An Open Letter from Evanston Lawyers Urging Adherence to Six Vote Requirement for Northwestern’s Zoning Amendment

Dear Mayor Biss and Members of the City Council:

The procedural shortcuts and many misstatements and misdirections that have characterized consideration of plans for rezoning Ryan Field should alarm all Evanstonians. As lawyers, however, we are especially concerned that the conversation has proceeded as if only four of nine councilmembers along with the mayor can amend the zoning code. Evanston law requires at least six votes to do that.

The City of Evanston has so far refused to recognize two separate protest petitions filed by residents against Northwestern’s zoning amendment, one under §6-3-4-7 of the Evanston Code and one under §11-13-14 of the Illinois Municipal Code, to trigger a supermajority vote requirement. Nevertheless, even if no protest had been filed, a minimum of six votes is required for the zoning amendment.

Section 6-3-4-6(F) of the Evanston Code clearly requires the vote of a “majority of the Council” to adopt (as opposed to introduce) an amendment to the zoning code. Not a majority of those present and voting, but a majority of “the Council.” Under §1-5-1 of the Evanston Code, “the Council” consists of the mayor and aldermen. That is, ten people. This is consistent with the Rules of the City Council, which state that the Council includes the nine councilmembers and the mayor.^[1]

Section 6-3-4-6(F) is one of only a few Evanston Code provisions specifying something other than a default voting requirement. On most matters, a simple majority of those present and voting suffices. See Council Rules 16.2 and 21.1. Robert’s Rules, too, defaults to majority-of-members-present-and-voting when no other type of majority vote is specified. See RONR §44.1.^[2] But here something else is specified.

The §6-3-4-6(F) requirement is known as a “majority of the membership” type of majority. Robert’s Rules, to which the Council Rules defer when something is not explained in the Council Rules themselves,^[3] specifically contemplates a vote requiring a majority of the members. RONR §§44.7-44.9. So does Council Rule 16.2, which specifically notes that sometimes the Evanston Code requires more than a majority of a quorum.

Why is such a thing ever employed? As professional parliamentarian Alan Jennings explains it, “Robert’s Rules are designed to protect the minority against the ‘tyranny of the majority.’ According to the true definition and practice of democracy, might doesn’t always make right. The primary democratic concept that everyone has an equal voice means that the minority, even a minority of one, has rights that must be respected….permitting a question to be decided by a majority of the entire membership is just as protective of the rights of individuals as deciding that question by a two-thirds vote.”^[4] As another analysis of parliamentary procedure put it, “Having a rule that requires a majority of the entire board membership prevents a small group from getting together and pushing through business.”^[5]

There are good reasons why such provisions are used sparingly, especially in large bodies where it might be difficult to muster greater numbers of members. However, a majority of six is not an undue burden in a body of ten; it safeguards against mischief, and requires building more of a consensus on matters of importance.

We urge the mayor and the Council not to engage in legalistic games pointing to other, irrelevant Evanston Code provisions. First, resorting to principles of statutory construction is only warranted when the words on their face are not clear, and here the words are clear. Second, Illinois courts have repeatedly said that if a definition exists, that is what needs to be followed.^[6]

It would be absurd to find, as some have suggested, that the mayor is not part of the Council for purposes of counting how many votes are needed, but then can vote and thus fulfill the mandate in §6-3-4-6(F) requiring a “majority of the Council.” If the mayor is not part of the Council then he can’t be part of a majority of the Council. Laws should be interpreted to avoid impractical or absurd results.^[7]

In sum, for a zoning amendment to pass, it requires at least a majority of the ten, unless another provision of the Evanston Code or state law requires an even greater number. That is to say, at least six votes are required here, since five is not more than half of ten. This Evanston Code provision is not a simple self-imposed procedural “rule” but is the existing law of the City, designed to ensure there is sufficient city-wide support for a zoning amendment. And this provision is not subject to suspension of the rules or ruling of the chair.

We, the undersigned, ask and expect the Council to follow its own law.

Sincerely,

Ann Adams

Gary Auerbach

John Austin*

Katrina Barnett

Jacqueline Bermak*

Hon. Andrew Berman

Marvin Bloom

Piyush Chandra

Michael Crowley

Parielle Davis

David DeCarlo

Jennifer Dressler

Daniel Engel

Cynthia Farenga

Kathleen Flaherty

James Froberg

Scott Gingold

Alan Gratchh

Scott Gross

Michael Heneghan

Jan Kodner*

Geary Kull

Jim Latta

Carole Levin

Steve Levin

Sean Magill

Laurie McFarlane

Tom McGarry

Timothy McPike*

John Moore

Steve Morton

Kim Novi

William Quinlan, Jr.

Brian Regan

Joan Slavin

Jeff Smith

David Staub

Charlie Stone

Ken Sullivan

Laurence Trusdell

Jonathan Viner

Carrie Von Hoff

Paula Weinbaum

This open letter will be updated with additional signers—if you are an attorney and would like to add your name, email info@mostlivablecity.org.