Article-11 - Nonconforming Situations_Updated_05-03-2021Unified Development Ordinance | New Hanover County, NC 11-1
Article 11: Nonconforming Situations
Section 11.1. General Applicability
11.1.1. In this Ordinance there exist uses of land, structures, lots of record, signs, and site
features that were lawfully established before this Ordinance was adopted or amended,
that do not conform to its terms and requirements. It is the intent of this ordinance to
allow such uses, structures, lots of record, signs, and site features to continue to exist
until they are removed but not to encourage their continual use.
11.1.2. Nonconforming uses of land, structures, lots of record, signs, and site features may be
continued provided they conform to the provisions of this ordinance.
Section 11.2. Use of Undeveloped Nonconforming Lots
11.2.1. NONCONFORMING SINGLE LOT OF RECORD
A vacant lot of record established prior to October 6, 1969, or any amendment
thereto, which does not conform to the minimum lot requirements of the district in
which it is located may be used as a building site for a use permitted within that
district provided:
A.All construction and the location of the building(s) shall be in accordance with the
applicable front, side, and rear setback standards of the district in which it is
located; and
B.The existing or proposed water and sewage disposal system is approved by the
New Hanover County Environmental Health Department or the Cape Fear Public
Utility Authority, whichever applies.
11.2.2. NONCONFORMING VACANT CONTIGUOUS LOTS OF RECORD
When any two or more adjoining lots of record (one of which is vacant) that are less
than 100 feet in total width and less than 20,000 square feet in total area are held in
identical ownership at any time, they shall be deemed to be combined into a lot or
lots which meet the minimum lot area standards of the zoning district in which they
are located.
Section 11.3. Completion of Nonconforming Projects
The construction or erection of any project for which a building permit which is made
nonconforming by this Ordinance or an amendment thereto, may be completed, provided all
construction is done pursuant to a validly issued building permit.
Section 11.4. Extension or Enlargement of Nonconforming
Situations
Except as specifically provided in this section, it shall be unlawful for any person to engage in
any activity that causes an increase in the extent of non-conformity of a nonconforming
situation.
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11.4.1. EXISTING INDUSTRIAL USES
The standards outlined in Section 3.4.10, Light Industrial (I-1) District, and Section
3.4.11, Heavy Industrial (I-2) District, and any requirement for a special use permit
shall apply to all new proposals in the I-1 and I-2 districts as shown on the Table
4.2.1: Principal Use Table. Any existing industrial uses which did not require a
special use permit on October 3, 2011 would be considered a conforming use and
shall not require a special use permit in order to continue operations. The term
“existing industrial uses” shall mean industries in active operation and open for
business on a tax parcel zoned I-1 or I-2, and developed for that particular use on
October 3, 2011.
11.4.2. MODIFICATIONS AND/OR EXPANSIONS OF EXISTING INDUSTRIAL USES
A.Modifications or expansion of existing industrial uses whose site conditions were in
conformity with the requirements of the County Zoning Ordinance on October 2,
2011, shall comply with the following. If these conditions are not met, or if the
existing industrial use is classified within the intensive industry category, and the
modification and/or expansion changes the particular use within that category, a
special use permit is required for the modification and/or expansion.
B.Modifications and/or Expansions on the Same Parcel
Modifications or expansions of existing industrial uses shall be allowed if the uses
are fully contained on the tax parcel currently developed for and operating as such
use, if:
1.The expansion or modification is for the same existing industrial use that
was in active operation and open for business as October 3, 2011.
2.The expansion or modification is for a less intensive industrial use than
was in active operation and open for business as October 2, 2011. (For
example, an existing intensive industry use could transition to other
industry and manufacturing uses not designated as intensive).
3.The existing industrial use is classified within the other industry and
manufacturing uses not designated as intensive industry category, and
the use is expanded or modified to a different use within that same
category.
C.Modifications and/or Expansions onto Adjacent or Contiguous Parcels
Modifications or expansions of existing industrial uses shall be allowed on tax
parcels adjacent or contiguous (excluding rights of way) to the current use, if the
zoning district in which they are located allows the use, they are held in the same
ownership on October 3, 2011 (including successor ownership), and:
1.The expansion or modification is for the same existing industrial use that
was in active operation and open for business on October 2, 2011.
2.The expansion or modification is for a less intensive industrial use than
was in active operation and open for business as October 2, 2011. (For
example, an existing intensive manufacturing use could transition to other
industry and manufacturing uses not designated as intensive industry.
3.The existing industrial use is classified within the other industry and
manufacturing uses not designated as intensive industry category, and
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the use is expanded or modified to a different use within that same
category.
11.4.3. Subject to Section 11.4.6 of this section, a nonconforming use may be extended
throughout any portion of a completed building that, when the use was made
nonconforming, was manifestly designed or arranged to accommodate such use.
However, subject to Section 11.3, Completion of Nonconforming Projects, a
nonconforming use may not be extended to additional buildings or to land outside the
original building.
11.4.4. Subject to Section 11.3, Completion of Nonconforming Projects, a nonconforming use of
open land may not be extended to cover more land than was occupied by that use when
it became nonconforming, except that a use that involves the removal of natural
materials from the lot (e. g., a quarry) may be expanded to the boundaries of the lot
where the use was established at the time it became nonconforming, if ten percent or
more of the earth products had already been removed on the effective date of this
provision.
11.4.5. Where a nonconforming situation exists, the equipment or processes may be changed if
these or similar changes amount only to changes in degree of activity rather than
changes in-kind and no violations of other paragraphs of this section occur.
11.4.6. Physical alteration of structures or the placement of new structures on open land are
unlawful if they result in:
A.An increase in the total amount of space devoted to a nonconforming use; or
B.A greater non-conformity with respect to dimensional restrictions such as yard
requirements, height limitations, or density requirements.
11.4.7. Minor repairs to and routine maintenance of property where nonconforming situations
exist are permitted and encouraged.
11.4.8. Notwithstanding Section 12.4.1.F, any structure used for single family residential
purposes and maintained as a nonconforming use or structure may be enlarged or
replaced with a similar structure of a larger size, so long as the enlargement or
replacement does not create new non-conformities or increase the extent of existing
non-conformities with respect to lot area and setback requirements. In particular, a
mobile home may be replaced with a larger mobile home, and a "single-wide" mobile
home may be replaced with a "double-wide". This paragraph is subject to the limitations
stated in Section 11.6, Abandonment and Discontinuance of Nonconforming Situations.
11.4.9. A structure that is nonconforming in any respect, or a structure that is used in a
nonconforming manner may be reconstructed or replaced if partially or totally destroyed,
if:
A.A letter of intent is received by the Planning Director within six months from the time
of such destruction.
B.A building permit is obtained from the Building Safety Department within one year
from the time the damage or destruction took place.
C.The total amount of space devoted to a nonconforming use may not be increased,
except that a larger, single family residential structure may be constructed in place
of a smaller one and a larger mobile home intended for residential use may replace
a smaller one.
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D. The reconstructed building may not be more nonconforming with respect to
dimensional restrictions such as setback standards, height, or density, and such
dimensional non-conformities shall be eliminated if that can reasonably be
accomplished without unduly burdening the reconstruction process or limiting the
right to continue the nonconforming use of the building.
Section 11.5. Change in Kind of Nonconforming Use
11.5.1. A nonconforming use may be changed to a conforming use. Thereafter, the property
may not revert to a nonconforming use.
11.5.2. A nonconforming use may be changed to another nonconforming use only in
accordance with approval issued by the Board of Adjustment. The Board shall issue
such approval only if it finds that the proposed use will be more compatible with the
surrounding neighborhood than the use in operation at the time the approval is applied
for. If a nonconforming use is changed to any use other than a conforming use without
obtaining approval in accordance with this paragraph, that change shall constitute a
discontinuance of the nonconforming use, and the property involved may thereafter be
used only for conforming purposes
11.5.3. A nonconforming accessory use or structure may only be changed to another
nonconforming accessory use or building in accordance with subsection 11.5.2 above.
Changes in a principal use are also considered as changes to any accessory use or
building for the principal use. [05-03-2021]
11.5.4. If a nonconforming use and a conforming use, or any combination of a conforming and
nonconforming uses, or any combination of nonconforming uses exist on one (1) lot, the
use made of the property may be changed substantially (except to a conforming use),
only in accordance with approval issued by the Board of Adjustment. The Board shall
issue such approval only if it finds that the proposed use will be more compatible with
the surrounding neighborhood than the use or combination of uses in operation at the
time the approval is applied for.
11.5.5. A use listed as permitted use in Table 4.2.1: Principal Use Table, may be established as
a new use in any existing nonconforming building, provided such use complies with all
off-street parking requirements of this Ordinance.
Section 11.6. Abandonment and Discontinuance of
Nonconforming Situations
11.6.1. When a nonconforming use is discontinued for a consecutive period of 180 days, only a
conforming use may be located on the property.
11.6.2. For purposes of determining whether a right to continue a nonconforming situation is lost
in accordance with this section, all of the buildings, activities, and operations maintained
on a lot are generally to be considered as a whole. For example, the failure to rent one
apartment in a nonconforming apartment building or one space in a nonconforming
mobile home park for 180 days shall not result in the loss of the right to rent that
apartment or space in the future, as long as the apartment building or mobile home park
as a whole is continuously maintained. However, if a nonconforming use is maintained in
conjunction with a conforming use, discontinuance of a nonconforming use for the
required period shall terminate the right to maintain it after 180 days of discontinuance.
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For example, if a mobile home is nonconforming use on a residential lot where a
conforming residential structure also is located, removal of that mobile home for 180
days terminates the right to replace it.
11.6.3. Any structure or operation made nonconforming by this provision that was vacant or
discontinued on the date of its original adoption, the 180 day period for purposes of this
section, began to run on that original date of adoption.
Section 11.7. Nonconforming Signs
11.7.1. DETERMINATION OF NONCONFORMITY
Existing signs which do not conform to the specific provisions of Section 5.6, Signs,
and the other requirements of this Ordinance may be eligible for the designation
"nonconforming" provided that:
A.The Building Safety Director determines that the sign is properly maintained and
does not in any way endanger the public; and
B.The sign has a valid permit or variance approval, or complied with all applicable
laws on August 6, 2001.
11.7.2. LOSS OF NONCONFORMING STATUS
A nonconforming sign may lose its nonconforming designation if:
A.The sign is relocated or replaced; or
B.The structure of the sign is altered in any way except towards compliance with this
Section 5.6, Signs, and the other requirements of this Ordinance. This does not
refer to change of copy or normal maintenance.
11.7.3. MAINTENANCE AND REPAIR OF NONCONFORMING SIGNS
Nonconforming signs are subject to all requirements of this Ordinance regarding
safety, maintenance, and repair. However, if the sign suffers more than 50 percent
appraised damage or deterioration; it shall be removed or brought into
conformance with Section 5.6, Signs, and the other requirements of this Ordinance.