(1)

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 sections 2. through 5. of this article.

(2)

Nonconforming projects may be completed only in accordance with the provisions of section 6. of this article.

(3)

Certain nonconforming uses shall be discontinued in accordance with the provisions of sections 7. and 8. of this article.

(Ord. of 6-21-93(3), pt. I)

(1)

When a nonconforming lot can be used in conformity with all of the regulations (other than the area or width requirements) applicable to the district in which the lot is located, such a use may be made as of right. Otherwise, the nonconforming lot may be used only in accordance with authorization by the planning board, upon request of the property owner. The board shall authorize such use if it finds that: (a) the proposed use is one permitted by the regulations applicable to the district in which the property is located, and (b) the property can be developed as proposed without any significant negative impact on the surrounding property or the public health, safety, or welfare. In issuing the permit authorized by this paragraph, the board may allow deviations from applicable dimensional requirements (such as setback lines and yard size minimums) if it finds that no reasonable use of the property can be made without such deviations.

(2)

Whenever this ordinance creates a nonconforming lot and the owner of the nonconforming lot also owns land adjacent to it, and a portion of this other land can be combined with the nonconforming lot to create a conforming lot (without thereby creating other nonconformities), the owner of the nonconforming lot, or his successor in interest, may not take advantage of the provisions of paragraph (1) of this section.

(3)

Nothing in this section shall require the combining of an existing lot with adjacent land in order to meet the additional requirements of the watershed overlay district.

(Ord. of 6-21-93(2), pt. 5)

(1)

Except as specifically provided in this section, it shall be unlawful for any person to engage in any activity that causes an increase in the extent of nonconformity of a nonconforming situation.

(2)

Subject to paragraph (4) of this section, 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. However, subject to paragraph (6) of this section [section 6 of this article] (authorizing the completion of nonconforming projects in certain circumstances), a nonconforming use may not be extended to additional buildings or to land outside the original building.

(3)

Subject to paragraph (6) of this section [section 6 of this article] (authorizing the completion of nonconforming projects in certain circumstances), 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.

(4)

The volume, intensity, or frequency of use of 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.

(5)

Physical alteration of structures or the placement of new structures on open land are unlawful if they result in:

a.

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

b.

Greater nonconformity with respect to dimensional restrictions such as yard requirements, height limitations, or density requirements; or

c.

The enclosure of previously unenclosed areas, even though those areas were previously used in connection with the nonconforming activity. An area is unenclosed unless at least 75 percent of the perimeter of the area is marked by a permanently constructed wall or fence.

(6)

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 ten percent of the appraised value of the structure to be renovated (and not required by the partial or total destruction of a structure (see paragraph (8)), may be done pursuant to authorization by the planning board, upon request of the owner. The planning board shall grant such authorization if it finds that the work will not result in a violation of any other paragraphs of this section (particularly paragraph (5)) or make the property more incompatible with the surrounding neighborhood.

(7)

Notwithstanding paragraph (5), any structure used for single-family residential purposes and maintained as a nonconforming use may be replaced with a similar structure of a larger size, so long as the replacement does not create new nonconformities or increase the extent of existing nonconformities with respect to yard size and setback requirements. In particular, a mobile home may be replaced with a larger mobile home, and a singlewide mobile home may be replaced with a doublewide. This paragraph is subject to the limitations stated in section 5 on abandonment and discontinuance of nonconforming situations.

(8)

A structure that is nonconforming in any respect or a structure that is used in a nonconforming manner may be reconstructed or replaced if partially or totally destroyed, subject to the following restrictions:

a.

The total amount of space devoted to a nonconforming use may not be increased, except that a larger, single-family residential structure may be constructed in place of a smaller one and a larger mobile home intended for residential use may replace a smaller one.

b.

The reconstructed building may not be more nonconforming with respect to dimensional restrictions such as yard requirements, height limitations, or density requirements, and such dimensional nonconformities must be eliminated if that can reasonably be accomplished without unduly burdening the reconstruction process or limiting the right to continue the nonconforming use of such building.

c.

The reconstructed building may not enclose areas that were previously unenclosed, even though those areas were used in connection with the nonconforming activity. An area is unenclosed unless at least 75 percent or more of the perimeter of the area is marked by a permanently constructed wall or fence.

Except for single-family residential structures (including mobile homes), if the estimated cost of the reconstruction work exceeds ten percent of the appraised value of the structure, the work may be done only after authorization by the planning board, upon request of the owner. The board shall grant such authorization if it finds that the work will be done in accordance with this paragraph and that the reconstructed building will not make the property more incompatible with the surrounding property than it was before the destruction occurred.

(1)

A nonconforming use may be changed to a conforming use. Thereafter, the property may not revert to a nonconforming use.

(2)

A nonconforming use may be changed to another nonconforming use only if authorized by the planning board. The board shall grant such authorization if it finds that the proposed use will be more compatible with the surrounding neighborhood than the use in operation at the time the permit was applied for. If a nonconforming use is changed to any use other than a conforming use without authorization pursuant to this paragraph, that change shall constitute a discontinuance of the nonconforming use, with consequences as stated in section 5.

(3)

If a nonconforming use and a conforming use, or any combination of conforming and nonconforming uses, or any combination of nonconforming uses exist on one lot, the use made of the property may be changed substantially (except to a conforming use), only in accordance with authorization by the planning board, upon request of the owner. The board shall grant authorization if it finds that the proposed use will be more compatible with the surrounding neighborhood than the use or combination of uses in operation at the time the permit is applied for.

(1)

When a nonconforming use is discontinued for a consecutive period of 180 days, or discontinued for any period of time without a present intention to reinstate the nonconforming use, the property involved may thereafter be used only for conforming purposes, except as provided in paragraph (2) of this section.

(2)

The planning board may authorize a nonconforming use that has been discontinued for more than 180 consecutive days to be reinstated if it finds that the nonconforming use has been discontinued for less than two years, and the discontinuance resulted from factors that, for all practical purposes, were beyond the control of the person maintaining the nonconforming use.

(3)

If the principal activity on property where a nonconforming situation other than a nonconforming use exists is discontinued for a consecutive period of 180 days, or is 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 district in which the property is located, unless the planning board specifically authorizes the property to be used for a conforming purpose without correcting the nonconforming situation. The board shall authorize such use if it finds that (i) the nonconforming situation cannot be corrected without undue hardship or expense, and (ii) the nonconforming situation is of a minor nature that does not adversely affect the surrounding property or the general public to any significant extent.

(4)

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 or one space in a nonconforming mobile home park 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 or mobile home park 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. And so, if a mobile home is used as a nonconforming use on a residential lot where a conforming residential structure also is located, removal of that mobile home for 180 days terminates the right to replace it.

(5)

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

(1)

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 upon authorization by the planning board, at the request of the owner (except as provided in paragraph (2) of this section). The board shall grant such authorization 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 board shall be guided by the following:

a.

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

b.

Except as provided in subparagraph a. of this paragraph, no expenditures made more than 180 days before the effective date of this ordinance shall 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.

c.

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 expenditure to acquire a potential development site if the property obtained is just as valuable under the new classification as it was under the old, for the expenditure can be recovered by resale of the property.

d.

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.

e.

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.

f.

Even though a person had actual knowledge of a proposed change in the land use law affecting a development site, the board may still find that he acted in a good faith if he did not proceed with his plans in a deliberate attempt to circumvent the effects of the proposed ordinance. The board 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.

(2)

The requirements of paragraph (1) of this section shall not apply to a nonconforming project if the zoning enforcement officer certifies that actual construction of that project began at least 180 days before the effective date of this ordinance and that the work is at least 75 percent complete at the effective date of this ordinance.

(3)

The planning board shall not consider any request for authorization to complete work on nonconforming projects pursuant to paragraph (1) of this section that is submitted more than 60 days after the effective date of this ordinance, unless it waives this requirement for good cause shown.

(4)

If the planning board authorizes work on a nonconforming project pursuant to paragraph (1) of this section, it may attach such reasonable conditions to the authorization as it finds necessary to reduce the extent to which the nonconforming project is incompatible with the surrounding neighborhood. In particular, the board may require that work on the nonconforming project be continuously maintained, if possible, and that the project be completed as expeditiously as possible.

(5)

The zoning enforcement officer shall send copies of this section to the owners (and developers, if different from the owners) of all properties in regard to which permits have been issued for nonconforming projects or in regard to which a nonconforming project is otherwise known to be under construction. This notice shall be sent by registered mail not less than 15 days before the effective date of this ordinance.

(6)

The planning board shall establish expedited procedures for hearing owner requests and granting authorization under this section. These requests shall be heard, whenever possible, before the effective date of this ordinance, so that construction work is not needlessly interrupted.

(7)

When it appears from the developer's plans or otherwise that the nonconforming project was intended to be or reasonably would be completed in stages, segments, or other discreet units, the planning board 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.

Notwithstanding the provisions of sections 1—6 of this article, all nonconforming junkyards located in any zoning district other than M-2 heavy industrial shall be discontinued not later than 60 months from the date of written notice to do so from the zoning enforcement officer. The zoning enforcement officer shall diligently classify such nonconforming junkyards and notify the owner or operator (or the record property owner if the owner or operator is not known to the zoning enforcement officer by reasonable diligence) in writing by first class mail or by personal delivery. Such notice shall identify the junkyard location and shall specify the date by which the junkyard shall by discontinued which date shall be 60 months from the date of the written notice. The zoning enforcement officer shall maintain a certification record of such notices and such certificate shall be deemed to be conclusive in the absence of fraud.

For the purposes of this section, discontinuance shall mean the removal from the property of all elements of the use which would classify it as a junkyard as defined in this ordinance. Failure to discontinue a junkyard within the time specified in the notice shall constitute a violation of this ordinance and each day any single violation continues shall constitute a separate violation.

(Ord. of 6-21-1993, pt. I)

(a)

Any adult oriented business that fails to comply with the use and locational requirements of this ordinance but which was lawfully operating before the effective date of the ordinance or any amendment thereto, shall not be deemed to be in violation of this ordinance but shall be a nonconforming use. Provided, any such non-conforming business which ceases active operation for a period of 30 consecutive days regardless of the purpose or reason shall then be subject to all the requirements of this ordinance.

(b)

Any adult oriented business lawfully operating as of the effective date of this ordinance or lawfully established under the provisions of this ordinance, is not rendered in violation of this ordinance by the location, subsequent to the establishment of the adult oriented business, of a church, public or private elementary or secondary school, child day care or nursery school, public park, residential district, residential use, or an establishment having a North Carolina ABC license within 1,200 feet of the adult oriented business but shall be a nonconforming use. Provided, any such nonconforming adult oriented business which ceases active operation for a period of 30 consecutive days regardless of the purpose or reason shall then be subject to all the requirements of this ordinance.

(c)

Any adult oriented business that is rendered a non-conforming use as a result of the conditions described in (a) or (b) above shall either cease to operate or meet all of the requirements of this ordinance for the use no later than 60 months from the date that the adult oriented business becomes a nonconforming use.

(Ord. of 6-21-93(3), pt II; Ord. of 4-18-94(2), pt. 4)