MEMORANDUM

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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.
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