Land Use Laws and Grandfather Clauses
(from Maine Townsman, May 1991)

EDITOR'S NOTE: Grandfather clauses are a critical component of most land use regulation. The following article was a collaborative effort of Ellerbe Cole, MMA staff attorney, and Richard Flewelling, MMA senior staff attorney. The first part of the article addresses some of the commonly ask questions regarding grandfathering and the second part discusses four recurring issues surrounding grandfather clauses.

What is a grandfather clause?

A grandfather clause is a provision of law that exempts certain persons or pre-existing conditions from the scope of a regulation or requirement.

According to Black's Law Dictionary, grandfather clauses originated in the constitutions of several Southern states following the Civil War. They contained various voting registration requirements but exempted those who had served in the Union or Confederate army and their lawful descendants. These arguably neutral provisions had the effect of barring millions of African-American "freedmen" from exercising the franchise. They were also of course truly "grandfather" clauses, inasmuch as women did not gain the franchise for a half-century afterwards.

How does a grandfather clause work in land use regulation?

Certainly more benignly. Typically, a land use statute or ordinance prescribes minimum dimensional requirements and designates permitted uses and structures. A grandfather clause usually exempts from these requirements pre-existing lots of record and structures legally built before the enactment of the regulation. Most grandfather clauses also provide that the exemption applies to situations pre-existing the date of any subsequent amendment so that a new grandfather clause is unnecessary with each new requirement.

Why have a grandfather clause?

There are probably two reasons, one legal and one political. The legal reason is that if a new requirement renders property substantially unusable and consequently worthless, the government may be liable for damages for a "taking."

The source of this liability is the Fifth Amendment to the U.S. Constitution, which provides that no person shall be deprived of property without due process of law (which can include compensation). The Maine Constitution, Art. I, Sec. 21, contains a similar provision. The Maine Supreme Judicial Court has said that "A provision 'for the continuance of the nonconforming use . . . is ordinarily included in zoning and police power ordinances because of hardship and [the] doubtful constitutionality of compelling immediate cessation of nonconforming uses." Stewart v. Inhabitants of Town of Durham, 451 A.2d 308 (1982), at 311-12, n. 6, quoting Town of Windham u. Sprague, 219 A.2d 548, 550 (1966).

Grandfathering is not the only alternative to compelling "immediate cessation" of non conformities, however. Government may instead delay the effective date of regulations against pre-existing uses long enough to permit the owner to recover the reasonable value of an investment. This is called "amortization." For example, a municipality could enact an ordinance prescribing maximum dimensions for signs which would make half of the signs in town illegal No compensation would be due, however, if the ordinance allowed existing nonconforming signs to remain long enough (5-10 years perhaps) for owners to recover the cost of their installation, e.g., State v. Nat'l Advertising Co., 409 A.2d 1277 (Me.1979). Amortization clauses may work with nonconforming uses and buildings as well.

The political reason for grandfather clauses is simply not to disturb those whose property would be made nonconforming by new regulations. The common perception is that the law would otherwise be unfair. This is what the Court in Stewart (quoted above) referred to as "hardship."

What are some common issues with grandfather clauses?

There are three or four recurring ones. They are: nonconformity, merger of lots, abandonment or discontinuance, and change of use and expansions. The remainder of this article discusses each of these in that order.

Nonconformity

A grandfather clause generally permits continuation, despite new regulatory requirements, of nonconforming aspects of a property. The law does not much tolerate nonconformity, however. In Chase v. Town of Wells,a 1990 decision (574 A.2d 893), the Maine Supreme Judicial Court stated: "Moreover, in Gagne v. City of Lewiston, 281 A.2d 579 (1971), we explained that 'provisions of a zoning regulation for the continuation of [nonconforming] uses should be strictly construed, and provisions limiting nonconforming uses should be liberally construed. The right to continue a nonconforming use is not a perpetual easement to make use of one's property detrimental to his neighbors . . .' Id. at 581, quoting Town of Windham v. Sprague, 219 A.2d 548,552 (Me. 1966)." Presumably, this is so because "(t)he policy of zoning is to abolish nonconforming uses as speedily as justice will permit" Sprague, supra.

Among other things, a nonconfomming use or structure must have been legally established at the outset. This does not mean merely that an existing use must not have been an outlawed use (e.g., for manufacture of illegal drugs), but that the owner or occupant must have held all required permits (if any). In a Gorham case, a landowner used a garage for part of a childcare operation without having obtained the necessary permits.

Although the District Court held that the use was grandfathered as pre-existing the ordinance's requirement for a special exception permit, the Superior Court, on appeal, held that "grandfathering" is an issue of law and that, "As a general rule . . .the illegality of a prior use will result in a denial of protected status for that use under a nonconforming use exception to a zoning plan." Town of Gorham v. Bauer, Me.Super.Ct.Cum.Cty., CV-89-278, Nov 21, 1989.

It is also important to be clear in a grandfather clause whether lots only, or lots and uses, or lots and structures, are being grandfathered, and if so, how.

Sometimes, even with care, things go wrong. In a recent case, Nyczepir v. Town of Naples, 586 A.2d 1254 (Me. 1991), the Town carefully included in the ordinance separate clauses for uses and for lots. However, in a 1986 revision, the word "lot" was changed to "use." The Town successfully argued that this was a mistake, a "scrivener's error" (a typographical mistake). As a result, the grandfather clause was held to apply, but so too its merger provision which compelled the landowner to combine an undersized lot with an adjoining one and precluded a building permit. The mere existence of the error, however, allowed the owner to argue before three separate tribunals, and a good deal of time, money and effort was required to defend the ordinance.

Merger of Lots

Several recent decisions by the Maine Supreme Judicial Court on the issue of merger illustrate the following:

1) A grandfather clause with a merger provision that compels merger of two improved (built) contiguous lots in common ownership would probably be unlawful. See LaPointe v. City of Saco, 419 A.2d 1013 (Me. 1980). Similarly, a merger provision that is silent about merger of improved and unimproved lots will probably not be construed to require it.

2) A grandfather clause with a merger provision that compels merger of an improved and an unimproved lot may be unenforceable where the owner can show that (a) both lots were acquired before the ordinance, (b) both were acquired with the intent to improve both, and (c) to apply the merger provision would devalue the unimproved lot to such a degree that it would amount to "undue hardship". See LaPointe, supra, at 1016 and Moody v. Town of Wells, 490 A.2d 1196, 1198-99 (Me. 1985) (Scolnik, J., dissenting).

3) Absent the undue hardship circumstances above, a municipality can ordinarily require merger either of unimproved lots or of improved and unimproved lots, or both.

4) However, a merger provision that is intended to compel merger of unimproved with improved lots should say so pretty unequivocally. See Moody, supra. A merger provision should also be pretty clear on whether it is meant to merge lots only where one or more lots were acquired before and one or more were acquired after enactment, or whether it applies as well to lots all of which were acquired beforehand. (For such a merger provision see Robertson v. Town of York, 553 A.2d 1258 (Me. 1989); see also Guidelines for Municipal Shoreland Zoning Ordinances, eff. March 24,1990. Sec.12.)

There are still some unanswered questions with merger. They concern back-to-back corner lots, L-shaped lots, and back-to-back lots that are not corner lots. The Supreme Judicial Court suggested in LaPointe, supra, that back-to-back lots which are not corner lots will not be treated as merged, at least where one is improved.

Abandonment/Discontinuance

While grandfather clauses normally allow continued occupancy and use in pre-existing circumstances that right is cut off under most ordinances if there is an abandonment or discontinuance, and the use cannot thereafter be resumed or revived. Thus it is important to know what constitutes abandonment or discontinuance.

Mere non-use is generally not sufficient to show abandonment or discontinuance of a use. A recent Superior Court case is illustrative.

In Glenbum, a property owner applied for a permit to repair a nonconforming cottage. The ordinance required a plumbing permit. The CEO advised her that she would need a variance, because she had not occupied the cottage in more than twelve months and had consequently abandoned it, losing her grandfathered status. The Superior Court, however, ruled that although non-occupancy can be taken as some evidence of intent, it is not alone enough to establish intent to abandon. Thus, the owner had the right under the ordinance to maintain, repair, and improve her property, and to continue her nonconforming use. Henner v. Town of Glenburn, Me. Super. Ct. Pen. Cty., CV-89-452, October 24, 1990.

Change of Use/Expansion

Most grandfather clauses prohibit pre-existing nonconforming uses from being changed to other nonconforming uses or expanded beyond the scope of the use as it existed at the time of enactment. It is not always obvious, however, when such limitations are exceeded.

An ordinance in Lincolnville required a minimum lot area of 40,000 square feet per dwelling unit A dwelling unit was defined as "a room or group of rooms designed and equipped exclusively as living quarters for only one family . . ." The grandfather clause permitted the maintenance, repair, and improvement of nonconforming uses, and provided that "[n]o such non-conforming use may be expanded or changed to any other non-conforming use in any way which does not conform to this Ordinance."

The owners of a lodge and eight seasonal rental cabins on three acres applied for a permit to convert the cabins to seasonal single-family condominium residences, arguing that each cabin (equipped with a kitchen and bath) constituted a grandfathered dwelling unit on a nonconforming lot. Lincolnville contended that the entire operation constituted a single use and, as such, met the 40,000 square foot minimum lot size and was conforming, so it could not take advantage of the grandfather clause. The Maine Supreme Judicial Court held that the plan would constitute a change of use (from commercial to residential) and that each new "dwelling unit" would have to comply with the ordinance's minimum lot size, an impossibility under the circumstances. Oman v. Town of Lincolaville, 567 A.2d 1347 (Me. 1990).

In an earlier case out of South Portland, however, the result was quite different. Under a similar ordinance prohibition against change of use or expansion, the new owners of a grandfathered seasonal hotel sought to increase business volume by converting to a year-round operation and adding catering to its dining room services. The City sued to enjoin these changes as prohibited expansions but gained only a partial victory. In a 1967 decision that still stands for the basic distinction in this held, the Maine Supreme Judicial Court held that while the catering business represented a substantial change in character of the dining service and was prohibited, the hotel's extended operating season was a "mere increase in volume or intensity of the [same] nonconforming use within the same areas and was not improper. Frost v. Lucey, 231 A.2d 441, 448 (Me. 1967).

Conclusion

There is no inherent legal right to continue a pre-existing use or structure, or to improve or occupy a pre-existing lot, that has been outlawed by a land use regulation, but the inclusion of a grandfather clause saves most ordinances from an unconstitutional "taking" of property without compensation and ensures fairness to those who have relied on prior law. Because grandfather clauses are each unique to the ordinances they serve, however, it is vital that they be thoughtfully drafted and carefully construed, for while Maine courts have generally interpreted such provisions rather strictly, they will not read into them requirements of restrictions that are not there.