Nothing much to see in the Massachusetts Court of Appeals' opinion in Comstock v. Zoning Board of Appeals of Gloucester, No. 19-P-1163 (Aug. 3, 2020), a somewhat typical zoning dispute.
Neighbor vs neighbor, over whether permits issued by a municipality (and approved by the ZBA) to renovate and replace an existing -- but dilapidated -- residential garage, were valid. The replacement garage was to be built on the same footprint as the old garage, even though some elements of the design were different.
Issue: is the separate garage covered as a pre-existing nonconforming use under Massachusetts statutes?
Short answer: yes, the nonconforming use statute covers separate buildings. The term "single-family residence" includes accessory structures. Nothing too surprising there.
But what caught our eye and makes us post this case here is footnote 11 on page 8 of the slip opinion, about the "certain level of protection to all structures that predate applicable zoning restrictions" -
Providing such protection commonly is known -- in the case law and otherwise -- as "grandfathering." We decline to use that term, however, because we acknowledge that it has racist origins. Specifically, the phrase "grandfather clause" originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867. See Webster's Third New International Dictionary 987 (2002) (definition of "grandfather clause"); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era, 82 Colum. L. Rev. 835 (1982).
Slip op. at 8 n.11.
In our experience, we haven't seen the term "grandfathering" used all that much in briefs or opinions. If used at all, it is primarily by "lay" persons since the term has worked its way into common parlance, separated from its historical use and meaning. We've always thought it was too vague a term for land users to employ meaningfully (our in-house rationalization for why we didn't see it being used that much.) Those in the land use and zoning business tend to use "vested right," "nonconforming use," "zoning [or equitable] estoppel" or similar terms.
What's your experience? Have you seen that term used in technical situations in land use law? We always understood the original meaning of the term, but assumed -- rightly or wrongly -- that it had become somewhat generic outside of its meaning in voting rights. Let us know, please - we're curious.
Comstock v. Zoning Bd. of Appeals of Gloucester, No. 19-P-1163 (Mass. App. Aug. 3, 2020)
