To the editor

“Grandfathered” is the term used to describe the condition where a person or entity has gained a right by unwritten means.

• How are grandfathered rights acquired?

There are two common instances of acquiring grandfathered rights. The first results from the open, uninterrupted and continuous use of another person’s property for a long period of time. The second results from a town adopting a zoning bylaw (or making a subsequent amendment thereto) that renders a pre-existing parcel of land or pre existing use of the land as not complying with zoning requirements.

In the first instance, a person who uses property of another in an open manner, under a claim of right and for a long, uninterrupted period of time gains the right to continue the use. When our grandfather used a path to cross his neighbor’s property for the purpose of cutting wood on his land-locked lot (and he did so every fall, in plain sight, without permission and for a period of several years) he gained the right to continue doing so.

In the second instance, the lawful use of a property does not become illegal because the adoption of zoning or a zoning amendment prohibits the use. In this case the grandfathered condition is called a “pre-existing, legal and non-conforming use.” The person or entity engaged in the pre-existing, non-conforming use has the right to continue to do so, in spite of zoning laws to the contrary. When zoning came into effect and required that every lot have frontage on a road, our grandfather’s land-locked lot did not cease to exist or become illegal. It was a lawful lot which existed prior to zoning and after zoning became designated a pre-existing legal non-conforming lot.

• Can grandfathered rights be lost?

Grandfathered rights can be lost in at least two ways. The first is by termination of use. When our grandfather stopped using the path for a significant period of time, he lost his right of usage and would be barred from asserting that right at some future time. The second way to lose a grandfathered right is by expansion or intensification of the use. This is called over-burdening and it occurs when the use is in excess of the original use by which the right was acquired in the first place. When our grandfather used the path to collect firewood, he obtained a right or easement to continue doing so. However, when he built a house and started to use the path as a driveway, he effectively intensified his use of the path and lost his grandfathered right due to his over-burdening the easement.

• When is a grandfathered right not obtained?

Grandfathered rights are not acquired when the use is by permission. Had our grandfather asked for permission to use the path, it would have been an acknowledgement that he did not have the right to do so. Had he received permission, he would have effectively obtained a license, which, by definition cannot transform into a right and is revocable at any time. Grandfathered rights are also not obtained when the use first occurs after it is declared to be unlawful. So, when our grandfather decided to start an automotive repair shop in his cellar after zoning prohibited that use in a residential zone, he was in effect, operating an illegal business or, in other words committing a zoning violation.

Another example is when our grandfather got stopped for speeding. He justified his actions by explaining to the police officer that he had continuously exceeded the speed limit every time he drove down this road for the past several years. The police officer politely informed him that he had therefore been breaking the law for the past several years and, the fact that he didn’t get caught, doesn’t mean he now has the right to speed.

Zoning came to Little Compton on May 13, 1968, long after my grandfather did. If given the chance to impart his wisdom and common sense in today’s public forum he would simply say, “If you’re not “grandfathered” then you need to get approval for your proposed use. If your proposed use is not allowed by zoning then the Zoning Board can’t give a variance or special permit to allow it. Proper approval of a non-allowed use would require a zoning amendment endorsed by the Town Council through the public hearing process.”

Raymond J. Medeiros

Little Compton