While I do not consider myself to be a student of etymology, the origin of words and phrases is not only sometimes material and necessary to truly understand a legal term, but I always find it to be interesting. For example, the term “grandfathered” came up during a recent client meeting. When used as a verb, the Oxford English dictionary defines the word “grandfather” as a verb used informally in North America to mean “Exempt (someone or something) from a new law or regulation”
The foregoing accords with its use in Ontario municipal and planning law. There the term grandfathered is used when a use is legal non-conforming or a building is legal non-complying. Zoning by-laws not only regulate the uses to which a property can be put (e.g. residential subdivisions, commercial plazas, industrial parks, institutional lands), but further provide lot area regulations applicable to each respective zone. Typically, matters such as minimum lot areas, minimum lot frontages, minimum parking space requirements, maximum density, minimum sideyards and open space requirements are set out and all new development must comply with and be a specifically permitted use listed for the zone. All new buildings and structures must be constructed in accordance with the lot area regulations for that zone.
If a new development does not quite comply with the lot area regulations, a minor variance would be applied to legally permit the deficiency. There exist similar provisions for uses, but if a new use is beyond that contemplated or intended by the zoning by-law, a rezoning may be necessary. Depending on just how drastic a change the new proposed use is, an official plan amendment may or may not also be required. If a use is becoming environmentally less “brown” (for instance, a proposal to redevelop an abandoned industrial site into a residential or commercial development), environmental tests and records of site conditions will also be required.
Zoning by-laws are not retroactive in their effect. That is, when the municipality passes a zoning by-law, it will only apply to all subsequent development. This is because the legislation that permits a municipality to pass zoning by-laws, the Planning Act of Ontario specifically provides in subsection 34.(9):
“(9) No by-law passed under this section applies,
(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or
(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8 (1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (10) of that Act.”
Suppose a house is on a highway strip that over time comes under commercial development pressure. Instead of rezoning properties one by one on a site specific basis, the municipality may rezone an entire block or blocks of land. New zoning by-laws often change the boundaries of the previous zones. Keep in mind that the main zoning by-laws of the former City of Kingston and the Townships of Kingston and Pittsburgh have yet to be replaced and each of those by-laws is now forty years of age! Planning rationale that was applicable to development in the 1970’s still governs large parts of the City.
Regardless, if a use of a building “legally” exists prior to the zoning by-law being amended to effectively now prohibit the use or structure, notwithstanding that fact the prezoning use is considered to be “legal” non-conforming. While the use may not be authorized under the new by-law, the use may legally continue. In our example, even if the entire block that our house sits on is rezoned from being residential to commercial, the house and its use as a residence may lawfully continue. Similarly, if a building or structure is constructed under an older and less restrictive zoning by-law, it may continue and will be considered “legal” non-complying with respect to the new lot area regulation deficiency. The theory of legal non-conforming uses and legal non-complying buildings and structures is that they will eventually die out and fade away. In practice, they both can remain relevant for a very, very long time.
There are restrictions on legal non-conforming uses and legal non-complying buildings. The 1975 Zoning by-law for the old City of Kingston, being No. 8499 provides, in its general zoning provisions:
“5.24 Non-Conforming Uses
(a) RESTORATION OF DAMAGED BUILDING OR STRUCTURE
A non-conforming building destroyed by any means beyond the control of the owner may be replaced and rebuilt to the same extent in its former location provided that construction is commenced within one year from the date of destruction and provided that the building is completed within a reasonable time thereafter. The Chief Building Official shall have regard for the clear intent of the Owner to reconstruct the damaged building in considering the issuance of a Building Permit in accordance with the aforementioned requirements.
(b) DISCONTINUED USE
Any non-conforming use of land, of a building or of a structure which is discontinued shall not be resumed nor shall such non-conforming use be changed to any other non-conforming use.
(c) CHANGE OF NON-CONFORMING USES
The non-conforming use of lands, of a building or of a structure shall not be changed except to a conforming use, or to a use similar in purpose or to a more compatible use with the uses permitted by the by-law as set out in the Planning Act, as amended.
The City’s downtown and harbour areas are governed by a 1996 by-law being No. 96-259 and similarly that by-law provides:
“SECTION 5 – GENERAL PROVISIONS (continued) Page 92 5.23 LOT DEVELOPMENT REQUIREMENTS
- 5.23.1 BUILDING PERMIT ISSUED
Nothing in this By-Law shall apply to prevent the erection or use for a purpose prohibited by this By-Law of any building or structure for which a permit has been issued under Section 5 of the Building Code Act, prior to the day of the passing of this By-Law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under Section 6 of the Building Code Act.
- 5.23.2 EXISTING NON-CONFORMING USES
Nothing in this By-Law shall apply to prevent the use of any lot, building or structure for any purpose prohibited by this By-Law if such lot, building, or structure, or any part thereof, was lawfully used for such purpose on the day of the passing of this By-Law so long as it continues to be used for that purpose. If the use is modified in accordance with Sections 220.127.116.11 or 18.104.22.168 of this By-Law then the use shall be allowed to continue. …”
The by-law goes on to impose a list of restrictions to legal non-conforming uses and legal non-complying buildings. The point is that legal non-complying uses and legal non-complying buildings and structures are “grandfathered” with respect to new zoning by-laws.
But why is the term “grandfather” used in this instance? What is the origin of the term in this regard? Not surprisingly, the origin is much more sinister that one would suspect for what is most often an affectionate word.
As I originally noted, grandfathered has acquired an informal term of use meaning to exempt (someone or something) from new legislation, restrictions, or requirements. This use arises from what is known as a “grandfather clause”. Oxford’s defines a grandfather clause to mean:
“A clause exempting certain classes of people or things from the requirements of a piece of legislation affecting their previous rights, privileges, or practices.”
Black’s Law Dictionary provides a more detailed definition for “grandfather clause”, being”
“Provision in a new law or regulation exempting those already in or part of the existing system which is being regulated. An exception to a restriction that allows all those already doing something to continue doing it even if they would be stopped by the new restriction. A clause introduced into several of the constitutions of the southern states, limiting the right to vote to those who can read and write any article of the constitution of the United States, and have worked or been regularly employed in some lawful employment for the greater part of the year next preceding the time they offer to register unless prevented from labour or ability to read or write by physical disability, or who own property assessed at three hundred dollars upon which the taxes have been paid, but excepting those who have served in the army or navy of the United States or in the Confederate States in time of war, their lawful decendents in every degree, and persons of good character who understand the duties and obligations of citizenship under a republican form of government.”
On the website BlackPast.org I read:
The Grandfather Clause was a statute enacted by many American southern states in the wake of Reconstruction (1865-1877) that allowed potential white voters to circumvent literacy tests, poll taxes, and other tactics designed to disfranchise southern blacks. Following the American Civil War (1861-1865) and the Fourteenth Amendment (1868), which extended citizenship to blacks, the Fifteenth Amendment (1870) was ratified, providing a mandate that “the right of citizens of the United States to vote shall not be denied or abridged…on account of race, color, or previous condition of servitude.” But after a brief period of relatively open voting, southern states and, especially, Democratic legislators began enacting poll taxes, literacy and property tests, and understanding clauses, which they claimed would exclude the poor and uneducated, in a thinly veiled attempt to eliminate the black vote. Many Southern states, however, had to rely on the cunning of voter registrars to ensure that poor and uneducated whites were not disfranchised by these tests.
Louisiana, looking to find a more straightforward method to exempt whites, created the Grandfather Clause in 1898 which allowed those who were able to vote before 1867 and those whose father or grandfather could vote before 1867 to skip the tests and taxes. As no blacks could vote in Louisiana before 1867, the year in which the Reconstruction Act ordered universal male suffrage, the grandfather clause excluded blacks in an inexplicit manner, thus, in theory, avoiding the ire of the Supreme Court and Northern Congressmen. Additionally, the enactment of the grandfather clause avoided national scrutiny because the national media was preoccupied with the coinciding outbreak of the Spanish-American War.
North Carolina was next to establish the grandfather clause in 1900. Although the North Carolina clause eventually passed, it had to surmount serious opposition from blacks and Republicans wary of aggravating the federal government. Eventually, Alabama, Georgia, Maryland, Oklahoma, and Virginia also put similar statutes into law. In tandem with other methods of black disfranchisement, the Grandfather Clause permitted the continuance and strengthening of the Jim Crow segregation that suppressed black Americans in the South until the 1960s. Blacks constituted a majority in Louisiana and other southern states. At least in part, the absence of black voters ensured black schools would languish and discriminatory policy would pervade Southern society.
The United States Supreme Court deemed grandfather clauses unconstitutional in Guinn v. United States (1915). The Court stated that Oklahoma’s grandfather clause was “repugnant to the prohibitions of the Fifteenth Amendment” and that Oklahoma must remove its clause. The other states that had grandfather clauses were also forced to dismantle their versions. In practice, however, the Supreme Court’s verdict had no impact on black suffrage. Each state affected by the ruling quickly enacted new policy to sidestep Guinn. In Oklahoma, for example, legislators passed a statute which extended the vote only to those who did vote or were eligible to vote prior to Guinn. Black voting remained suppressed in a number of Southern states until the civil rights campaigns of the 1960s.
A pole tax was a tax required as a qualification for voting, again used as a vehicle to effectively exclude blacks from voting, until such taxes were prohibited to federal elections by the twenty-fourth Amendment of the United States, adopted in 1964.
So there you have it. The term arises from prejudicial southern legislators originally outsmarting themselves in their attempt to deny the black vote. Initially forgetting that in the 1870’s the vast majority of the population was illiterate, in order to provide for the illiterate white vote, a further exemption to the literacy requirement was created to also exclude anyone whose father or grandfather was allowed to vote prior to 1867, but still effectively denying the black vote. Perhaps in light of the true history of the term “grandfather”, we should stick to the use of legal non-conforming and legal non-complying? Regardless, I hope you found this to be as interesting as I did.