(a)

Within the districts established by this chapter or amendments that may later be adopted, there exist lots, structures, uses of land and structures, and characteristics of use which were lawful before the ordinance from which this chapter is derived was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this chapter or future amendments. It is the intent of this article to permit these nonconformities to continue until they are removed, but not to encourage their survival. It is further the intent of this article that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

(b)

To avoid undue hardship, nothing in this article shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of the ordinance from which this chapter is derived and upon which actual building construction has been carried on diligently. Actual construction is hereby defined to include the placing of construction materials in a permanent position and fastening in a permanent manner. (See section 36-448.) Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation, demolition, or removal shall be deemed to be actual construction, provided that work shall be carried on diligently.

(Code 1988, § 11-5.01)

(a)

Nonconforming lots of record.

(1)

Development and sale of certain nonconforming lots without recombination. In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory building may be erected on any currently nonconforming single lot which met all legal requirements at the time of its creation and recording in the Dare County public registry if:

a.

The lot is not under the same ownership as any adjacent lot;

b.

The lot meets or exceeds the lot area requirements for the district and is located adjacent to a single conforming lot under the same ownership on which is located an existing single-family dwelling;

c.

The lot is one of three or less adjacent nonconforming lots under the ownership of related siblings on September 6, 2019; or

d.

The lot is located adjacent to land under the same ownership on which is located an existing single-family dwelling, and the adjacent land is made up of:

1.

No more than two lots all of which are nonconforming; or

2.

A single conforming lot not adjacent to any other land under the same ownership that was created after January 1, 2015 due to a recombination of two previously nonconforming lots.

If a currently nonconforming single lot meets the requirements of subsection (a)(1)a, b, c or d then the lot may be sold without being recombined with the remaining land if recombination would have been required by subsection (a)(2) below. All applicable dimensional requirements other than lot area and lot width shall be met for development or redevelopment of such a lot except that a lot having a lot width of 50 feet or less may use a side yard setback of 12 feet.

(2)

Recombination required. If any of the following situations apply, all adjacent lots under the same ownership shall be recombined into: (i) a single lot which may or may not meet the minimum requirements for the district in which such lots are located; or (ii) multiple lots which all meet the minimum requirements for the district in which such lots are located:

a.

Development is proposed upon land which includes one or more nonconforming lots adjacent to one or more other lots under the same ownership;

b.

Demolition or redevelopment exceeding 50 percent of an existing structure's value is proposed and any portion of the existing structure or associated use is currently or has been within the previous seven years located upon or occurring on two or more lots under the same ownership, as measured from the time of application;

c.

Development is proposed of a new structure or use to be located on two or more lots under the same ownership;

d.

Prior to the sale or transfer of land when any portion of the land being sold or transferred was a parcel or part of a parcel of land upon which an existing structure or associated use is currently or has been within the previous seven years located upon or occurring on two or more lots under the same ownership, as measured from the time of application; or

e.

Prior to the sale or transfer of land including a nonconforming lot or lots adjacent to one or more other lots under the same ownership;

A plat prepared by a North Carolina licensed surveyor showing the recombination shall be shall be recorded in the Dare County public registry, and a copy of the recorded plat shall be provided to the town prior to the issuance of a zoning or building permit for development or redevelopment upon any of the newly created lots. Lots created by a recombination required by this section shall be deemed to equal or exceed the standards of the town under chapter 30, and are exempt from the subdivision process under chapter 30.

(3)

For purposes of this subsection (a), the term "same ownership" shall be construed broadly to effectuate the reduction of nonconforming lots within the town. Land and lots under the same ownership shall include, but not be limited to, any of the following or any combination of the following:

a.

A lot is owned, in whole or in part, by an individual and another lot is owned by the same individual or by an affiliate of the same individual; and/or,

b.

A lot is owned, in whole or in part, by a legal entity and another lot is owned by the same legal entity or by an affiliate of the same legal entity.

(4)

For purposes of this subsection (a), the following definitions apply:

a.

An "affiliate" of an owner shall mean:

1.

In the case of an individual owner, a family member of the owner, or a legal entity controlled by the owner or a family member of the owner.

2.

In the case of a legal entity owner, an individual who controls the legal entity or their family member, another legal entity controlled by the owner or controlled by a family member of any individual who controls the owner.

b.

"Controlled" or "controls" shall mean the power, by ownership, operation of law or contract, whether exercised or not, directly or indirectly, actually or effectively, to operate, supervise, or manage a legal entity, or to appoint or elect the management of the legal entity, or to otherwise direct the operation, supervision or management of the legal entity.

c.

"Family member" of an owner shall mean the owner's spouse, lineal descendants, siblings and parents whether related by blood or marriage.

(b)

Nonconforming uses of land. Where at the time of passage of this article lawful use of land exists which would not be permitted by the regulations imposed by this chapter, and where such use involves no individual structure with a replacement cost exceeding $1,000.00, the use may be continued so long as it remains otherwise lawful, provided:

(1)

No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this article.

(2)

No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of this article.

(3)

If any such nonconforming use of land ceases for any reason for a period of more than 30 days, any subsequent use of such land shall conform to the regulations specified by this chapter for the district in which such land is located.

(4)

No additional structures not conforming to the requirements of this article shall be erected in connection with such nonconforming use of land.

(c)

Nonconforming structures. Where a lawful structure exists at the effective date of adoption or amendment of this chapter that could not be built under the terms of this article by reason of restriction on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, such structure may be continued so long as it remains lawful, subject to the following provisions:

(1)

No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity. In the case of a structure on pilings with a nonconforming side, front or rear yard setback, enclosing the space below any portion of the structure does not increase its nonconformity unless the footprint of the structure within the nonconforming setback is increased by such enclosure. In the case of a residential primary structure with a nonconforming side yard setback which was compliant with the side yard setback in effect at the time of construction of the nonconforming portion of the structure, the enlargement or alteration of the structure in a manner which violates the current side yard setback does not increase the structure's nonconformity unless the enlargement or alteration also:

a.

Extends into the side yard beyond the existing nonconforming portion of the structure; or

b.

Violates the side yard setback in effect at the time the nonconforming portion of the structure was initially constructed.

(2)

Should such nonconforming structure or nonconforming portion of a structure be destroyed by any means to an extent of more than 50 percent of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this article. An exception is a nonconforming structure (or nonconforming portion of a structure) which is destroyed due to fire, flood, windstorm, or natural disaster, to an extent that the structure is declared unusable or to the extent that greater than 50 percent of its replacement cost at the time of destruction may be reconstructed on the same footprint existing at the time of its destruction, except as provided in article XVI of this chapter, pertaining to hurricane and storm reconstruction and redevelopment and general use standards for ocean hazard areas. If the footprint cannot be verified by an on-site inspection, then an "as-built" survey containing the seal of a state-licensed land surveyor made prior to destruction must be provided in order to utilize the benefits of this provision.

(3)

Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved.

(4)

Any such nonconforming structure located on a lot adjacent to the Atlantic Ocean or sound waters may be moved on the same lot provided that such movement does not increase the nonconformity of the structure in any way.

(5)

Residential accessory structures existing as of January 1, 2017 which were otherwise lawful and duly permitted at the time of their construction or modification and which are nonconforming due solely to the inclusion of living space within the accessory structure shall be considered legally nonconforming under this article. Such accessory structures may be modified in conformance with this chapter and the nonconforming living space within them may continue so long as the nonconformity is not expanded.

(d)

Nonconforming uses of buildings or of buildings and premises in combination. If lawful use involving buildings with a replacement cost of $1,000.00 or more, or of building and premises in combination, exists at the effective date of adoption or amendment of the ordinance from which this chapter is derived, that would not be allowed in the district under the terms of this article, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

(1)

No existing structure devoted to use not permitted by this article in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located.

(2)

Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this article, but no such use shall be extended to occupy any land outside such building.

(3)

If no nonconforming structural alterations are made, any nonconforming structure or use of structures may be changed to any conforming use, with the approval of the town council.

(4)

Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district, and the nonconforming use may not thereafter be resumed.

(5)

When a nonconforming use of a structure, or structure and premises in combination, is discontinued or abandoned for ten consecutive months (except when government action impedes access to the premises), the structure, or structure and premises in combination, shall not thereafter be used except in conformity with the regulations of the district in which it is located.

(6)

Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. Destruction for the purpose of this subsection is defined as damage to an extent of more than 50 percent of the replacement cost at time of destruction.

(7)

No mobile home or trailer existing as a nonconforming use may be returned or replaced after removal.

(e)

Repairs and maintenance.

(1)

In any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, to an extent not exceeding ten percent of the current replacement cost of the nonconforming structure or nonconforming portion of the structure, as the case may be, provided that the cubic content existing when it became nonconforming shall not be increased.

(2)

If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by the building inspector to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the district in which it is located.

(3)

Nothing in this article shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.

(f)

Uses under special use provisions not nonconforming. Any use which is permitted as a special use in a district under the terms of this article shall not be deemed a nonconforming use in such district, but shall without further action be considered a conforming use.

(Code 1988, § 11-5.02; Ord. No. 05-01-01, art. III, 3-1-2005; Ord. No. 05-09-01, art. V, 11-1-2005; Ord. No. 2008-12-01, art. III, 2-3-2009; Ord. No. 2017-07-04, art. III, pt. I, 7-11-2017; Ord. No. 2018-06-03, art. III, pt. I, 9-5-2018; Ord. No. 2019-09-01, art. III, pt. I, 9-10-2019; Ord. No. 2022-08-01, art. III, pt. I, 8-2-2022)