What Does it Mean to be Grandfathered

Have you ever seen a land use that looks completely out of place, such as a convenience store or auto body shop in a residential district? If you ask the owner of the business how they are allowed to do this, they will tell you that their business or land use was “grandfathered.” What does this mean?

Zoning regulations have not existed forever; in fact, zoning similar land uses into different districts is a relatively recent phenomenon. Moreover, as cities expand they take in new territory that was previously unzoned and unregulated. In the vast majority of cases, property owners who are using their property in conformity with the law that existed at the time they are zoned are allowed to continue using their property in that manner under the new zoning regulations. This is called a “legally existing nonconforming use,” and the owner is ordinarily allowed to continue using his property in that fashion as long as he does not expand the nonconforming use or change to a different nonconforming use. This is what people mean when they say that a property or business or land use has been “grandfathered.”

The owner of property upon which a legal nonconforming use exists must take care to obey all zoning and land use regulations affecting the property. In particular, the owner should consult with city development or code enforcement officials if the owner wishes to expand an existing building or build a new building on the property, or otherwise visibly change the way in which the property is used. Such changes can terminate the legal nonconforming status of the property, and change it into an illegal zoning violation. In most cities, cessation of the legal nonconforming use for more than six months is considered an abandonment of the right to use the property in that fashion. Once the legal nonconforming status of the property is terminated, the property must thereafter be used in strict conformance with the current zoning and land use regulations.

At Bailey & Galyen, we have attorneys with decades of experience in land use and zoning matters who are available to assist property owners with any municipal land use or zoning issues.

Know Your Audience

As lawyers we are constantly advocating in favor of our clients’ positions and against our opponents’ positions. That’s what we do. But it is imperative to know your audience and it’s attitudes when making your arguments. When we spend all our time representing one type of client we can lose sight of the fact that other people–judges and jurors– may have very different viewpoints from the ones we constantly hear from our clients.

A recent appellate court Opinion illustrates this point. This is a suit against a City for developing its property and allowing other property to be developed in a manner which caused serious flooding on the Owner’s property where none had occurred before. Heavy rains now produce floods of 3 ½ to 5 feet.

I know the guys who wrote the brief being referenced in this case. You never, ever want to see this kind of language in an Opinion commenting on your brief. This is the kind of blunder you become prone to when you spend too much time in your own echo chamber—in this case a practice devoted exclusively to representing cities and other governmental entities.

Here are the quotes—from the beginning and the end of the opinion:

“The City begins its brief by quoting some lines from Creedence Clearwater Revival’s song “Who’ll Stop the Rain?” The City believes that its actions did not contribute to the problem on the Property, but we assume that the quoting of the lyrics is not meant to make light of the [Owners’] situation. But the City did not explain how the lyrics could help us decide this case, and we therefore give no weight to them.”

* * *

“Toward the end of its brief, the City argues that “there is no suggestion about what the City should do to remedy the flooding. There is no switch to flip or valve to turn to keep the rain from falling from the sky.” We are sure that this statement was intended to be humorous rather than merely gratuitous snideness and that the City does not seriously suggest that there is no possible remedy to stop a property from flooding when it rains. And of course, whether there is a remedy is irrelevant to the [Owners’] claim for compensation.” (Emphasis added)

The attorneys who wrote this brief obviously assumed the Court would share their Citycentric viewpoint of the case, but the Court evidently did not. Did this have any bearing on how the Court decided the case? We’ll never know, but why take the risk? In this case, the City lost, and the case was sent back down for trial.

The moral of the story? Don’t assume your audience shares your viewpoints, and be very careful before attempting to use humor in a way that might make you look insensitive to the plight of others, even if the others are your opponents. Your ultimate goal is to persuade, not perform.