DEFINING ACCESSORY USES
A THREE-STEP WORK SHEET
Charles Eckenstahler, ACP and Craig H. Hullinger, AICP
Complaints about red tape in the processing of zoning requests are frequent. Developers and citizens are frequently frustrated by the time required to process simple requests. Local governments should streamline processes where possible.
Accessory uses are accessory to the principal permitted use in zoning districts. Typical accessory uses include storage sheds in the rear yard of a residential lot. Home occupations are other examples of frequently requested accessory uses.
Zoning ordinances often do not include a list of accessory uses. They seldom provide a guide in determining whether a specific proposal should be considered an accessory use. The determination of whether the application is an accessory use is usually delegated to the Zoning Officer who may or may not be empowered to grant approval. Some ordinances provide that the Zoning Board of Appeals determine accessory uses, some designate the Zoning Enforcement Officer, and some are silent on the matter.
This article seeks to establish a three-part test which can be used to determine accessory uses. A worksheet is provided which can be used to guide local government decision making. The article also seeks to streamline the approval process, and reduce time and frustration for applicants and enforcement personnel.
AN EXAMPLE SITUATION
To illustrate a typical situation, consider the following. A local landscaping service has a retail sales and service yard located on a commercially zoned lot abutting the main commercial street in your community. Like a lot of landscaping businesses, they have expanded to do tree trimming, lawn mowing and other home maintenance chores throughout the community. With the expanded business, they have hired more residents especially high school and college kids during the summer months. With a fleet of vehicles, it was a natural need to have a radio communication system to keep in contact with all the work teams circulating within the community. Approval of a radio tower, as an accessory use was granted to help the successful growth of the business, some time back.
Today, an application for a cellular communication tower designed to replace the approved radio communications tower has been filed. The application states the new tower is an accessory use to the business, because it is needed to communicate over a larger service territory. It will also be leased by a cellular phone company to provide mobile phone communications services.
DEFINING CUSTOMARY AND INCIDENTAL
The critical issue of this situation is defining whether the circumstances, the location of the tower for the use by the landscaping business, is customary and incidental to the landscaping business and secondly, whether the use of the tower as a cellular communications tower is customary and incidental to the landscaping business. To help answer the question, the following questions can be asked:
1. Is the accessory use to be conducted on the same lot as the principal permitted use?
In this situation, the use of the tower for radio communications for the landscaping business is clearly accessory to the landscaping business operations. It can be concluded the use of the tower for cellular communications, because no other cellular business operations are located on the site it is not an accessory use.
2. Is the proposed accessory use customarily found in connection with the principal permitted use?
It is not unusual for a landscaping (or similar business) to have a radio tower for communications purposes and it can be concluded that the tower when used in this manner would be considered an accessory use. However, it is more difficult to find a communications tower jointly used by a landscaping business and a cellular communications business. Therefore, it can be concluded that the use the tower for this purpose, because it is not commonly found and does not have any direct relationship with the landscaping business, would not pass the test as an accessory use incidental to the principal use.
3. Is their unity of ownership between the principal and accessory uses?
For this question, clearly the ownership of the tower by the landscaping business for their use meets the guideline and the leasehold interest of the communications company does not. Therefore, the tower would be an accessory use for the landscaping business but not the communications company.
Use of the three questions provide guidelines for the analysis of this complex situation. Findings of fact gathered from the above analysis include:
1. The location of a radio communications tower for use by the landscaping business is an accessory use of the landscaping business. The tower, is located on the same zoning lot as the business, a radio communication system is commonly found in use by other landscaping business and related type businesses and the tower is owned by the business.
2. The use of the tower by a cellular communications company, is not an accessory use. The tower is not on the same zoning lot as any principal communication company use, use of a tower for such purposes is not usually located with a landscaping business and the tower is not owned by the a cellular communication company.
Therefore, the community would approve the tower for use by the landscaping business but prohibit the use of the tower for use as a cellular communications tower.
A SIMPLE WORK SHEET
The work sheet, displayed on the following page can be used to help evaluation of accessory use applications and become part of the application file documentation. If answers to all three questions posed in the work sheet are yes, then there is substantiation for the claim that the proposed use is accessory to the principal permitted use.
More and more often plan commissions, zoning board’s of appeals and zoning officials will be faced with the question of when to approve an apparent unrelated use as an accessory use on a single zoning lot. Along with the tower example other situations such as, storage sheds for hobby (and retail sales) use, living units as part of commercial and industrial businesses, and manufacturing uses as part of a retail sales business have potential to be considered as accessory uses, depending on the construction of the language in the local zoning ordinance. Use of the work sheet allows the analysis of the individual circumstances of each application and uniform application of guidelines to help decision making.
ABOUT THE AUTHORS
Craig Harlan Hullinger, AICP, is the President of Planning Development Associates. He has 25 years of experience. He has recently served as the Assistant Manager for the Village of Tinley Park, and the Director of Will County Land Use Department where he was responsible for the planning, zoning, engineering, building, and solid waste functions for the rapidly growing county south of Chicago. He is the author of numerous plans and zoning codes. Craig has a BA Degree in Public Administration and a Master’s Degree in Environmental Planning. Craig can be contacted at 708-532-8991. Email Craig@Hullinger.com Web at www.Craig.Hullinger.com
Chuck Eckenstahler, AICP, CED, is the owner of Public Consulting Team, a Benton Harbor, Michigan planning consulting firm engaged by the Villages of Beecher and Sauk Village to serve as their planner. Chuck has written numerous zoning codes and amendments and serves as and expert witnesses in land use cases. He is the former Executive Director of both the Berrien County and Southwest Michigan Regional Planning commissions. Chuck holds a Masters Degree in Environmental Planning and an MBA from Notre Dame. Chuck can be contacted 219-879-1012. Email at Eckenst@AOL.COM.
ZONING BOARD OF APPEALS - PLANNING DEPARTMENT Village of Sauk Village, Illinois
ACCESSORY USE DETERMINATION WORKSHEET 21701 Torrence Avenue
Sauk Village, IL 60411
Fax (708) 758-9044
STANDARDS FOR REVIEW
STANDARD APPLICABILITY COMMENTS
1. Is the accessory use to be conducted on the same lot as the principal
permitted use? ❑ Yes
2. Is the proposed accessory use customarily found in connection with
the principal permitted use? ❑ Yes
3. Is their unity of ownership between the principal and accessory uses? ❑ Yes