The definition of “accessory” is “a thing which can be added to something else in order to make it more useful, versatile, or attractive.”  This definition is particularly relevant in the zoning context where an accessory use is a useful, versatile and attractive tool for maximizing the use of property.

The typical approach to determining whether land can be used for an intended purpose is to check the zoning ordinance to see what uses are permitted expressly in the zoning district.  For example, if the commercial zoning does not permit standalone convenience stores with fuel pumps, the developer may resign itself to seeking a use variance or requesting that the municipality amend the ordinance.  Neither of those approaches guarantee success and the former is almost never a wise approach.  An alternative approach is to see if the proposed use or activity could be considered an accessory use (e.g., fuel pumps accessory to a permitted retail store).

An accessory use typically is defined as “a use customarily incidental and subordinate to the principal use and located on the same lot with this principal use.”  Accessory uses usually are permitted by right in most zoning districts.  More importantly, most zoning ordinances do not provide an exhaustive list of permitted accessory uses.  Rather, whatever meets the definition of accessory use is permitted.

The definition creates a two-part analysis for whether something is an accessory use – is it (i) customarily incidental to and (ii) subordinate to the principal use?  Whether an accessory use is “subordinate” to the principal use is the easier part of the analysis.  Comparative area (for the principal use vs. accessory use) is the traditional first factor considered.  But area alone does not need to be the determinative factor.  Pennsylvania courts have looked also at the number of employees engaged in the principal and accessory uses as well as the revenue to be generated by each use.  The most important thing to remember, however, is that there is no bright line percentage for determining whether a use is subordinate.  This lack of a bright line standard is beneficial for developers.

The “customarily incidental” part of the analysis requires a deeper dive that we will discuss in Part II of this post.

Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.