March 03, 2021 Practice Points

Zoning and Land-Use Attorneys: Mind Your Nomenclature!

A footnote in a recent decision from the Massachusetts Appeals Court reminds the bar of the racist roots of the term “grandfather” protection.

By Nicholas Shapiro

You may know the concept in zoning and land-use regulatory practice, alternately, by the terms “preexisting, nonconforming status,” or “vested rights,” or “grandfather protection.” But, as a footnote in a full, published decision from the Massachusetts Appeals Court handed down this past summer observes, the word “grandfather,” in the context of relieving citizens of existing legal duties, has ugly roots. Practitioners and the courts should think twice, given this history, before continuing to use the term. In fact, the Massachusetts judiciary has decided to prohibit the term’s use in its reported decisions.

In Comstock v. Zoning Bd. of Appeals of Gloucester, the Massachusetts Appeals Court was called on to clarify the extent of protection afforded by preexisting, nonconforming status under the state Zoning Act. In footnote 11 of the Comstock decision, Associate Justice James R. Milkey, writing for the panel, provides the following history lesson about the term “grandfather clause,” and announces the court’s decision to jettison use of the term “grandfathering” in its case law:

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).

Contemporaneous with the issuance of the Comstock decision, the Reporter of Decisions for Massachusetts confirmed the Commonwealth’s Judiciary’s decision, writ-large, not to use the terms “grandfather” or “grandfathering” any more, and solicited input from the bar about alternative term(s) to capture the same meaning.

In Massachusetts, however, before footnote 11 of the Comstock decision raised this issue with “grandfathering,” the courts had already been in the habit of using the term “preexisting, nonconforming” to denote when a structure, use, or lot was legal at the time when it was created, but has become noncompliant with present-day regulations. See, e.g., Bellalta v. Zoning Bd. of Appeals of Brookline 481 Mass. 372, 376 (Mass. 2019) quoting Opinion of the Justices, 234 Mass. 597, 606, 127 N.E. 525 (Mass. 1920) (“[P]reexisting nonconformity is a use or structure that lawfully existed prior to the enactment of a zoning restriction that otherwise would prohibit the use or structure. Preexisting nonconformities become protected when zoning laws change, as a result of the long-standing recognition that ‘rights already acquired by existing use or construction of buildings in general ought not to be interfered with.’”) (citation omitted).

Practitioners and the courts have obvious alternatives to “grandfather” and “grandfathering,” such as “preexisting, nonconforming status” or “vested rights,” that do not evoke some of the darkest and most painful episodes in our history. Zoning and land use attorneys should take note of the Comstock decision, mind their nomenclature, and use less fraught language. “Grandfathering” is not the only way to describe uses, structures, and properties that are exempt from present-day zoning and land-use regulation, based on their vintage and provenance, and the term can and should be struck from our vocabulary with ease.

Nicholas P. Shapiro is a shareholder in Phillips & Angley’s real estate and land use litigation practice in Boston, Massachusetts.


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