|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: February 18, 2003
RE: Zoning Issue
The City’s Zoning Ordinance, §§ 121 et seq. governs amendments to the zoning ordinance. Section 23 says:
Whenever an application for an amendment to the text of the ordinance or for a change in the zoning classification of any property is denied, the application for such amendment shall not be eligible for reconsideration for one year following such denial, except in the following cases: [There follows the exceptions]:
Assuming that none of the exceptions apply, you have the following question: When the city’s zoning ordinance prohibits amendments to the zoning ordinance from coming up for one year after being defeated, does the failure of a motion to amend the zoning ordinance to receive a second constitute a “denial” of the amendment of the zoning ordinance?
Apparently the answer is no. Under § 1-103 of the Municipal Code, Roberts Rules of Order, Newly Revised (RRONR) governs the parliamentary procedure of the city council where they are not inconsistent with the provisions of the city’s charter or municipal code.
Under § 4 of RRONR, 10th Ed., three steps are required to bring a motion to the floor: (1) the member makes a motion; (2) another member seconds the motion; (3) the chair states the question on the motion. Under the same section, it is said that:
Neither the making nor the seconding of the motion places it before the assembly; only the chair can do that by the third step (stating the question). When the chair has stated the question, the motion is pending, that is “on the floor”.... If the assembly decides to do what a motion proposes, it adopts the motion, or the motion is carried; if the assembly expressly decides against doing what the motion proposes, the motion is lost, or rejected.
That section further says:
If no member seconds the motion, the chair must be sure that all have heard it before proceeding to other business. In such a case, the chair normally asks, “Is there a second to the motion?” In a large hall he may repeat the motion before doing so. Or, if a resolution was submitted in writing and read by the chair or the secretary rather than by the mover (as described on p. 23), the chair may say, “Miss A has moved the adoption of the resolution just read. Is there a second to the resolution?” If there is still no second, the chair says, “The motion [or “resolution”] is not seconded”; or “Since there is no second, the motion is not before this meeting.” Then he immediately says, The next item of business is...”; or if appropriate, “Is there any further business?”
All those provisions of § 4 of RRONR indicate that unless there is a second to a motion, the motion is not even on the floor. For that reason, logic dictates that an amendment to the zoning ordinance or the zoning map cannot be “denied” where a motion to amend the zoning ordinance or map has been made but not seconded.
I can find only two cases in the United States involving the effect of the failure of a motion to receive a second, and neither is directly applicable to your question. However, they do provide some guidance on your question. In Commonwealth of Pennsylvania v. Chace, 168 A.2d 569 (1961), a city council member resigned. A council member nominated Chace, and another council member seconded his nomination. A third council member nominated Skulski, but his nomination received no second. A motion was made and seconded to close nominations. At that point, according to the Court, “Since only one nominee was seconded the Secretary was instructed to enter the appointment of Mr. Arthur Chace to fill the unexpired term of Mr. Petit de Mange.”
The trial court held that the city council should have voted on the two nominees. The Pennsylvania Supreme Court reversed the trial Court, declaring that there was no law in Pennsylvania prohibiting a city council from requiring seconds to nominations [apparently the city council had not adopted RRO], and reasoning that, “Further, it is crystal clear that every member of the council, except one, willed that appellant, Chace, be appointed to fill the existing vacancy. Only one member desired Mr. Skulski, as indicated by the fact that no one seconded his nomination....” [At 122]
Chace stands for the proposition that if a second is required, and a motion [or nomination in this case] does not receive a second, it is not properly before the board. It is consistent with RRONR, § 4 in that respect.
In the second case, Galveston Historical Foundation v. Zoning Board of Adjustment of the City of Galveston, Texas, 17 S.W.3d 414 (Texas Ct. Civil App.), the question was whether GHF had standing to challenge a decision of the board of zoning appeals in granting a permit to a business for certain signs. One of the members of the board of zoning appeals made a motion to grant the plaintiff standing, but the motion did not receive a second. The Court declared that “This had the same effect as a ruling that GHF did not have standing to appeal to the Board.” [At 415] The Court also pointed to Footnote 3 in the case, which says:
The Board evidently relied on Roberts Rules of Order as a procedural mechanism for avoiding a vote on the issue of standing. By not bringing the issue to a vote, the Board also avoided the statutory requirement of recording the vote of each member on the issue. [At 415]
The Court read into the failure of the motion to receive a second as reliance upon RRONR “as a procedural mechanism for avoiding a vote on the issue of standing.” Even if that were true, the function of a second is to permit a governing body to avoid a vote on an issue. But here it needs to be noted that the real issue was whether the GHF had standing under the case law of the State of Texas governing that subject. If it had standing under that case law, the failure of the zoning board to “grant” it standing either by lack of a second to the motion granting it standing, or by an actual vote that denied it standing would not have changed the Court’s conclusion that it did have standing. What the Court meant when it said that the effect of the failure of the motion to grant the Foundation standing, had the effect of “ruling that GHF did not have standing to appeal to the Board,” was that GHF was blocked from appealing the decision of the board to issue the sign permits.
In the case of § 123 of the Zoning Ordinance, there is no similar result where a motion to amend the zoning ordinance or zoning map does not receive a second. In fact, all of the parties are in the same position they were in before the motion was made to amend the zoning ordinance or zoning map. Such motions can still be made and voted up or down, or not seconded. For that reason, it does not appear to me that the Court’s comments in Galveston Historical Foundation about the procedural use of the second, and the effect of the failure of the motion in question to receive a second, apply to the failure of motions to receive a second under § 123.
In that connection, it appears to me that if the city wishes the lack of a second to operate as a “denial” of a motion to amend the zoning ordinance or zoning map, it is within the authority of the City to amend § 123 of its zoning ordinance to make that clear.