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A note on language: Grandfathering

The Comstock opinion has garnered most attention, not for its holding, but for a footnote on the history of a common term used in zoning and land use law: “grandfathering.” The term has been widely used to refer to the protection that preexisting structures and uses receive from changes in local zoning requirements. In footnote 11, the Appeals Court addressed the use of this term:

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).

The ubiquity of the term in modern zoning practice and its repressed origins arising outside of the land use field do not excuse continued use of a term with racist roots. We applaud the Court’s leadership on this issue and will likewise decline to use the term in our practice. We have no doubt that the real estate and municipal practitioners can become comfortable with another common term that can embrace the meaning of the disfavored term.


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