Regulation "Grandfathering", yes or no?

[MacheteJames]

There was a space of about two or three months last summer and fall, following last year's summer of protests over structural racism, where the term "grandfathering" became off-limits due to negative connotations associated with its links to Jim Crow. All of the folks I work with in the planning and development community purged it from their vocabulary in favor of "legal noncomforming". I can recall hearing and reading public comments in which Board and staff members with chided for using the term - i.e. "you guys need to stop using it".

Grandfathering seems like it's now back in the lexicon, at least in the planning circles I travel in. I see it written, and I hear it spoken. Why didn't it stay gone for good?

 

[Faust_Motel]

Old habits die hard and and even if you avoid the term in official communications, sometimes you have to fall back on it to connect with people when explaining the concept.

The harder part I have is explaining that legal nonconforming is different from nonconforming!

 

[mendelman]

Have never used it in my 19 yrs of professional practice.

I started out using "legal nonconforming" and then moved on to "existing nonconforming", which is my preferred term.

I substituted 'legal' with 'existing' about 15 years ago as I was taught by a good boss that its practically impossible and/or a waste of time to determine for sure whether something was legally established at some point in the past. Therefore, 'existing nonconforming' is a suitable term of art that sets a threshold between 'now' and 'before', when talking about 'next'.

The harder part I have is explaining that legal nonconforming is different from nonconforming!

If 'nonconforming' is being used to describe a current action that does not comply with current regulations and/or process, then I just use 'illegal'.

People pay attention when you use 'illegal' to describe the outcome of a code enforcement investigation.

When doing formal or pre-application plan review, I use 'noncompliant' to describe elements of a plan that don't comply with the applicable regulations and/or process.

 

[luckless pedestrian]

I sent a story about the use of grandfathering to the City Council and Planning Board last year so we don't use it anymore - also this one

and instead of legal non conforming or otherwise - I just say non conforming and non-compliant

I am grateful that the City Council passed a resolution last year to ensure all policies pass through the equity and inclusion filter so it makes my life a lot easier.

 

[Whose Yur Planner]

I think it's a short hand, layman's term that helps people understand the concept. If you use legal nonconforming or other such terms for non planners, their eyes glaze over or you get a blank look. When talking to non planners, I'll use both, which helps put.

 

[Faust_Motel]

I was taught by a good boss that its practically impossible to determine for sure whether something was legally established at some point in the past.

Even if you can find a permit for said thing in the records?

We split nonconformities into lot, use, or structure, though the courts have often conflated these categories (residential density not in line with current rules could be a nonconforming lot, but it also might be thought of as a nonconforming intensity of use...)

In our state the same statute of limitations for adverse possession covers zoning nonconformities- so if somebody builds an unpermitted structure and that structure stands openly and notoriously (love that term) for 15 years, the municipality loses its ability to call the nonconformity illegal and require it to go away. (We can still go after it if the landowner proposes a "substantial change" to the property.

Citizens and developers who throw around "grandfathered" as a term tend to not know all the nuances of the topic.

 

[mendelman]

I think it's a short hand, layman's term that helps people understand the concept. If you use legal nonconforming or other such terms for non planners, their eyes glaze over or you get a blank look. When talking to non planners, I'll use both, which helps put.

But I see it as a disservice to the audience/community. The question is often important and demands precision from us professionals.

It's similar to when the laypeople use 'easement' and 'setback' as synonyms. It doesn't help.

And I agree that using one term as a bridge to the more precise term is an excellent interpersonal communication technique and part of the art of our professional.

 

[Maister]

MJ, probably almost everyone here knows and appreciates the origins and historic significance of the phrase 'grandfathering' , but I would wager a majority of Americans do not know or appreciate its significance. You may be reacting now in disbelief, but the reason I suspect this is the case is because I've used the phrase 'legal nonconforming' on numerous occasions in my dealings with residents and gotten quizzical expressions about maybe half the time. I've been forced in such instances to have to explain 'when something was legally already there when the law passed making it thereafter illegal [furrowed brows]...okay, you know like grandfathered.' [light bulb goes on] "well why the heck didnja say so in the first place instead of blabbin' all that there legalese....'

The challenge to change is the term grandfathering has been around for generations and its meaning is broadly understood. Attempts to change the words can even be perceived as the realm of SJWs.

That said, I agree that our language colors our thinking, beliefs, and opinions. The question thus becomes: what term could reasonably be used to replace it, and how best to do so without villifying those who do persist in using the term 'grandfathering' in ignorance.

 

[mendelman]

Even if you can find a permit for said thing in the records?

Yep, because 'existing nonconforming' is inclusive of 'legal' through a permitted process or 'legal' when established in an unregulated time.

I have about 150 years of built environment to contend with across at least 100 years of active land use regulatory regimes.

We have lots and lots of site improvement nonconformities throughout the City that may have been established in unregulated, lightly regulated, heavily regulated and now medium regulated periods.

I tend to defer to the property owner's best interest (which is often also the community's) with many long standing site improvement nonconformities, but I get very detailed on my scrutiny of use nonconformities, especially for high(er) intensity differences, like an existing auto repair business in a residential district, etc.

 

[Gedunker]

I try to use "non-conforming" as much as possible. I don't know off the top of my head if something is legal, so not using the term avoids getting ambushed by inconvenient facts later on. As Maister points out, it is easy to confuse some of our citizens and I find leaving out "legal" tends to be less off-putting to those folks. And if it means avoiding a term some people consider offensive, then that's icing on top.

We have been using "1% flood" and "1% annual chance flood" for probably a decade. I'm just beginning to hear people in the general population use "1% flood" in lieu of "100 year flood" or at least understand that they are synonymous.

***
This thread has made me think there are many planning terms that the public seem to think are synonymous that aren't:
Easement/Right-of-Way
Mobile home/Manufactured home
Floodway/flood plain (or plane, frequently)

 

[Faust_Motel]

Yep, because 'existing nonconforming' is inclusive of 'legal' through a permitted process or 'legal' when established in an unregulated time.

I have about 150 years of built environment to contend with across at least 100 years of active land use regulatory regimes.

We have lots and lots of site improvement nonconformities throughout the City that may have been established in unregulated, lightly regulated, heavily regulated and now medium regulated periods.

I tend to defer to the property owner's best interest (which is often also the community's) with many long standing site improvement nonconformities, but I get very detailed on my scrutiny of use nonconformities, especially for high(er) intensity differences, like an existing auto repair business in a residential district, etc.

Right- all nonconformities are existing (because if they weren't we wouldn't be talking about them) but some nonconformities are legal, one way or another. What really helps me is that our "substantial change" threshold is low and it's a growing/evolving place, so the rights you get to continue any existing nonconformity, legal or otherwise, are really limited when you want to make a change to the site.

 

[mendelman]

...(or plane, frequently)

Off-topic:

 

[Faust_Motel]

I try to use "non-conforming" as much as possible. I don't know off the top of my head if something is legal, so not using the term avoids getting ambushed by inconvenient facts later on. As Maister points out, it is easy to confuse some of our citizens and I find leaving out "legal" tends to be less off-putting to those folks. And if it means avoiding a term some people consider offensive, then that's icing on top.

We have been using "1% flood" and "1% annual chance flood" for probably a decade. I'm just beginning to hear people in the general population use "1% flood" in lieu of "100 year flood" or at least understand that they are synonymous.

***
This thread has made me think there are many planning terms that the public seem to think are synonymous that aren't:
Easement/Right-of-Way
Mobile home/Manufactured home
Floodway/flood plain (or plane, frequently)

We should develop this glossary- absolutely something to be aware of.

 

[mendelman]

What really helps me is that our "substantial change" threshold is low and it's a growing/evolving place, so the rights you get to continue any existing nonconformity, legal or otherwise, are really limited when you want to make a change to the site.

That's a good point about regulatory variability between munis, especially within States and in other States.

Our code chapter for nonconformities is quite liberal and has pretty high thresholds regarding loss of nonconforming status and very high for site changes. My code focuses more on the proposed improvements complying with current code and I typically strongly suggest upgrading the existing whenever possible/reasonable or there is a clear logical nexus.

I sent a story about the use of grandfathering to the City Council and Planning Board last year so we don't use it anymore - also this one

and instead of legal non conforming or otherwise - I just say non conforming and non-compliant

I am grateful that the City Council passed a resolution last year to ensure all policies pass through the equity and inclusion filter so it makes my life a lot easier.

Smart, pragmatic and true libertarian-ish New Englanders for the win!

 

[Whose Yur Planner]

I try to use "non-conforming" as much as possible. I don't know off the top of my head if something is legal, so not using the term avoids getting ambushed by inconvenient facts later on. As Maister points out, it is easy to confuse some of our citizens and I find leaving out "legal" tends to be less off-putting to those folks. And if it means avoiding a term some people consider offensive, then that's icing on top.

We have been using "1% flood" and "1% annual chance flood" for probably a decade. I'm just beginning to hear people in the general population use "1% flood" in lieu of "100 year flood" or at least understand that they are synonymous.

***
This thread has made me think there are many planning terms that the public seem to think are synonymous that aren't:
Easement/Right-of-Way
Mobile home/Manufactured home
Floodway/flood plain (or plane, frequently)

Pet peeve mobile home/manufactured/modular home. Too many people use these three terms interchangeably. I've had to disaapoint too many people because they thought the terms meant the same thing. I've resorted to using the term true modular home to explain that they are built to one and two family residential building code.

 

[Dan]

It's similar to when the laypeople use 'easement' and 'setback' as synonyms. It doesn't help.

I've seen professionals and codes use "setback" and "yard" interchangeably as well. There is a difference.

Setback: distance from a specific property line or feature. The term is abstract.

Yard: space between a building and a specific property line. The term is concrete.

 

[mendelman]

I've seen professionals and codes use "setback" and "yard" interchangeably as well. There is a difference.

True. I will never claim 100% of us professionals are actually good at our jobs 100% of the time.

 

[luckless pedestrian]

I've seen professionals and codes use "setback" and "yard" interchangeably as well. There is a difference.

Setback: distance from a specific property line or feature. The term is abstract.

Yard: space between a building and a specific property line. The term is concrete.

off-topic:

my community uses yard and it drives me cuuurrrrrraaaaaaaaazzzzzzzeeeeeeeee

and instead of frontage, they say lot width, which is measured at the front yard ugh...

 

[arcplans]

Have never used it in my 19 yrs of professional practice.

I started out using "legal nonconforming" and then moved on to "existing nonconforming", which is my preferred term.

I use the term "non-conforming" if I have not done the research on legality. For existing stuff that we know, I use "legal, non-conforming" because we have records dating back to the early 40's that show what was constructed.

I really try to correct professionals and real estate agents that use the term "grandfathering". I tell them that doesn't exist. This never helps the situation.

 

[Bubba]

I really try to correct professionals and real estate agents that use the term "grandfathering". I tell them that doesn't exist. This never helps the situation.

You should try not hitting them as you correct them and see if that helps.

 

[arcplans]

You should try not hitting them as you correct them and see if that helps