Thursday, November 06, 2003

Smyth County considers removing the word SHALL from its zoning ordinance

According to this report in the Smyth County paper, the county was considering removing the word "shall" from its zoning ordinance. The article says in part:

"The primary change, other than some new definitions for land use terms, appears to be the removal of the word "shall" from the entire approximately 50-page document. Although she was forbidden to speak, Smyth County Economic Development Director Sally Morgan quietly asked the commission why they would delete "shall" throughout the document. The planning commission did not clearly specify its reasoning. Morgan suggested the commission might want to develop a rationale for their choices before presenting the revisions to the supervisors.

"Oh, we’ll have a rationale," McClure assured Morgan, but he did not present it.

McClure and DeBord, the chairman and vice chairman of the planning commission, aggressively fought adoption of the county’s Zoning Ordinance. The two men were the self-appointed leaders of the anti-zoning citizens’ group. Now as leaders of the planning commission, they head the advisory body that recommends zoning decisions and ordinance revisions. Part of their job is to recommend actions to use and enforce the Zoning Ordinance they originally opposed.

County Attorney Tate said "shall" is a specific term used in legal language.

"In the law, there are two [language] terms you use. One is ‘shall’ and one is ‘may,’" he said "‘Shall’ is mandatory and ‘may’ is permissive. … If it says ‘shall,’ it is a requirement."

He used two items of law to illustrate his point. In the Code of Virginia 15.2-953, the law allows local governments to give money to fire departments, saying "localities … may" make gifts and donations to support charitable causes, fire departments and rescue squads. Financial support for emergency service organizations is not a requirement under the law. But in Article 10, Section 1 of the constitution, Tate said, the taxation and finance law says all property "shall" be taxed, and all taxes "shall" be uniform. The "shall" makes the tax law a requirement.

The difference, he said, is what makes an ordinance a requirement rather than an option. Removing the word "shall" from the entire Smyth County Zoning Ordinance effectively eliminates its enforceability."

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