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.
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