By Jerry 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.
