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Thread: Accessory use that is not allowed as primary use

  1. #1
    Member
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    Accessory use that is not allowed as primary use

    Hi, guys. Newby here...

    I'm a planner for a very conservative Florida city. Tanning salons (along with tattoo and massage parlors) are not allowed as a primary use. Period. However, we have couple of big hotels/resorts that happen to have 2-3 tanning booths in their gyms, spas, etc.

    Are they allowed to have those? Is that thing "accessory use, although accessory, has to be allowed as a primary use in any of the zoning districts" some kind of common planning rule or does it depend on the code language (ours is silent)?

    Thanks!

  2. #2
    Cyburbian stroskey's avatar
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    SCOTUS says you can't outright ban certain legal activities so you are within your right to have them be an accessory use. However, one issue you need to work out is your definition of primary vs accessory. It needs to be easily enforceable. This can get sticky because perhaps a business sells tanning lotion and just happens to have 15 tanning beds as an accessory to their retail sales. How would you legally define this use? I would not base it on a certain % of sales because who is going to monitor that? The big question is why are those uses outlawed except as accessories? Is it the business (or stereotypical clientele) your leaders don't want? Perhaps it would be better to allow them outright in certain zoning districts that are not on the main drag if leaders don't want to see "those people".

    I still can't get over tanning salon bans! Are middle class and often attractive white women that repulsive to your leaders?
    I burned down the church to atone for my transgressions.

  3. #3
    Quote Originally posted by stroskey View post

    I still can't get over tanning salon bans! Are middle class and often attractive white women that repulsive to your leaders?
    My appologies to the OP. this is one zoning ordinance that is NOT directed at people of color!

    More serious: shouldn't most jurisdictions have by now addressed how to differentiate between primary and secondary uses. I can't imaxgine there isnt standard legally tested language in every state by now.

  4. #4
    Cyburbian Jeff's avatar
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    Dude...as a planner you have to plan for every use. Whether you like it or not. Why are you popping up on here asking us if a use is allowed in your town?

    If you want to represent a town, you better know what you can or you can't do.

    If you dont, pretend you do.

  5. #5
    Cyburbian Tarf's avatar
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    Quote Originally posted by Gotta Speakup View post
    My appologies to the OP. this is one zoning ordinance that is NOT directed at people of color!

    More serious: shouldn't most jurisdictions have by now addressed how to differentiate between primary and secondary uses. I can't imaxgine there isnt standard legally tested language in every state by now.

    People of color? Wow must be a VERY conservative town there
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  6. #6
    Cyburbian Streck's avatar
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    I always thought that zoning regulations were meant to regulate the configuration of the exterior space, (the cityscape) not the interior space.

    Except that of course you can't have an Industrial Use inside a Residence in a Residential Use zone.

    Building codes regulate how much light and air are required in a building.

    As long as a "use" is a related use (and of course accessory to the permitted use), why can't it be allowed if solely within the structure?

    Does it radically change the number of parking spaces required? Then that is a legitimate concern, because it effects the exterior!

    Is it a nuisance activity? Then that is a legitimate concern, because it adversely effects the exterior neighbors!

    If not, then it should be permitted.

    Toilet areas are not specifically mentioned as a permitted use, but they are allowed.

    Again, building codes regulate their number, size, and even who is allowed access to them.

    If tanning booths are an illegal activity based on criminal or civil code, then that is a matter for other authorities.

    Aren't Accessory Use regulations really addressing separate exterior secondary buildings on the same property?

  7. #7
    Quote Originally posted by Streck View post
    I always thought that zoning regulations were meant to regulate the configuration of the exterior space, (the cityscape) not the interior space.

    Except that of course you can't have an Industrial Use inside a Residence in a Residential Use zone.

    Building codes regulate how much light and air are required in a building.

    As long as a "use" is a related use (and of course accessory to the permitted use), why can't it be allowed if solely within the structure?

    Does it radically change the number of parking spaces required? Then that is a legitimate concern, because it effects the exterior!

    Is it a nuisance activity? Then that is a legitimate concern, because it adversely effects the exterior neighbors!

    If not, then it should be permitted.

    Toilet areas are not specifically mentioned as a permitted use, but they are allowed.

    Again, building codes regulate their number, size, and even who is allowed access to them.

    If tanning booths are an illegal activity based on criminal or civil code, then that is a matter for other authorities.

    Aren't Accessory Use regulations really addressing separate exterior secondary buildings on the same property?


    Accessory Use regulations cover uses related issues in a building. Accessory structure regs cover secondary building and their use.

    Beyond that, I agree with Streck. The taning beds would be a accessory use in that building. if there ar concerns, ban them outright or have them come tghrough as a conditional use or special exception.
    When did I go from Luke Skywalker to Obi-Wan Kenobi?

  8. #8
    Cyburbian fringe's avatar
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    Have to admit the OP confuses me.

    Here tanning beds are usually incidental or accessory to nail salons. Massage is state licensed and controlled.

    Within a use as comprehensive as a hotel I cannot see why a tanning booth would be any more objectionable than a soft-drink machine.

    Are the town fathers worried about competition for the sunshine?

  9. #9
    Cyburbian Streck's avatar
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    I think I missed a key point in your question:

    "Tanning salons (along with tattoo and massage parlors) are not allowed as a primary use. Period."
    It appears that since your regulations specifically refer to primary use, and bans them as a primary use, then they would be allowed as a secondary use,

    I wonder if this stems from the days when so many roadside strip center primary use buildings were small tacky tanning salons with large tacky billboard type signs with cartoon-like "bathing beauties" that cluttered the "landscape." And that the city really just wanted to get rid of the large tacky signs - thinking that surely nice large swanky hotels would not have tacky (tanning) signs.

    Seeing no prohibition of tanning beds as a secondary use, I think your ordinance allows them as a secondary use by default.

    There will be no legal fee for this opinion, because I am not an attorney.

  10. #10
    Cyburbian
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    Interesting. Reminds me of cigar clubs or hookah bars. Although smoking indoors is prohibited, these businesses continue to operate. I believe its because tobacco sales don't amount to over 50 percent of revenue, they can't be considered full fledged smoking establishments.

    Based on what you've said, your ordinance prohibits tanning salons, but not tanning beds. As the beds do not affect the hotel's primary function, I don't think they fall under what the Ordinance is trying to prohibit.

  11. #11
    Cyburbian
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    Quote Originally posted by Streck View post
    I always thought that zoning regulations were meant to regulate the configuration of the exterior space, (the cityscape) not the interior space.

    Except that of course you can't have an Industrial Use inside a Residence in a Residential Use zone.

    Building codes regulate how much light and air are required in a building.

    As long as a "use" is a related use (and of course accessory to the permitted use), why can't it be allowed if solely within the structure?

    Does it radically change the number of parking spaces required? Then that is a legitimate concern, because it effects the exterior!

    Is it a nuisance activity? Then that is a legitimate concern, because it adversely effects the exterior neighbors!

    If not, then it should be permitted.

    Toilet areas are not specifically mentioned as a permitted use, but they are allowed.

    Again, building codes regulate their number, size, and even who is allowed access to them.

    If tanning booths are an illegal activity based on criminal or civil code, then that is a matter for other authorities.

    Aren't Accessory Use regulations really addressing separate exterior secondary buildings on the same property?
    In response to your first sentence, they are made to do both (the SSZEA references both form and use). Where we should fall along the use-form spectrum has been the subject of much debate recently, with some people arguing for a more form-based approach (New Urbanists) and most other places sticking to traditional Euclidean (or heavily use-based) approaches. Some people (Vicki Been, professor of law, in particular) refer to the former approach (form-based) as the Vegas principle of planning/zoning—“what happens in a building stays in a building.”

    That being said, an accessory use needn’t be defined too specifically, just listed as a use which is “incidental” to the primary permitted use, allowed in the district. An example might be a radio station, the primary use of which is commercial office, which may have an antenna for broadcasting and possibly even collocation of a cell broadcast, located on a shed nearby. The primary permitted use is office, but the accessory use is a transmission antenna (which may not be permitted as a primary use). The antenna is incidental to the office use of a radio station, and is therefore accessory.

    One last thing to remember is that, typically, unless there is an arbitrary decision made by the administrative staff, a court will usually completely defer to any reasonable interpretation of what amounts to “accessory” (and the same goes for other admin interpretations), even if an arguably better interpretation exists. This means that the term needn’t be defined with absolute certainty in the ordinance, just with meaningfully workable standards.

    Of course, you should run all of this by a local attorney, but my experience suggests what I’ve said above is substantially the same from state to state.
    Last edited by landplanninglaw; 22 Mar 2012 at 11:25 AM.

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