The purpose of this section is to regulate and limit the continued existence of uses and structures established prior to the effective date of this Ordinance (or any subsequent amendment) that do not conform to this Ordinance. Any nonconformity created by a change in the classification of property or the text of these regulations shall also be regulated by the provisions of this section. The provisions of this section are intended to bring about eventual elimination and/or lessen their impact upon surrounding conforming uses to preserve the integrity of the area. Any expansion or further development of a nonconformity shall comply with the requirements of this Ordinance.

The following table summarizes the primary requirements that shall be met when there are changes to existing development and/or to nonconforming structures or uses. A ✓ indicates that compliance with all applicable standards is required. Site changes which would initiate improvements shall be counted cumulatively from the effective date of the ordinance from which this section was derived.

(a) For expanded portion only; (b) non-residential structures only; (c) non-residential and multi-family uses only; (d) 25% threshold shall apply to heated space. For unheated spaces, improvements shall be required at 50% expansion.

(Ord. No. O-04-2018, § 4, 4-9-2018)

A.

Except as provided in subsections B and C below, a nonconforming vacant lot may be developed for any of the uses permitted by these regulations in the District in which it is located, provided that the use meets all applicable yard and setback requirements for the District in which the lot is located.

B.

A nonconforming vacant lot shall not be developed if it can be combined with an adjoining lot owned by the same person on or after the effective date of these regulations in order to create a single lot. For the purposes of this section, "adjoining" shall be deemed to mean the sharing of one or more common lot lines and access to both lots can be provided by the same street without crossing that street.

C.

A nonconforming lot may be developed if, at the effective date of this Ordinance the lot is nonconforming, the lot is located in (i) a subdivision that had received preliminary plat approval; or (ii) a subdivision in which had received final plat approval.

A.

Nonconforming uses of land or structures, and nonconforming structures that contain nonconforming uses may continue only in accordance with the provisions of this section, but this section shall only apply to the extent these or such nonconformities fully and clearly meet the definition of "nonconforming use" in Chapter 19 of this Ordinance.

B.

Non-Residential Uses: An existing nonconforming non-residential use may be enlarged or altered. Any such enlargement or alteration shall be in compliance with all yard requirements and other regulations of such structures as required in the specific District. Any occupation of additional lands beyond the boundaries of the lot(s) on which the nonconforming use is located is prohibited.

C.

Residential Uses: An existing nonconforming residential use may be enlarged or altered. Any such enlargement or alteration shall be in compliance with all yard requirements and other regulations of such structures as required in the specific District.

D.

Once a nonconforming use has been changed to a conforming use, it shall not revert or be used for any nonconforming use, except as provided for in Section 13.11.

E.

If a nonconforming use is abandoned for 180 consecutive calendar days or more, the use shall not be allowed to be re-established, except in conformance with this chapter. All new uses subsequently established shall be conforming.

F.

Maintenance and repairs necessary to keep a structure housing a nonconforming use in sound condition shall be permitted.

G.

Should a nonconforming structure be destroyed by any means to an extent of more than 65 percent of its appraised value at time of destruction, it shall not be reconstructed except in conformity with the provisions of this Ordinance. The appraised value is the value recorded by the Wake County Tax Assessor's Office.

A.

A nonconforming manufactured home use as a principal residential structure may only be replaced in accordance with the design criteria found in Chapter 5 of this Ordinance.

B.

A manufactured home may continue to be placed or replaced within a nonconforming manufactured home subdivision on previously platted lots or previously approved spaces, as well as make any necessary improvements to the subdivision infrastructure, but shall not be permitted to expand the area or number of units contained within the boundary of the subdivision.

A.

A nonconforming accessory structure may be expanded only if the expansion does not increase the non-conforming condition of the structure.

B.

No nonconforming residential accessory use or accessory structure shall continue after the principal use or structure is terminated by abandonment, damage, or destruction unless such accessory use or structure is made to conform to the standards for the zoning district in which it is located. No non-conforming accessory use or structure shall become or replace any terminated principal non-conforming use or structure.

A.

Signs in existence as of July 27, 2010 may be considered non-conforming and will not be made to comply with the standards found in Chapter 12 unless the following conditions in this section are found to apply. Similarly signs on lots brought into the Town's extraterritorial jurisdiction will not be made to comply provided such signs are in existence on the date the property becomes part of the ETJ and the following conditions in this section are not applicable. These signs may be restored to their original condition and function if no enhancements as to the illumination or animation are added that were not originally part of the sign and that no part of the sign prohibits motorist/pedestrian visibility and/or safety concerns.

B.

Non-conforming signs requiring repair exceeding 100 percent of the original cost or which have been rendered unsafe may only be repaired or replaced in conformity with this Ordinance.

C.

Nonconforming signs classified as abandoned shall not be allowed to remain. (See Chapter 12, Section 12.11.E, Abandoned Signs for more information.)

D.

Signs requiring repair as mentioned in 13.7B shall be brought into conformity with this section within six months of the adoption of this Ordinance.

E.

Nothing in this Chapter shall prevent the ordinary maintenance and repair of a nonconforming sign or replacement of a broken part of a nonconforming sign. The nonconforming condition of a sign shall not be increased or cause a previously conforming sign to become nonconforming.

F.

If there is an expansion of the heated square footage of an existing business, or a change in use to an existing building (except multi-tenant buildings), and there were one or more on-premise non-conforming signs which advertised the former or current business or use, any new signs and all new sign faces for the new use or business must meet all sign requirements for the district.

A.

If there is an expansion of the parking lot by 12 or more spaces, or an expansion to the heated square footage of an existing use by more than 25 percent of the total floor area, the lot shall comply with street yard, planting yard, and other landscaping requirements, per the provisions of Section 8.2.

B.

Nonconforming Lighting

1.

Any nonconforming lighting fixture lawfully in place or approved by the Town prior to the adoption of this Ordinance shall be exempt from these requirements. At the time that a non-conforming fixture, which was installed prior to the adoption of this Ordinance, is replaced, moved, upgraded, or otherwise changed, the fixture must be replaced by either:

a.

The same type of fixture that emits an equal or less amount of lumens as the original fixture; allows the trespassing of an equal or less amount of light onto neighboring properties; and restricts uplighting to an equal or less amount than the original fixture; or

b.

A fixture that is in compliance with this Ordinance.

2.

Routine maintenance, including changing the lamp, ballast, starter, photo control, lens, and other required components, is permitted for all existing fixtures.

For an existing non-residential or multi-family use, if there is an expansion of heated space greater than 25 percent of the total square footage of the building, or an expansion of unheated space (enclosed or open-sided) greater than 50 percent of the total square footage of the building, then the lot shall fully comply with the roadway improvement requirements of Chapter 9, including right-of-way dedication and installation of physical improvements. Expansions of less than 2500 square feet shall be exempt from the Town's requirement for physical improvements to roadway infrastructure, but shall adhere to right-of-way dedication requirements.

Notwithstanding the preceding language in section 13.9, if there is an expansion to the heated square footage of an existing non-residential or multifamily use and/or to the paved areas which increases the total impervious area more than 40 percent, the lot shall fully comply with the sidewalk requirements of Chapter 9, Section 9.3.C, Sidewalks. This requirement for sidewalks shall not apply in the OSC, RA and RR zoning districts.

(Ord. No. O-04-2018, § 5, 4-9-2018)

A.

Any site specific plan (including but not limited to master plans, preliminary plats, final plats, conditional district plans) for the development of property and/or construction of a building which has received final approval by the Town of Wendell for development and/or construction, but does not conform to this Ordinance, may be developed and/or constructed in accordance with the Ordinance, rules, and regulations, including any conditions imposed upon approval. Any plan approved prior to the adoption of this Ordinance, but which conforms to its provisions, shall be administered, interpreted, amended and implemented in accordance with the provisions of this Ordinance. For additional information, please refer to Chapter 15, Administration.

B.

A property owner with an approved site specific plan as identified above may elect to develop such property and/or construct such building in accordance with the terms and provisions of this Ordinance and the rules and regulations upon which the plan was approved. The property owner shall notify the Administrator assigned to approve such plan. A property owner shall be notified in writing of additional required approvals or modifications which may be necessary in order for the plan to conform to the Ordinance.

C.

Any amendment or modification to an approved site specific plan, which would have required approval pursuant to the Ordinance, the rule or regulation by which the plan was originally approved, shall be reviewed and considered in accordance with the terms and provisions of this Ordinance as if it were an amendment or modification to a plan originally approved under this Ordinance.

D.

If an approved, non-conforming development has not shown continuous significant progress within 24 months of preliminary plat approval, it must be redesigned to meet current UDO standards, not withstanding any statutory requirements.

E.

This section does not prohibit the exercise of any vested right established by common law, ordinance or statute.

(Ord. No. O-07-2021, § 2, 2-22-2021)

A.

The Board of Commissioners shall hear and decide appeals and modifications of nonconformities under this Chapter from any land owner provided the appeal does not involve the replacement of one nonconformity with another nonconformity.

B.

The Board of Commissioners may only grant a change for a nonconforming use or replacement of a nonconforming structure which has been destroyed after having first held a public hearing and having determined that:

1.

Said change will be more suitable and appropriate for the lot(s) on which it is located than the existing situation; and,

2.

The proposed change will have a less harmful effect than the existing situation on the properties surrounding the lot(s) in question; and,

3.

The decision to grant the change will be in harmony with the general purpose and intent of this Ordinance and will not be injurious to the neighborhood or otherwise be detrimental to the public welfare.

C.

The Board of Commissioners, in granting such changes, may prescribe appropriate conditions and safeguards in conformity with this Ordinance. Violation of such conditions and safeguards when made a part of the terms upon which the change was granted, shall be deemed a violation of this Ordinance and shall be subject to enforcement provisions as prescribed per Chapter 18, Violations and Penalties.