Parliamentarian Opinion - Motion to Rescind a Previously Failed Motion

[Guest Michael Mansson]

I am in need of a time sensitive parliamentarian opinion pertaining to a Town Councils recent agenda item for a motion to rescind a previously failed motion.

 

In short, on April 28, 2020 the Mayor of a Town Council in South Carolina held a vote for a motion to approve an ordinance (a rezoning request) at a Town Council meeting (this was the first reading of ordinance) in which the motion failed as a result of a 3 to 3 vote with the tie resulting in a defeat of the motion (per the Town, a tie on a motion requiring a majority vote means that the motion was defeated).

 

The Town attorney has confirmed that the motion can not be up for reconsideration as the allocated time frame has passed (in addition that a member from the prevailing side would have had to brought forth the request), and that a motion to renew would not be in order as the Town Code limits a rezoning request to once per 12 months, but has informed Town Council that they can make a motion to rescind the previously failed motion to approve the ordinance. It is my understanding that under Robert's Rules (RONR) and parliamentary law and standards, that a defeated motion is simply lost and you can not rescind a failed motion.

 

Is this accurate? Is the Town NOT in order to rescind the previously failed motion?

 

Thank you.

 

 

[Richard Brown]

13 minutes ago, Guest Michael Mansson said:

I am in need of a time sensitive parliamentarian opinion pertaining to a Town Councils recent agenda item for a motion to rescind a previously failed motion.

 

In short, on April 28, 2020 the Mayor of a Town Council in South Carolina held a vote for a motion to approve an ordinance (a rezoning request) at a Town Council meeting (this was the first reading of ordinance) in which the motion failed as a result of a 3 to 3 vote with the tie resulting in a defeat of the motion (per the Town, a tie on a motion requiring a majority vote means that the motion was defeated).

 

The Town attorney has confirmed that the motion can not be up for reconsideration as the allocated time frame has passed (in addition that a member from the prevailing side would have had to brought forth the request), and that a motion to renew would not be in order as the Town Code limits a rezoning request to once per 12 months, but has informed Town Council that they can make a motion to rescind the previously failed motion to approve the ordinance. It is my understanding that under Robert's Rules (RONR) and parliamentary law and standards, that a defeated motion is simply lost and you can not rescind a failed motion.

 

Is this accurate? Is the Town NOT in order to rescind the previously failed motion?

Well, there are several issues here, but the main one is that you cannot rescind something which was never adopted.  Reconsideration might be a possibility, but you cannot normally reconsider a motion that can simply be renewed.... as is normally the case with a motion that has been defeated.  There are also time limits on the motion to reconsider as you noted.  Per the rules in RONR, it can be renewed (i.e. made again) at an future meeting.  I gather from your comment that there might be restrictions on applying for the same relief again for 12 months.  Whether that rule prohibits renewing the motion in your case is beyond the scope of this forum.  In my opinion, it is more of a legal question regarding your rules and ordinances than one of parliamentary procedure and the rules in RONR.  The rules in RONR permit it to be renewed, but your own rules may not.

Just as an aside, I note that you said this occurred on first reading.  On first reading of an ordinance or statute, usually no action is taken.  It the practice in your council different?

Stay tuned for other suggestions.

[Guest Michael Mansson]

Thank you Richard for your feedback. Yes, the Towns Codes prohibit a renewal to take place within the 12 month period. Their only option according to the Town Attorney is for the motion to be rescinded. My specific request for opinions and feedback from a parliamentary perspective is that the Town Attorney continues to reference RONR and I want to be able to respond accordingly with feedback that pertains to RONR. As the agenda at this time is for a motion to rescind, I want to be very clear that this is not in order according to parliamentary law and standards (and per RONR). Thank you again for your feedback

[Josh Martin]

14 hours ago, Guest Michael Mansson said:

Thank you Richard for your feedback. Yes, the Towns Codes prohibit a renewal to take place within the 12 month period. Their only option according to the Town Attorney is for the motion to be rescinded. My specific request for opinions and feedback from a parliamentary perspective is that the Town Attorney continues to reference RONR and I want to be able to respond accordingly with feedback that pertains to RONR. As the agenda at this time is for a motion to rescind, I want to be very clear that this is not in order according to parliamentary law and standards (and per RONR). Thank you again for your feedback

It is correct that, so far as RONR is concerned, the motion to Rescind may not be applied to a motion which was defeated.

"Can be applied to anything (e.g., bylaw, rule, policy, decision, or choice) which has continuing force and effect and which was made or created at any time or times as the result of the adoption of one or more main motions." (RONR, 11th ed., pg. 305, emphasis in original)

Generally, the appropriate course of action in these circumstances is to simply renew the original motion, but we are told that the Town Code prohibits this. So it seems that all three options (Rescind, Reconsider, and Renew) are blocked, however, all is not necessarily lost for the proponents of the motion. While the rules in the Town Code cannot be suspended, the rules in RONR can be. The council could Suspend the Rules in order to permit a motion to Reconsider to be made beyond its ordinary time limits. So far as I am aware, no rule in RONR prevents adopting a motion to Suspend the Rules for this purpose. I would prefer this to suspending the rules to permit Rescinding a defeated motion, because quite frankly, I'm not really sure what would happen if a defeated motion is rescinded.

The motion to Suspend the Rules requires a 2/3 vote for adoption. Another option would be for the council to adopt a special rule of order permitting a longer time period for making a motion to Reconsider in regards to a failed zoning application. Adopting a special rule of order requires a 2/3 vote with notice or a vote of a majority of the entire membership.

With all that said, public bodies often have all sorts of bizarre rules regarding zoning issues, so I wouldn't really be that surprised if the attorney is correct that the motion to Rescind is the appropriate tool here - but if he is correct, it's not because of anything RONR has to say on the subject.

Edited May 9, 2020 at 02:28 PM by Josh Martin

[Richard Brown]

I agree with Mr. Martin’s post above and specifically with his opinion that you could suspend the rules to permit a late motion to reconsider. 

Edited May 9, 2020 at 01:54 AM by Richard Brown
Typographical correction

[Joshua Katz]

2 hours ago, Guest Michael Mansson said:

In short, on April 28, 2020 the Mayor of a Town Council in South Carolina held a vote for a motion to approve an ordinance (a rezoning request) at a Town Council meeting (this was the first reading of ordinance) in which the motion failed as a result of a 3 to 3 vote with the tie resulting in a defeat of the motion (per the Town, a tie on a motion requiring a majority vote means that the motion was defeated).

 

This is also correct in RONR.

2 hours ago, Guest Michael Mansson said:

The Town attorney has confirmed that the motion can not be up for reconsideration as the allocated time frame has passed (in addition that a member from the prevailing side would have had to brought forth the request), and that a motion to renew would not be in order as the Town Code limits a rezoning request to once per 12 months, but has informed Town Council that they can make a motion to rescind the previously failed motion to approve the ordinance. It is my understanding that under Robert's Rules (RONR) and parliamentary law and standards, that a defeated motion is simply lost and you can not rescind a failed motion.

 

I don't think you have a parliamentary question. The real question here is the impact of state and local laws governing zoning (and a few Supreme Court decisions) on parliamentary procedure. As a matter of parliamentary procedure, of course, a failed motion could simply be made again at a new session. But, as is common, you don't allow requests to be made again within a certain time frame. I'm unclear why the law would permit a loophole like rescinding the denial, but if that's what the lawyer says, I'm not going to argue (unless someone pays me to do so). 

All sorts of odd things happen with land use. For instance, it is out of order, per RONR, to move to do nothing. So a decision on an application, one would think, should be made by moving to grant it, and then voting it up or down. But as a matter of due process, you generally need to affirmatively deny the application, so a failed vote to grant a variance is often followed by a motion to deny the variance to meet the legal standard.

[Richard Brown]

1 hour ago, Joshua Katz said:

All sorts of odd things happen with land use. For instance, it is out of order, per RONR, to move to do nothing. So a decision on an application, one would think, should be made by moving to grant it, and then voting it up or down. But as a matter of due process, you generally need to affirmatively deny the application, so a failed vote to grant a variance is often followed by a motion to deny the variance to meet the legal standard.

I completely agree. Zoning and land-use issues in city and county governing bodies are often subject to rules and procedures quite different from ordinary parliamentary procedure. Edited to add: An express denial of an application is often either required or customary.

Edited May 9, 2020 at 03:17 AM by Richard Brown
Added last sentence

[Josh Martin]

12 hours ago, Joshua Katz said:

I'm unclear why the law would permit a loophole like rescinding the denial, but if that's what the lawyer says, I'm not going to argue (unless someone pays me to do so). 

While I agree that this is ultimately a legal question, I would suggest as a general matter that this depends on what the purpose of the law is. If the purpose of the law is to provide that, after the time period for reconsideration has passed, the council's denial of a zoning application is final and cannot be revisited by any means until the 12 month period expires, then it would indeed seem odd for the law to permit loopholes such as this (or such as the loophole I suggested).

On the other hand, it may be that the purpose of the law is simply to prevent the applicants from pestering the council with repeated applications (which the council may well be required by law to act on), and is not intended to prevent the council from changing its mind.

Edited May 9, 2020 at 02:37 PM by Josh Martin

[Joshua Katz]

Mr. Martin, the purpose of these laws is typically to avoid annoying the neighbors with the constant need to respond to and testify about the same application, at pain of winning the battle and losing the war. ("Well, no opposition this time.") Regardless, without seeing the language, I should not have opined on whether or not a loophole is odd, and I'm certainly not going to argue about it.