A.

In order to accomplish the purpose of these regulations, as stated in Section 1.2, this UDO regulates the height and number of stories of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes.

B.

The provisions of this UDO shall be applicable to the subdivision of land, the creation or modification of transportation networks, the erection, construction, alteration or addition to structures, as well as the use of land, by the State of North Carolina and its political subdivisions.

(Ord. No. 598, 4-14-2011)

A.

This Ordinance consolidates one or more previous stand-alone ordinances. Upon the effective date, this Ordinance shall supersede and replace the previous Zoning and Subdivision Ordinances for the Town of Mint Hill, as well as the stand alone ordinances for Floodplain Regulations and Surface Water Improvement Management Stream Buffers, Soil Erosion and Sedimentation Control and Post-Construction Ordinance. All legally required amendments to the Floodplain Regulations and Surface Water Improvement Management Stream Buffers Ordinance, Soil Erosion and Sedimentation Control Ordinance and Post-Construction Ordinance shall be incorporated into this Ordinance in the applicable Section or Subsection (generally see Article 6). To the extent the provisions of this Ordinance are the same in substance as the previously adopted provisions they replace in the above referenced ordinances, they shall be considered as continuations thereof and not as new enactments, unless otherwise specifically provided. In particular, for example, a situation that did not constitute a lawful, nonconforming situation under the previously adopted Zoning Ordinance does not achieve lawful nonconforming status under this Article merely by the repeal of the Zoning Ordinance.

B.

Unless this Ordinance specifically reverses a requirement of the Town's previous Zoning and Subdivision Ordinances, violations of those previous ordinances will continue to be a violation of this Ordinance and be subject to the violation and penalty provisions contained in Article 10. The adoption of this Ordinance shall not affect any pending enforcement action or lawsuit to abate violations of previous ordinances.

(Ord. No. 598, 4-14-2011)

It is the intention of the Board of Commissioners that this Ordinance shall implement the planning policies adopted by the Board of Commissioners for the Town and its extraterritorial planning area, as reflected in the Land Use Plan and other officially adopted plans. While the Board of Commissioners reaffirms its intent that this UDO and any amendment to it be in conformity with adopted plans, the Board of Commissioners hereby expresses its intent that neither this Ordinance, nor any amendment to it, may be challenged on the basis of any alleged nonconformity with any planning document, officially adopted or otherwise. In addition, nothing herein shall be read to prevent the Board of Commissioners from approving any rezoning that may be inconsistent with the adopted Land Use Plan.

(Ord. No. 598, 4-14-2011)

As provided in G.S. 160D-107, the Board of Commissioners may adopt temporary moratoria on any Town development approval required by law. In such an event, the Board of Commissioners shall follow the procedures required by law and set forth in G.S. 160D-107 for adoption of said moratorium.

(Ord. No. 598, 4-14-2011; Ord. No. 798, 7-8-2021)

Subject to Section 3.7 of this Ordinance (Nonconforming Situations), no person may use, occupy, subdivide or sell any land or buildings or authorize or permit the use, subdivision, occupancy or sale of land or buildings under his control except in accordance with all of the applicable provisions of this Ordinance.

(Ord. No. 598, 4-14-2011)

3.6.1

Approvals Granted Before UDO Effective Date. Any approvals (including, but not limited to, any issued or approved building permit, variance, conditional district, preliminary or final subdivision plat approval or other site plan approval) valid prior to the effective date of this Ordinance shall remain valid until their expiration date. Development may be completed in accordance with such approvals, even if such building, development or structure does not fully comply with the provisions of this Ordinance. If building construction is not commenced and diligently pursued in the time allowed under the original approval or any extension granted there under, then the building development or structure shall meet the standards of this Ordinance at the time of re-application.

3.6.2

Applications in Process Prior to UDO Effective Date.

A.

General. After the effective date of this Ordinance, all land development and building construction and applications for such (including, but not limited to, any application for Site Plan approval, Preliminary or Final Plat approval, Land Development Permit(s), Building Permit(s), or other form of permit or approval) shall conform with the requirements of this Ordinance except in cases where the Applicant can demonstrate an established Vested Right under Section 3.6.3. In such cases, the Applicant shall nevertheless comply with the procedures of this Ordinance, and to the extent the substantive standards contained herein have been amended, then the Applicant shall conform to the amended substantive standards to the extent such conformance is not an undue hardship.

B.

Existing CUD. Prior to the effective date of this UDO, any application, which previously may have been described variously as Conditional Use District, Parallel Conditional District and/or Parallel Conditional Use District, shall now be known as a Conditional Zoning District. For any property that had previously been zoned a Conditional Use District (CUD) at the time of adoption of this Ordinance, but for which a Conditional Use Permit (CUP) had not yet been approved or issued, the Applicant shall apply for a Conditional Zoning District as set forth in Section 8.2.5 (instead of following the former CUP process).

3.6.3

Vested Rights - General Exception. The provisions of this Ordinance shall not apply to:

A.

Property upon which exists a valid statutory vested right (per G.S. 160D-108) as of the effective date of this Ordinance, subject to the conditions of G.S. 160D-108 and this Ordinance as described herein; or

B.

A common law vested right where:

1.

The owner has made substantial expenditures;

2.

The expenditures were made in good faith;

3.

The expenditures were made in reliance upon a valid governmental approval; and,

4.

The owner would be harmed without a vested right.

3.6.4

Effect of Permit or Approval on Successors and Assigns. Any permit or approval issued hereunder that authorizes the permittee or recipient to make use of the land and structures in a particular way is transferable. However, so long as the land or structures or any portion thereof covered under a permit or approval continues to be used for the purpose(s) for which the permit or approval was granted, then:

A.

No person (including successors or assigns of the person who obtained the permit) may make use of the land or structures covered under such permit for the purpose(s) authorized in the permit except in accordance with all the terms and requirements of that permit; and

B.

The terms and requirements of the permit apply to and restrict the use of land or structures covered under the permit, not only with respect to all persons having any interest in the property at the time the permit was obtained, but also with respect to persons who subsequently obtain any interest in all or part of the covered property and wish to use it for or in connection with purposes other than those for which the permit was originally issued.

3.6.5

Nonconformities.

A.

Any nonconforming situation determined to exist under this Ordinance that lawfully existed under the previous Zoning or Subdivision Ordinance or any other ordinance identified in Section 3.2 will also be considered to be a nonconformity under this Ordinance, so long as the situation that resulted in the nonconforming status under the previous ordinance continues to exist.

B.

When a lot is used for a purpose that was a lawful use immediately prior to the effective date of this Ordinance and this Ordinance no longer classifies such use as either a permitted or conditional use in the zoning district in which it is located, such use shall be considered a "nonconforming use" and shall be subject to the provisions of Section 3.7 of this Ordinance. Where any building, structure or lot legally existed on the effective date of this Ordinance and which does not meet all the standards set forth in this Ordinance, such building, structure or lot shall be considered "nonconforming" and shall be subject to the provisions of Section 3.7 of this Ordinance.

(Ord. No. 598, 4-14-2011; Ord. No. 798, 7-8-2021)

State Law reference— Vested zoning rights, G.S. 160D-108.

The purpose of this Section is to regulate the continued existence of uses and structures established prior to the effective date of these regulations or any amendment subsequent thereto that does not conform to these regulations. Given the fact that the implementation of this Ordinance and previous zoning ordinances has in the past and will in the future result in the creation of a number of nonconformities, some of which are viable uses which do not produce substantial negative impacts, this Ordinance allows the Administrator to approve the expansion and or replacement of nonconforming uses and structures in certain situations as detailed herein.

3.7.1

General Intent and Exceptions.

A.

Nonconforming uses, which are uses of structures or land existing at the time of the adoption of this Ordinance, but which uses do not comply with the provisions of this Ordinance, are affirmed by this Ordinance to be incompatible with permitted uses in the various districts. The intent of this Article is to permit the continued use of a structure, or portion thereof, or of the use of land legally existing prior to the effective date of this Ordinance, until such uses are removed, but not to encourage their survival. Such nonconforming uses shall not be used for expansion or extension or changed in any manner, except as provided for in this Article.

B.

None of the restrictions in this Article shall apply to a structure which is nonconforming only with respect to lot area, width, yard requirements, lot coverage or provisions for off-street parking or loading or type of water supply and wastewater disposal systems utilized, except that no structure shall be altered, enlarged or reconstructed so as to violate, or further violate, the requirements of Article 6, Section 6.1, Dimensional Requirements, or Article 6, Section 6.3, Off-Street Parking and Loading.

C.

Upon the adoption of this Ordinance, all existing horse barns within the Town of Mint Hill which do not conform to the regulations as set forth in Subsection 6.9.7 (Accessory Uses), are hereby declared to be preexisting, nonconforming legal uses for all purposes under this Ordinance.

D.

Upon the adoption of the R (Residential) Zoning District with its variable development standards, any existing improved or unimproved lot of record, at the date of initiation of the R Zoning District, that cannot comply with the water supply and wastewater treatment requirements because of its lot size, shall not be classified nonconforming as described and applied in this Article.

3.7.2

Nonconforming Uses of Structures.

A.

A nonconforming use conducted in a structure may be expanded and enlarged into an additional area of the structure then in existence and designed for such nonconforming use.

B.

No structural changes shall be made in any structure occupied by a nonconforming use except as follows:

1.

Those structural changes ordered by an authorized official in order to ensure the safety of the structure.

2.

Maintenance and repairs to keep a structure in sound condition, including, but not limited to, repair or replacement of a structure's roof, siding, windows, HVAC and flooring.

C.

A nonconforming use of a structure may be changed to another nonconforming use so long as that other use is permitted in the same zoning district or in a district of a higher classification, provided the new nonconforming use complies with other applicable regulations.

D.

For the purpose of this Article, the zoning districts, with the highest classification indicated first, are as follows: R, O-A, B-G, B-D, B-P and I-G.

E.

When a nonconforming use of a structure has been changed to a conforming use, it shall not thereafter be used for any nonconforming use.

3.7.3

Nonconforming Uses of Land.

A.

Nonconforming uses of land, which may include structures as incidental and accessory to the use of the land such as, but not limited to, storage yards for various materials or areas used for recreation purposes, shall not be used for other nonconforming purposes, once the nonconforming use has been abandoned.

B.

A conforming use of land shall not be expanded to use more land than was occupied by the use when it became nonconforming.

C.

A nonconforming use of land shall not be changed to any other nonconforming use.

3.7.4

Abandonment.

A.

A nonconforming use which has been abandoned shall not thereafter be reestablished. Such structure or land shall be used only for such purpose as permitted in the applicable zoning districts and in full compliance with this Ordinance.

B.

The term "abandonment" as used herein shall mean the voluntary discontinuance of a use with the intent not to reestablish such use. Any of the following shall constitute clear, competent and legally sufficient evidence of abandonment or intent to abandon unless disproved by an owner/occupier:

1.

Any affirmative act taken indicating such intent.

2.

Premises have been devoted to another use.

3.

When the characteristic equipment and furnishings of the nonconforming use have been removed from the premises and have not been replaced by the same or similar equipment for a period of one year.

4.

Failure to renew the license required for the nonconforming use.

5.

Failure to take all the necessary steps with reasonable speed to resume the nonconforming use, including the failure to advertise the property for sale or for lease for the continued use as a nonconforming use.

6.

In the case of a building, or portion thereof, discontinuance of the nonconforming use for a period of one year.

7.

In the case of land, discontinuance of the nonconforming use for a period of ninety (90) days.

3.7.5

Removal of Structure. When nonconforming status applies to both land and the structure thereon, the removal of such structure shall eliminate the nonconforming status of the land and a nonconforming structure shall not be rebuilt, or the use of a conforming structure for a nonconforming use shall not be permitted.

3.7.6

Reconstruction of Damaged Nonconforming Structures.

A.

A nonconforming structure damaged by fire, explosion or other catastrophe may be rebuilt, subject to the following provisions:

1.

Such construction, reconstruction or repair shall be undertaken within one year of the catastrophe.

2.

Such construction shall not extend further into any previously deficient front, rear or side yard or exceed the lot coverage of the previous structure.

3.7.7

Existing Lots.

A.

A lot approved by (i) the Planning Board of the Town of Mint Hill on a Final Plat or on a Preliminary Plat and where, in reliance upon such preliminary approval, substantial improvements have been made upon the ground prior to the effective date of this Ordinance, or (ii) a lot approved by the Charlotte-Mecklenburg Planning Commission on a Final Plat or on a Preliminary Plat and where, in reliance on such preliminary approval, substantial improvements have been made prior to being annexed into the Town, or (iii) a lot recorded in the office of the Register of Deeds of Mecklenburg County, prior to July 1, 1972, and which lot did not receive approval as described in (i) or (ii) above and which does not comply with the dimensional requirements for the applicable district in which such lot is located, as provided for in Article 6, Section 6.1, of this Ordinance, may be used for any use provided for in the applicable districts, subject to the following:

1.

For the purpose of placement of a principal structure on lots described in Subsection 3.7.7(A)(1) or (2), the minimum yard requirements which were applicable to such lots at the time such lots received approval from the planning authority which granted approval shall be observed. All other structures proposed on such lots shall meet all requirements of this Ordinance. Lots described in Subsection 3.7.7(A)(3) shall meet all requirements of this Ordinance for the district in which such lot is located for the placement of any structure proposed on such lot.

2.

Any lot used for duplex or multifamily purposes shall comply with all requirements of Section 6.1 for the applicable district.

B.

When two (2) or more adjoining lots, as described in Subsection 3.7.7(A)(3), are in one ownership after the adoption of this Ordinance and each lot is deficient in width and area for the district in which the lots are located, prior to the issuance of a Building Permit, such lots shall be combined to create one or more lots that will meet the requirements for lot width and lot area for the applicable district with the following exception:

1.

When such combination of lots would create a single lot having a width and area one and one-half (1½) times or more than required by this Ordinance, such combined lot may be divided into two (2) lots of equal width and area, subject to the requirements of the this Ordinance.

3.7.8

Existing Mobile Homes and Trailers. Mobile homes located on existing individual lots or within existing mobile home parks and are occupied for residential purposes and which were so used prior to March 13, 1997, are hereby classified as legal, nonconforming uses; however, mobile homes located within the R(MH) Overlay Districts are considered conforming. Such nonconforming uses are permitted to continue and may be improved as follows:

A.

Maintenance and repairs necessary to keep such nonconforming mobile homes in a safe and sound condition are permitted.

B.

Such nonconforming mobile homes may be improved with additions such as rooms, porches, decks or similar features, provided any addition of enclosed living space to any mobile home except those located within a nonconforming mobile home park shall be subject to the following requirements as well as pertinent provisions of this Ordinance:

1.

The tongue shall be removed from the mobile home.

2.

The entire mobile home, including the addition, shall be underpinned on all sides with masonry.

3.

No additional dwelling units result from such addition.

C.

Mobile Home Replacement Permits will be issued to owners of existing nonconforming mobile homes which are not in mobile home parks to remove older mobile homes from the property and replace with an upgraded mobile home provided as follows:

1.

The requirements of Subsection 3.7.8(B) are met.

2.

The mobile home shall meet the current building codes for mobile homes as set forth by HUD standards.

3.

The mobile home shall be set up in accordance with the standards set by the North Carolina Department of Insurance, including tie-down standards.

4.

A permanent access of either masonry, brick or pressure treated wood or a deck of pressure treated wood shall be installed leading into each door.

D.

Mobile Home Replacement Permits will be issued to owners of nonconforming mobile homes in existing mobile home parks to remove current mobile home and replace with another mobile home as follows:

1.

The requirements of Subsections 3.7.8(C)(2) and (3) are met.

2.

The mobile home is constructed after June 15, 1976.

3.

The mobile home is provided with continuous underpinning from the bottom of the walls to the ground made of materials specifically for manufactured housing, unpierced except for required ventilation and an access door.

4.

An access of either masonry, brick or pressure treated wood or a deck of pressure treated wood or a handicapped ramp shall be installed leading into each door.

E.

All Mobile Home Replacement Permit applications shall be accompanied by documentation indicating make and model of existing mobile home and new mobile home. The time in which the replacement shall be put into place shall not exceed one hundred eighty (180) days. Permits will be approved by the Administrator.

3.7.9

Nonconforming Signs.

A.

Advertising, Business or Identification Signs. Advertising, business or identification signs that no longer conform with Article 6, Section 6.5, after adoption of this Ordinance, shall be allowed to continue provided as follows:

1.

Maintenance to nonconforming signs shall be limited to painting and repair of the existing sign. Replacement of sign faces or support structures or changes in material of which a component part of the sign is constructed is prohibited.

2.

Changes in name or logo are prohibited.

3.

Once a nonconforming sign is removed or taken down, it shall not be replaced with another sign unless in conformance with this Ordinance.

4.

Signs that are nonconforming with respect to size or illumination requirements may be repaired and/or repainted or relettered provided such nonconformance is not increased. No other changes to this category of nonconforming signs shall be allowed.

5.

Signs that are nonconforming with respect to type, location or number permitted or any other provision of this Article shall not be altered in any way except to make such sign comply with the provisions of this Ordinance.

B.

Signs for Nonconforming Uses. Signs associated with a legal nonconforming use of a structure or land shall be allowed to continue provided as follows:

1.

Nonconforming signs associated with a nonconforming use of a structure or land shall not be changed except to make such signs comply with the applicable sign regulations under Article 6, Section 6.5, for the most restricted district in which said use is permitted.

2.

New signs for a legal nonconforming use of a structure or land shall be permitted under Article 6, Section 6.5, in accordance with the applicable regulations for the most restrictive district in which said use is permitted.

3.7.10

Nonconforming Uses in Connection With Adoption of the Extra-Territorial Jurisdiction (ETJ). Any nonconforming uses of land or structures created by the establishment of zoning in the ETJ shall be regulated in accordance with the provisions of this Ordinance. For the purposes of this Ordinance, all references in this Section 3.7 to "the time of adoption of this Ordinance," "effective date" and any other similar phrase shall mean the date the Official Zoning Map of Mint Hill is amended so as to render a particular use, structure or lot nonconforming under this Ordinance. Property that is located in the Town's extraterritorial planning and development regulation jurisdiction and that is used for bona fide farm purposes is exempt from the Town's zoning regulation to the same extent bona fide farming activities are exempt from county zoning pursuant to this section. As used in this subsection, "property" means a single tract of property or an identifiable portion of a single tract. Property that ceases to be used for bona fide farm purposes becomes subject to exercise of the Town's extraterritorial planning and development regulation jurisdiction under this Chapter. For purposes of complying with State or federal law, property that is exempt from municipal zoning pursuant to this subsection is subject to the county's floodplain regulation or all floodplain regulation provisions of the county's unified development ordinance.

3.7.11

Nonconforming Undisturbed Open Space and Trees. In accordance with Section 6.4.1 of this Ordinance, certain uses are required to maintain undisturbed opens space and plant trees. Except as herein provided, any material enlargement or expansion of an existing use cannot occur without meeting the requirements of Section 6.4.1. For purposes hereunder, material enlargement or expansion shall be determined by a total cumulative twenty (20) percent increase in the total square footage of all existing structure(s) within a project area as and since the original date the project area was first proposed.

3.7.12

Nonconforming Screening and Landscaping. In accordance with Section 6.4.2 of this Ordinance, certain uses are required to provide screening and/or landscaping on-site. Except as herein provided, an expansion of an existing use which is deficient in screening and/or landscaping or a change in principal use cannot occur without the required screening and/or landscaping having first been provided on site. The requirements for providing such screening and/or landscaping may be waived or modified by the Administrator on a one-time basis for any principal use (or for a shopping center, office park, or other multi-tenant development), where building expansion of less than ten (10) percent or less than five (5) percent if adjacent to a R Zoning District occurs.

(Ord. No. 598, 4-14-2011; Ord. No. 798, 7-8-2021)

Background; Statement of Purpose.

Session Law 2015-86 (the "New Legislation") amends N.C.G.S. 160-381 and provides that "Any zoning and development regulation ordinance relating to building design elements...may not be applied to [residential] structures subject to regulation under the North Carolina Residential Code for One and Two Family Dwellings." The New Legislation expressly states that it "clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." The New Legislation does create some exceptions to the general prohibition of design regulation of residential structures including when the design standards are voluntarily consented to by the owners of the property.

The Town's Unified Development Ordinance (UDO) includes several sections that include regulation of building design elements of residential structures as an integral and essential part thereof. These ordinances that include regulation of building design elements of residential structures as an integral and essential part thereof are:

Section 7.12 Special Requirements for One-Family Dwellings with Zero Lot Line

Section 7.3.3. Special Requirements for Conservation Subdivisions.

Section 7.4 DO-A and DO-B Overlay Districts (Downtown Overlay Code).

ZC13-4 Mint Hill Commons (collectively the "Existing Design-Dependent Provisions"; each an "Existing Design-Dependent Provision").

All of the Existing Design-Dependent Provisions were initially adopted and approved by the Town Board based on the understanding that it was legally permissible to regulate building design elements of residential structures. Moreover, those sections of the Existing Design-Dependent Provisions regulating building design elements are of such import that implementing the other sections of the Existing Design-Dependent Provisions without the building design elements would cause results not contemplated or desired by the Town when such ordinances were adopted and are not contemplated or desired by the Town now.

There are existing sections of the UDO that permit residential development that do not include regulation of building design elements of residential structures as an integral and essential part thereof (i.e. are not the Existing Design Dependent Provisions) and which accordingly are not affected by the New Legislation (the "Permitted Residential Standards").

The purpose of this ordinance is to comply with the New Legislation by providing that the Existing Design-Dependent Provisions shall no longer be applied to any residential development in Mint Hill without the voluntary consent of the owner(s). The Permitted Residential Standards remain unchanged by the New Legislation and residential development is permitted pursuant to and in accordance with the Permitted Residential Standards.

A.

Existing Design-Dependent Provisions No Longer Applicable to Residential Development Unless Voluntarily Consented to by the Owners; Permitted Residential Standards Remain Applicable. All Existing Design-Dependent Provisions shall no longer be applied to any residential development without the voluntary consent of the owner(s). Owners that desire to voluntarily comply with Existing Design-Dependent Provisions and develop pursuant to and in accordance with the Existing Design-Development Provisions may do so as set forth herein. The Permitted Residential Standards remain applicable and Owners that do not desire to voluntarily comply with Existing Design-Dependent Provisions may develop pursuant to and in accordance with the Permitted Residential Standards.

B.

Development Previously Approved Pursuant to Existing Design-Dependent Provisions; Previous Voluntary Compliance; Vested to Continue in Accordance with the Applicable Existing Design-Dependent Provision.

i.

Any completed residential structures developed pursuant to any of the Existing Design-Dependent Provisions shall be considered to be structures for which owners have voluntarily complied with the Existing Design-Dependent Provisions and accordingly shall be vested and allowed to continue in accordance with the applicable Existing Design-Dependent Provisions.

ii.

Residential structures under construction in developments approved pursuant to an Existing Design-Dependent Provision shall also be considered to be structures for which owners have voluntarily complied with the Existing Design-Dependent Provisions and accordingly shall be vested and allowed to continue in accordance with the applicable Existing Design-Dependent Provisions.

iii.

Proposed residential development for which there has been a Site Plan approval pursuant to an Existing Design-Dependent Provision shall also be considered to be development for which owners have voluntarily complied with the Existing Design-Dependent Provisions and accordingly shall be vested and allowed to continue in accordance with the applicable Existing Design-Dependent Provisions.

C.

New Development; Simple Process to Confirm Voluntary Compliance. For any new development, an owner may elect to voluntarily comply with an Existing Design- Dependent Provision. Any owner that desires to develop in accordance with an Existing Design-Dependent Provision and accordingly desires to voluntarily comply therewith, shall provide written statement to that effect to the Administrator confirming and then shall be permitted to develop pursuant to and in accordance with the applicable Existing Design Dependent Provisions. Any approved Site Plans shall include written confirmation of the same. Additionally, the conditional zoning process remains available for owners that desire to voluntarily propose residential development plans not contemplated by the Permitted Residential Standards.

(Ord. No. 665, 11-12-2015; Ord. No. 798, 7-8-2021)