Whiteville City Zoning Code
NONCONFORMING SITUATIONS
§ 155.200 CONTINUATION OF NONCONFORMING SITUATIONS AND COMPLETION OF NONCONFORMING PROJECTS.
§ 155.201 NONCONFORMING LOTS.
(A) 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 a special use permit issued by the Board of Adjustment. The Board shall issue a permit if it finds that the proposed use is one permitted by the regulations applicable to the district in which the property is located, and 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 division (A), 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 the deviations.
(B) Whenever this chapter 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 or her successor in interest, may not take advantage of the provisions of division (A) above.
(2009 Code, § 155.171) (Ord. passed 10-27-1992; Ord. 2021-Z-19, passed 6-22-2021)
§ 155.202 EXTENSION OR ENLARGEMENT OF NONCONFORMING SITUATIONS.
(A) 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.
(B) Subject to division (D) below, a nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this chapter, was manifestly designed or arranged to accommodate the use. However, a nonconforming use may not be extended to additional buildings or to land outside the original building.
(C) Subject to § 155.202, 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 (that is, a quarry) may be expanded to the boundaries of the lot where the use was established at the time it became nonconforming, if 10% or more of the earth products had already been removed at the effective date of this chapter.
(D) 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 divisions of this section occur.
(E) Physical alteration of structures or the placement of new structures on open land are unlawful if they result in:
(1) An increase in the total amount of space devoted to a nonconforming use;
(2) Greater nonconformity with respect to dimensional restrictions such as yard requirements, height limitations or density requirements; or
(3) 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% of the perimeter of the area is marked by a permanently constructed wall or fence.
(F) Minor repairs to and routine maintenance of property where nonconforming situations exist are permitted and encouraged. Major renovation, that is, work estimated to cost more than 25% of the assessed tax value of the structure to be renovated (and not required by the partial or total destruction of a structure (see division (H) below) may be done pursuant to a permit issued by the Board of Adjustment. The Board of Adjustment shall issue a permit if it finds that the work will not result in a violation of any other divisions of this section (particularly division (E) above) or make the property more incompatible with the surrounding neighborhood.
(G) Notwithstanding division (E) above, 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, increase the extent of existing nonconformities with respect to yard size and setback requirements or make the property more incompatible with the surrounding neighborhood. In particular, a manufactured home may be replaced with a larger manufactured home, and a “single-wide” manufactured home may be replaced with a “double-wide”. This division (G) is subject to the limitations stated in § 155.204 on discontinuance of nonconforming situations.
(H) 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:
(1) 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 manufactured home intended for residential use may replace a smaller one;
(2) The reconstructed building may not be more nonconforming with respect to dimensional restrictions such as yard requirements, height limitations or density requirements, and the 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 the building; and
(3) 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% or more of the perimeter of the area is marked by a permanently constructed wall or fence.
(I) Except for single-family residential structures (including manufactured homes), if the estimated cost of the reconstruction work exceeds 25% of the assessed tax value of the structure, the work may be done only after issuance of a permit by the Board of Adjustment. The Board shall issue the permit if it finds that the work will be done in accordance with this division (I) and that the reconstructed building will not make the property more incompatible with the surrounding property than it was before the destruction occurred.
(2009 Code, § 155.172) (Ord. passed 10-27-1992; Ord. 2021-Z-19, passed 6-22-2021) Penalty, see § 155.999
§ 155.203 CHANGE IN KIND OF NONCONFORMING USE.
(A) A nonconforming use may be changed to a conforming use. Thereafter, the property may not revert to a nonconforming use.
(B) A nonconforming use may be changed to another nonconforming use only in accordance with the use permit issued by the Board of Adjustment. The Board shall issue a permit 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.
(2009 Code, § 155.173) (Ord. passed 10-27-1992)
§ 155.204 DISCONTINUANCE OF NONCONFORMING SITUATIONS.
(A) 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 division (B) below.
(B) The Board of Adjustment may issue a use permit to allow 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 one year, and the discontinuance resulted from factors that, for all practical purposes, were beyond the control of the person maintaining the nonconforming use.
(C) 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 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 Board of Adjustment issues a permit to allow the property to be used (for a conforming purpose) without correcting the nonconforming situation. The Board shall issue a permit if it finds that the nonconforming situation cannot be corrected without undue hardship or expense, and the nonconforming situation is of a minor nature that does not adversely affect the surrounding property or the general public to any significant extent.
(D) 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 manufactured 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 manufactured 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 manufactured home is used as a nonconforming use on a residential lot where a conforming residential structure also is located, removal of that manufactured home for 180 days terminates the right to replace it.
(E) When a structure or operation made nonconforming by this chapter is vacant or discontinued at the effective date of this chapter, the 180-day period for purposes of this section begins to run at the effective date of this chapter.
(2009 Code, § 155.174) (Ord. passed 10-27-1992)