Municipalities put a lot of thought into comprehensive plans
and zoning ordinances to make sure that no uses are allowed which will cause
negative impacts on a given neighborhood. However, we often see ordinances that inexplicably allow any type of use
in a district as long as it is an accessory use. “Accessory uses” are usually defined as being
incidental and subordinate to the principal use of the property.
A municipality will often have a table of uses in its
ordinances that allows only specific types of use in a particular zone, but
allows accessory uses in all zones. Let’s
think for a second about what this might mean. Consider a residential zone in which a nursing home is an allowed use,
but a restaurant is not an allowed use. The nursing home has a cafeteria that is open to the general
public. If “accessory uses” are allowed
in all zones, the nursing home now has a back-door (yet perfectly legal) way to
run a restaurant without violating the ordinance. Neighbors who thought they were living in a
restaurant-free zone might complain, as might would-be restaurateurs who do
not have the same opportunity.
Home occupations are also frequently given broader latitude
than the same type of use conducted outside the home, even though the impacts
on the neighborhood might be the same. Is that auto repair shop in someone’s home garage any less noisy than a
principal use of the same type that might not be allowed in the same zone? This matters because zoning restrictions are
a limitation on property rights, and there has to be a rational basis
supporting all such restrictions.
What can be done? Planning boards and staff should consider carefully their definitions
and ordinance provisions pertaining to accessory uses. One simple solution is to include a provision
that accessory uses are only permitted to the extent they would be permitted as
a principal use in the given zone. Consider also the types of uses such as hospitals, civic centers,
schools, churches and other campus-type facilities that may encompass several
accessory uses. It often makes sense to
include the more common elements of these facilities in the definition of the
primary use, rather than trying to figure out which uses are subordinate and
accessory. Generally speaking, planning
officials should put the same degree of thought into the impacts of these
accessory activities as they do into the impacts of their principal use
counterparts.
