Why a ‘grandfather clause’ protects property rights
Wondering why the “grandfather clause” still exists, a Lyon County commissioner recently announced he has written a letter to the district attorney asking “How are we going to address the health, safety and welfare of the citizens if we can’t apply the laws as they now exist?”
I now wonder how many people actually realize the intent of this protective legislation.
Not a term by legal definitions, “grandfathered in” is commonly used to describe exemptions from current laws relating to zoning and land use regulations. It is also known as the “non-conforming use clause”.
Though not mentioned at the time, I assume the Highway 50 Wrecking Yard was the primary reason for the subject being broached. Even it wasn’t, it offers a very visible example to relate to.
In essence, the “non-conforming use clause” says that if you pass or change a law after someone establishes a business, home, etc., it is a violation of their rights to make them conform to the new regulation. To do otherwise can be considered a taking of private property rights.
Lyon County has a “non-conforming use clause” because it is required to. Along with all other governmental agencies in the country, they are mandated to comply with state and federal guidelines regarding the taking of private property. And according to the county commission’s legal counsel, Lyon County’s ordinance does just that – no more, no less.
Simply put, the Highway 50 Wrecking Yard is “grandfathered in.” It has been owned and operated by the same individual since 1967, long before the county established zoning guidelines. Various efforts over the past 20 plus years to force it into compliance with current codes have been unsuccessful.
Perhaps frustrated with failed attempts to put the enforcement burden on the state, or to find any other enforceable solution to rid travelers on Highway 50 east of what he and others consider to be an eyesore and threat to public safety, this commissioner now appears to want the “grandfather clause” eliminated.
Without the “grandfather clause,” however, those now living in manufactured homes built before 1976 could be forced to relinquish their current homes. (If the county’s interpretation of the new Manufactured Housing Bill stands, elimination of a protective clause could mean your home must be no more than five years old!)
Without the “grandfather clause,” those currently living in homes or owning businesses on property that was rezoned after they took ownership could be forced to conform to current zoning. This would be rather unsettling to the many individuals throughout the county currently owning such property.
County ordinances used to allow horses on half-acre parcels. That law was changed several years ago and now horses are not allowed on lots less than one acre in size. The “grandfather clause” allows owners of properties where horses were permitted before the change to continue to keep horses. (To the happiness of the horse owners. To the disdain of some neighbors!)
There are circumstances where a property protected under the “grandfather clause” might be considered detrimental the public’s health, safety and welfare; and, if it is proven so through due process, steps can be taken to remedy the situation.
To date, the Nevada Department of Transportation claims no responsibility for the Highway 50 Wrecking Yard, as it is located on private land; a nuisance complaint filed against the business by a commissioner was found to be without merit; and, the business falls under the “grandfather clause,” negating the county from forcing it to be brought up to current junkyard requirements.
Eighteen months ago the owner agreed to work with the county in efforts to improve the fencing around his business. No apparent improvements have been made to this point, however, and according to the county manager, no county official has attempted to contact the 75 year old, partially blind owner since that time.
Maybe there is a solution out there somewhere. Perhaps there is simply nothing that can be done.
Continuing to search for mutually agreeable solutions is good, as long as it does not become a case of continuous government harassment.
Some do not like what they see as they pass by the Highway 50 Wrecking Yard, or are unhappy with the property of other individuals operating within this county’s non-conforming use regulations. However, suggesting we relinquish the private property rights of all to enable government to mandate singular conformance with current law when efforts to do so by due process have failed, is insidious.
Think about it.