(a)   Purpose. It is recognized that, over time, lawful nonconformities may develop as a result of amendments to the zoning map or unified development ordinance which change the application of city development regulations to particular properties. It is important that such properties, while nonconforming, be adequately maintained and permitted to continue, but not expanded or enlarged in any fashion that increases the extent of nonconformity. Where possible, such nonconformities should be made, wholly or incrementally, conforming.

(b)   Application. The provisions of this section apply only to lawful nonconformities, except as noted below. Nonconformities other than lawful nonconformities shall be considered violations of the unified development ordinance. This article shall not apply, however, to any feature which is the subject of a variance from particular regulations that has been granted by an authorized reviewing board or commission or to applications of flexible development standards to such features. Where a variance or flexible development determination has been granted for a feature which does not otherwise conform to the requirements of this chapter, that feature shall be deemed conforming. Nonconformities associated with signs are addressed in section 7-13-8 of this chapter.

(c)   Definitions. As used in this section, the following terms have the meaning ascribed to them below:

(1)   Appraised value means the value assigned to a structure by the Buncombe County Tax Assessor or by an MAI-certified real estate appraiser.

(2)   Dimensional nonconformity means any lawful nonconformity involving a dimensional or numerical development requirement except those involving signs or landscaping and buffering which are addressed in article XIII and section 7-11-3, respectively. Dimensional nonconformities may include, without limitation, nonconformities associated with lot size, lot width, lot depth, lot coverage setbacks, impervious surface standards, open space, number of parking spaces, or separation requirements between particular uses or zoning districts, and structure size and placement standards including height, gross floor area, footprint area, number of stories, build-to zone, fenestration, step-back and building frontage.

(3)   Impact means the effect of one land use upon another as measured by traffic or noise generation, site activity, hours of operation, site lighting, vibration, smoke or odor emissions, or similar factors.

(4)   Lawful nonconformity means any nonconformity involving a dimensional or numerical requirement or use of property that affects a structure erected or a lot created in conformity with the then-applicable development requirements of the city, but subsequently made nonconforming by action of the city through a zoning map or unified development code amendment. For non-construction related purposes such as but not limited to, financing, appraisals, or zoning verification, a lawful nonconformity shall be regarded as conforming.

(5)   Nonconforming use means a nonconformity involving the use of the property when that use was lawfully established. This may include, without limitation, nonconformities associated with a use not permitted in the zoning district in which it is located, a use specially allowed in the zoning district in which it is located but for which no special use permit has been obtained, or residential density that exceeds the maximum permitted in the zoning district in which it is located.

(6)   Renovation means the repairing or remodeling of a structure in which the exterior walls, foundation and roof are maintained structurally intact.

(d)   Expansions. A lawful nonconformity shall not be extended, expanded, enlarged or increased in any manner that would increase either the degree of the dimensional nonconformity, or the extent or intensity of the lawfully established nonconforming use. Such prohibited activity shall include, without being limited to:

(1)   A physical addition to, or expansion of, a structure that creates a new, or increases the extent of an existing, dimensional nonconformity;

(2)   An extension or transference of a nonconforming use into new construction including separate buildings, building additions, or expansions;

(3)   An extension of the use within an existing structure to any floor area not occupied by the use at the time that it became nonconforming;

(4)   An expansion to any outdoor areas used in direct support of a nonconforming use beyond the limits existing at the time that the use became nonconforming.

(a)   Lawfully established nonconforming lots. Lawfully established nonconforming lots having one or more dimensional nonconformities may be used for any permitted or special use allowed in the zoning district in which the lot is located provided that any structure or expansion/addition to an existing structure proposed for the use meets all applicable dimensional and numerical requirements and all applicable procedures are followed. Such lots may be recombined with adjoining lots to increase the extent of their conformity provided new nonconformities are not created. A lot that that is only nonconforming due to the fact that it does not comply with access standards can be developed with one single-family residence and typical residential accessory structures if some form of legal access is provided the property.

(a)   Discontinuation of nonconforming uses. A nonconforming use is allowed to continue unless the use is discontinued for a period of 180 or more consecutive days, and there are no substantial good faith efforts to re-establish the use during this period. Obtaining permits to maintain the existing use or significant continuous efforts to market the property for sale or lease for the existing use (e.g., MLS listing, realtor contract, etc.) shall be regarded as substantial good faith efforts. A nonconforming use shall be deemed discontinued after a period of 365 consecutive days regardless of any substantial good faith efforts to re-establish the use. Thereafter, the structure or property associated with the use may be used only for conforming use. Special uses discontinued for a period of 365 or more consecutive days shall be regarded as nonconforming uses and shall not be re- established without new special use permit approval.

(b)   Replacement of one nonconforming use with another nonconforming use. A nonconforming use may be allowed to be replaced by another nonconforming use of equal or lesser impact as provided in subsection (c) below. For uses not listed below, a nonconforming use may be allowed to be replaced by another nonconforming use upon a finding by the planning and zoning commission that the proposed use is more nearly compatible with the surrounding properties than the nonconforming use which it replaces, as measured by traffic or noise generation, site activity, hours of operation, and other factors that the commission finds relevant to compare or differentiate between the existing use(s) and the proposed replacement use(s). The planning and development director or commission, as applicable, may establish conditions to ensure that the compatibility factors are maintained as approved.

(c)   Land use impact table. See Table of Permitted Uses under columns labeled “Land Use Impact” at section 7-8-1(d) for a list of land uses and their associated impacts.

(d)   Overcoming presumption of discontinuation of use. A presumption that a nonconforming use of the land has ceased, based solely on the length of time the use of the land has remained vacant or inactive, may be rebutted if the use of the land has not ceased for more than two years. Such a presumption may be overcome, upon demonstrating that substantial good faith efforts have been made to re-establish the use during this period. Obtaining permits to maintain the existing use or providing documentation that shows continuous marketing of the property for sale or lease for the existing use (e.g. MLS listing, realtor contract, etc.) shall be regarded as substantial good faith efforts.

(e)   Conforming uses becoming nonconforming. No use may be established if it renders another conforming use to become nonconforming.

(f)   Nonconforming short-term vacation rentals. All lawfully existing nonconforming lodging facilities which would now be classified as a "short-term vacation rental" may continue in operation until such time that the lodging use is discontinued for a period greater than 180 consecutive days. In addition, the short-term vacation rental annual permit will be required for all nonconforming short-term vacation rentals and failure to renew said permit before its expiration will also constitute a conclusory presumption that the lawful nonconformity has ceased for more than 180 consecutive days, and will result in the voluntary forfeiture of all rights and claims to operate a short-term vacation rental at the address noted on the permit under this provision.

(a)   Public safety. In the interest of the public safety and health, structural alterations or renovations of lawfully nonconforming structures, conforming structures on lawfully nonconforming lots, or conforming structures devoted in whole or in part to a lawfully established nonconforming use, which are required by any public law, and so ordered by a public officer in authority, shall be permitted.

(b)   Ordinary repair and maintenance. Routine maintenance and incidental repair or replacement shall be permitted for lawfully nonconforming structures provided that the repair or maintenance shall neither create a new nonconformity, nor increase the degree of the existing nonconformity. The addition of facilities to improve handicapped accessibility or energy conservation may also be permitted provided all applicable development standards can be met.

(c)   Replacement/reconstruction. The reconstruction of a lawfully nonconforming structure and/or a structure that is occupied by a nonconforming use, which has a valid certificate of occupancy and which is destroyed or damaged by an event resulting from natural causes or an accident, without intent to damage or destroy on the part of the property owner, may be restored to its original dimensions and conditions, provided:

(1)   The reconstruction does not increase the degree, extent or limits of the nonconformity;

(2)   A valid building permit is issued within 12 months of the date of the event; and,

(3)   That the use occupying the structure after repair does not result in a change of use.

   (a)   Replacement of one manufactured home with another manufactured home in a lawfully established manufactured housing park. An existing manufactured home located in a lawfully established manufactured housing park in operation at the time of adoption of these regulations may be replaced with another manufactured home provided the number of manufactured home units within the park may not be increased beyond the number available before replacement and the replacement manufactured home must not create nonconforming yards, separation distances, or increase existing nonconforming yards, separation distances or setbacks. Manufactured home parks existing at the time of the adoption of this ordinance shall not be allowed to expand or increase in any manner unless such expansion meets fully the requirements set forth in this ordinance.