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Thread: Shall vs. will word choices

  1. #1
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    Shall vs. will word choices

    I've been a planner only a year. I'm concerned about my employer's (county) word choice for plans and mitigation measures (two areas of primary work). Shall is used, and I feel it's a passive word that weakens documents. I've been told that in more progressive areas, local governement is more apt to use aggressive, absolute wordage such as "will". Does "shall" legally bind the county to obligation? Is it enough?
    My concern/confusion also stems from a document titled "Tracking CEQA Mitigation Measures Under AB 3180", in which measures are encouraged to avoid using "may" or "should" and should be encouraged to use "will" or "shall". This confuses me becasue "shall" is a past tense of "should".

  2. #2
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Under the "Interpretation" section of our code: "The word 'shall' in mandatory..."

  3. #3
    Cyburbian cch's avatar
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    Oh my goodness, I finished a plan a few months back where this wording got picked apart by our committee, because people objected to my wording being too absolute. We have township zoning here, but a countywide agricultural preservation plan, and I had written in the policies using "shall only", as to say rezonings shall only be approved if they are consistent with the plan. To me, it is a recommendation whether we use the words "should" or "shall", and that is what I was trying to achieve, as we don't have any control over zoning. But, "shall only" was shot out of the water, and they wouldn't even settle for "shall" or "should" by themselves. They toyed on approving the wording as "should generally be consistent with the plan". WTF does that mean? We wrote this plan, but we really don't care if it is adhered to?!

    Ultimately, they settled on "should", with the resolution amended to say "be it further resolved that this plan does not interfere with township zoning decisions". The townships were just paranoid we were trying to take their rights to control zoning away. Really, we were just trying to make an agricultural preservation plan the state would approve, so farmers could get tax credits, and of course we'd like it to be followed, to avoid sprawl. But no matter what wording we used, we couldn't force it to be followed anyway. I'm use to boards and committees waiving policies left and right, so the way I see it, it doesn't matter if shall or should is used. But I prefer "shall". I guess I think it sounds more professional. I've never used "will" because it does come off to forceful. Governments purposefully like to allow some leeway, in my experience.

  4. #4
    moderator in moderation Suburb Repairman's avatar
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    l've gone to using "must" in anything I write; I feel it is more direct and gets the reader's attention better.

    Like RJ said, word usage is usually defined early in the regulation.

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  5. #5
    Super Moderator luckless pedestrian's avatar
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    Quote Originally posted by RichmondJake
    Under the "Interpretation" section of our code: "The word 'shall' in mandatory..."
    here, too...

    hey, I agree with RJ...

  6. #6
    Cyburbian Joe Iliff's avatar
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    "Will" sounds more like a prediction . . . such as "He will be a millionaire before he's thrity."

    "Shall" sounds more like a command . . . such as "The applicant shall provide a complete set of as built plans before a Certificate of Occupancy is issued."

    I always think about someone trying to squirm out of a requirement by saying:
    It says "I will", and someday I will, but it doesn't say "I have to right now".
    Shall sounds much more like something has to occur at a specific time or to a specific criteria. Will sounds more vague and undefined, in general.
    JOE ILIFF
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    "Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think."
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  7. #7
    In the General Provisions of our municipal code "Shall" is defined as follows: "The act referred to is mandatory." "May" is defined thus: "The act referred to is permissive." "Will" is undefined.

  8. #8
    Cyburbian
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    Shall and Will is one in the same... You "will" do something does not inmpy you may do it. I've always used "shall" when something is mandatory. I've never had it contested and it seems to be what the City Attorney always liked. I personally prefer "shall"... Guess it all depends on definitions though too and if it is described differently under a specific definition then maybe there is some concern?

  9. #9
    Cyburbian Greenescapist's avatar
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    I, too, use "shall" when wording conditions and recommendations related to my projects. Our city attorneys perfer it so that my committee's conditions have more teeth.

  10. #10
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Off-topic:
    My code contains this under Residential Zones:

    SECTION 403. Discouraged Activities "...the following activities are discouraged in all new subdivision with a lot less than one half (1/2) acre created after the date of this ordinance.

    1. The raising and keeping of farm animals and livestock.
    2. Raising, keeping, or boarding animals as a business activity.
    .......
    4. Storage or accumulation of wrecked motor vehicles, junk, derelict vessels, or debris.
    .....
    6. Use of recreational vehicles for residential purposes.
    What were they thinking? Discouraged? Huh?

  11. #11
    Cyburbian Otis's avatar
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    Putting on my lawyer hat:

    In legal documents, "shall" is considered mandatory. In some places as pointed out in another reply, the word "must" is used instead of "shall." They mean essentially the same thing. If I were drafting a document and wanted to be obviously assertive, I would use "must." I think "will" can be confusing since it can be interpreted as a mere statement of future intent rather than an obligation. "Shall" or "must" is much stronger.

    "Should" generally is considered as implying an obligation, but not so definite or mandatory as "shall." It's stronger than "may" but lacks the teeth of "shall" or "must."

  12. #12
    Cyburbia Administrator Dan's avatar
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    I don't use "shall" in zoning language or comprehensive plan policies. It's not really used much in spoken English, and Plain English for Lawyers considers it to be legalese. "Must" serves the same purpose, and IMHO it's a term that seems more accessible than "shall."

    EDIT: a Google search found this document:

    http://www.wordsmithassociates.com/respect.htm

    Newcomers to the plain language movement and its literature may accept the basic philosophy, yet continue to use shall in agreements or legislation. In the movement itself, the fate of shall has provoked lively debate.

    In her 1992 article entitled "Shall Must Go" , Michele Asprey, an Australian plain language writer and lawyer, says lawyers have used shall as a crutch for too long. She presents two arguments against shall:

    1. Shall is hardly ever used outside the legal community, and non-lawyers don't understand the traditional mandatory nature of the legal shall.

    2. Lawyers regularly misuse shall. Cases which conclude that shall means may are bewildering to non-lawyers. This happens because the drafter got it wrong, and the court had to do its best to correct the mistake.

    Asprey's plain language substitutes for shall below achieve greater precision and consistency:

    1. Use must for the imperative shall.

    2. Use will for the simple future.

    3. Use the present tense for just about everything else.
    From the US Small Business Administration (http://www.sba.gov/plain/whatis.html):

    Use "must!"

    * Avoid shall. Readers rarely use "shall" in everyday speech!
    * When you want to show a requirement, use "must."
    * When you want to describe a future event use "will."
    My plain English evangelism usually falls on deaf ears. I don't know why planners are so drawn to legalese, when even lawyers are starting to abandon it. I do have a bad habit of writing in the passive voice, though.

  13. #13
    Corn Burning Fool giff57's avatar
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    From the City Management side, I don't like using shall, must or will for anything I may want to not pay for or use as a tool for negotiation. For instance junk cars, I don't want the code to say "the vehicle WILL be removed by the city" so if I don't want to pay the towing and storage I don't have to. I can decide if it's worth the money to do so. I like seeing the word MAY in those type of situations.

    If I have a developer that I want to do something extra that isn't required, if I have some weaker language on another point, I can negotiate a little.
    “As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall”
    Jean-Jacques Rousseau

  14. #14
    Cyburbian otterpop's avatar
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    In our regs, and I quote " . . . the word "shall" is always mandatory and the word "may" indicates use of discretion in making decisions."

    "Shall" or "will", it is all the same. I like "shall" better just becuase to me it sounds more like a command. Will, as someone has already pointed out, also sounds like a prediction.
    "I am very good at reading women, but I get into trouble for using the Braille method."

    ~ Otterpop ~

  15. #15
    Cyburbian Clore's avatar
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    Shall is obligatory here in PA (coming from a newbie planner myself, but taking a course on zoning right now).

    We never ever use the word "must" in PA. We would never tell anyone what they should do!

  16. #16
    Cyburbian imaplanner's avatar
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    I always use shall when I can or feel the need to. Unfortunately some of our code requirements use "should"

  17. #17
    Cyburbian Planning Fool's avatar
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    In the County I work in, we always you the word "shall", with the understanding that it means "to be under obligation for".
    Prediction is difficult, especially about the future. :-o
    - Yogi Berra

  18. #18
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    Breaking the "Shall" Habit

    One of the big messages of a code-writing session I attended recently was that planners need to stop using "shall" in ordinances, use "must" instead. The presenter stated that "shall" can be problematic legally and "must" better coveys what you're trying to say anyway. Break the shall habit! Thou shall not use "shall."

  19. #19
    Cyburbian
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    I try to use plain English throughout my code writing but I just can't break away from "shall." One attorney once told me that the difference between "shall" and "must" involves an "actor." "Shall" is used when someone is required to perform something, such as in this case: The applicant shall submit a site plan. He went on to say that "must" is rightly used in the passive sense: The application must contain blah blah blah.... That is real hair splitting and I would stick with only one or the other regardless of the activity or passivity of the sentence.

  20. #20
    Cyburbian The One's avatar
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    Hmmm.....

    We are having a big appeal based on the word "or" and it doesn't help that our code doesn't have any rules of construction at all.....
    Skilled Adoxographer

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