Unless otherwise specifically provided or unless clearly required by the context, the words and phrases defined in this section shall have the meaning indicated when used in this ordinance.

(1)

Dimensional nonconformity: A nonconforming situation that occurs when the height, size, or minimum floorspace of a structure or the relationship between an existing building or buildings and other buildings or lot lines does not conform to the regulations applicable to the district in which the property is located.

(2)

Effective date of this ordinance: Whenever this article refers to the effective date of this ordinance, the reference shall be deemed to include the effective date of any amendments to this ordinance if the amendment, rather than this ordinance as originally adopted, creates a nonconforming situation.

(3)

Expenditure: A sum of money paid out in return for some benefit or to fulfill some obligation. The term also includes binding contractual commitments to make future expenditures, as well as any other substantial changes in position.

(4)

Nonconforming lot: A lot existing at the effective date of this ordinance that does not meet the minimum area and dimensional requirements of the district in which the lot is located.

(5)

Nonconforming project: Any structure, development, or undertaking that is incomplete at the effective date of this ordinance and would be inconsistent with any regulation applicable to the district in which it is located if completed as proposed or planned.

(6)

Nonconforming sign: A sign (see section 15-15 for definition) that, on the effective date of this ordinance, does not conform to one or more of the regulations set forth in this ordinance, particularly article XVII (Signs).

(7)

Nonconforming use: A nonconforming situation that occurs when property is used for a purpose or in a manner made unlawful by the use regulations applicable to the district in which the property is located. The term also refers to the activity that constitutes the use made of the property.

(8)

Nonconforming situation: A situation that occurs when, on the effective date of this ordinance, an existing lot or structure or use of an existing lot or structure does not conform to one or more of the regulations applicable to the district in which the lot or structure is located. Among other possibilities, a nonconforming situation may arise because a lot does not meet minimum square footage requirements, because structures exceed maximum height limitations, because the relationship between existing buildings and the land (in such matters as density and setback requirements) is not in conformity with this ordinance, or because land or buildings are used for purposes not permitted by this ordinance. Nonconforming signs shall not be regarded as nonconforming situations for purposes of this article but shall be governed by the provisions of section 15-129.

Cross reference— Definitions generally, § 1-2.

(a)

Nonconforming situations that were otherwise lawful on the effective date of this ordinance may be continued, subject to the restrictions and qualifications set forth in the sections below.

(b)

Nonconforming projects may be completed only in accordance with the provisions of section 15-128 (Completion of nonconforming projects).

(a)

When a nonconforming lot, existing prior to the adoption of this ordinance, can be used in conformity with all of the regulations applicable to the intended use, except that the lot is smaller than the required minimums set forth in section 15-180, the lot may be used as proposed just as if it were conforming. However, no use (e.g., a duplex) that requires a greater lot size for a particular zone is permissible on a nonconforming lot.

(b)

When the use proposed for a nonconforming lot is one that is conforming in all other respects but the applicable setback requirements (see section 15-187) cannot reasonably be complied with, then the board of adjustment, authorized by this ordinance to issue a permit for the proposed use, may allow deviations from the applicable setback requirements if it finds that:

(1)

The property cannot reasonably be developed for the use proposed without such deviations;

(2)

These deviations are necessitated by the size or shape of the nonconforming lot; and

(3)

The property can be developed as proposed without any significantly adverse impact on surrounding properties or the public health or safety.

(c)

For purposes of subsection (b), compliance with applicable building setback requirements is not reasonably possible if a building that serves the minimal needs of the use proposed for the nonconforming lot cannot practicably be constructed and located on the lot in conformity with such setback requirements. However, mere financial hardship does not constitute grounds for finding that compliance is not reasonably possible.

(d)

This section applies only to undeveloped nonconforming lots. A lot is undeveloped if it has no substantial structures upon it. A change in use of a developed nonconforming lot may be accomplished in accordance with section 15-126 (Change in use of property where a nonconforming situation exists).

(e)

Subject to the following sentence, if, on the date this section becomes effective, an undeveloped nonconforming lot adjoins and has continuous frontage with one or more other undeveloped lots under the same ownership, then neither the owner of the nonconforming lot nor his successors in interest may take advantage of the provisions of this section. This subsection shall not apply to a nonconforming lot if a majority of the developed lots located on either side of the street where such lot is located and within 500 feet of such lot are also nonconforming. 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 neighborhood has previously been developed.

(a)

Except as specifically provided in this section, no person may engage in any activity that causes an increase in the extent of nonconformity of a nonconforming situation. In particular, physical alteration of structures or the placement of new structures on open land is unlawful if such activity results in:

(1)

An increase in the total amount of space devoted to a nonconforming use; or

(2)

Greater nonconformity with respect to dimensional restrictions such as setback requirements, height limitations or density requirements or other requirements such as parking requirements.

(b)

Subject to subsection (d), a nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this ordinance, was manifestly designed or arranged to accommodate such use. In addition, a nonconforming use may be extended to additional buildings located on the premises or to unimproved land outside the original building or the additional buildings upon the issuance of a special use permit by the board of adjustment which authorizes such additional nonconforming use. Review and action on said special use permit shall be based on the criteria contained in section 15-54, special use permits.

(c)

Subject to section 15-128 (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 at the effective date of this ordinance.

(d)

The volume, intensity, or frequency of use or property where a nonconforming situation exists may be increased, and the equipment or processes used at a location where a nonconforming situation exists may be changed, if these or similar changes amount only to changes in the degree of activity rather than changes in kind, and no violations of other paragraphs of this section occur.

(e)

Notwithstanding subsection (a), any structure used for single-family residential purposes (other than mobile homes) and maintained as a nonconforming use may be enlarged or replaced with a similar structure of a larger size, so long as the enlargement or replacement does not create new nonconformities or increase the extent of existing nonconformities with respect to such matters as setback and parking requirements. Mobile homes used for single-family residential purposes may be enlarged or replaced in accordance with this subsection; provided, however, said enlargement or expansion in the case of those mobile homes that have remained vacant beyond the 180-day discontinuance period shall be prohibited by this ordinance. This subsection is subject to the limitations stated in section 15-127 (Abandonment and discontinuance of nonconforming situations).

(f)

Notwithstanding subsection (a), whenever (i) there exists a lot with one or more structures on it, and (ii) a change in use that does not involve any enlargement of a structure is proposed for such lot, and (iii) the parking requirements article XVIII (Parking) that would be applicable as a result of the proposed change cannot be satisfied on such lot because there is not sufficient area available on the lot that can practicably be used for parking, then the proposed use shall not be regarded as resulting in an impermissible extension or enlargement of a nonconforming situation. However, the applicant shall be required to comply with all applicable parking and loading requirements that can be satisfied without acquiring additional land, and shall also be required to obtain satellite parking in accordance with section 15-349 if, (i) parking requirements cannot be satisfied on the lot with respect to which the permit is required, and (ii) such satellite parking is reasonably available.

(g)

Notwithstanding subsection (a), whenever there exists a lot created prior to 1953 containing one or more detached single family dwellings, the subdivision of the same upon the approval of a minor subdivision plat as required by section 15-78 shall not be regarded as resulting in an impermissible extension or enlargement of a nonconforming situation.

(Ord. No. 1996-62, § 1, 9-24-96; Ord. No. 2002-24, § 3, 3-26-02)

(a)

Minor repairs to and routine maintenance of property where nonconforming situations exist are permitted and encouraged. Major renovation, defined as work that is done over any period of time of less than five years with an estimated cumulative cost of more than 50 percent of the appraised valuation of the structure prior to damage and/or renovation, may be done only in accordance with a zoning permit issued pursuant to this section.

(b)

If a structure located on a lot where a nonconforming situation exists is damaged to an extent that the costs of repair or replacement would exceed 50 percent of the appraised valuation of the damaged structure, then the damaged structure may be repaired or replaced only in accordance with a zoning permit issued pursuant to this section. This subsection does not apply to structures used for single-family residential purposes, which structures may be reconstructed pursuant to a zoning permit just as they may be enlarged or replaced as provided in section 15-124(e).

(c)

For purposes of subsections (a) and (b):

(1)

The "cost" of renovation or repair or replacement shall mean the fair market value of the materials and services necessary to accomplish such renovation, repair, or replacement.

(2)

The "cost" of renovation or repair or replacement shall mean the total cost of all such intended work, and no person may seek to avoid the intent of subsections (a) or (b) by doing such work incrementally.

(3)

The "appraised valuation" shall mean either the appraised valuation for property tax purposes, updated as necessary by the increase in the consumer price index since the date of the last valuation, or the valuation determined by a professionally recognized property appraiser. It shall be the responsibility of the property owner appraised to supply the city with the valuation of the property. Said valuation shall include the necessary documentation to support the valuation.

(d)

The zoning administrator shall issue a permit authorized by this section if he finds that, in completing the renovation, repair or replacement work;

(1)

No violation of section 15-124 will occur; and

(2)

The permittee will comply to the extent reasonably possible with all provisions of this ordinance applicable to the existing use (except that the permittee shall not lose his right to continue a nonconforming use except for those reasons outlined in section 15-127). Compliance with a requirement of this article is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the nonconforming situation is maintained, or moving a substantial structure that is on a permanent foundation.

(Ord. No. 2013-239, § 3, 10-22-13)

(a)

A change in use of property that is sufficiently substantial to require a new zoning or special use permit in accordance with section 15-46 may not be made except in accordance with subsections (b) through (d). However, this requirement shall not apply if only a sign permit is needed.

(b)

If the intended change in use is to a principal use that is permissible in the district where the property is located, and all of the other requirements of this ordinance [appendix] applicable to that use can be complied with, permission to make the change must be obtained in the same manner as permission to make the initial use of a vacant lot. Once conformity with this ordinance [appendix] is achieved, the property may not revert to its nonconforming status.

(c)

If the intended change in use is to a principal use that is permissible in the district where the property is located, but all of the requirements of this ordinance [appendix] applicable to that use cannot reasonably be complied with, then the change is permissible if the zoning administrator issues a permit authorizing the change. This permit may be issued if the zoning administrator finds, in addition to any other findings that may be required by this ordinance [appendix], that;

(1)

The intended change will not result in a violation of section 15-124; and

(2)

All of the applicable requirements of this ordinance [appendix] that can reasonably be complied with will be complied with. Compliance with a requirement of this ordinance [appendix] is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the nonconforming situation is maintained, or moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible. And in no case may an applicant be given permission pursuant to this subsection to construct a building or add to an existing building if additional nonconformities would thereby be created.

(Ord. No. 2013-239, § 4, 10-22-13; Ord. No. 16-047, § 45, 9-13-16)

(a)

When a nonconforming use is discontinued for a continuous period of 180 days, the property involved may thereafter be used only for conforming purposes, except as detailed in subsection (f) of this section.

(b)

If the principal activity on property where a nonconforming situation other than a nonconforming use exists is discontinued for a continuous period of 180 days, then that property may thereafter be used only in conformity with all of the regulations applicable to the preexisting use, unless the entity with authority to issue a permit for the intended use (i.e., the board of adjustment) issues a permit to allow the property to be used for this purpose without correcting the nonconforming situations. This permit may be issued if the board of adjustment finds that eliminating a particular nonconformity is not reasonably possible (i.e., cannot be accomplished without adding additional land to the lot where the nonconforming situation is maintained or moving a substantial structure that is on a permanent foundation). The permit shall specify which nonconformities need not be corrected.

(c)

For purposes of determining whether a right to continue a nonconforming situation is lost pursuant to 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 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 a whole is continuously maintained. Likewise, if a nonconforming building remains on the market for rent or sale and fails to be rented within a 180-day period, the said nonconforming building shall be allowed to continue as a nonconformity so long as there is evidence of the owner's intention to actively rent or sell the said building.

(d)

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 thereafter.

(e)

When a structure or operation made nonconforming by this ordinance is vacant or discontinued at the effective date of this ordinance, the 180-day period for purposes of this section begins to run at the effective date of this ordinance.

_____

(f)

Notwithstanding the foregoing provisions outlined in this section, any residential dwelling on a lot of record located in an R-6 residential zoning district or which is in one of the city's National Register or locally designated historic districts shall be allowed to be used for residential purposes beyond the established 180-day discontinuance period, provided said residential dwelling substantially meets the minimum setback, lot coverage, and density requirements established below, and other applicable standards specified by this ordinance:

Note 1: Steps, stairways, and fire escapes may extend into side yards three feet.

Note 2: Off-street parking shall be provided only if said parking is available and accessible on the lot on which the said residential dwelling is situated. The availability and accessibility of said off-street parking shall be determined by the zoning administrator based upon a review of a detailed plot plan, submitted by the property owner, and containing property lines, property corners, building dimensions, and setbacks shown in feet and inches.

_____

It shall be the duty of the zoning administrator to determine "substantial" compliance with the minimum standards set forth above, along with other applicable standards specified by this ordinance. The determination of the zoning officer must be set forth in writing and must include an affirmative assertion by him that:

(1)

The continuance of the nonconforming residential dwelling will contribute to the preservation of the existing housing stock and not result in an increase in any nonconformity;

(2)

The continuance of the nonconforming residential dwelling will provide the occupants thereof with decent, safe, and sanitary housing; and

(3)

The continuance of the nonconforming residential dwelling will be in general conformity with the City of New Bern's objectives of providing affordable housing opportunities for its citizens and/or encouraging historic preservation.

(a)

All nonconforming projects on which construction was begun at least 180 days before the effective date of this ordinance as well as all nonconforming projects that are at least 25 percent completed in terms of the total expected cost of the project on the effective date of this ordinance may be completed in accordance with the terms of their permits, so long as these permits were validly issued and remain unrevoked and unexpired. If a development is designed to be completed in stages, this subsection shall apply only to the particular phase under construction.

(b)

Except as provided in subsection (a), all work on any nonconforming project shall cease on the effective date of this ordinance, and all permits previously issued for work on nonconforming projects shall be revoked as of that date. Thereafter, work on nonconforming projects may begin or may be continued only pursuant to a zoning, special use, or sign permit issued in accordance with this section by the individual or board authorized by this ordinance to issue permits for the type of development proposed. The permit-issuing authority shall issue such a permit if it finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changed his position in some substantial way in reasonable reliance on the land use law as it existed before the effective date of this ordinance and thereby would be unreasonably prejudiced if not allowed to complete his project as proposed. In considering whether these findings may be made, the permit-issuing authority shall be guided by the following, as well as other relevant considerations:

(1)

All expenditures made pursuant to a validly issued and unrevoked building, zoning, sign, or special use permit shall be considered as evidence of reasonable reliance on the land use law that existed before this ordinance became effective.

(2)

Except as provided in subsection (b)(1), no expenditures made more than 180 days before the effective date of this ordinance may be considered as evidence of reasonable reliance on the land use law that existed before this ordinance became effective. An expenditure is made at the time a party incurs a binding obligation to make that expenditure.

(3)

To the extent that expenditures are recoverable with a reasonable effort, a party shall not be considered prejudiced by having made those expenditures. For example, a party shall not be considered prejudiced by having made some expenditure to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old, for the expenditure can be recovered by a resale of the property.

(4)

To the extent that a nonconforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in the completion of a conforming project, a party shall not be considered prejudiced by having made such expenditures.

(5)

An expenditure shall be considered substantial if it is significant both in dollar amount and in terms of (i) the total estimated cost of the proposed project, and (ii) the ordinary business practices of the developer.

(6)

A person shall be considered to have acted in good faith if actual knowledge of a proposed change in the land use law affecting the proposed development site could not be attributed to him.

(7)

Even though a person had actual knowledge of a proposed change in the land use affecting a development site, the permit-issuing authority may still find that he acted in good faith if he did not proceed with his plans in a deliberate attempt to circumvent the effects of the proposed ordinance. The permit-issuing authority may find that the developer did not proceed in an attempt to undermine the proposed ordinance if it determines that (i) at the time the expenditures were made, either there was considerable doubt about whether any ordinance would ultimately be passed, or it was not clear that the proposed ordinance would prohibit the intended development, and (ii) the developer had legitimate business reasons for making expenditures.

(c)

The permit-issuing authority shall not consider any application for the permit authorized by subsection (b) that is submitted more than 60 days after the effective date of this ordinance. The permit-issuing authority may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one year.

(d)

The permit-issuing authority shall establish expedited procedures for hearing applications for permits under this section, so that construction work is not needlessly interrupted.

(e)

When it appears from the developer's plans or otherwise that the nonconforming project was intended to be or reasonably could be completed in stages, segments, or other discrete units, the permit-issuing authority shall not allow the nonconforming project to be constructed or completed in a fashion that is larger or more extensive than is necessary to ensure reasonable completion of the project.

(Ord. No. 16-047, § 46, 9-13-16)

(a)

Notwithstanding any other provision of this ordinance, a nonconforming sign that exceeds the height or size limitations of on-premises signs by more than ten percent or that is nonconforming in some other way shall, within three years following the effective date of this ordinance, or two years after notification, whichever is sooner, be altered to comply with the provisions of this ordinance (particularly on-premises signs) or be removed. If the nonconformity consists of too many freestanding signs or an excess of total sign area, the person responsible for the violation may determine which sign or signs need to be altered or removed by bringing the development into conformity with the provisions of on-premises signs.

(b)

No person may engage in any activity that causes an increase in the extent of nonconformity of a nonconforming sign. Without limiting the generality of the foregoing, no nonconforming sign may be enlarged or altered in such a manner as to aggravate the nonconforming condition. Nor may illumination be added to any nonconforming sign.

(c)

A nonconforming sign may not be moved or replaced except to bring the sign into complete conformity with this ordinance.

(d)

If a nonconforming sign is destroyed by natural causes, it may not thereafter be repaired, reconstructed, or replaced except in conformity with all the provisions of this ordinance, and the remnants of the former sign structure shall be cleared from the land. For purposes of this section, a nonconforming sign is "destroyed" if damaged to the extend that the cost of restoring the sign to its former stature, or replacing it with an equivalent sign, equals or exceeds 50 percent of its value as listed for tax purposes by the Craven County tax administrator.

(e)

The message of a nonconforming sign may be changed so long as this does not create new nonconformities (for example, by creating an off-premises sign under circumstances where such a sign would not be allowed).

(f)

Subject to the other provisions of this section, nonconforming signs may be repaired and renovated so long as the cost of such work within any 12-month period does not exceed the lesser of:

(1)

Its fair market value, or

(2)

Its most current tax value.

(g)

Within one year after the effective date of this ordinance, the zoning administrator shall make every reasonable effort to identify all the nonconforming signs within the city's planning jurisdiction. He shall then contact the person responsible for each such sign (as well as the owner of the property where the nonconforming sign is located, if different from the former) and inform such person (i) that the sign is nonconforming, (ii) how it is nonconforming, (iii) what must be done to correct it and by what date and (iv) the consequences of failure to make the necessary corrections. The zoning administrator shall keep complete records of all correspondence, communications, and other actions taken with respect to such nonconforming signs.

(Ord. No. 1996-69, § 1, 10-22-96; Ord. No. 2006-14, § 1, 4-25-06)