Two different motions made about same housing project

[careydthom]

April 2, 2018, our city council made a motion, seconded, and voted in favor of the construction of a 50-unit mixed income housing project on the southern portion of city owned property in 2019.

In a May 21, 2018, council meeting, the developer was preparing their tax credit application for the project and requested adoption of a Resolution of Support.  In a Whereas, the housing development

is written as a 60 unit apartment .  A motion was made, seconded and approved in favor.  My question is:  should the first motion of April 2 be rescinded because the number of units has changed in the second motion of May 21?  Should the rescinding of the first motion be on record?  Where on record?

[Gary Novosielski]

Language in a Whereas clause is there to explain the purpose of the resolution.  It does not create anything new.

Only the language after the word Resolved has any force and effect.  If all the Whereas clauses were deleted from a resolution, the actual effects would be the same. 

[Josh Martin]

31 minutes ago, careydthom said:

April 2, 2018, our city council made a motion, seconded, and voted in favor of the construction of a 50-unit mixed income housing project on the southern portion of city owned property in 2019.

In a May 21, 2018, council meeting, the developer was preparing their tax credit application for the project and requested adoption of a Resolution of Support.  In a Whereas, the housing development

is written as a 60 unit apartment .  A motion was made, seconded and approved in favor.  My question is:  should the first motion of April 2 be rescinded because the number of units has changed in the second motion of May 21?  Should the rescinding of the first motion be on record?  Where on record?

For starters, it would seem prudent to determine if the number of units did, in fact, change, or if the number in the resolution on May 21st, 2018 was an error.

Assuming that it changed, and assuming that the council is supportive of the increase, the proper course of action would be to adopt a motion to Amend Something Previously Adopted in regards to the motion adopted on April 2, 2018 to change the number of units from 50 to 60. This motion should be recorded in the minutes of the meeting where this motion is adopted. The motion should not be rescinded because this would suggest the council no longer approves the building at all.

25 minutes ago, Gary Novosielski said:

Language in a Whereas clause is there to explain the purpose of the resolution.  It does not create anything new.

Only the language after the word Resolved has any force and effect.  If all the Whereas clauses were deleted from a resolution, the actual effects would be the same. 

I agree, but it seems the number of units may have been included in the enacting clauses of the original motion. If this is the case, and if the number of units subsequently increased, the original motion should be amended to reflect that (if the council is supportive of the increase).

[careydthom]

This building has changed from the original presentation, ie. number of units, number of stories, parcels of land occupied, and design from 2018-2019.  There is no record in the minutes, that I can find, of an amended motion that address changing any of the above mentioned categories.  So, is the first motion made about a 50-unit, 3 story building on 2 parcels of land the standing motion?  What if this building goes through and it is different from the first motion, such as 60-unit, 4 story building on 3 parcels of land?  What can citizens do to challenge what is happening?

.  

[Atul Kapur]

If they do conflict, then the earlier (50 units) motion is in effect and the later (60 units) motion is null and void.

There are three exceptions to this statement. If any of a, b, or c are true, then the later motion is in effect.
(a) If the later motion passed by a 2/3 vote; or
(b) a majority of the entire membership of the council voted in favour; or
(c) notice had been given of the intent to amend or rescind the original motion
The reason for the exceptions is that these are the requirements to pass a motion to Amend Something Previously Adopted (or to Rescind it).

I would suggest that the Council clarifies what it approved and currently supports, before shovels and construction equipment start to work.
 

"Likewise, motions are out of order if they conflict with a motion that has been adopted by the society and has been neither rescinded, nor reconsidered and rejected after adoption. Such conflicting motions, if adopted, are null and void unless adopted by the vote required to rescind or amend the motion previously adopted." (RONR 11th ed., p. 343, lines 17-23)

[Josh Martin]

1 hour ago, careydthom said:

This building has changed from the original presentation, ie. number of units, number of stories, parcels of land occupied, and design from 2018-2019.  There is no record in the minutes, that I can find, of an amended motion that address changing any of the above mentioned categories.  So, is the first motion made about a 50-unit, 3 story building on 2 parcels of land the standing motion?  

Yes, I think so.

1 hour ago, careydthom said:

What if this building goes through and it is different from the first motion, such as 60-unit, 4 story building on 3 parcels of land?

I would first note that the council can still easily rectify this matter by means of adopting a motion to Amend Something Previously, so there may end up being no issue.

In the event the building does “go through” notwithstanding the conflict with what the council has approved, I expect it is more of a legal problem at that point than a parliamentary one, especially since the question appears to be regarding what citizens can do about it, not what the council can do about it.

1 hour ago, careydthom said:

What can citizens do to challenge what is happening?

Consult an attorney.

1 hour ago, Atul Kapur said:

If they do conflict, then the earlier (50 units) motion is in effect and the later (60 units) motion is null and void.

There are three exceptions to this statement. If any of a, b, or c are true, then the later motion is in effect.
(a) If the later motion passed by a 2/3 vote; or
(b) a majority of the entire membership of the council voted in favour; or
(c) notice had been given of the intent to amend or rescind the original motion
The reason for the exceptions is that these are the requirements to pass a motion to Amend Something Previously Adopted (or to Rescind it).

I would ordinarily agree with this, but it has been noted that the reference to 60 units only appeared in the whereas clauses in the later motion. As a result, I am inclined to think that (at least as a parliamentary matter), the later motion did not validly approve a change in the number of units regardless of the vote it was adopted by.

Edited July 3, 2019 at 10:39 PM by Josh Martin

[careydthom]

Thank you, gentlemen!  You have given me the direction I can rightfully take.  My city council needs to right some errors and check their ethical code of conduct.