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Thread: Conditional use: no second to the motion

  1. #1
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    Conditional use: no second to the motion

    Hi, everyone

    I have a procedural question and we are pretty much stuck. Our lawyer does not seem to be putting too much effort into this...

    We had a conditional use petition for the transportation/sight seeing business that no one in town really wanted. It made it to the Council, one of the Council members made a motion to approve, there was no second, Chairman said "motion failed. Next item."

    Petitioner is infuriated. Hired a lawyer... Two questions:
    1. Is lack of a second means that petition was disapproved? Petitioner claims that, no City Council simply failed to act. Robert's Rules say "If there is no second to your motion it is lost".
    2. When and under what conditions could he reapply? Our code is silent.

    Your help is greatly appreciated

  2. #2
    Cyburbian mike gurnee's avatar
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    Petition dies for lack of a second. (Someone actually read Robert's Rules?) It would be cleaner, and more clear for the applicant, if someone made a second "for discussion purposes only". But not absolutely necessary.

    Codes I have worked with often say no resumbmission for 12 months, or significant changes in the petition. Lacking such code language the petitioner could resubmit the very next day. Let them spend the money on the lawyer and resumbission.

  3. #3
    I agree with mike gurnee: failure to get a second kills the motion. There may be ways for your Council to resurrect it, as it wasn't technically denied, but without that escape mechanism, it's pretty much dead, IMO. We also have the 'significantly different' application or 12 month moratorium requirements to try to breathe new life into something that ostensibly failed.
    On pitching to Stan Musial:
    "Once he timed your fastball, your infielders were in jeopardy."
    Warren Spahn

  4. #4
    moderator in moderation Suburb Repairman's avatar
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    Quote Originally posted by Gedunker View post
    I agree with mike gurnee: failure to get a second kills the motion. There may be ways for your Council to resurrect it, as it wasn't technically denied, but without that escape mechanism, it's pretty much dead, IMO. We also have the 'significantly different' application or 12 month moratorium requirements to try to breathe new life into something that ostensibly failed.
    We have that same provision. We've also trained Council that in a situation like that, someone either needs to second it to allow a clean final action (you can second it and then vote 'no'), or let it die and do a different follow-up motion to deny.

    Also, I encourage cities to adopt their own procedural bylaws/ordinance. Roberts Rules is overly cumbersome and results in confusing situations like this on an all to frequent basis.

    EDIT: Also, your city attorney is worthless--this situation should be a softball for the average city attorney.

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  5. #5
    Cyburbian ursus's avatar
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    I was always under the impression (and have advised Councils and Commissions in that situation) that the dying of the motion for lack of a second did nothing to the application. The application itself has to "acted upon" or tabled/continued under Utah's code, so I always advise them that if it's on their agenda they must take some sort of action - even if that action is to table the decision and continue the discussion. I don't think an official body can simply kill an application by ignoring it and refusing to bring any motions. That's impractical and unethical.

    Totally agree with the above: your city attorney should be dealing with this, and probably during the meeting. It shouldn't get to that point.
    "...I would never try to tick Hink off. He kinda intimidates me. He's quite butch, you know." - Maister

  6. #6
    Cyburbian Raf's avatar
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    Quote Originally posted by ursus View post
    I was always under the impression (and have advised Councils and Commissions in that situation) that the dying of the motion for lack of a second did nothing to the application. The application itself has to "acted upon" or tabled/continued under Utah's code, so I always advise them that if it's on their agenda they must take some sort of action - even if that action is to table the decision and continue the discussion. I don't think an official body can simply kill an application by ignoring it and refusing to bring any motions. That's impractical and unethical.

    Totally agree with the above: your city attorney should be dealing with this, and probably during the meeting. It shouldn't get to that point.
    Same rules apply here. The lack of a 2nd does not "kill the project", it simply tables it. In order to "kill" the project, a motion of denial and findings for the denial need to be passed by resolution of the City Council. Your attorney should be more proactive to avoid litigation.

    Our rules state, that if it is is denied, w/o prejudice, than the project can comeback, with substantial changes. If denied, with prejudice, than min. 1 year to re-apply.
    Men do dumb $hit... it is what they do to correct the problem that counts.

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