Accessory Uses and Structures in the Zoning Ordinance: Eight Things to Remember

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Richard Ducker

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In the world of fashion they say that accessories make the man. What kinds of accessories are we talking about? Accessories such as belts, socks, handkerchiefs, ties, and caps. They complement a man’s shirt, pants, shoes, and jacket. They enhance the style of the man.

In the world of zoning we could say that accessories make a development project. What kinds of accessories are these? Accessories such as accessory uses and accessory structures. They include, parking lots, on-premises advertising signs, solar collectors, swimming pools, fuel tanks, storage sheds, basketball goals, work-place cafeterias, dish antennas, animal sheds, flower gardens and landscaping, mail boxes, helicopter pads, stormwater detention facilities, and playgrounds and recreational facilities. They complement the principal use and buildings that are a part of the premises. They are far more likely to be functional in nature than clothing accessories, but they too can enhance the style of a development project or the use of property.

Accessory uses and structures are the neglected stepchildren of zoning. They attract relatively little attention in zoning ordinances. Yet they can be of substantial importance in a given instance. Here are eight (8) things to remember about accessory uses and structures.

(1) How accessory uses and structures are treated may be found in the ordinance. The state zoning statutes have little to say about accessory uses and structures. (Exceptions are statutes affecting amateur radio antennas (G.S. 160A-383.3) and solar collectors (G.S. 160A-201)). Although many communities regulate accessories in similar fashion, the key to interpreting how accessories are handled may be found by referring to the zoning ordinance.

Accessory-Apartment complex Playground

(2) Accessory uses need not involve accessory structures, and accessory structures need not involve accessory uses. An example of the former might be a church operating a food pantry out of its basement kitchen. An example of the latter might be a detached garage serving a single-family residence. For a discussion of the difference between an accessory use and an accessory structure in the context of a particular ordinance see Four Seasons Management Services, Inc. v. Town of Wrightsville Beach, 205 N.C. App. 65, 695 S.E.2d 456 (2010).

(3) An accessory use/structure must be incidental and subordinate to the principal use/structure. The accessory must be less significant than the principal use in any of a variety of ways : floor area devoted to the use, building height, the economic importance of the use, the number of customers/visitors, and whether the accessory serves the purpose of the principal activity. See Jirtle v. Board of Adjustment of Town of Biscoe, 175 N.C. App. 178, 622 S.E.2d 713 (2005) (operating food pantry is incidental and subordinate to church’s main purpose of worship; floor area of proposed pantry less than floor area of sanctuary); Atkins v. Board of Adjustment of Union County, 53 N.C. App. 723, 281 S.E.2d 756 (1981)( landowner’s stockpiling of sand, gravel, and lumber was not incidental to his agricultural service business and was impermissible establishment of a different principal use).

accessory-church homeless shelter

(4) If the principal use is residential, it is likely that accessory uses involving commercial trade or business activity are restricted or banned. In residential areas, business activity within the confines of a permissible home occupation is generally allowed, as is incidental buy and selling of personal property. See Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306 (1949) (ordinance allowed limited commercial activity including the sale of food if carried on by members of owner’s immediate family and not more than two employees); Tucker v. Mecklenburg County Board of Adjustment, 148 N.C. App. 52, 557 S.E. 2d 631 (2001) (operation of kennel by owners of nonprofit residing in multi-family residential district was not commercial kennel and thus was a permitted accessory use where animals were not sold and were either adopted or kept by owners).

(5) An accessory use must be conducted and an accessory structure located on the same zoning lot and in the same zoning district as the principal use or structure, unless the ordinance provides otherwise. See Robinhood Trails Neighbors v. Winston-Salem Board of Adjustment, 44 N.C. App. 539, 261 S.E.2d 520 (1980) (ordinance allowed special use permit for use of a lot in a residential district as a parking area to serve a business or multi-family use in an adjacent district).

Accessory-Tool shed with collectos

(6) Just because an accessory use is allowed as an accessory does not mean that the accessory use must be allowed in the zoning district as a principal use. See Triple E Associates v. Town of Matthews, 105 N.C. App. 354, 413 S.E.2d 305 (1992) (ordinance allowed daycare centers as principal uses in residential districts but permitted them by right as accessory to churches and synagogues in residential districts as well); but see In Re Couch, 258 N.C. 345, 128 S.E.2d 409 (1962)(car wash allowed as accessory to automobile service station necessarily allowed as a principal use in the same district).

Accessory parking lot

(7) Requiring that accessory uses be “customary” is probably unwise and perhaps impermissible. Requiring accessory uses to be customary tends to enshrine outmoded practices and restrict newer technologies. Gasoline pumps are associated more with shopping marts than automobile garages. More lumber is purchased at home improvement centers than milled at a local lumber yard. Solar collectors and dish antennas on single-family residences may not be customary in most residential neighborhoods. Yet these accessory activities need to be accommodated where possible.

accessory basketball goals

(8) If a property is nonconforming under the zoning ordinance, then the addition of an accessory use or structure must not violate any restriction concerning the expansion or change involving the nonconforming features of the site. It is well established that a landowner may maintain or add an otherwise lawful accessory use or structure to a nonconforming property. But this is true only if the addition does not violate a specific provision preventing the enlargement, expansion, or change of the nonconformity, or change the basis nature of the use of the property. See Atkins (landowner’s stockpiling of sand, gravel or lumber effectively expanded nonconforming agricultural service business); Jirtle (church’s construction of food pantry would not impermissibly expand off-street parking nonconformity); Four Seasons Management Services, Inc. (hotel owner’s construction of a proposed four-story parking deck would result in an impermissible expansion of the nonconforming use).

Sidewalk Dining - 2

Accessory uses and structures are important features of a large development project or the simple use of land. They can complement or detract from the principal features of the property. If we pay more attention to these features, they can improve the quality of development for everyone.

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4 Responses to Accessory Uses and Structures in the Zoning Ordinance: Eight Things to Remember

  1. Tim says:

    Can you explain why requiring that accessory uses be customary could be impermissible? Do you have a sense of how the determination of what is or is not customary is made in jurisdictions with this requirement?

    • Most local government zoning ordinances allow uses that are customary and incidental to an allowable principal use. But an accessory use can be a nuisance in certain circumstances. For example, large satellite dish antennas provoked a negative response when they first started to be used in single-family residential areas. Now federal law prevents local zoning ordinances from banning them entirely. However, there is still room for local governments to restrict their size.

      Similarly, certain kinds of on-premises signs (e.g., pole signs, portable signs) that function as accessory uses are routinely banned on commercial lots.

  2. ETJ says:

    An R-20 five acre lot was changed to a CU-RR for the purpose of operating a commercial nursery that has in the ordinance a 100 ft offset. The ordinance states “Greenhouses (nurseries), commercial, provided all structures are located at least 100 feet from any property line” in the district uses Sec. 32-197 of King NC. Owners have constructed a storage shed for tractor/misc materials 10ft from the property line. The zoning officer says the structure is not considered a structure since a permit is not required (no human occupancy). The officer has also stated temporary and accessory use structures are allowed in the offset as well. Does this mean the owner can place any structure within the 100 ft offset? The concern is the owner can continue to ignore the 100 ft offset and erect all sort of structures.

    Are there some lawyers or organizations in the Piedmont area that could help us?

    • You may want to check carefully whether the zoning ordinance defines the term “structure.” The ordnance may define the term to mean only those structures that are intended for human occupancy, but that definition would be unusual. Some ordinances do not apply setback requirements to structures that are not occupied buildings, regardless of whether they are accessory structures or not. One ordinance may differ from another. Depending on the circumstances, you may be able to appeal the interpretation of the zoning officer to the town zoning board of adjustment.

      I cannot recommend an attorney. But be on the lookout for one that specializes in land use or zoning law. You should not have much difficulty finding a competent one in the Piedmont area.

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