Is it a land use yet?

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Adam Lovelady

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In some scenarios, determining land use is fairly simple.  The ordinance permits a donut shop, the owner establishes and operates a donut shop, and the land use is clear.  But land development over time is not always straightforward, and clear land use categories may grow murky as a place evolves.  Questions arise.  When does a use become a use?  How can we distinguish uses?  And when is a use no longer a use?

This is the first in a short series of blogs on determining land use, starting at the beginning: when does an activity reach the level of regulated (or protected) land use?

Through this series, some of the discussion will highlight statutory requirements and broadly applicable court decisions.  The discussion also will emphasize the importance of the local ordinance—many court decisions in land use law are particular to the local ordinance language and interpretation.  For determining land uses, the local ordinance often is determinative.

Now to the first question: Is it a land use yet? What factors must be considered in determining if an activity rises to the level of a regulated land use?  In some cases, there may be a right to a use before there is even any use on the property (vested rights).  In other cases, the use may not rise to a level of scale or intensity to be considered a full use of the property (temporary and accessory uses).

Vested Rights.  A vested right is the right to complete a development under rules that applied at the time the development was approved rather than under newly adopted rules.  The General Statutes specify that owners enjoy vested rights while there is a valid building permit (GS 153A-344(b) and 160A-385(b)) or certain site specific or phased development plans (GS 153A-344.1 and 160A-385.1).

A developer may establish a common law vested right if the developer made substantial expenditure in good faith reliance on a valid government approval and the developer will suffer detriment to comply with the new rules.  Actual construction on the site is not necessary to show substantial expenditure, Town of Hillsborough v. Smith, 276 N.C. 48, 170 S.E.2d 904 (1969).  So, whether by statutory or common law vested right, an owner may preserve a right to a use even without construction on the site.  Of course, vested rights do not last forever.  Statutory vested rights have set limits, and common law vested rights likely expire after a reasonable period of disuse.

As compared to vested rights—which may establish a land use before the activity even begins—other activities may be permitted on a property but not rise to the level of principal use.  As determined by local ordinance standards, temporary uses are not present long enough to be a principal use and accessory uses do not rise to a level of intensity or scale to be a principal use.

Temporary Uses.  Local ordinances typically permit a variety of temporary uses.  Each ordinance may define the types of temporary uses, as well as the limitations and requirements for such uses.  Examples include yard sales, seasonal produce stands, construction staging and trailers, and special events.  Temporary uses may  last for only   a few hours—like a sidewalk sale, or food carts or food trucks at a site for lunch hour.  Others may be permitted for months.

Recent years have witnessed increasing variety in temporary uses and structures.  Short-term pop-up stores in a vacant commercial storefront, food trucks regularly setting up in the same parking lot, and re-purposed shipping containers—with these, the lines between temporary and permanent use blur.  Indeed, some planners and developers are exploring ways to use temporary and incremental development as a low-cost effort to create activity and interest on a site in advance of full development.

Accessory Uses. In addition to the principal uses permitted in a zoning district, zoning ordinances commonly permit those uses that are customarily subordinate to and/or incidental to the principal use on the same lot.  “[A] landowner is permitted to maintain an accessory or incidental use in connection with a permitted use of land if the accessory use is truly incidental to the primary nonconforming use and does not change the basic nature of the use of the property.” Atkins v. Zoning Bd. of Adjustment of Union County, 53 N.C. App. 723, 731, 281 S.E.2d 756, 760 (1981).  For instance, in a neighborhood a home-occupation may be permitted as a subordinate use to the principal residential use.  If the scope or intensity of the accessory use reaches a certain level, however, it may become a principal use for the property.

A critical consideration for accessory use is whether the use is incidental or customary to the principal use.  The inquiry raises questions about intensity, timing, and the nature of the accessary use in relation to the principal use.  This can be a moving target as customs change over time and development evolves.  The actual use and the context matter.  For instance, in one case a substantial machine for milling logs operated for personal use was considered customarily accessory to a long-established large lot residential use with tractors and other large equipment.  “The recent addition of an exclusive, walled, and gated subdivision on adjoining property does not convert petitioners’ lawful use into an illegal one, simply because petitioners’ use is inconsistent with the permitted uses within the adjoining subdivision.”  Dobo v. Zoning Bd. of Adjustment of City of Wilmington, 149 N.C. App. 701, 713, 562 S.E.2d 108, 115 (2002) rev’d, 356 N.C. 656, 576 S.E.2d 324 (2003).

Generally, an accessory use is established after or in conjunction with the principal use.  Indeed, the local ordinance may require that the principal use be established or permitted prior to any accessory use, as was the case in Harry v. Mecklenburg County, 136 N.C. App. 200, 523 S.E.2d 135 (1999).  In that case, the land owner developed a pier with the intent that it would be an accessory use to the yet-to-be-developed principal residence.  The local ordinance required accessory uses to follow the principal use, so the pier was not a permitted accessory use—in effect it was an unpermitted principal use.

Note that accessory uses and accessory structures have different implications.  Just because accessory parking is permitted, it is not necessarily the case that a parking deck is permitted.  Four Seasons Mgmt. Services, Inc. v. Town of Wrightsville Beach, 205 N.C. App. 65, 78, 695 S.E.2d 456, 464 (2010).

Some accessory uses enjoy statutory protection.  Cities and counties may not prohibit solar collectors installed as an accessory use to a residential use (GS 153A‑144 & 160A‑201).  Additionally, accessory uses for agriculture may enjoy certain protections in counties and the extraterritorial jurisdiction of cities.  The bona fide farm exemption, GS 153A-340, applies to agriculture as defined at GS 106‑581.1.  That definition includes the broad categories of crop cultivation and raising livestock, as well as processing, marketing and selling items from the farm, and “similar activities incident to the operation of a farm.”  The broad catch-all of similar activities may afford protection to an array of accessory uses on a farm.

So when does an activity rise to the level of principal land use?  It depends on the local ordinance and the particular circumstances.  That said, vested rights may secure an owners’ right to a use even before the use is established.  And, in the case of temporary and accessory uses, the use may not rise to the level of principal use.

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