Wrightsville Beach City Zoning Code

ARTICLE 155

8 NONCONFORMING SITUATIONS

Section 155.8.1 Minimum Single Lot Requirements.

Where the owner of a lot upon adoption of this Ordinance, or his or her successor in title thereto, does not own sufficient land to enable him or her to conform to the dimensional requirements of this Ordinance, the lot may be used as a building site for a single-family residence in a district in which residences are permitted or for a duplex in R-2 Districts provided the single-family residence or duplex shall conform to the minimum housing code and to the following setback requirements: 15-foot setback for the front yard street access frontage and seven and one-half feet for all other yards (see Section 155.2.10 for open space requirements); and minimum required lot area for a duplex in the R-2 District shall be 4,000 square feet. Setbacks for landlocked waterfront lots shall conform to the following setback requirements: 15 feet for the front lot line and seven and one-half feet for all other yards.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.2 Minimum Multi-Lot Requirements.

Where there exist two or more adjoining and vacant lots considered either as a single lot or several lots under single ownership with dimensions smaller than that required in the zoning district in which they are located, the owner shall be permitted to join as one or more lots by submitting a request and plat of the proposed combination to the UDO Administrator and recording the change in the office of the Register of Deeds of the county provided these lots or the subdivision of these lots was recorded by the county Register of Deeds prior to the date of adoption of this Ordinance; that the proposed permitted uses shall conform to the minimum side and front yard requirements set out in this Ordinance for the district in which these uses are located except that the minimum side yard requirement shall be 15% of the property width but in no case to be less than seven and one-half feet.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.3 Extension or Enlargement of Nonconforming Situations Prohibited.

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.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.4 Elevation of Nonconforming Structures in Order to Comply with Flood Ordinances.

An extension or enlargement of a nonconforming situation is permitted if it involves only raising a structure which, prior to being raised, was in violation of the Federal Flood Insurance Program as implemented through Article 155.11, Part I. Provided, that no increase in the extent of nonconformity of the nonconforming situation shall occur when the structure is raised other than those activities absolutely essential to accomplish bringing the structure into compliance with the Federal Flood Insurance Program as implemented through Article 155.11, Part I.

(Ord. 1695, passed 11-8-12; Am. Ord. 1756, passed 2-11-16; Am. Ord. 1838, passed 3-10-22)

Section 155.8.5 Change in Nonconforming Situation.

Where a nonconforming situation exists, the equipment or process may be changed if these or similar changes amount only to changes in degree of activity rather than changes in kind of activity and no violations of other provisions of this Ordinance occur.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.6 Discontinuance or Abandonment.

If operation of a nonconforming use is discontinued for a period of 365 consecutive days, the property involved shall thereafter be used only for a conforming use. If a nonconforming use is maintained on one lot in conjunction with a conforming use, discontinuance of the nonconforming use for 365 consecutive days shall terminate the right to maintain it thereafter.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.7 Compliance with Flood Ordinance.

Any extension or enlargement of a nonconforming situation permitted under the provisions of this section may only be carried out if such extension or enlargement complies with all requirements of the Federal Flood Insurance Program as implemented through Article 155.11, Part I.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.8 Repairs and Maintenance.

Repairs and normal maintenance required to keep nonconforming structures in a safe condition are permitted, provided that no alterations may be made except those allowed by this Ordinance or required by law or ordinance.

This section shall not be construed to prevent strengthening or repair of a structure in compliance with the order of a public official whose duties include protecting the public safety.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.9 Expansion or Enlargement.

A single-family residence or a duplex that is maintained as a nonconforming structure may be enlarged or expanded so long as the enlargement or expansion complies with the provisions of this Ordinance to include Section 155.8.9 and the following provisions:

(A) A single-family residence or duplex may be expanded or enlarged to an extent that does not exceed 50% of the measured area of the structure. For the purposes of calculating the permitted expansion or enlargement, all expansion or enlargement permitted under the provisions of this section within the five-year period preceding the date on which any work to enlarge or expand the dwelling is started shall be included within the proposed expansion.

(B) For purposes of calculating the measured area, the deck areas shall be excluded.

(D) Such expansion or enlargement shall not cause an expansion or encroachment into an existing or required setback.

(E) Such expansion or enlargement shall not exceed the floor area ratio (see Section 155.7.17).

(F) The expansion or enlargement must maintain the following structural elements as they existed prior to the expansion or enlargement:

(1) The existing exterior wall height. For the purposes of this section, exterior wall height shall be measured from the top of the subfloor to the top plate of the exterior wall;

(2) The existing exterior walls except as needed to change/add windows and doors, to perform lateral additions or to correct code violations; and

(3) The original structural floor system except as needed to add new ingress and egress or to correct code violations.

(G) If the expansion or enlargement is only into a side yard area, then upon completion the combination of the two side yard setbacks shall be equal to or exceed the total of the two side yard setbacks required under this Ordinance. This provision is subject to subsection (K) below.

(H) If the enlargement or expansion is only into a front or rear yard area, then upon completion the combination of the front yard and rear yard setbacks shall be equal to or exceed the total of the front and rear yard setbacks required under this Ordinance. This provision is subject to subsection (K) below.

(I) If the expansion or enlargement is into one or more side yard areas and into the front or rear yard areas, then upon completion the combination of the two side yard setbacks shall be equal to or exceed the total of the two side yard setbacks required under this Ordinance and the combination of the front yard and rear yard setbacks shall be equal to or exceed the total of the front and rear yard setbacks required under this Ordinance. This provision is subject to subsection (K) below.

(J) Will comply in all respects with the off-street parking requirements contained in Article 155.9, Part I.

(K) If a nonconforming structure is located ten feet or less from an adjoining structure (either on the same or an adjoining lot), then the nonconforming structure may not be enlarged or expanded in any manner whatsoever.

(L) An existing structure that is considered an accessory structure to a single family structure located in a R-1 Residential District zoning district and used solely for living, sleeping and sanitation purposes and contains no provisions of any kind for eating or cooking may be reconstructed if the following conditions are satisfied:

(1) The existing accessory structure was built prior to September 14, 2017.

(2) There is only one accessory structure on the lot on which the single family structure is located.

(3) The reconstructed accessory structure will be connected to the single family structure with an open or covered deck.

(4) The reconstructed accessory structure cannot be enlarged in any manner whatsoever except as provided herein and with the additional exception of an open or covered deck that must be constructed to attach the single family structure to the accessory structure.

(5) The reconstructed accessory structure will meet all current setbacks.

(6) The reconstructed accessory structure will meet all Flood Ordinances.

(7) The combined areas of the single-family structure and the reconstructed accessory structure shall not exceed the permitted floor area ratio.

(M) Exception for compliance with regulatory flood protection elevation requirements. Notwithstanding the foregoing requirements in subsections (A) through (L) above, a nonconforming single-family residence or duplex may be expanded or enlarged for purposes of complying with regulatory flood protection elevation requirements as defined in this chapter, provided all of the following criteria are satisfied:

(1) The single-family residence or duplex must be located upon a "through lot" as defined in this chapter;

(2) The subject through lot shall be no greater than 5,000 square feet in area;

(3) Such expansion or enlargement must bring the single-family residence or duplex into full compliance with regulatory flood protection elevation requirements;

(4) Such expansion or enlargement shall be permitted only where the resulting separation between adjacent structures is no less than ten feet;

(5) Once the structure is expanded or enlarged, it must comply with the floor area ratio as set forth in Section 155.7.17; and

(6) The extent of any building setback nonconformity shall not be increased, subject to the following exception: One new staircase required for access to the elevated single-family residence or duplex may be constructed within and encroach into any applicable setback provided the new staircase is located no closer than five feet to the property line.

(Ord. 1695, passed 11-8-12; Am. Ord. 1769, passed 9-14-17; Am. Ord. 1786, passed 5-9-19; Am. Ord. 1838, passed 3-10-22)

Section 155.8.10 Expansion or Enlargement.

A residential structure having three or more residential units and a housing development as defined in this Ordinance that is maintained as a nonconforming structure may be enlarged or expanded to increase its square footage by an amount no larger than 1% of the measured area of such structure so long as the enlargement or expansion complies with the provisions of this paragraph. The provisions of this paragraph shall apply only to nonconforming structures and a structure which is maintained as a nonconforming use may not be enlarged or expanded in any way under the provisions of this paragraph. The expansion or enlargement shall comply with the following provisions:

(A) For purposes of calculating the permitted expansion or enlargement, all expansion or enlargement permitted under the provisions of this section within the five-year period preceding the date on which any work to enlarge or expand the dwelling is started shall be included with the proposed expansion.

(B) In calculating the measured area of the building, deck areas, garage areas, and parking areas shall be excluded.

(C) The expansion or enlargement shall be limited to nonresidential areas only. No expansion of a residential area or a deck or porch associated therewith shall be permitted.

(D) Such expansion or enlargement does not create new nonconformities.

(E) Such expansion or enlargement does not create an expansion or encroachment into an existing or required setback.

(F) If the expansion or enlargement is only into a side yard area of the existing structure, then upon completion the combination of the two side yard setbacks shall be equal to or exceed the total of the two side yard setbacks required under this Ordinance. This provision is subject to subsection (I) below.

(G) If the enlargement or expansion is only into a front or rear yard area, then upon completion the combination of the front yard and rear yard setbacks shall be equal to or exceed the total of the front and rear yard setbacks required under this Ordinance. This provision is subject to subsection (I) below.

(H) If the expansion or enlargement is into one or more side yard areas and into the front or rear yard areas, then upon completion the combination of the two side yard setbacks shall be equal to or exceed the total of the two side yard setbacks required under this Ordinance and the combination of front yard and rear yard setbacks shall be equal to or exceed the total of the front and rear yard setbacks required under this Ordinance. This provision is subject to subsection (I) below.

(I) Notwithstanding the preceding provisions of this section, if a nonconforming structure is located ten feet or less from an adjoining structure (either on the same or adjoining lot), then the nonconforming structure may not be enlarged or expanded in any manner whatsoever.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.11 Expansion or Enlargement.

For purposes of this section, an "oceanfront fishing pier" shall mean a pier constructed wholly or in part east of the property line as established by Chapter 246 of the Public Laws of North Carolina, Session 1939, as amended.

An oceanfront fishing pier that is maintained as a nonconforming use or nonconforming structure may be expanded or enlarged in accordance with the provisions of this section as follows:

(A) Expansion or enlargement shall only be permitted if the oceanfront fishing pier provides public access for fishing or other recreational purposes whether on a commercial, public, or non-profit basis.

(B) Any pier house associated with an oceanfront fishing pier shall not be expanded, except as follows:

(1) An expansion of the roof overhang shall be permitted if the area does not exceed 400 square feet. Such area shall not be enclosed in any manner.

(2) An uncovered and unenclosed deck not to exceed 225 square feet in size may be added to the northern side of the pier house to be used solely for the installation of a freezer, heating and air conditioning equipment and any required screening.

(3) A portion of a deck existing on the date of adoption of this Ordinance, which date is February 14, 2013, not exceeding 198 square feet and located at the northwest corner of the pier house may be enclosed with siding matching the siding of the pier house not to exceed 12 feet and 10 inches in height. Such enclosed area may be used solely for the purposes set forth in subsection (2) above and for installation of a manufactured and enclosed trash cooler unit. Except for the top of the manufactured trash cooler unit, this area may not have a roof or cover of any kind.

(4) Enclosure of an area not exceeding 56 square feet at the southeast corner of the pier house which is covered by an existing roof of the date of adoption of this Ordinance, which date is February 14, 2013. Such enclosed space may only be used as a vestibule and entrance area.

(5) Construction of an access ramp on the south side of the pier house not to exceed 249 square feet in area. Such ramp must be constructed so as to provide access to the pier house from ramps in existence on the date of adoption of this Ordinance, which date is February 14, 2013. No new access ramp may be constructed that would permit access to the pier house except from an existing ramp as described in the preceding sentence.

(C) Use of any pier house associated with an oceanfront fishing pier shall be limited to restaurants and retail services.

(D) The oceanfront pier located east of the pier house and excluding the pier house may be expanded a total of 2,600 square feet (the "permitted expansion area") subject to the following restrictions and provisions:

(1) Except as otherwise permitted in this section, the permitted expansion area may only be used for open air seated dining service associated with the restaurant operated in the pier house and access to the oceanfront fishing pier. The use of the permitted expansion area for open air seated dining service shall be limited to the hours of operation of the restaurant located within the pier house.

(2) The permitted expansion area used for open air seated dining service must not extend more than 120 feet seaward of the eastern wall of the pier house. For purposes of this Ordinance, the "eastern wall of the pier house" shall mean the primary wall of the eastern side of the pier house at the location of such wall on the date of adoption of this Ordinance which date is March 10, 2022. This area may be covered by removable fabric awnings, the highest point of which shall not exceed a height of 12 feet above the deck of the pier. Tables in this area may utilize table umbrellas. Except as otherwise provided herein, no other roof or covering of any kind shall be permitted in this expansion area. Removable fabric awnings may be extended another 25 feet beyond the permitted expansion area (the "25 foot service area") to provide cover for service facilities related to the open air seated dining service. For purposes of this section, "service facilities" shall mean and be limited to temporary facilities for serving persons seated at the tables within the permitted expansion area and shall include mobile underbar cooler, beer station cabinet, beer tap, freezer, mug chiller, wine dispenser, carbonated drink dispenser, soda gun dispenser, blender station, dump sink, ice station, underbar speed rail, POS station, and glass storage or other facilities as are required by the New Hanover County Health Department. No permanently affixed service facilities of any kind (except as provided below) shall be permitted within this 25 foot service area and all such service facilities shall be designed to be removable and shall be removed during the period November 1st through March 31st. No tables for customers shall be permitted within this 25 foot service area. The use of permitted service facilities shall be limited to serving persons who seated at the tables within the permitted expansion area. Under no circumstances shall such service facilities be used as a bar for customers of the fishing pier or to serve anyone except customers seated at the tables within the permitted expansion area. All use of the service facilities shall cease at 10:00 p.m. Permanent utilities may be installed in the 25 foot service area to include power, water, and drain lines and two 42" high walls 20' in length running parallel to the eastern wall of the pier house.

(3) The width of any permitted expansion of the oceanfront fishing pier shall be limited as follows:

(a) Any permitted expansion within the area that is located 30 feet seaward of the eastern wall of the pier house shall be limited to the width of the existing pier house.

(b) Any permitted expansion located beyond the 30 feet area referenced in subparagraph (a) above, shall be limited so that the maximum width of the oceanfront pier does not exceed 32 feet.

(4) Existing oceanfront piers which choose not to expand consistent with authority granted in this subsection (D) may provide open air seating. The use of any portion of the pier for open air seating shall be subject to any limitations on open air seating set forth in this subsection (D).

(E) In addition, the fishing pier may be extended eastwardly for a maximum distance of 1,000 feet from the eastern wall of the pier house provided that any expansion to the fishing pier beyond 145 feet from the eastern wall of the pier house shall not exceed 20 feet in width.

(F) No expansion or enlargement shall be permitted unless the owner first acquires a special use permit in accordance with Section 155.4.5 of this UDO.

(G) All other applicable provisions of the UDO shall be complied with in conjunction with such expansion or enlargement to include compliance with all off-street parking requirements.

(Ord. 1695, passed 11-8-12; Am. Ord. 1699, passed 2-14-13; Am. Ord. 1713, passed 6-13-13; Am. Ord. 1838, passed 3-10-22)

Section 155.8.12 Expansion or Enlargement.

Except as provided in this Part VI, no nonconforming use shall be enlarged or expanded to occupy a greater area of land or floor area than was occupied on the date construction of such use was completed in accordance with the then existing ordinances and no additional accessory use shall be established on the site of a nonconforming use.

(A) For purposes of this section, a structure that is "used solely for commercial purposes" or a "commercial structure" shall mean a structure located in the zoning districts specified above that is conforming as to use and is used only for commercial purposes and no part of which is used for residential purposes. Any structure that does not meet this definition shall not be permitted to expand or enlarge as provided herein.

(B) A commercial structure may be expanded or enlarged to an extent that does not exceed 50% of the commercial measured area of the structure as defined in this Section 155.8.12. For purposes of calculating the permitted expansion or enlargement, all expansion or enlargement permitted under the provisions of this section within the five-year period preceding the date on which any work to enlarge or expand the structure is started shall be included.

(D) Such expansion or enlargement shall not create new nonconformities.

(E) Such expansion or enlargement shall not encroach into an existing or required setback.

(F) The expansion or enlargement must maintain the following structural elements as they existed prior to the expansion or enlargement:

(1) The existing wall height. For the purposes of this section, existing wall height shall be measured from the top of the subfloor to the top plate of the exterior wall;

(2) The existing exterior walls except as needed to change/add windows and doors, to perform lateral additions or to correct code violations; and

(3) The original structural floor system except as needed to add new ingress and egress or to correct code violations.

(G) Upon completion of the expansion or enlargement, all requirements for off-street parking contained in Article 155.9, Part I must be satisfied.

(H) If the nonconforming structure is located ten feet or less from an adjoining structure (either on the same or on an adjoining lot) then the nonconforming structure may be not be enlarged or expanded in any manner whatsoever.

(I) For purposes of this section "commercial measured area" shall mean the following: all of the interior floor area of a building which is surrounded by exterior walls and/or attic with or without a laid floor with structural headroom of five feet or greater. Where a floor lies below a ceiling height of greater than 15 feet (as in a vaulted ceiling), then that area of the floor under the vertical height of greater than 15 feet shall be counted twice. One access corridor in the attic of a structure may be excluded from the commercial measured area so long as it:

(1) Runs parallel to the center roof ridge;

(2) Is no wider than three feet; and

(3) Does not exceed five feet in height.

(Ord. 1735, passed 11-13-14; Am. Ord. 1784, passed 4-11-19; Am. Ord. 1838, passed 3-10-22)

Section 155.8.13 Expansion or Enlargement.

Except as provided by this paragraph, no nonconforming use shall be enlarged or expanded to occupy a greater area of land or floor area than was occupied on the effective date of this Ordinance and no additional accessory use shall be established on the site of a nonconforming use.

(A) A single-family residence or duplex maintained as a nonconforming use may be expanded or enlarged by the addition of an uncovered deck subject to the following requirements:

(1) The construction of such uncovered deck must comply in all respects with all other provisions of this Ordinance and in addition, such uncovered deck must meet the 15-foot setback requirements imposed on structures built on conforming lots.

(2) Such deck must be constructed so as to be pervious and no impervious surface shall be permitted below such deck unless impervious surface is existing underneath the area of proposed deck expansion permitted by this section.

(3) The total area of all decks, to include any new deck permitted by this section and all other existing decks, shall not exceed the deck area permitted by Section 155.7.17.

(B) Notwithstanding the preceding provisions of this section, if a nonconforming use is located ten feet or less from an adjoining structure (either on the same or an adjoining lot), then the nonconforming use may not be enlarged or expanded in any manner whatsoever.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.13.1 Enlargement or Expansion of a Dry Stack Boat Storage Facility.

A dry stack boat storage facility (a "dry stack facility") that is maintained as a permitted nonconforming use may be enlarged or expanded so long as such enlargement or expansion complies with all applicable provisions of the Code and the following provisions:

(A) The dry stack facility must be located in a C-3 Commercial District III zoning district.

(B) Such enlargement or expansion shall only be permitted when upon completion of the enlargement or expansion the number of boat storage slips in the dry stack facility is reduced below the number of such slips that existed before the expansion or enlargement took place.

(C) Such enlargement or expansion shall only be permitted when upon completion of the enlargement or expansion the foot print of the portion of the dry stack facility that is enlarged or expanded does not exceed 2,400 square feet.

(D) The permitted enlargement or expansion as described in this section shall be approved by the Director of Planning and Parks. The application for such enlargement or expansion shall be submitted in writing to the office of the Director of Planning and Parks and shall include a site plan that meets the requirements of subsection 155.5.3.1.

(E) Such enlargement or expansion shall comply with all other applicable provisions of the Code to include, but not be limited to, setbacks and building height.

(F) An enlargement or expansion permitted by this section shall be exempt from the requirement of obtaining a special use permit or an amendment to an existing special use permit.

(Ord. 1784, passed 4-11-19; Am. Ord. 1838, passed 3-10-22)

Section 155.8.14 Relocation of Nonconforming Use.

No nonconforming use may be moved, in whole or in part, to any other portion of such parcel nor to another lot unless the use will be in conformance with the use regulations of the district into which it is moved.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.15 Change in Use.

A nonconforming use may not be changed to another use unless the proposed use is permitted in the district in which the land is located.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.16 Reconstruction Damage Less Than 50%.

Any nonconforming building or structure or any building or structure containing a nonconforming use or any building or structure constituting a nonconforming situation, which has been damaged by fire, acts of God, and other causes beyond the control of the owner, may be reconstructed and used as before subject to the conditions and restrictions of this Ordinance and further subject to a determination by the UDO Administrator that the cost to repair such damage or destruction is less than 50% of the assessed tax value of the structure as listed by the New Hanover County Tax Office or that value (as defined in Exhibit A) as determined by a certified appraisal. For purposes of this section, "value" shall mean the value of the building before the damage or destruction occurred. In addition, the property owner may be required to provide other information as required by the UDO Administrator to substantiate the cost of such repairs, reconstruction, improvements, or addition.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.17 Reconstruction Damage More Than 50%.

If such building or structure as described in the preceding paragraph is damaged to an extent equal to or greater than 50% of the value as specified in the preceding paragraph, then such building may only be reconstructed if it is brought into full compliance with Article 155.11, Part I (Flood Damage Prevention Ordinance); Article 155.9, Part I (Off-Street Parking and Off-Street Loading Requirements); and the setback requirements contained in Section 155.6.5. In the event the number of units in the building that existed before the damage cannot be rebuilt because of an inability to meet the requirements of this paragraph, a building containing a lesser number of units (but more than are permitted under the zoning applicable to the property) may be rebuilt so long as all applicable requirements of the UDO, to include this paragraph, are met. For example, a damaged quadraplex in a zoning district permitting only single-family units cannot be rebuilt because the current parking requirements cannot be met. However, a duplex can be built on the subject property that will meet the requirements of the UDO and this section. In this situation, a duplex may be constructed in this zoning district.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.18 Increase in Extent of Nonconformity.

In no event shall the extent of nonconformity of a building or structure repaired under the provisions of this Ordinance be increased or enlarged in any manner except as permitted herein.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

Section 155.8.19 Time for Carrying Out Reconstruction.

Any owner wishing to repair a nonconforming building or structure under the provisions of this Ordinance must acquire a building permit for such repairs within 18 months of the date of the damage or destruction. The UDO Administrator shall have the authority to extend such 18 month period for an additional 90 days upon receipt of a written request to do so prior to the expiration of the initial 18 month period. In the event the owner fails to meet these time restrictions, the right to continue the nonconforming situation, use, building or structure shall terminate and the property shall thereafter be used only in a conforming manner.