In our first post on accessory uses, we introduced the value of accessory uses as a tool for permitting a land use that otherwise might not be permitted as a principal use. We also discussed the two-part test for determining whether a use is accessory – is it (i) customarily incidental to and (ii) subordinate to the principal use? In this post, we will conclude our discussion on accessory uses by looking at the “customarily incidental” part of the analysis.
The most important concept to remember when evaluating whether a use is “customarily incidental” to a principal use is not to assume that there must be evidence of a traditional relationship between the principal use and proposed accessory use. All too often, zoning officers are inclined to take the position that something cannot be an accessory use because they have never seen the proposed accessory use together with a principal use. This approach would lead to a stagnation of land uses that is not reflective of how uses evolve over time.
In determining whether a use is “customarily incidental,” Pennsylvania court decisions promote a more-open minded approach. Our Supreme Court said that “an accessory use may exist even where there is no evidence that a majority, or even a substantial number, of similar properties are engaged in a similar accessory use.” Southco, Inc. v. Concord Twp., 713 A.2d 607, 611 (Pa. 1998). This approach is consistent with the organic and ever-evolving nature of land use. For example, a tennis court may be an accessory use to a house even if no other homes in the municipality have a tennis court. This approach also is consistent with the principal of interpreting zoning ordinances broadly in favor of property owners and against restrictions on the use of land.
But the broader approach to the meaning of “customarily incidental” is not without limitation, as our courts have established an “objective reasonable person” standard. Under that standard, a zoning officer must make a determination as to whether a “reasonable person” would consider the use in question “customarily incidental” based on the following factors: (i) how frequently the proposed accessory use is found in association with the principal use, (ii) the landowner’s particular circumstances, (iii) the governing body’s intent regarding intensity of land use appropriate for the district as indicated in the zoning ordinance, (iv) surrounding land conditions and (v) general experience and common understanding. See Hess v. Warwick Twp. Zoning Hearing Bd., 977 A.2d 1216 (Pa. Commw. Ct. 2009). This “reasonable person” standard provides some structure, but retains necessary flexibility, for determining when a use is “customarily incidental.”
Characterizing an activity or a part of the proposed development as an accessory use may be a way to work around zoning district restrictions on principal uses. Developers and landowners should consider this tool before seeking a use variance or a text amendment to permit a use that the municipality is saying is not permitted in that zoning district.
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.