Defining, regulating and understanding accessory uses

Accessory uses are those uses of land which are found on the same lot as the principal use and which are subordinate, incidental to, and customarily found in connection with the principal use. In order to qualify as being subordinate, an accessory use must be a minor use of the lot. In other words, the accessory use must be proportionately smaller than the principal use. In order for an accessory use to be incidental, it must be reasonably related to the principal use. Finally, the use must be customarily found in connection with the principal use. This means that the accessory use must be commonly and reasonably associated with the principal use. Some common examples of accessory uses are parking or signage for a shopping center. However, whether and to what extent certain types of accessory uses are permitted within a given municipality is dependent upon the definitions and provisions set forth within that municipality's zoning regulations. Municipalities regulate accessory uses in a number of different ways. Some municipalities take an open-ended approach by defining "accessory use" and permitting only those accessory uses that fall within such definition. Other municipalities take a very strict approach to regulating accessory uses by expressly stating in their zoning regulations which accessory uses are permitted in a given zoning district. Lastly, municipalities can regulate accessory uses with a middle-of-the-road approach by listing out permitted accessory uses but including a catchall provision such as "including, but not limited to" as well as providing a definition of "accessory use" so that accessory uses not expressly listed may be permitted. Each of these methods of regulation presents it own set of issues that land use applicants should be cognizant of when seeking approvals. With respect to the open-ended regulatory approach, the most common accessory use problems arise over whether a use is customary or incidental. Since there is no definitive list as to what constitutes and does not constitute an accessory use, the decision as to whether a certain accessory use is permitted is left to the discretion of the appropriate building and/or zoning official(s) or board. The important point for land use applicants facing this type of regulation to know is that they can and should be proactive in asserting why they believe an accessory use is permissible and fits within the municipal definition. This can be done by showing examples on a local, regional or even statewide basis where the proposed accessory use has been associated with the proposed principal use or even through reliance upon relevant court decisions. Another thing that land use applicants should look for is whether the zoning regulations provide guidelines to assist the building and/or zoning official or reviewing board in interpreting what is an accessory use and if any illustrative examples of permitted accessory uses are provided. With regard to the strict regulatory approach, one of the biggest issues for land use applicants to be aware of is whether the failure to include certain types of accessory use on the exclusive list means that such accessory uses are prohibited. Some states, such as New York and Pennsylvania, take the approach that those accessory uses not expressly listed are deemed to be prohibited unless clearly stated otherwise, and therefore, a variance would likely be required. Other states, such as New Jersey, take the approach that although an accessory use may not be listed in the zoning regulations, it does not necessarily mean that a variance would be required. Because this type of regulation is treated differently state by state, applicants should be aware of what the rules are in their jurisdiction so they can determine the best course of action for presenting and arguing whether an accessory use is permitted. The middle-of-the road regulatory approach is preferable to the strict and open-ended approaches because it eliminates some of the problems with listing out the permitted accessory uses but also permits all other accessory uses that fall within the definition. However, land use applicants are still faced with the problems described above concerning whether a use is customary or incidental. Irrespective of the regulatory approach used by the municipality, the key to success is preparation. Land use applicants need to be aware of local zoning regulations governing accessory uses early in the land use review process, and, to the extent possible, be proactive in asserting why they believe a use is a valid accessory use so they are not faced with a situation of having to seek variance relief or even forego part of a proposed development simply because they failed to properly ascertain whether an accessory use was permitted. Howard Geneslaw is a director, and Jennifer Porter is an associate, at the law firm of Gibbons P.C., New York, N.Y.