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Making motions in the positive

SW MI Planner

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Not sure where this should go, so here it is....

My ZBA has this need to make motions in the positive. For example, they want to deny a variance request, and the motion states 'move to approve based on blah blah blah'. there is a second and then everyone votes nay

First off, it's confusing. Secondly, it doesn't give the reason for denial which I have a problem with.

They haven't adopted Roberts Rules, or anything like that. Anyone know why they do this, and what is the proper way to make a motion - does it have to be positive?

Thanks for any help!
 

NHPlanner

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In NH that wouldn't fly, and without an affirmative motion for something, the hearing could not be closed. A motion for denial, by statute, must include reasons for denial, otherwise the courts will overturn the denial.
 

Chet

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You kidding? Everything here is done that way. Every resolution is written in the positive, even if the recommendation is for denial. That way, "staff influence" is not portrayed in the document they create (at least not to the obvious eye). I prefer it that way!

In terms of ZBA, we do have all of the findings of fact in their motions, and staff does help them craft the exact terms.
 

NHPlanner

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bturk said:
You kidding? Everything here is done that way. Every resolution is written in the positive, even if the recommendation is for denial. That way, "staff influence" is not portrayed in the document they create (at least not to the obvious eye). I prefer it that way!

In terms of ZBA, we do have all of the findings of fact in their motions, and staff does help them craft the exact terms.
Nope...not kidding. Planning Boards and ZBA's have to make an affirmative motion to close any hearing, be it approval, conditional approval, denial, tabling, or continuing the hearing.

I'll try to get the statutory references.....
 

Chet

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OK I think I misread your post, I believe we are saying the same thing, NHP, but our boards act by Resolution on agenda items so its all prepared in text ahead of time, and they'll amend it onthe floor if need be.

EDIT: Here is an example of a [lame] Resolution that was not supported by staff but written in the affirmative.
 

SW MI Planner

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Thanks for the example - but unless I'm not reading it correctly (or at all) you can't tell why it was defeated.
 

Chet

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SW MI Planner said:
Thanks for the example - but unless I'm not reading it correctly (or at all) you can't tell why it was defeated.
Thats in the minutes. Sorry this isnt a ZBA example, its Plan Commission where the finding can be abit more discretionary.
 

NHPlanner

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Similar, yes. Boards here take a couple of different approaches. In my former place of employment, staff prepared a recommended notice of decision, similar to your resoultions, and the Board would amend at the hearing if they so chose.

Here, we only present the staff comments that remain for a project (ie., plan modifications, drainage deficiencies, other design related comments), and the board creates their own motions off of that (for example a member makes a motion to conditionally approve a plan with conditions 1, 3 , and 5-7 of the staff memorandum, and then our boilerplate conditions).


A sample of each:

Former Employer (staff recommendation):

IV. CONTINUED APPLICATION: Lee Construction, Loring Drive. Lot line revision and 3 lot subdivision

?¡ Waivers. The applicant has not requested any waivers..

?¡ Completeness. *The application was accepted as complete on October 4, 1999.

?¡ Recommendation. Based upon the information available to date the Staff recommends APPROVAL of this application, with the NOTICE OF DECISION to read substantially as follows:

"Applicant", herein, refers to the property owner, business owner, or organization submitting this application and to his/its agents, successors, and assigns.

Precedent Conditions

All of the precedent conditions below must be met by the applicant, at the expense of the applicant, prior to certification of the plans by the Planning Department. Certification of the plans is required prior to issuance of a building permit.

1) The plans are to be modified as follows:

a) Show existing and proposed water lines within both Loring Drive and Landry Lane in the vicinity of the effected lots.

b) Include the following statement: "There are no utilities; water, sewer, or septic facilities; or other property features located in the areas to be conveyed that are linked with Map 262, Lot 4 in such a manner as to impede the legal fee simple transfer of those areas; i.e. no encroachments will result from the boundary adjustments."

b) Show all man made structures within 50 feet of new lot lines.

2) The inspection agreement for installation of the water line within the road right-of-way is to be signed by the property owner to include the following statement: The applicant shall retain the services of the design engineer or her/his designee to insure that all required site work and public improvements for the water line is constructed in accordance with approved plans and conditions

3)# Set boundary markers and note on plans for subdivision (do also at same time for lot line adjustments, if appropriate).

4) All required state and federal permits - including State approval of the subdivision - must be obtained with copies of permits or confirmation of approvals delivered to the Planning Department.

5) The plans are to be tied into the State Plane Coordinate System or $115.00 is to be contributed to the Monumentation Fund.

6) Any necessary outstanding signatures on City of Rochester department head review sheet must be obtained (staff will attend to this) with appropriate concerns incorporated.

7) (a) Two sets of mylars (or one mylar and one acetate/washout) plus (b) four sets of large blue-line or black-line plus (c) one set of 11"x17" final approved plans must be on file with the City. Each individual sheet in every set of drawings must be stamped and signed by the land surveyor, engineer, or architect responsible for the plans. (The applicant need only submit additional blue-line/black-line sets of drawings or individual sheets, as needed, to make four complete sets - consult the Planning Department.) At the discretion of the Planning Department minor changes to drawings (as required in precedent condition, above) may be marked by hand.

Please note* Once these precedent conditions are met and the plans are certified the approval is considered final. If these conditions are not met within 4 calendar months to the day of the meeting at which the Planning Board grants approval the board's approval will be considered to have lapsed and resubmission of the application will be required. See RSA 674:39 on vesting.

General and Subsequent Conditions

All of the conditions below are attached to this approval.

1) Please note: the issue has arisen that there are private covenants which may or may not affect the proposed subdivision and lot line adjustment. The City of Rochester takes no jurisdiction over private covenants.

2)# The plat (mylar) must be recorded at the Strafford County Registry of Deeds within 30 days of certification of the plans and a copy of the receipt for recording must be delivered to both the Planning Board and the Building Inspector by certified or registered mail (in accordance with Section 2.5 of the Subdivision Regulations). Failure to comply with the 30 day requirement shall render any approval null and void.

3) Deeds transferring ownership to the area designated for conveyance must be recorded at the Strafford County Registry of Deeds within 6 months of certification of plans and copies of those deeds must be delivered to the City of Rochester Assessor. Failure to comply with this 6 month requirement shall render this approval null and void.

4) The project must be executed exactly as specified in the approved application package unless modifications are approved.

5) All of the documentation submitted in the application package by the applicant and any requirements imposed by other agencies are part of this approval unless otherwise updated, revised, clarified in some manner, or superseded in full or in part. In the case of conflicting information between documents, the most recent documentation and this notice herein shall generally be determining.

6) It is the responsibility of the applicant to obtain all other local, state, and federal permits, licenses, and approvals which may be required as part of this project. Contact the City of Rochester Code Enforcement Department at XXX-3508 regarding building permits.
Current Employer (Staff memo):

Eric C. Mitchell and Associates, Inc. submitted drawings and information for the above-referenced project. The DRC and the Town?fs engineering consultant, Vollmer Associates LLP, reviewed the submitted plans and information and we offer the following comments:

Checklist Items:

1. The Applicant has not provided utility clearance letters per section 3.05 of the Subdivision Regulations and Item X.7 of the Subdivision Application Checklist and is requesting a waiver to this requirement.

2. The Applicant has not provided a Topographic/HISS plan per section 4.17 of the Subdivision Regulations and Item VI of the Subdivision Application Checklist and is requesting a waiver to this requirement.

3. The Applicant has not indicated the boundary monuments found or to be set along the easterly boundary per sections 3.02 and 4.12.C.4 of the Subdivision Regulations and Item V.4 of the Subdivision Application Checklist and is requesting a waiver to this requirement.

Design Review Items:

1. The Applicant shall address the DRC comments as applicable.

2. The Applicant shall confirm if a NHDES subdivision approval is required by this application and indicate the approval number in note 14 on sheet 1 as applicable.

3. The Applicant shall provide revised condominium documents addressing the comments of the Department of Public Works and the Town Attorney for review and approval.

Board Action Items:

1. The Applicant is requesting three (3) waivers as indicated in his letters dated September 10 and November 6, 2002. The Board will need to consider each waiver request.
Sample motion, current employer:

T. Moran made a motion to grant Conditional Approval to Global Site Renovations/Daher Auto Traders, Inc. for a Site Plan to indicate a new canopy and gasoline dispensers. for property located at 7 Nashua Road, Map 10, Lot 129 with the following conditions: 1) The Applicant has provided sight distance profiles with this latest submission which indicates sight lines to about 200 feet where 365 feet is required by the Town and 400 feet is typically required by NHDOT. Please note the object heights of 3.50 and 4.25 feet are not provided and the indicated sight lines do not appear correct. The profiles indicate information only to the extent of the survey as indicated in the Applicant?fs response letter. The Applicant shall provided sight distance profiles in accordance with the regulations; 2) The Applicant shall remove the Planning Board signature block from sheet 5; 3) The Applicant shall provide a professional endorsement (stamp) on the sheet 3; 4) The Applicant shall complete the vicinity plan on sheet 1; 5) The Applicant shall plant two (2) trees at the rear of the property in accordance with the Regulations; 6) The Applicant shall provide a financial guaranty, if necessary; 7) All outstanding fees to be paid within 30 days; and 8) Final Engineering Review. M. Cohen seconded the motion. Motion carried 6-0-0.
 

gkmo62u

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Let me ask a question in case I missed something:

If the motion to approve fails, it simply fails. Why isn't there a need for a second motion to deny? I think I know Robert's Rules, but I am not an expert, Anyone?
 

Cardinal

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gkmo62u said:
Let me ask a question in case I missed something:

If the motion to approve fails, it simply fails. Why isn't there a need for a second motion to deny? I think I know Robert's Rules, but I am not an expert, Anyone?
I'm wondering the same thing.
 

donk

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To hopefully add clarity, as I lost an appeal on this. The reason a person must be informed of the reason there application has been denied is due to the principles of "natural justice". The reason does not have to appear in the motion, but should be expressed in the refusal. What we do now is use the language right from our Community planning Act. It does not give specifics for the reason, but meets the requirements of disclosure and the Act.

As for motion in the positive. the only time they are needed is to approve something. if a motion is made to approve the variance and it is defeated it is teh same as refusing to grant the variance. It might be cleaner to then have a motion to NOT grant the variance, but what happens if it fails?

As always, if anyone wants a copy of the appeal PM and we can organize something.
 

nerudite

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Wow... how interesting. I've never heard of denial motions written in the positive.

I think the follow up motion depends upon the type of appliation you are looking at. If it's quasi-judicial, typically there would be a follow up motion to deny the project or amend the approving motion if the original motion fails. But I've seen plenty of legislative decisions like Bylaws getting a motion/second and then fail, and then get dropped... I think it's pretty normal.
 

Chet

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An example of written in positive and denied

The Resolution to approve, which was denied, is here

The minutes relating to it show the record (including his staff bashing which won him no points with the Commission):

Excerpt from May 21, 2002 Minutes:

RESOLUTION #P.C. 075–2002 – Approval of a Building Site and Operation plan a multi tenant industrial building for the Borchardt property located in the NW ¼ of Section 16 (Tax Key No. 2221.016.001 / W185 S8095 Racine Avenue). This resolution was read by title only. Commissioner Stinebaugh made a motion to approve. Alderman Le Doux seconded. Petitioner proposing to construct two structures on property in the Industrial Park. Discussion ensued regarding concerns with the proposed architecture and building materials. Commission unanimously agreed that location of this proposal warrants better treatment than what is being proposed. This is a highly visible area that deserves a high quality building. Commissioner Hulbert made a motion to defer this item allowing Staff to review Plan Commission comments and concerns with petitioner. Commissioner Brodel seconded. Upon a voice vote, Resolution #P.C. 075-2002 was Deferred unanimously.


Excerpt From March 4, 2003 Minutes:

RESOLUTION #P.C. 075–2002 – Approval of a Building Site and Operation plan a multi tenant industrial building for the Borchardt property located in the NW ¼ of Section 16 (Tax Key No. 2221.016.001 / W185 S8095 Racine Avenue). This item was on the floor and deferred. Associate Planner Muenkel stated that petitioner submitted additional revisions which were not comprehensive in scope. The concern regarding the tax key numbers for the property has been resolved. The sign plans appear to be within the guidelines of the code. The landscaping plan does not meet the current standards. The overall architecture and building materials proposed do not offer an aesthetic appeal in regards to the prominent location of the property.

Mr. Borchardt addressed Commission stating he referenced the Design Guide and feels that the original proposed building would blend in with the surrounding area. This process has taken a long time partly due to the tax key issue. Although this item has finally been resolved, it has taken a number of months and was not a mistake made by Mr. Borchardt. Mr. Borchardt stated that he feels he has not been treated fairly in this process. He feels that staff did not work with him or his engineer to give guidance as to what would be acceptable. He also stated that comments from the Commissioners were not in agreement.

Commissioner Michalski stated that he would like to see an entire package submitted consisting of a site plan, complete elevations, floor plan, landscaping, signage and color rendering. Commissioner Hulbert suggested that petitioner could refer to the building designed for G & G Power Sports as a guide to what the Commission is looking for at a location on Racine Avenue. Mayor Slocomb requested that petitioner set-up a meeting with staff and Mayor to go over items required for a complete submittal.

Mr. Borchardt requested that he not be taken off this agenda and allow him to appear at a future meeting with a resubmital. Alderman Le Doux made a motion to defer this item allowing petitioner to submit a complete set of plans and appear before the Plan Commission in six weeks. Commissioner Michalski seconded. Upon a voice vote, motion failed with a tie vote. Commissioners Brodel, Stinebaugh and Hulbert voting No. Commissioner Hulbert called for question. With no objections, with a roll call vote, Resolution #P.C. 075-2002 was Denied unanimously.
 

mike gurnee

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This can all get a bit scary. A proposal can be defeated by not having a motion and/or not having a second. But you should have a motion seconded for discussion. Public hearings are problematic in that discussion takes place during the ebb and flow of the testimony. But can two members be forced to move and second every item? I have actually read Robert's Rules, but I would not recommend that drudgery on any otherwise sane person.
 

NHPlanner

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Found the NH Statute on-line, and will add some of the case law back-up as well....

The statute is on-line at http://www.gencourt.state.nh.us/rsa/html/LXIV/676/676-4.htm

Some of the footnotes in my NH Planning & Land Use Regulation Handbook:

The case law in NH essentially states that a denial of an application must include written reasons (notice of decision and minutes) from Patenaude v. Town of Meredith, 118 N.H. 616, 392 A.2d 582 (1978). I don't know if there's any info from that case online, I'll look into it.
 

Tom R

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motion

When I was in Delaware, all of the County Council's motions were in the positive. I was told that this was to allay confusion about what a vote really means. If you have a negative motion, a motion to disapprove, and you vote yea, you are really voting against the proposal. Similarily, it you vote nay to a negative motion, you are really voting for the action. By having all positive motions, motions to approve, a nay is against the action and a yea is for the action.
 

Linden Smith

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I'm confused by the idea that a "positive" motion equals an "affirmative" motion.

An affirmative motion means that the action of the Board is expressed by the motion. Which means that a motion that fails to pass does not mean that the application has been denied. To have your findings of fact listed in support of the motion is what the courts have long held, in my region anyway.

So if a motion to approve an application fails, the board must then have a motion to deny, otherwise, the board has taken no action on the application. Regardless of how the motion and facts are stated, any motion that fails is not a final decision.
 

Cardinal

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Re: motion

Tom R said:
When I was in Delaware, all of the County Council's motions were in the positive. I was told that this was to allay confusion about what a vote really means. If you have a negative motion, a motion to disapprove, and you vote yea, you are really voting against the proposal. Similarily, it you vote nay to a negative motion, you are really voting for the action. By having all positive motions, motions to approve, a nay is against the action and a yea is for the action.
I don't think this is correct. The 'yeah' or 'nay' vote pertains to the motion, not to the status of the item. For example, if the motion is to deny the application, a 'yeah' vote would be contrued in favor of the motion to deny. A 'nay' vote would be against the motion to deny.

Linden is also correct in saying that if you have a motion to approve, that fails to win a majority, you must have a subsequent successful motion to come to a resolution on the item.
 

Zoning Goddess

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Our Board's M.O. on really ugly cases is to make an approval motion, and when that fails, they just sit there until the Chairman decides nobody is going to make a denial motion and calls for the County Attorney who says the item fails because no action was taken. They pretty much do the same thing if one of the 5 is absent and there's a tie vote and nobody will change their minds. The stance being, if there is no approval, it's denied, motion or not.
 
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