A report of the Limitations of the Grandfathering Clause For Zoning compliancy

Black Codes Definition - A report of the Limitations of the Grandfathering Clause For Zoning compliancy

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The term 'grandfathering' is ordinarily used in many different circumstances when dealing with a possible exemption to a rule, requirement, or turn to any existing conditions or standards that apply to a range of situations such as businesses activities or occupational requirement. Often employees or tradepersons find themselves in a situation where they may become exempt to a new expert requirement by the act of being grandfathered-in by means of previously suitable conditions. In fact, there are a wide range of circumstances where the grandfathering of a pre-existing condition or requirement is applicable. However for the purposes of this article, a tasteless situation where the application of a grandfathering-in of a structure, use or occupancy when dealing with zoning codes, land development regulations, and permit requirements will be reviewed. The term grandfathering is often applied to address uses, activities, and structures that may be adversely affected by the adoption of new restrictive ordinances, land-use designations, or code requirements.

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Black Codes Definition

Historical Perspective

The term grandfathering or grandfather clause has been cited as having its origins in the amendments to constitutional provisions of many southern U.S. States colse to the late nineteenth century. Black's Law Dictionary and West's Encyclopedia of American Law explains that the former purpose of the 'Grandfather Clause' was to keep newly freed African-Americans and obvious groups of people from voting, mainly in the southern U.S states. Theses clauses denied voter registration to people who didn't meet obvious requirements unless their grandfathers had served in the Confederate Army therefore if a person's grandfather could vote, so could they. In 1915 the U. S. Consummate Court declared these types of clauses unconstitutional; however, the term grandfathering is still a ordinarily suitable term when addressing exemption provisions for zoning regulations. Today, grandfathering of a structure, company performance or use provides an exemption from current codes or other newly adopted regulations that would make it otherwise prohibited or fail to meet current codes because it was lawfully in place prior to any turn or requirement affecting its existence, use or lawfulness. When a asset or use is grandfathered-in, it is said to be non-conforming to any current codes or requirements. There is often a misconception that just the prior existence of a structure or performance or other use is okay if built or in place prior to the adoption of a related code or ordinance, however, the key to grandfathering is that the affected area or item of concern must have been lawfully in place prior to any turn or prohibition. Additionally, there are laws that can be adopted for life-safety reasons that would not allow the continuance of any use or structure that is determined to be risky just because it has all the time been so or an new law may include an amortization period where affected persons are put on noticed of a obvious time-frame for when a use must conform to current codes or otherwise be ceased to exist.

Concerns for existing structures

It is leading for owners of older properties to check with their local construction and zoning departments prior to pursuing any construction or heal activities, not only to ensure what permit requirements may be necessary, if any, but also to procure knowledge of any pre-existing conditions or new requirements that may sway the project or use. Any use or structure that does not conform to current codes or requirements for similar uses or structures would be determined non-conforming or that which does not conform. For example, in Florida, there are windstorm requirements for the installation of shutters or safety beloved windows for new construction due to the changes in the Florida construction code due to need for construction safety from hurricane force winds and related effects of these storms. For an existing structure with older windows that do not conform to the newest safety standards, if the replacement of these windows becomes necessary, in order to meet this requirement, it may be required to upgrade all the windows or supply proper window safety coverings installed over the windows on the whole structure. Because of the life-safety and asset safety nature of this requirement the existing windows on your asset may not be grandfathered-in due to this requirement. However, the local construction department would be able to propose if an exemption to this requirement would be allowed for only minor repairs for broken window panes or a replacement of only one window is needed.

Further considerations

Another scenario could involve the heal of an existing accessory structure, such as a fence, where there has been a turn in permit requirements or new restrictions limiting size or location of new fences, the grandfathering provision may also not apply. Just because the fence may already be in existence and previously permitted, modifications or major heal may constitute adherence to any new regulations or requirements adopted by a local jurisdiction, turn in construction or zoning code or sometimes even a local neighborhood restriction as an architectural guideline or neighborhood enhancement standard. Often when existing structures are not in conformance with current code, such as one that may restrict the location of new fences in front yards, when an existing fences that are located in front yard need to be replaced, this may cause this existing fences to now be required to conform to the current neighborhood standards. Unless there is a minor heal provision, usually repairs to an existing structure that exceeds a preset ration of the structure, such as a obvious value of the work such as exceeding 50% or more or the area of the structure or value of the work or if a new construction or zoning permit is required will need the structure to now be brought into conformance with current code requirements. This is how a neighborhood progresses towards all properties conforming to current neighborhood standards by requiring adherence to current codes when it makes sense and only exempting those properties that truly remain grandfathered-in by maintaining their nonconforming status whether because no major heal or modifications requiring permits where indispensable or changes to the a structure or use have remained within prescribed limitations. Be very wary of any undertaker of a package deal that tells you that a project does not need obtaining any permits or local jurisdiction approvals or homeowner association reviews unless it is for minor repairs or you are in fact sure that it does not because if it does or it may sway a grandfathering status, it may cost you more money and headache in the long run if it is to be corrected after the fact.

Scenario of a tasteless dilemma

A tasteless area of concern occurs when a new asset owner is faced with the dilemma of dealing with work that was previously done without permits to a asset that they now own. When parts of real asset such as an accessory structure like a shed or a asset addition has been constructed without permits and required inspections it can be a real headache, especially if the work does not meet current code requirements or even worse, if it is not allowed or in the wrong place. This often occurs because the former owner or owner at the time that the work was performed failed to procure permits for the work and therefore the construction was never reviewed by all applicable agencies such as building, zoning, environmental, and engineering. Even though the work was done prior to a new or current owners awareness, it would not be grandfathered in because it was not originally done lawfully. Often asset owners who find themselves in this type of situation may feel that the lack of a permit should be overlooked because anything was done may not be belief to bother anything else or that it does not serve any grand purpose or safety of the normal welfare to need a permit be obtained after the fact or if a long period of time has passed. However, the fact that a former owner overlooked the accountability to procure a permit and required inspections does not negate the accountability of the jurisdiction to inflict the codes once it has been made aware of the violation. To do so would be neglectful and the problem would not go away but would remain to be dealt with by a hereafter unsuspecting purchaser or if something terrible were to happen because of poor workmanship or the unearthing of unknown consequences. In some cases, the construction or zoning lawful may be able to supply alternative options towards bringing the asset into compliance or obtaining an exception to the code requirements if a variance is sought and obvious conditions are met. This is leading if the problem was not self-created such as in this scenario.

The Quest for the Grandfathering Status

The need for the application of a grandfather status to a singular situation often arises when a new owner who is unaware of any problems or limitations on a asset begins a home revision project and whether clears away obstructions that have concealed the construction from view, such as with overgrown landscaping or vegetation or upon the present of asset observe or construction plans for the application of a new permit. Someone else tasteless situation is when a turn to an existing use of a asset that is no longer allowed by the zoning code occurs or a new asset owner applies for a use that is determined to have been previously discontinued and can no longer occur. The discovery of an existing problem may even occur upon asset visits by a code inspector for other violations, when inspections are performed for the permit for new home revision work or even by obvious optic reasons where a seasoned inspector can in fact see that work was done without permits. This often occurs because since un-permitted work has not been reviewed by construction and zoning officials, the awareness of code requirements or zoning limitations, such as setbacks from asset lines, can be in fact violated without being aware. Unless a new asset owner can address this issue with the former owner or through some type of title guarnatee claim, they are usually faced with the unfortunate accountability and costs of trying to correct any problems un-permitted work may cause or address an predicted use of a asset that will not be allowed by the zoning department. Some jurisdictions may need that any asset owner who is aware of work done without permits or if a violation has already been issued be responsible to disclose same to any hereafter or prospective purchaser of the property. For example, in the State of Florida, episode 162.06 of the State Statutes requires the following:

"If the owner of asset that is subject to an obligation proceeding before an obligation board, extra magistrate, or court transfers proprietary of such asset in the middle of the time the introductory pleading was served and the time of the hearing, such owner shall (a) Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee; (b) Deliver to the prospective transferee a copy of the pleadings, notices, and other materials relating to the code obligation proceeding received by the transferor: (c) Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code obligation proceeding; (d) File a observation with the code obligation lawful of the replacement of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within 5 days after the date of the transfer. A failure to make the disclosures described in paragraphs (a), (b), and (c) before the replacement creates a rebuttable presumption of fraud. If the asset is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be in case,granted a cheap period of time to correct the violation before the hearing is held."

Certain state constitutions or statues may allow for a use or structure to continue if it has been in existence over a obvious period of time depending on the law. An example of this would be if a state provides a statute of limitations whereby if a construction code permit provision has not been enforced for the construction of a structure for more than twenty-years then a local jurisdiction cannot need the structure to be brought into current code conformance unless the jurisdiction is able to meet obvious requirements that certify such action. However, because the construction codes are usually determined specifically dealing with life-safety, most work done without permits unless specifically exempt by code or statue would not be allowed to exist once discovered. The codes are not only designed to forestall harm and asset damage to the normal public but also to safe each and every individual from harm to themselves, family, tenants, or guests by occupying or utilizing unsafe structures.

Conclusion

Although code obligation officials and inspectors are tasked with the accountability to address possible violations for losses of nonconformance or items that are not in conformance with current codes, every situation encountered should be treated as an individual case and handled based upon its own history, facts and records. Code officials can help with researching records, such as construction permits, zoning approvals, certificates of uses or other prior board determinations to make a determination if something is or is not grandfathered-in. If a asset was lawfully existing or a use was already established before a turn was made to prohibit such use or construction, obvious evidence such as photos, plans, and even testimonial affidavits may become very useful in assisting the local construction and zoning departments to design a legal nonconforming use or structure. Additionally, because there are all the time other factors, circumstances or applicable laws that may sway a determination of grandfathering, any concerns with regard to the application of grandfathering should be discussed with your code obligation official, local construction and zoning department officials, municipal or county attorney and other excellent expert or counsel. There may be numerous procedural steps, exemptions, and laws that may apply to your singular situation so be sure and get all the assistance and information that you can, especially when dealing with any legal concern. It is often recommended that before the purchase of any property, that buyers procure the services of a trustworthy and reputable inspection service, as well as, paying a visit to your local construction and zoning departments. Some jurisdictions may offer a prospective asset buyer to procure a pre-purchase or pre-occupancy inspection for a asset to decide if there are any existing liens, encumbrances, excellent permits, violations or limitations on proposed uses.

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