Appeals Court: HENRY W. COMSTOCK, JR., TRUSTEE v. ZBA OF GLOUCESTER & OTHERS

Keywords: Zoning, Nonconforming use or structure, Special permit, Variance, Height restriction, Accessory building or use. Practice, Civil, Zoning appeal. Municipal Corporations, By-laws and ordinances

There is probably no more abstruse area of Massachusetts zoning law than nonconforming uses, structures, and lots. The infamous density of G.L. c. 40A, Section 6, that deals with this topic is often discussed in terms of “grandfathering”. In this Appeals Court decision Justice Jim Milkey lays out a long-overdue clarification of Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 (2014).  Justice Milkey disposes the case at hand with: “We reverse and take this opportunity to clarify the meaning of Deadrick.”  And then then he proceeds to do with the piercing clarity reminiscent of  decisions of Justice Rudolph Kass.  But what may turn out to be the most memorable part of the decision appears in Footnote 11:

[11] 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).

This is a “must read” decision. Click here for the full text.

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