Freedmen voting. South Carolina (1868) Google images
In the USA the term ¨grandfathering¨ is very important for those who want to build or remodel in old properties (lots, houses, commercial, residential) and are affected by the new Codes.
I know about a very difficult case. A woman that bought a commercial retail and its license was expired. After 6 months of the expiration, and without any new business replacing the previous one, the property was under R1 Residential. And the lot was so small that it was impossible to comply with the parking requirements to build a house. In consequence, unless the owner bought an adjacent lot the property would be absolutely empty, worst of all, the City didn´t want to expropriate.
I´ve found a very interesting and clear explanation about the term ¨grandfathering¨, written by attorney Edward J. Ledogar. Here, some paragraphs and the link below to read it in full.
“Grandfathering/Single and Separate
Ownership.” I came here to talk about grandfathering rights of single and separate ownership, but there is 3
distinction to be made between the two.
First, let me make excuses for the sexist term,
“grandfathering.” It’s just that “grandmothering” doesn’t
just ~sound right, it sounds like the right to wear a shawl.
The term is grandfathering. Black’s law dictionary defines the term “grandfather clause” as “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 regulation.”
The term grandfather or grandfathering also has a derogatory connotation. Unfortunately, it was a term used
by white supremacists in the South in the early days of reconstruction. They would claim to have held on to their rights of voting as opposed to others who came along later
trying to exercise those rights; so that’s thrown back at us
sometimes when we talk about grandfathered rights. The
first thing to remember about grandfathering, is that
grandfathered rights don’t give you the right to do anything you couldn’t have done legally when it was legal.
That’s the problem, of course, with those people down
south. They were trying to get away with something they
didn’t really have the right to do.
Do you realize that a young, pretty, eighteen-year-
old girl can be a grandfather? It’s true. Grandfathering
simply means that you had a property right that preceded a new law or rule or regulation. Let’s take this
lovely, eighteen-year-old girl. Her aunt died a few years
ago, leaving her a nice half-acre parcel of land just out-
side of town in d brand new subdivision, or newer subdivision. Let’s say her aunt bought it some twenty, twenty-
five years ago hoping someday to build a house, but unfortunately she died a spinster. The trouble is the area
has more recently been zoned to one acre lots. The local
building inspector is telling our lovely eighteen-year-old
girl and her boyfriend, who hope to be married soon,
that they can’t build a house on this property. that they
have to buy an adjoining half-acre lot. True or false?
Well, it’s false. The reason is this eighteen-year-old
girl is grandfathered. She has the same rights that her
aunt had to build on that half-acre parcel. The fact that
they upzoned the area to one acre is like an ex post facto
law. An ex post facto law is a criminal term. It’s a law passed
after the fact. They can’t get you for spitting in the sub-
way when you did it at a time when it was legal. If they
change the law, they can’t say, well, you’ve been spitting
in the subway for twenty years, we’re going to put you in
jail. Aha! I haven’t done it since it became illegal. I haven’t
done it after the fact. Well, when aunt Bertha bought
this property, twenty, twenty-five years ago it was perfectly
legal to build on this half-acre lot. So she and her heirs
are grandfathered with regards to that lot.
Now, let’s suppose that Aunt Bertha
had bought two adjoining half-acre lots. She
left one to her niece and one to her nephew. Are they
both grandfathered? The answer, unfortunately, is probably no,
unless the aunt died before the zoning-to one acre took affect. Because we have
in our zoning laws a merger situation. If you have an
acre divided into two half-acre lots, it now becomes
merged into one acre and you have to conform to the
one-acre laws. There may be some exceptions to that.
The nephew and niece may be able to use the half-acre
parcels under the vested rights theory. Vested rights expire if they’re not used promptly.
Single and separate ownership rights or
grandfathered rights, however, are rights at law, because
they come under the United States Constitution, which
says that we can not be deprived of private property without due process of law.
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