Chapter 5.3
Social Justice

• ALL
• Remove Code Barriers
• Create Incentives
• Fill Regulatory Gaps

Language Access for Land Use Processes

INTRODUCTION

Language access—the ability to understand and be understood in both spoken and written communications—is necessary for people to play an active and meaningful role in their communities.[1]  Making local information and processes available to all residents, regardless of what language they speak, enhances equity. Although English is the dominant language for government processes—including land use processes— in the U.S.,[2] language access plans (“AP”) or language ordinances can help LEP residents participate meaningfully in their communities.[3] APs help LEP communicators enjoy the same access to public spaces, processes, and information as dominant language communicators.

Language access is necessary for equitable participation in all governmental functions, including but not limited to land use processes. Language inequality in the US has many—and sometimes severe—implications in the lives of LEP populations and others unable to communicate in English. Inadequate language services can impede medical care, keep residents from information about severe weather events, prevent individuals from having fair access to the judicial system, and discriminate in other ways.[4]

APs for zoning ordinances and other local zoning processes are an important step to ensure that LEP populations have access to processes that are a fundamental part of being a member of a community.  Permits, rule exceptions, and even general information about zoning and land use are not always easily discernable to anyone—let alone LEP residents. Linguistic minorities cannot access basic information, communicate with local officials, or use online services.  It is particularly important to include land use processes and decisions in APs because land use decisions directly impact the lives of every citizen.  More pointedly, land use decisions have historically discriminated against people of color and low-income residents.[5] APs help avoid exclusion, and enhance participation, in ways that could mitigate future discrimination.

Written ordinances, websites, application instructions, and forms are not accessible to linguistic minorities.  Because zoning ordinances are so complex even without a language barrier, LEP residents likely face more barriers than native English speakers when they attempt to become involved in these processes.[6]  While online zoning ordinances can be translated using Google Translate and other AI translation programs, and are currently offered through many online zoning ordinances,[7] they are not always accurate.[8]  Google Translate produces a “rough” translation from one language to another,[9] but is not an effective substitute for human translation due to the technical nature of the documents and nuances in meaning.[10] Zoning ordinances are generally very complex, and even college-educated, native English speakers may struggle to parse through these dense documents.[11] A non-perfect translation of a complicated document can result in information loss and confusion.

Cultural differences impact translation, as well.[12] Social norms, cultural trends, and other factors can embed meaning into certain words and phrases.[13] Additionally, context can cause a word or phrase to mean very different things in different situations.[14] Moreover, friends or family who are not trained in the land use system’s technical and legal components can inadvertently make errors when they translate documents.

Linguistic minorities also encounter significant obstacles to participating in in-person land use proceedings.  Many zoning decisions and land use processes include community meetings and allow for resident input. Without interpreters, town hall meetings, community forums, formal political discussions, and other live events can effectively exclude LEP populations, preventing them from accessing and influencing the processes and conversations that are necessary for community growth.[15]

Linguistic minorities may also face unique anxieties about engaging in land use process in an English-dominant system.[16] Some Latino/a/e communities, for example, are not informed about the risks associated with accessing public services or their ability to weigh-in on critical land use issues impacting their community.[17] Non-citizens who are here legally might think that using certain resources will have a negative impact on their legal status,[18] even though using these services does not impact legal status.

Language Access Plans and Ordinances

The legal system in the US does not recognize language as a protected class, and therefore LEP residents do not enjoy constitutional language rights.[19] Nonetheless, local governments have the power to make positive change.  Local governments considering APs have a variety of options in terms of who they serve, the procedures for developing, implementing, and monitoring AP services, and the AP’s substantive components.

Linguistic minorities are not the only residents who could benefit from an AP.  APs can provide translation and interpretation resources for linguistic minorities, people whose reading comprehension level is below the 8^th grade level, people who haven’t had the education needed to understand land use processes and information, and other people who struggle with language access.[20]

Procedurally, language ordinances and APs may direct specified departments of local governments to research whether they are providing adequate language access to residents.  For example, they can assess the number of LEP residents in the community, the demand for translation requests local agencies receive, and the cost of implementing language resources.  Ordinance language can ask vital facets of local government to appoint a person or group to make sure the AP is successfully carried out. Procedural steps might also suggest that a local government implement training programs to educate local officials about language access issues and cultural competence. Many APs call for periodic evaluation to ensure that the needs of linguistic minorities are met. APs also generally stress that residents receive proper notice of the substantive services discussed below.

Substantively, in determining what measures to include in their APs, local governments will have to balance their community’s need for assistance against its cost.  At a minimum, local governments could “translate” technical documents into plain language – a service that would benefit all residents.  Another minimum measure would be for municipalities to offer online translation services because they at least convey the broad strokes of written information.  Given the limitations of online translation services, however, additional services would significantly enhance access.  Potential components include directing departments to automatically translate commonly used forms and information so that the translated documents are available as a matter of course and without special request. Translated documents may include general information about local government functions, frequently asked questions and answers, and permit forms and information that are common in that specific municipality. The AP could also dictate that, if requested, the local government provide in-person interpretation and translation services for less common procedures and information. Finally, APs could include providing access to in-person interpreters at public forums and meetings as needed.

EFFECTS

APs in zoning contexts and broader local government contexts enfranchise linguistic minorities and help ensure they enjoy the same autonomy to participate in local processes that English speakers enjoy. Carefully crafted APs can provide equitable access without imposing undue burdens on local governments.

Linguistic minorities and LEP residents experience immediate, positive impacts when municipalities implement APs.[21] APs increase the quality and quantity of information that these community members have access to. Accurate information saves time and reduces confusion.[22] Accessible and affordable language services mean that LEP residents can take a more active role in their communities and experience greater autonomy.[23] Municipalities that instate APs and implement language services are creating more equitable pathways for LEP residents to use land use and zoning services.

APs that call for professional translation of zoning ordinances and other documents help make technical information available to linguistic minorities.  Professional translation can achieve more accurate, timely, and meaningful translation of technical land use documents than what is possible through Google Translate or friends and family, and can reduce delays, errors, and confusion. Unlike Google Translate, professional translators are aware of cultural and linguistic differences that help inform the meaning of a statement or document.  They can accurately translate embedded meanings and reduce the likelihood of message distortion.  This produces much more reliable results than reliance on an online translation system.

Interpretation services likewise help LEP residents meaningfully engage in a variety of processes.  Live interpretation allows LEP and hearing-impaired residents to have a say in their communities. Interpreters create direct access for residents whose language abilities would have barred them from participation.

APs increase equity in other ways as well: better language access reduces the apprehension that many linguistic minorities experience while attempting to navigate the system. Some Latino/a/e communities, for example, are not correctly informed about the risks associated with accessing public services or their ability to weigh-in on critical land use issues impacting their community. In addition, non-citizens who are here legally might think that using certain resources will “negatively impact one’s legal status.”[24] Although using these services won’t affect legal status, APs can further allay fears by providing no-questions-asked access to information[25]

Similarly, APs help to combat different forms of discrimination that linguistic minorities face. Linguistic discrimination is rampant in the United States. People who speak languages other than English in public—and even English speakers who are perceived for some reason to be non-English speakers—are met with discrimination, retaliation, and even violence in some situations.[26]  Providing immediate language resources to linguistic minorities through a codified program is an important step toward reducing linguistic discrimination. The more that public forums normalize and facilitate participation from people who experience barriers to communicating in English, the faster linguistic stigma will dissipate. APs send a message to LEP populations that they are welcome members of a community. APs can help increase access and dignity, while reducing stigma for linguistic minorities.[27]

EXAMPLES

New York City, NY

The New York City Dept. of City Planning (DCP) has an AP that seeks to make land use information and processes more accessible to LEP residents.[28] The AP and DCP’s implementation process seek to make public participation for land use proceedings equitable for speakers of all languages.[29] Prior to drafting the plan, research revealed that LEP New Yorkers had an interest in land use processes, but had to provide their own translation services. Per the DCP’s own estimation, these services are costly—around $475 per hour.[30] To address that burden, the DCP has translated basic land use and zoning information into the top ten non-English languages in the City.[31] However, because the agency presumes that any person going through land use proceedings will have English speaking representation, the DCP will not translate application forms unless there is a special request.[32]

To view the provision, see NYC, NY Administrative Code § 23-1102 (2021).

Chapel Hill, NC

Chapel Hill (the Town) has a municipal language access plan in place for residents with limited English proficiency (LEP).[33] Chapel Hill’s plan provides residents with free translation and interpretation services.[34] The Town notes that its residents come from a diverse range of backgrounds and a significant percentage of them speak languages other than or in addition to English.[35] The language plan provides that the town must ensure “meaningful access to Town information and services, regardless of language” to create a just community.[36] “Meaningful access” is defined as the “ability to use resources without significant restriction from language barriers.”[37]

To develop the plan, the Town conducted research into local language use and language access.[38]  The Town then balanced the proportion of residents who need language access services, the cost of those services, the frequency of services use, and the importance of the services.[39] Based on this balancing, the city decided to offer a range of services from in-person interpretation to document translation.[40] The Town, which passed the plan unanimously in 2019, will translate “vital documents” into the primary non-English languages used in the community.[41]

What remains unclear, however, is what counts as a “vital document.”  It is not clear whether the zoning ordinance or other land use documents qualify.[42] The Town website and zoning ordinance page have a Google Translate button and instructions for translating the webpage itself.[43] However, as mentioned above, Google Translate does not provide adequate translation, especially where technical documents are involved.[44] The Town could remedy this uncertainty by specifically noting which land use and zoning documents are considered vital for purposes of the plan. Additionally, the zoning ordinance itself should reference the AP so that residents attempting to go through permitting processes or seeking land use information know that they have access to translation and interpretation services.

To view the provision, see Town of Chapel Hill, Language Access Plan (Nov. 2019).

Chicago, IL

Chicago estimates that about 400,000 residents “do not speak English as their primary language.”[45] The City passed a language access ordinance[46] that requires each “pertinent City department” to draft a language assistance program.[47] The departments must designate a Language Access Coordinator, develop the means of plan implementation, provide language access services to anyone seeking them, provide both interpretation and translation services, and provide notice of services.[48] However, the City has not codified any of these requirements within the land use and zoning ordinances themselves.[49]

Chicago promotes compliance through extensive reporting and auditing measures. The City’s plan requires the Language Access Coordinator to file reports detailing what language services are used. These reports direct Coordinators to list which documents, if any, have been translated since the AP’s implementation.[50] Coordinators also report their department’s outreach and notice efforts, how many translated forms were used or requested, how many people utilized interpretation services, and whether or not the department has multilingual staff.[51] Importantly, the City conducts audits to determine whether it is sufficiently complying with the language access ordinance. In 2017, the Office of the Inspector General conducted such an audit and determined the City was not in compliance. The Office issued a report of its findings—detailing where the City fell short and recommending future action to remedy these shortcomings.[52]

To view the provision, see Chicago, IL Municipal Code § 2-40-010-060 (2015).