Timing of an Accessory Structure

by Jake
(Ottertail, MN )

Visitor Question: Are there any examples of ordinance language that restricts the building of an accessory structure (garage, pole barn, shed) before a primary structure is built, but only applied to areas zoned residential? Or do you see any issues with this?

It’s very common for cities to not allow accessory structures until there is a primary structure in place (or built simultaneously with the primary structure). However I'm looking for an example where this only applies to residential zoned properties. Basically, constructing a garage or pole barn type building (accessory structure) would be allowed in all zones other than residential or multifamily.

Editors Respond: Actually writing the language of a zoning ordinance, or even citing a specific town's ordinance, is beyond our scope. However, we can tell you that there isn't any problem we can think of with confining the restriction to a particular zoning district.

In fact, we think the most common place to write in such a restriction would be in the regulations that pertain to a particular zoning district.

If your ordinance is like many, you will have a list of permitted uses under the description and purpose statement for each zoning district.

In that list of permitted uses, commonly you will find a phrase such as "accessory uses" or "accessory structures." For the benefit of our other readers, usually the specific term that is used is the one that is included in the glossary or definitions section of the zoning ordinance.

Commonly a list of permitted uses includes modifying clauses that limit their interpretation, when such a limitation is necessary. So we would propose that if your city attorney agrees, you could change "accessory uses" to something like "accessory uses, providing they are constructed after or simultaneously with the primary permitted use."

We mention your city attorney because you would want him or her to agree with your proposal. Sometimes planning commissioners, staff members, and even city council members understand more about zoning theory than a city attorney, but usually that attorney will have pretty good expertise because zoning comprises such a large share of everyday municipal law.

We even suggest that planning commissions and staff members draft the clause themselves and present it to the attorney, just to help the communication. If you ask the attorney to think about how to do this, many will have a tendency to procrastinate for a while before realizing that this really is very simple.

The only complication in our suggestion might come if your village or town has a highly unusual zoning ordinance structure where you don't have regulations for each zoning district that spell out the permitted uses. In that case, you will have to adapt our advice. But we don't see any problem with doing what you propose, and it makes great sense in residential districts.

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