Mass. Appeals Court: The phrase ‘grandfather clause,’ racist in origin, will no longer be used

John Adams Courthouse. It is home to the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court.Lane Turner/Globe Staff/File

The state Appeals Court used a zoning feud between Gloucester neighbors as an opportunity to jettison the term “grandfathering” from its lexicon Monday, citing its origin in post-Civil War laws that prevented Blacks from exercising their right to vote.

A three-judge panel declared its objection to the word, which has been used by lawyers, judges, and local governments to explain why new zoning rules, for example, do not apply to existing buildings or home lots.

“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,’’ Judge James R. Milkey wrote in a footnote for the state’s second-highest court.

Milkey said the phrase has its roots in 19th century laws that created barriers to voting for Blacks. For example, literacy tests were put into place for new voters, but the same requirement did not apply to white men who were descended from voters registered before 1867, he wrote.

Milkey cited a 1982 Columbia Law School Review study by Benno C. Schmidt Jr., the former president of Yale University, and the 2002 edition of Webster’s International Dictionary as sources for the term’s origin.

“Specifically, the phrase ‘grandfather clause’ originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867,” he wrote.

In lieu of the phrase, the court wrote that the law “provides a certain level of protection to all structures that predate applicable zoning restrictions.”

In the Gloucester case, the court ruled that despite a neighbor’s opposition, the owners of a waterfront property can replace their dilapidated garage with a new one that is three feet taller.

The court held that in some cases, Gloucester allows property owners to replace buildings with new ones if the owner had already received a variance to city zoning rules.

As the court put it, zoning boards are allowed to issue special permits “so long as they find that the reconstruction would not be substantially more detrimental to the neighborhood.‘'