[lg policy] California: Language matters with the General Plan update

[Harold Schiffman]

Language matters with the General Plan update
by Gerald Sodomka

The city of Encinitas has been going through the process of updating
its General Plan with a series of public workshops encouraging citizen
participation. “This is your General Plan,” we are told. The draft
revisions have finally been released. Already there is grumbling,
especially about raising density through mixed use and higher height
limitations in the El Camino Real corridor.

A perusal of the proposed changes shows a more insidious change which
is very unsettling. This is a change in language, and language
matters. The word “shall” has been almost completely eliminated and
replaced by the word “endorse” in Policies.

Why does this matter? Because “shall” is an important word used in
legal documents. It is defined as “an imperative command; has a duty
to or is required to; is mandatory.” Court decisions have said the
term “shall” is a word of command, and one which has always, or which
must be given a compulsory meaning; as denoting obligation.
Additionally, “It has the invariable significance of excluding the
idea of discretion, and the significance of operating to impose a
duty….”

On the other hand, the word “endorse” simply means to express approval
or support. It doesn’t carry much weight legally.

The “State of California General Plan Guidelines” publication warns
about the danger when writing policies: “A policy is a specific
statement that guides decision-making. It indicates a commitment of
the local legislative body to a particular course of action…. When
writing policies, be aware of the difference between ‘shall’ and
‘should.’ ‘Shall’ indicates an unequivocal directive. ‘Should’
signifies a less rigid directive, to be honored in the absence of
compelling or contravening considerations. Use of the word ‘should’ to
give the impression of more commitment than actually intended is a
common but unacceptable practice. It is better to adopt no policy than
to adopt a policy with no backbone.” (Chapter 1, page 15)

The word “endorse” isn’t even mentioned because legally, it is so much
weaker as a command. Its use in the General Plan update takes the
“backbone” out of our governing document. Or more bluntly, it totally
eviscerates it.

Too much discretion is given to policies that citizens will think are
fixed, but turn out not to be. With a whim, or even favoritism, a
council majority could very easily find a justification to violate the
policy.

Additionally the word “is” is frequently replaced with the words
“generally is.” This simply means that a policy that is, sometimes
isn’t. The Guidelines say, “For a policy to be useful as a guide to
action it must be clear and unambiguous.”

What we are getting in the update is ambiguity and fuzziness. It looks
intentional. The clincher is that at this time the Planning Director
Patrick Murphy and Update Consultant Daniel Iacofano are refusing to
supply a draft to the public showing our present General Plan with
changes clearly indicated by strikeouts, additions, changes in
location, or complete deletions.

All of this looks like it isn’t our General Plan, but somebody else’s.
It suggests Cole Porter’s famous song “Anything Goes.” There is
stubbornness in the persons controlling the process and their
unwillingness to listen to informed citizens. If we are truly to
celebrate this new plan, there “shall” be necessary changes to what we
have been given so far. We can endorse these changes, of course, but
we have no way to command that they be made. Only the consultant,
staff and council can do this. Let it be a real celebration.

http://thecoastnews.com/pages/full_story/push?article-Language+matters+with+the+General+Plan+update%20&id=15822667

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