How to Rescind a Motion

[MHurd]

Our city council voted 6 to 1 against a conditional use permit for an apartment complex. The buyer walked away and the seller put a For Sale sign back up. The one council member that voted to approve has now made a motion to rescind the previous denial. My questions are:

1. Can a motion to rescind be made at any time?

2. What does 'motion that has already been carried out' mean? The for sale sign went back up, does that mean that because the buyer walked away from the project the motion was carrier out? 

3. If the council member provided notice, does that mean only a majority vote is needed to pass?

4. The only reason she made the motion to rescind is due to the owner of the property suing the city. Of which per the Met Council, they have no basis for. 

Appreciate your comments and any advise.

[George Mervosh]

A motion to rescind can only be applied to one or more adopted main motions, not one that was defeated.  RONR (12th ed.), 35:2  2)

Under the rules in RONR, a motion to grant the permit can be made again at any new session of council.  See RONR §38 Renewal of Motions. 

You should check with the council's attorney regarding any new notice requirements or other procedural rules in statute which may apply.

[MHurd]

Thank you George. To confirm, under your first comment: "A motion to rescind can only be applied to one or more adopted main motions, not one that was defeated" does that mean because none of the three motions were adopted that none can be rescinded? Even with a motion to rescind?

 

[George Mervosh]

On 11/16/2022 at 4:44 PM, MHurd said:

Thank you George. To confirm, under your first comment: "A motion to rescind can only be applied to one or more adopted main motions, not one that was defeated" does that mean because none of the three motions were adopted that none can be rescinded? Even with a motion to rescind?

Under the rules in RONR that is correct.  Rescind only applies to adopted main motions per the citation provided.   Any or all of the main motions can be made again at a subsequent session of council by any member, subject to any notice requirements your council has.

Edited November 16, 2022 at 09:49 PM by George Mervosh

[MHurd]

So basically, they would have to bring it back up again as if it is a new application, correct? Can you advise where I would find this in the book? The City Attorney seems to be clueless.

 

 

[George Mervosh]

On 11/16/2022 at 4:51 PM, MHurd said:

So basically, they would have to bring it back up again as if it is a new application, correct? Can you advise where I would find this in the book? The City Attorney seems to be clueless.

As already cited above.  RONR (12th ed.), 35:2 2) with regards to the fact a motion to rescind can only be applied to an adopted main motion.  And §38 Renewal of Motions if your council wants to make the motion again to grant approval at a subsequent session.

[Atul Kapur]

What, exactly, was the wording of the motion? For example, was it a defeat of a motion to approve the application (the more common approach)?

If the motion was defeated then there is nothing to rescind (you rescind actions that were taken  / motions that were approved).

Whether a new application is required or the motion can be brought up again ("renewed") depends on your own procedural rules.

Edited November 16, 2022 at 10:11 PM by Atul Kapur

[MHurd]

The wording is: 'Councilmember XXX has provided a notice to city staff that she will make a motion to rescind the City Council's previous denial of XYZ Apartments rezoning, preliminary plat and conditional use permit applications of Oct 3 2022. The motion to rescind will be considered at the council's next meeting on XXX.

[Richard Brown]

On 11/16/2022 at 4:34 PM, MHurd said:

The wording is: 'Councilmember XXX has provided a notice to city staff that she will make a motion to rescind the City Council's previous denial of XYZ Apartments rezoning, preliminary plat and conditional use permit applications of Oct 3 2022. The motion to rescind will be considered at the council's next meeting on XXX.

I think that perhaps Dr. Kapur was referring to the wording of the original motion to grant (or deny) the conditional use permit. I believe he and I would both like to know the exact wording of that motion.

In addition, I will point out that it has been my experience that matters such as zoning variances, conditional use approvals, etc., are frequently subject to very different rules and that is not unusual for the motion to actually be to deny the permit or the variance rather than to grant the permit or variance. That would likely be subject to the council’s own rules on the matter or even to state law or the city charter.

 

[Gary Novosielski]

On 11/16/2022 at 4:44 PM, MHurd said:

Thank you George. To confirm, under your first comment: "A motion to rescind can only be applied to one or more adopted main motions, not one that was defeated" does that mean because none of the three motions were adopted that none can be rescinded? Even with a motion to rescind?

 

Yes.  A motion that is defeated does not cause any action.  A permit was not issued, which is the same situation as before the motion was made--no permit.  There is nothing to rescind because nothing happened.  And if she's the only one in favor of issuing the permit, nothing is likely to happen.

[Richard Brown]

On 11/17/2022 at 9:45 PM, Gary Novosielski said:

Yes.  A motion that is defeated does not cause any action.  A permit was not issued, which is the same situation as before the motion was made--no permit.  There is nothing to rescind because nothing happened.  And if she's the only one in favor of issuing the permit, nothing is likely to happen.

I don’t know that that would necessarily be true in the case of denying a permit or zoning variance. I believe the devil is in the details, and it depends on the controlling law and procedures of the jurisdiction if this is a public body (which it apparently is). As I said in my previous comment, for various reasons, frequently dealing with appeal rights, local governing bodies such as city councils and zoning boards frequently vote on a motion to deny a permit or a variance rather than on a motion to grant the variance. This is apparently because some laws and statutes require a specific denial of a permit in order for the applicant to appeal. Failure to grant the permit is not always considered to be the same thing  This is at odds with the recommended procedure in RONR, but it is still the procedure that is followed in many such governmental bodies.

to most of us, refusing to issue a permit is the same thing as denying a permit, but I do not believe that is always the case in situations such as this.

[Gary Novosielski]

I agree.  

I understand that on some platforms the signatures are not displayed.  If that's the case here, let me reëmphasize:

👉 Unless otherwise indicated, responses are based upon the current edition of RONR as of the date of posting. The rules in your bylaws supersede those in RONR.  Corporations and elected public bodies may also be governed by rules in applicable statute, administrative code, or case law.

 

[Richard Brown]

On 11/18/2022 at 1:04 PM, Gary Novosielski said:

 I understand that on some platforms the signatures are not displayed.  If that's the case here, let me reëmphasize:

On cell phones, the “signature block“ with the “disclaimer“ does not show up. I don’t know whether that is the case with tablets or notebooks, but I believe it shows up on both desktop and laptop computers.

Edtied to add:  however, even though many of us add such a “disclaimer“ to our signature line, I believe that when we know there might be an issue with a superior controlling authority that differs from RONR, such as would be the case with a governmental entity, a corporation or a homeowner association, we should point that out in the text of our comments. There is too great a chance, for various reasons, that the original poster will not see or take note of a boilerplate disclaimer that is not included in the text of a response.

 

Edited November 18, 2022 at 07:34 PM by Richard Brown
Added last paragraph

[Gary Novosielski]

I don't disagree. Thanks for the reminder.

 

[MHurd]

Anyone willing to have a conversation with me over the phone? I purchased the RONR book, but as I am new to this language, it is quite confusing.