§ 3.7. Nonconforming Situations

The purpose of this Section is to regulate the continued existence of uses and structures established prior to the effective date of these regulations or any amendment subsequent thereto that does not conform to these regulations. Given the fact that the implementation of this Ordinance and previous zoning ordinances has in the past and will in the future result in the creation of a number of nonconformities, some of which are viable uses which do not produce substantial negative impacts, this Ordinance allows the Administrator to approve the expansion and or replacement of nonconforming uses and structures in certain situations as detailed herein.

3.7.1

General Intent and Exceptions.

A.

Nonconforming uses, which are uses of structures or land existing at the time of the adoption of this Ordinance, but which uses do not comply with the provisions of this Ordinance, are affirmed by this Ordinance to be incompatible with permitted uses in the various districts. The intent of this Article is to permit the continued use of a structure, or portion thereof, or of the use of land legally existing prior to the effective date of this Ordinance, until such uses are removed, but not to encourage their survival. Such nonconforming uses shall not be used for expansion or extension or changed in any manner, except as provided for in this Article.

B.

None of the restrictions in this Article shall apply to a structure which is nonconforming only with respect to lot area, width, yard requirements, lot coverage or provisions for off-street parking or loading or type of water supply and wastewater disposal systems utilized, except that no structure shall be altered, enlarged or reconstructed so as to violate, or further violate, the requirements of Article 6, Section 6.1, Dimensional Requirements, or Article 6, Section 6.3, Off-Street Parking and Loading.

C.

Upon the adoption of this Ordinance, all existing horse barns within the Town of Mint Hill which do not conform to the regulations as set forth in Subsection 6.9.7 (Accessory Uses), are hereby declared to be preexisting, nonconforming legal uses for all purposes under this Ordinance.

D.

Upon the adoption of the R (Residential) Zoning District with its variable development standards, any existing improved or unimproved lot of record, at the date of initiation of the R Zoning District, that cannot comply with the water supply and wastewater treatment requirements because of its lot size, shall not be classified nonconforming as described and applied in this Article.

3.7.2

Nonconforming Uses of Structures.

A.

A nonconforming use conducted in a structure may be expanded and enlarged into an additional area of the structure then in existence and designed for such nonconforming use.

B.

No structural changes shall be made in any structure occupied by a nonconforming use except as follows:

1.

Those structural changes ordered by an authorized official in order to ensure the safety of the structure.

2.

Maintenance and repairs to keep a structure in sound condition, including, but not limited to, repair or replacement of a structure's roof, siding, windows, HVAC and flooring.

C.

A nonconforming use of a structure may be changed to another nonconforming use so long as that other use is permitted in the same zoning district or in a district of a higher classification, provided the new nonconforming use complies with other applicable regulations.

D.

For the purpose of this Article, the zoning districts, with the highest classification indicated first, are as follows: R, O-A, B-G, B-D, B-P and I-G.

E.

When a nonconforming use of a structure has been changed to a conforming use, it shall not thereafter be used for any nonconforming use.

3.7.3

Nonconforming Uses of Land.

A.

Nonconforming uses of land, which may include structures as incidental and accessory to the use of the land such as, but not limited to, storage yards for various materials or areas used for recreation purposes, shall not be used for other nonconforming purposes, once the nonconforming use has been abandoned.

B.

A conforming use of land shall not be expanded to use more land than was occupied by the use when it became nonconforming.

C.

A nonconforming use of land shall not be changed to any other nonconforming use.

3.7.4

Abandonment.

A.

A nonconforming use which has been abandoned shall not thereafter be reestablished. Such structure or land shall be used only for such purpose as permitted in the applicable zoning districts and in full compliance with this Ordinance.

B.

The term "abandonment" as used herein shall mean the voluntary discontinuance of a use with the intent not to reestablish such use. Any of the following shall constitute clear, competent and legally sufficient evidence of abandonment or intent to abandon unless disproved by an owner/occupier:

1.

Any affirmative act taken indicating such intent.

2.

Premises have been devoted to another use.

3.

When the characteristic equipment and furnishings of the nonconforming use have been removed from the premises and have not been replaced by the same or similar equipment for a period of one year.

4.

Failure to renew the license required for the nonconforming use.

5.

Failure to take all the necessary steps with reasonable speed to resume the nonconforming use, including the failure to advertise the property for sale or for lease for the continued use as a nonconforming use.

6.

In the case of a building, or portion thereof, discontinuance of the nonconforming use for a period of one year.

7.

In the case of land, discontinuance of the nonconforming use for a period of ninety (90) days.

3.7.5

Removal of Structure. When nonconforming status applies to both land and the structure thereon, the removal of such structure shall eliminate the nonconforming status of the land and a nonconforming structure shall not be rebuilt, or the use of a conforming structure for a nonconforming use shall not be permitted.

3.7.6

Reconstruction of Damaged Nonconforming Structures.

A.

A nonconforming structure damaged by fire, explosion or other catastrophe may be rebuilt, subject to the following provisions:

1.

Such construction, reconstruction or repair shall be undertaken within one year of the catastrophe.

2.

Such construction shall not extend further into any previously deficient front, rear or side yard or exceed the lot coverage of the previous structure.

3.7.7

Existing Lots.

A.

A lot approved by (i) the Planning Board of the Town of Mint Hill on a Final Plat or on a Preliminary Plat and where, in reliance upon such preliminary approval, substantial improvements have been made upon the ground prior to the effective date of this Ordinance, or (ii) a lot approved by the Charlotte-Mecklenburg Planning Commission on a Final Plat or on a Preliminary Plat and where, in reliance on such preliminary approval, substantial improvements have been made prior to being annexed into the Town, or (iii) a lot recorded in the office of the Register of Deeds of Mecklenburg County, prior to July 1, 1972, and which lot did not receive approval as described in (i) or (ii) above and which does not comply with the dimensional requirements for the applicable district in which such lot is located, as provided for in Article 6, Section 6.1, of this Ordinance, may be used for any use provided for in the applicable districts, subject to the following:

1.

For the purpose of placement of a principal structure on lots described in Subsection 3.7.7(A)(1) or (2), the minimum yard requirements which were applicable to such lots at the time such lots received approval from the planning authority which granted approval shall be observed. All other structures proposed on such lots shall meet all requirements of this Ordinance. Lots described in Subsection 3.7.7(A)(3) shall meet all requirements of this Ordinance for the district in which such lot is located for the placement of any structure proposed on such lot.

2.

Any lot used for duplex or multifamily purposes shall comply with all requirements of Section 6.1 for the applicable district.

B.

When two (2) or more adjoining lots, as described in Subsection 3.7.7(A)(3), are in one ownership after the adoption of this Ordinance and each lot is deficient in width and area for the district in which the lots are located, prior to the issuance of a Building Permit, such lots shall be combined to create one or more lots that will meet the requirements for lot width and lot area for the applicable district with the following exception:

1.

When such combination of lots would create a single lot having a width and area one and one-half (1½) times or more than required by this Ordinance, such combined lot may be divided into two (2) lots of equal width and area, subject to the requirements of the this Ordinance.

3.7.8

Existing Mobile Homes and Trailers. Mobile homes located on existing individual lots or within existing mobile home parks and are occupied for residential purposes and which were so used prior to March 13, 1997, are hereby classified as legal, nonconforming uses; however, mobile homes located within the R(MH) Overlay Districts are considered conforming. Such nonconforming uses are permitted to continue and may be improved as follows:

A.

Maintenance and repairs necessary to keep such nonconforming mobile homes in a safe and sound condition are permitted.

B.

Such nonconforming mobile homes may be improved with additions such as rooms, porches, decks or similar features, provided any addition of enclosed living space to any mobile home except those located within a nonconforming mobile home park shall be subject to the following requirements as well as pertinent provisions of this Ordinance:

1.

The tongue shall be removed from the mobile home.

2.

The entire mobile home, including the addition, shall be underpinned on all sides with masonry.

3.

No additional dwelling units result from such addition.

C.

Mobile Home Replacement Permits will be issued to owners of existing nonconforming mobile homes which are not in mobile home parks to remove older mobile homes from the property and replace with an upgraded mobile home provided as follows:

1.

The requirements of Subsection 3.7.8(B) are met.

2.

The mobile home shall meet the current building codes for mobile homes as set forth by HUD standards.

3.

The mobile home shall be set up in accordance with the standards set by the North Carolina Department of Insurance, including tie-down standards.

4.

A permanent access of either masonry, brick or pressure treated wood or a deck of pressure treated wood shall be installed leading into each door.

D.

Mobile Home Replacement Permits will be issued to owners of nonconforming mobile homes in existing mobile home parks to remove current mobile home and replace with another mobile home as follows:

1.

The requirements of Subsections 3.7.8(C)(2) and (3) are met.

2.

The mobile home is constructed after June 15, 1976.

3.

The mobile home is provided with continuous underpinning from the bottom of the walls to the ground made of materials specifically for manufactured housing, unpierced except for required ventilation and an access door.

4.

An access of either masonry, brick or pressure treated wood or a deck of pressure treated wood or a handicapped ramp shall be installed leading into each door.

E.

All Mobile Home Replacement Permit applications shall be accompanied by documentation indicating make and model of existing mobile home and new mobile home. The time in which the replacement shall be put into place shall not exceed one hundred eighty (180) days. Permits will be approved by the Administrator.

3.7.9

Nonconforming Signs.

A.

Advertising, Business or Identification Signs. Advertising, business or identification signs that no longer conform with Article 6, Section 6.5, after adoption of this Ordinance, shall be allowed to continue provided as follows:

1.

Maintenance to nonconforming signs shall be limited to painting and repair of the existing sign. Replacement of sign faces or support structures or changes in material of which a component part of the sign is constructed is prohibited.

2.

Changes in name or logo are prohibited.

3.

Once a nonconforming sign is removed or taken down, it shall not be replaced with another sign unless in conformance with this Ordinance.

4.

Signs that are nonconforming with respect to size or illumination requirements may be repaired and/or repainted or relettered provided such nonconformance is not increased. No other changes to this category of nonconforming signs shall be allowed.

5.

Signs that are nonconforming with respect to type, location or number permitted or any other provision of this Article shall not be altered in any way except to make such sign comply with the provisions of this Ordinance.

B.

Signs for Nonconforming Uses. Signs associated with a legal nonconforming use of a structure or land shall be allowed to continue provided as follows:

1.

Nonconforming signs associated with a nonconforming use of a structure or land shall not be changed except to make such signs comply with the applicable sign regulations under Article 6, Section 6.5, for the most restricted district in which said use is permitted.

2.

New signs for a legal nonconforming use of a structure or land shall be permitted under Article 6, Section 6.5, in accordance with the applicable regulations for the most restrictive district in which said use is permitted.

3.7.10

Nonconforming Uses in Connection With Adoption of the Extra-Territorial Jurisdiction (ETJ). Any nonconforming uses of land or structures created by the establishment of zoning in the ETJ shall be regulated in accordance with the provisions of this Ordinance. For the purposes of this Ordinance, all references in this Section 3.7 to "the time of adoption of this Ordinance," "effective date" and any other similar phrase shall mean the date the Official Zoning Map of Mint Hill is amended so as to render a particular use, structure or lot nonconforming under this Ordinance.

3.7.11

Nonconforming Undisturbed Open Space and Trees. In accordance with Section 6.4.1 of this Ordinance, certain uses are required to maintain undisturbed opens space and plant trees. Except as herein provided, any material enlargement or expansion of an existing use cannot occur without meeting the requirements of Section 6.4.1. For purposes hereunder, material enlargement or expansion shall be determined by a total cumulative twenty (20) percent increase in the total square footage of all existing structure(s) within a project area as and since the original date the project area was first proposed.

3.7.12

Nonconforming Screening and Landscaping. In accordance with Section 6.4.2 of this Ordinance, certain uses are required to provide screening and/or landscaping on-site. Except as herein provided, an expansion of an existing use which is deficient in screening and/or landscaping or a change in principal use cannot occur without the required screening and/or landscaping having first been provided on site. The requirements for providing such screening and/or landscaping may be waived or modified by the Administrator on a one-time basis for any principal use (or for a shopping center, office park, or other multi-tenant development), where building expansion of less than ten (10) percent or less than five (5) percent if adjacent to a R Zoning District occurs.

(Ord. No. 598, 4-14-2011)