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. Milkey, writing for the panel, provides the following history lesson about the term “grandfather clause,” and announces the court’s decision to jettison use of the term “grandfathering” in its case law: In footnote 11 of the Comstock decision, Associate Justice James R. of Appeals of Gloucester, the Massachusetts Appeals Court was called on to clarify the extent of protection afforded by preexisting, nonconforming status under the state Zoning Act. In fact, the Massachusetts judiciary has decided to prohibit the term’s use in its reported decisions. Practitioners and the courts should think twice, given this history, before continuing to use the term. You may know the concept in zoning and land-use regulatory practice, alternately, by the terms “preexisting, nonconforming status,” or “vested rights,” or “grandfather protection.” But, as a footnote in a full, published decision from the Massachusetts Appeals Court handed down this past summer observes, the word “grandfather,” in the context of relieving citizens of existing legal duties, has ugly roots.
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