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).
http://www.memun.org/SchoolsProject/Resources/zoning/land_useGrandf.htm

Recognizing that the owners of nonconforming properties might wish to build upon or modify existing use, the Legislature provided for the granting of variance from the communitys existing ordinances via a formal process. For counties, MS 394.22 Subd. 10. defines the meaning of variance and MS 394.27 establishes the criteria and procedure for the granting of variances via a board of adjustment. For cities and townships, MS 462.37 Subd. 6. defines and provides for the criteria and procedures for granting variances via a board of appeals and adjustments.

http://files.dnr.state.mn.us/waters/watermgmt_section/shoreland/Nonconforming_Uses_DA_LPA.pdf

grandfather clause n. 1) a clause in a statute or zoning ordinance (particularly a city ordinance) which permits the operator of a
business or a land owner to be exempt from restrictions on use if the business or property continues to be used as it was when the law was adopted. Upon passage of the statute or regulation, the specific property may be referred to as "grandfathered in." Example: the city passes an ordinance which does not permit retail businesses in a particular zone, but any existing store can continue to function in the area, even with new owners. However, if the premises stop being a retail outlet then the grandfather clause will lapse. 2) among the state constitutional amendments passed by southern states in the late 1800s to keep blacks from voting, "grandfather clauses" denied voter registration to people who were illiterate, who did not own property or could not pass a test on citizenship obligations, unless their grandfathers had served in the Confederate Army. Such laws are now unconstitutional.

http://legal-dictionary.thefreedictionary.com/Grandfather+in

BACKGROUND 2 Appellees Damon and Debbie Hugoe own and operate Hugoe Trucking, Inc., which engages in interstate transport and local hauling of sand and gravel products. Appellees purchased the parcel of property at issue here in June 1991 for the purpose of parking, staging, and storing the large trucks and trailers used in their trucking business. In 1988, the property and several other adjacent parcels had been annexed from Davis County into Woods Cross City and zoned C-2. After annexation and zoning, the appellees' predecessor, and later the appellees, continued to use the property for parking large trucks and trailers without any objection from city officials. 3 Prior to purchasing the property, Mrs. Hugoe went to the city offices to inquire about the zoning of the property, and to assure that the proposed use was permissible. Tim Stephens, the Woods Cross City Community Development Director, gave her a copy of the relevant C-2 zoning ordinance. Appellees subsequently purchased the property and began hauling fill material onto the property in order to improve its use as a parking, staging, and storage area for their large trucks. While obtaining a fill permit, Mrs. Hugoe again spoke with Tim Stephens. In the course of completing the permit application, Mrs. Hugoe inquired again as to the legality of appellees' intended use of the property, i.e., parking, staging, and storing trucks and trailers. Mr. Stephens replied that such use was permissible under the zoning ordinance. Appellees obtained the fill permit, finished filling the property, and used it without any objection from the city until March 1992. 4 In 1992, the city council adopted a new zoning ordinance, changing the zoning of appellees' property from C-2 (commercial) to I1 (light industrial). Shortly thereafter, appellees received a letter from the city informing them that their use of the property was in violation of the new I-1 zoning, and giving them less than one month to cease that use. This letter was the first notice to appellees of the zoning change and of any objection to their manner of use of the property. Appellees immediately called Mr. Stephens and inquired as to what they might do to remedy the situation. They were informed that under the new zoning, large trucks could only be parked on the property if they were parked inside a garage. Because covered parking of the size necessary to comply was cost prohibitive, appellees continued to use the property as they always had. 5 Several subsequent demands to cease and desist were made, and in August 1995, the city served a criminal information on appellees, charging them with violating the new I-1 zoning ordinance. Appellees responded by filing the instant action seeking declaratory relief and an injunction against enforcement of the new zoning regulation. Following a bench trial, the court ruled in favor of appellees. The trial court held that appellees' use of their property is a valid nonconforming use that must be allowed to continue under the new zoning regulations, and that zoning estoppel precludes the city from enforcing its new zoning law against appellees. This appeal followed.

http://caselaw.findlaw.com/ut-court-of-appeals/1415297.html

2.2.1 Nonconforming Structures: Similarities to and Differences from Nonconforming Uses Nonconforming uses and structures are often not distinguished in state laws or local ordinances. However, Utah and some other states do at least define nonconforming use and structure separately. The definitions found in Utah Code Ann. 10-9-103(k) and (l) (municipalities), and 17-27-103(n) and (o) (counties) states: (j) "Non-conforming structure" means a structure that: (I) legally existed before its current zoning designation; and (ii) because of subsequent zoning changes does not conform with the zoning regulation's setback, height restrictions, or other regulations that govern the structure. (k) "Non-conforming use" means a use of land that (I) legally existed before its current zoning designation; (ii) has been maintained continuously since the time the zoning regulation governing the land changes; and (iii) because of subsequent zoning changes, does not conform with the zoning regulations that now govern the land. The approach taken by Utah enabling law in its definition is to qualify the physical deviations of a structure from the zone standards. Beyond the definitions, however, there appears at present not to be any real difference in legal treatment of nonconforming uses and structures.
http://www.smithhartvigsen.com/resources/archive/nonconform.htm

On the other hand, consider a property owner who has made no application, and 10 simply owns a vacant residential R-1 lot. The local government amends the zoning ordinance to alter the setbacks on R-1 property, increasing front setbacks from 20 to 40 feet, and so forth. However, it includes a grandfathering provision that lots of record before a certain date may still apply the prior standards. That would be a grandfathering provision, not a vested right. If the government had not included such a provision, the property owner would be bound by the change in the zoning ordinance. There is no vested right to use ones property under the current zoning. The property owner had to take steps to vest rights, such as filing an application, or substantial

expenditures in conjunction with some sort of formal or informal approval of the development. In contrast, grandfathering is simply a right granted by the zoning ordinance. It may overlap with vested rights, or it may not.