decided to vote against that rezoning, and I believe it went into litigation by the owner of the light industrial company.

   Lots of extra information here, but I believe it applies to why the county is trying to do what they can to push through the original rezoning application.

[BenjaminLevine]

Well, thank you for all the information here. You were all a great help, but the County Council has decided they don't really want to listen here. In fact they forwarded my email on to the developer who then called to harass me about why I was trying to stop his development.

The citizen who asked me for help on this lives in an adjacent property and wants to know if there is any recourse or path that can be taken to stop the rezoning which will now be at second hearing. The citizen had originally received a note stating that the rezoning was denied. I told them to contact the SC parliamentarian I found to check with them.