Upon the effective date of this Unified Development Ordinance, and any amendment thereto, preexisting structures or lots of record and existing and lawful uses of any building or land which do not meet the minimum requirements of this Unified Development Ordinance for the district in which they are located or which would be prohibited as new development in the district in which they are located shall be considered as nonconforming. It is the intent of this article to permit these nonconforming uses to continue until they are removed, discontinued, or destroyed, but not to encourage such continued use, and to prohibit the expansion of any nonconformance.

(Ord. of 10-9-2018)

Any lot of record or structure existing at the time of the adoption of this Unified Development Ordinance, which has dimensions which do not meet the requirements of this Unified Development Ordinance, shall be subject to the following exceptions and modifications:

9.2.1. Lot Not Meeting Minimum Lot Size Requirements. Except as provided in Section 2.10, vacant, unimproved lots of a nonconforming square footage which have been previously approved may be built upon if such improvements are otherwise in compliance with all current setbacks, access and environmental health regulations.

9.2.2. Setback Requirements Modified. The footprint of structures which are within six inches (0.5 ft) of the required side setback distance and front or rear setback distance shall be considered compliant with the requirements of this Ordinance if the de-minimis encroachment was done in error demonstrated by conflicting surveys. Regardless of any allowances any expansion of an existing principal structure cannot be outside the allowable setback.

9.2.3. Enlargement of Nonconforming Structures. Any building which is nonconforming solely because of its encroachment in a required yard area may be improved in any lawful manner that does not further encroach in that yard.

(Ord. of 10-9-2018; Amend. of 4-11-2023(5))

A nonconforming use is a use of land, buildings, or structures that was lawfully established prior to the effective date of this UDO, or any amendment thereto, but which does not conform to the regulations for the zoning classification in which it is located. Nonconforming uses may be continued subject to the limitations noted herein. For purposes of determining whether a right to continue a nonconforming situation is lost pursuant to this section, all 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 manufactured home park for 365 days shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building or manufactured home park as a whole 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.

9.3.1. Expansions. No nonconforming use shall be extended, expanded, enlarged, or moved to occupy a different or greater area of land, buildings, or structures than was occupied by such use at the time it became nonconforming; provided, however, a nonconforming use may be extended throughout any parts of a building which were specifically designed and arranged for such use at the time it became nonconforming.

9.3.2. No building or structure devoted to a nonconforming use shall be enlarged, extended, reconstructed, moved, or structurally altered unless such building or structure is thereafter devoted to a conforming use. 9.3.3, 9.3.4. Reserved.

9.3.5. Where a nonconforming use ceases for 365 consecutive days, then the use shall not be re-established or resumed, and any subsequent use of the land or structure shall conform to the requirements of this UDO. Vacancy and non-use of the building or structure, regardless of the intent of the owner, shall constitute discontinuance under this provision.

9.3.6. When a structure or operation made nonconforming by this UDO is vacated or discontinued, the 365-day period for purposes of this section begins to run on the day the property is vacated or the use discontinued.

9.3.7. Where a building or structure devoted to a nonconforming use is damaged to the extent of 75 percent or more of its current appraised valuation as determined by the current Brunswick County real property tax assessment, such building or structure, if restored, shall thereafter be devoted to conforming uses.

(Ord. of 10-9-2018; Amend. of 4-11-2023(5))

9.4.1. Minor repairs to and routine maintenance of property where nonconforming situations exist are permitted and encouraged. Major renovation, i.e., work estimated to cost more than 75 percent of the appraised valuation as determined by the current county real property tax assessment of the structure to be renovated may be done only in accordance with a zoning permit issued pursuant to this section.

9.4.2. 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 not exceed 75 percent of the Brunswick County tax value or the appraised valuation by a North Carolina licensed appraiser 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 subsection 9.3.

9.4.3. The UDO Administrator shall issue a permit authorized by this section if he finds that, in completing the renovation, repair or replacement work:

9.4.3.1. No violation of Section 9.3 will occur; and

9.4.3.2. The permittee will comply to the extent reasonably possible with all provisions of this UDO permit conditions applicable to the existing use, (except that the permittee shall not lose his right to continue a nonconforming use).

9.4.4. Residential structures removed from a V-zone due to FIRM map revisions that are damaged greater than as described in Section 9.4.2 above may be restored to their original footprint and height, but may not be enlarged or expanded and must meet all other local, state, and federal regulations.

9.4.5. Multi-family structures damaged as described in Section 9.4.2 above may be restored to their original footprint and density, but may not be enlarged or expanded. Multi-family structures completely destroyed may be rebuilt to their original footprint and density, but may not be expanded or enlarged.

(Ord. of 10-9-2018)

Editor's note— An amendment of April 11, 2023(5), repealed § 9.5, which pertained to change in use of property where a nonconforming situation exists and derived from Ord. of October 9, 2018.

9.6.1. If the principal activity on property where a nonconforming situation other than a nonconforming use exists is (i) discontinued for a consecutive period of 365 days, or (ii) discontinued for any period of time without a present intention of resuming that activity, 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 issues a permit to allow the property to be used for this purpose without correcting the nonconforming situations. The zoning permit may be issued if the permit-issuing authority 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.

9.6.2. 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 365 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. But 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.

9.6.3. When a structure or operation made nonconforming by this Ordinance is vacant or discontinued at the effective date of this Ordinance, the 365-day period for purposes of this section begins to run on the effective date of this Ordinance.

9.7.1. All nonconforming projects on which construction was begun at least 365 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.

9.7.2. Except as provided in subsection 9.7.1, and except to the extent that a developer has a vested right as set forth in Section 4.7, 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 unless the developer requests an appeal to the Board of Adjustment to overturn the UDO Administrator's decision. An appeal shall stay any revocation. The UDO Administrator shall issue such a permit if he/she finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changes his position in some substantial way in reasonable reliance on the Ordinance 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 UDO Administrator shall be guided by the following, as well as other relevant considerations:

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

9.7.2.2. Except as provided in subdivision 9.7.2.1, no expenditures made more than 365 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.

9.7.2.3. 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 expenditures to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old.

9.7.2.4. 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.

9.7.2.5. A person shall be considered to have acted in good faith if the person (i) had actual knowledge of a proposed change in the Ordinance affecting the proposed development site which could not be attributed to him, or (ii) should have known of the proposed change in the Ordinance.

9.7.2.6. Even though a person had actual knowledge of a proposed change in the land use law affecting a development site, the UDO Administrator may still find that he acted in good faith if he did not proceed with his plans in a deliberate attempt to circumvent the requirements of the proposed Ordinance. The UDO Administrator may find that the developer did not proceed in an attempt to avoid requirements of the proposed Ordinance if he/she determines that (i) at the time the expenditures were made it was not clear that the proposed Ordinance would prohibit the intended development, and (ii) the developer had legitimate business reasons for making expenditures.

9.7.2.7. In deciding whether a permit should be issued under this section, the UDO Administrator shall not be limited to either denying a permit altogether or issuing a permit to complete the project (or phases, sections, or stages thereof) as originally proposed or approved. Upon proper submission of plans by the applicant, the UDO Administrator may also issue a permit authorizing a development that is less nonconforming than the project as originally proposed or approved but that still does not comply with all the provisions of the Ordinance making the project nonconforming. The UDO Administrator shall not allow the nonconforming project to be constructed or completed in a fashion that is larger or more extensive than is necessary to allow the developer to recoup and obtain a reasonable rate of return on the expenditures he has made in connection with that nonconforming project.

9.7.3. When it appears from the developer's plans or otherwise that a project was intended to be or reasonably could be completed in phases, stages, segments, or other discrete units, the developer shall be allowed to complete only those phases or segments with respect to which the developer can make the showing required under subsection 9.7.2 and obtain permits. In addition to the matters and subject to the guidelines set forth in subdivisions 9.7.2.1 through 9.7.2.7, the UDO Administrator shall, in determining whether a developer would be unreasonably prejudiced if not allowed to complete phases or segments of a nonconforming project, consider the following in addition to other relevant factors:

9.7.3.1. Whether any plans prepared or approved regarding incompleted phases constitute conceptual plans only or construction drawings based upon detailed surveying, architectural, or engineering work.

9.7.3.2. Whether any improvements, such as streets or utilities, have been installed in phases not yet completed.

9.7.3.3. Whether utilities and other facilities installed in completed phases have been constructed in such a manner or location or on such a scale, in anticipation of connection to or interrelationship with approved but incompleted phases, that the investment in such utilities or other facilities cannot be recouped if such approved but incompleted phases are constructed in conformity with existing regulations.

9.7.3.4. The UDO Administrator shall not consider any application for the permit authorized by subsection 9.7.2 that is submitted more than 60 days after the effective date of this Ordinance. The UDO Administrator may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one year.

(Ord. of 10-9-2018; Amend. of 6-8-2021(10))

Whenever an amendment to this Ordinance becomes effective after an application for a development permit is submitted but before the permit is issued, and the effect of the amendment is to render the proposed development nonconforming in some respect, then the applicant may choose to proceed with the development under the previous requirements or under the amended requirements.

(Ord. of 10-9-2018)

9.9.1. Subject to the remaining restrictions of this section, nonconforming signs that were otherwise lawful on the effective date of this article may be continued.

9.9.2. 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.

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

9.9.4. 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 an extent that the cost of repairing the sign to its former stature or replacing it with an equivalent sign equals or exceeds the value (tax value if listed for tax purposes) of the sign damaged.

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

9.9.6. Subject to other provisions of this section, nonconforming signs may be repaired and renovated so long as the cost of such work does not exceed within any 12-month period 75 percent of the value (tax value if listed for tax purposes) of such sign or appraised tax value of a replacement.

9.9.7. Any sign that does not conform with the regulations set forth in section 10.25.2 shall be brought into conformance with section 10.25.2 within six months after the date of the notice of nonconformity.

(Ord. of 10-9-2018; Amend. of 11-12-2019(1))