Garner City Zoning Code
ARTICLE 9
NONCONFORMITIES
9.1. PURPOSE AND INTENT.
There exist within the Town of Garner uses of land, structures, lots, site elements, and signs that were lawfully established prior to the date of adoption of this UDO, but that no longer conform to the standards of this UDO. It is the intent of this UDO to move nonconformities in the direction of conformity (wherever possible), permit nonconformities to continue until they are removed (where necessary), and not to encourage their survival except under the limited circumstances established in this article. The
may require conformance with specific provisions of this UDO where deemed necessary to resolve immediate or pending public safety concerns. The intent of this Article in resolving and bringing uses, structures, and activities into conformance with this UDO is to protect the public health safety and welfare.
(Ord., 3-16-21)
9.2.1. Abandoned.
To cease, either intentionally or unintentionally, from actively using land, structures, or any premises for the intended or previous
, but excluding temporary periods of inactivity due to remodeling, maintaining, or otherwise improving a facility. Abandonment is often referenced to a specified time period.
This definition includes "abandon", "abandonment", and any other tense or version of the word "abandoned."
9.2.2. Discontinued.
To quit or cease, either intentionally or unintentionally, operation or activity associated with a
of land, structures, or any premises from their intended or previous
or to replace the previous
with a new
of a different kind or class. A change of occupancy, owner, or tenant does not constitute a discontinuance or change of
.
This definition includes "discontinue", "discontinuance", "ceased" (as it refers to a use, and any other tense or version of the word "discontinued."
9.2.3. Intent to Resume.
An "intent to resume" a
, operations, or activities may be demonstrated through continuous operation of a portion of the facility, by the maintenance of water, sewer, electric, and other utility service (as appropriate), or by other outside documentation such as proof of deliveries.
(Ord., 3-16-21)
9.3.1. Normal Maintenance and Repair.
Normal maintenance or repair of structures where nonconforming uses are located may be performed in any consecutive twelve-month period, to an extent not exceeding 33% of the current assessed value of the structure. Such maintenance and repair shall not be allowed to increase the usable space of the structure occupied by the nonconforming
, except pursuant to this section.
9.3.2. Extension or Alteration.
A. A nonconforming
may be extended throughout any portion of a completed
that, when the
was made nonconforming by this UDO, was manifestly designed or arranged to accommodate such
. However, a nonconforming use may not be extended to additional buildings or to land outside the original
.
B. A nonconforming
of open land may not be extended to cover more land than was occupied by that
when it became nonconforming, except that a use involving the removal of natural materials (e.g., a quarry) may be expanded to the boundaries of the
where the
was established at the time it became nonconforming if ten percent or more of the earth products had already been removed at the effective date of this UDO.
C. For full description of standards for alterations or additions, see Figure 9.6-A.
9.3.3. Change in Use.
A nonconforming use may be changed, modified, or expanded to any permitted
(s) in the subject district. The affected property may not then revert to a nonconforming
.
9.3.4. Single-Family Residential Nonconforming Uses.
A structure used for a
and maintained as a nonconforming
may be enlarged or replaced with a similar structure of a larger size, so long as new nonconformities or an increase in the extent of existing nonconformities, such as parking requirements, are not created.
9.3.5. Continuation of Accessory Use.
No
that is accessory to a principal nonconforming use shall continue after such principal
has discontinued, ceased, been abandoned, or terminated unless it conforms to all provisions of this UDO.
9.3.6. Discontinuance and Abandonment.
A. A nonconforming
shall be presumed to be discontinued and abandoned, shall lose its nonconforming status, and shall not be reestablished or resumed and thereafter be used only for conforming purposes, when any of the following has occurred:
1. The owner has indicated intent to abandon the
, delivered in writing to the
.
2. When a nonconforming
is abandoned or discontinued for a consecutive 180-day period or for a total of (180) calendar days in a 12-month period.
3. At the point when the electric meter is pulled off or water service or other public utility service is terminated on a structure or
due to any reason, provided that it is not replaced or reactivated within the 180-day period immediately following.
B. When a
or
of land made nonconforming by adoption of this UDO is vacant or discontinued at the effective date of this UDO, the 180-day period begins to run at that date.
C. All of the buildings, activities, and operations maintained on a
are generally to be considered as a whole in determining whether a right to continue a nonconforming situation is lost pursuant to this section. However, if a nonconforming
is maintained in conjunction with a conforming use, discontinuance of a nonconforming use for the required period shall terminate the right to maintain it thereafter.
Commentary: For example, the failure to rent one apartment in a nonconforming apartment building for 180 days shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building as whole is continuously maintained.
(Ord., 3-16-21)
9.4.1. Normal Maintenance and Repair.
Normal maintenance or repair of nonconforming structures may be performed in any consecutive twelve-month period, to an extent not exceeding 33% of the current assessed value of the structure. Such maintenance and repair shall not be allowed to increase the usable space of the structure, except pursuant to this section.
9.4.2. Alteration or Additions.
Alterations or additions to a nonconforming
or structure may be permitted as long as the alterations or additions do not increase the nonconformity of the structure related to the
setback line, height limitations, yard or other provisions regulating the size and placement of buildings and structures for the district in which the nonconforming structure is located. For full description of standards for alterations or additions, see Figure 9.7-A: Required Site Element Upfits.
9.4.3. Reconstruction.
A. Nonresidential Structures.
1. If a nonresidential
or structure, including any accessory structures, is damaged by reason of fire,
, explosion, earthquake, or other extraordinary circumstance, may be repaired, reconstructed, and used as before if the damage does not exceed 50 percent of its replacement value as determined by the Building Official, and if the repairs and reconstruction are done within 12 months from the time such damage occurred. Notwithstanding the foregoing, no illegal
shall be re-established.
2. If a nonresidential
or structure, including any accessory structures, is damaged and if such damage is greater than 50 percent of its replacement value as determined by the Building Official, such
or structure may only be reconstructed to conform with the standards in the district in which it is situated.
B. Residential Structures.
1. If a residential
or structure, including any accessory structures, is damaged by reason of fire,
, explosion, earthquake, or other extraordinary circumstance, it may be repaired, reconstructed, and used as before if the damage does not exceed fifty (50) percent of its replacement value as determined by the Building Official, and if the repairs and reconstruction are done within twelve (12) months from the time such damage occurred.
2. If a residential
or structure (including any accessory structure) is damaged greater than fifty (50) percent of its replacement value as determined by the Building Official, such
or structure may be repaired, reconstructed, and used as before if the repairs and reconstruction are done within twelve (12) months from the time such damage occurred. Notwithstanding the foregoing, no illegal
shall be re-established.
9.4.4. Unsafe Building or Structure.
If a nonconforming
or structure or portion thereof is declared to be an unsafe structure per G.S. § 160D-1119, it shall thereafter be rebuilt only in conformance with the standards of this UDO and the
code.
9.4.5. Discontinuance and Abandonment.
A. When a structure made nonconforming by this UDO is vacant or discontinued at the effective date of this UDO, the 180-day period begins to run at that date.
B. If such nonconforming structure on a property is abandoned for a period of 180 consecutive days, any subsequent
of that property shall conform to current zoning district regulations. See 9.2.1. for full definition of abandonment.
C. All of the buildings, activities and operations maintained on a
are generally to be considered as a whole in determining whether a right to continue a nonconforming situation is lost pursuant to this section.
(Ord., 3-16-21)
9.5.1. Applicability.
This section applies only to undeveloped nonconforming lots of record. A
is undeveloped if it has no substantial structures upon it. A change in
of a developed nonconforming
may be accomplished in accordance with Section 9.2.3.
9.5.2. Uses.
When a nonconforming
can be used in conformity with all of the regulations applicable to the intended
, except that the
is smaller than the required minimum set forth in Article 6, then the
may be used just as if it were conforming. However, no
that requires a greater than minimum
size for a particular zone is permissible on a nonconforming
.
9.5.3. Setback Requirements.
When the
proposed for a nonconforming
is one that is conforming in all other respects but the applicable setback requirements located in Article 6 cannot reasonably be complied with, then the entity authorized to issue a permit for the proposed
may allow deviations from the setback requirements if it finds that:
A. The property cannot reasonably be developed for the
proposed without such deviations;
B. These deviations are necessitated by the size or shape of the nonconforming
; and
C. The property can be developed as proposed without any significantly adverse impact on surrounding properties or the public health or safety.
9.5.4. Setback Hardship.
For purposes of Section 9.5.3, compliance with applicable
setback requirements is not reasonably possible if a
serving the minimal needs of the proposed
cannot practicably be constructed and located on the
in conformity with setback requirements. Financial hardship does not constitute grounds for finding that compliance is not reasonably possible.
9.5.5. Governmental Acquisition of Land.
A
, established under the provisions of this or previous town zoning ordinance, that is reduced in size by governmental action, such as acquisition for a right-of-way or other governmental
, shall not render the
nonconforming.
9.5.6. Contiguous Nonconforming Lots.
If, on the effective date of this UDO, an undeveloped nonconforming
adjoins and has continuous frontage with one or more other undeveloped lots under the same ownership, then the provisions of this section cannot be taken advantage of and the undeveloped lots shall be considered as one
. This shall not apply if a majority of the developed lots on either side of the
and within 500 feet of the undeveloped
are also similarly nonconforming.
Commentary: The intent of this subsection is to require nonconforming lots to be combined with other undeveloped lots to create conforming lots under the circumstances specified herein, but not to require such combination when that would be out of character with the way the existing neighborhood has been developed.
(Ord., 3-16-21)
9.6.1. Normal Maintenance and Repair.
A. Nonconforming signs may be repaired or renovated as long as the cost of such work does not exceed, within a twelve-month period, 33% of the value of such
. A permit for such renovation or repair is required. Proof of value is required at the time of permit.
B. The message of a nonconforming
(sign face) may be changed, so long as a change in
has not occurred. If a change in
occurs, the
must be brought into full conformity with this UDO.
9.6.2. Enlargement or Alteration.
A. No nonconforming
shall be enlarged or altered in any manner that results in a greater degree of nonconformity.
B. No modification of the structure of any nonconforming
shall be permitted, except to bring the
into conformity.
C. Illumination may not be added to a nonconforming
that previously was unilluminated.
9.6.3. Discontinuation of Business.
If a nonconforming
other than a billboard advertises a business, service, commodity, accommodation, attraction or other enterprise or activity no longer operating or being offered or conducted, that
shall be considered abandoned and shall be removed within 90 days after such abandonment by the
owner, property owner or other
having control of the property.
9.6.4. Billboards on Federal Aid Highways.
Billboards on federal aid highways are protected by the State and Federal Highway Beautification Acts and cannot be amortized and can be removed only upon payment of just compensation as defined by those Acts.
(Ord., 3-16-21)
9.7.1. Reduction of Nonconformity.
No nonconforming site element shall be erected, replaced, or modified except to reduce or eliminate the nonconformity. Repair and maintenance of nonconforming site elements is permitted.
Commentary 01/01/2021: Previous interpretations have ruled that upper floor additions to structures can be constructed within the current (nonconforming) building footprint, provided all other criteria are met.
9.7.2. Applicability Matrix.
Notwithstanding other portions of this Article, the following table summarizes the minimum requirements that shall be met when there are changes to existing nonconforming
and/or to nonconforming structures or uses. A
√
indicates that compliance with all applicable standards of this UDO is required.
Figure 9.7-A: Required Site Element Upfits
Dimensional Standards | Design Standards | Sidewalks, Street Trees, & Curb-and- Gutter | Tree Protection & Landscaping | Parking Lot Landscaping | Buffers & Screening | Outdoor Lighting |
Dimensional Standards | Design Standards | Sidewalks, Street Trees, & Curb-and- Gutter | Tree Protection & Landscaping | Parking Lot Landscaping | Buffers & Screening | Outdoor Lighting | |
Change of
(from residential to nonresidential or mixed use) | √ | √ | √ | √ | √ | √ | |
Parking Area Expansion | |||||||
Less than 12 Spaces or < 40% of Paved Area(a) | √ | √ | √ | √ | √ | ||
Expansion of > 40% of Paved Area or 12 Spaces or More | √ | √ | √ | √ | √ | ||
Expansion and/or Reconstruction | |||||||
< 50% of Existing Floor Area | √(a, b) | √(c) | √(a) | ||||
> 50% of Existing Floor Area | √(a, b) | √(c) | √ | √ | √ | √ | √ |
Notes: (a) For expanded/reconstructed portion only. For sidewalks and curb-and-gutter, this includes any areas of abutting right-of-way. (b) Exception: Maximum front setback should be met to the extent practical as determined by the Board of Adjustment. For expansions, reconstruction areas and all other walls facing public streets. | |||||||
9.7.3. Compliance.
If all site elements cannot be brought into compliance with the current requirements of this Chapter for reasons which include, but are not limited to site layout, space limitations, tree preservation, or other natural features, the Board of Adjustment may approve a
to deviate from site element dimensional requirements so long as the modifications to the elements are moving in the direction of conformity with the provisions of this Chapter.
(Ord., 3-16-21)