Article II - Zoning District Regulations
Subpart D. Overlay Districts
§42-53.
  Overlay Districts Established
Overlay Zoning Districts are established to provide special additional development standards for specially identified
areas such as the Water Supply Watershed. Certain Overlay Zoning Districts are also available to allow flexibility in
design for certain types of developments. Overlay Zoning Districts combine with the regulatory provisions of the
underlying General or Conditional Zoning Districts to provide additional or alternative standards. The districts listed
in this Subpart D generally apply a higher degree of regulation to affected properties. In order to become effective,
individual overlay districts must be adopted on the zoning map as an addendum to the underlying zoning district
through a public hearing process. Affected properties will be subject to the standards of both the overlay and
underlying districts.
§42-54.
  Airport Overlay District (AI) (Reserved)
§42-55.
  Corridor Overlay District (Reserved)
§42-56.
Through 42 – 60. Reserved
§42-62.
  Water Supply Watershed Protection Overlay District (WSWP)
The purpose of the Water Supply Watershed Protection Overlay District (WSWP) is to define the area of water
supply watersheds within the County. The intent of the overlay district is to manage the uses of land and structures
encompassed by water supply watersheds within the County in order to maintain the high quality of surface water in
these watersheds; this being accomplished by enforcing standards that limit the impact from existing or potential
sources of contamination through the regulation of average lot size and development intensity.
A.
Scope. Land use within the WSWP overlay district must comply with all the requirements of both the
underlying general use district and the applicable Water Supply Watershed overlay district classification. If
a
use or class of use is not specifically indicated as being permitted in a watershed area, such use or class of
use is prohibited.
B.
Establishment. This incorporates by reference the “Official Water Supply Watershed Map for Henderson
County,” hereinafter “Official Water Supply Watershed Map,” and subsequent amendments thereto,
showing all water supply watershed areas designated by the North Carolina Environmental Management
Commission, hereinafter NCEMC. The Official Water Supply Watershed Map shall be maintained by the
Planning Director and kept in the Planning Department. The water supply watershed map shall also be
shown on and become part of the Official Zoning Map for the County. The rules of interpretation for the
boundaries of the map (see §42-239.3 (Interpretation of Boundaries of the Water Supply Watershed Map))
apply. In addition, where any WSWP overlay district boundaries lie at a scaled distance of more than 25
feet from any parallel lot line, the location of these map boundaries shall be determined by using the scale
of the map.
C.
Application of Regulations. 
(1)
General Application. No structure or land shall hereafter be used and no development shall take
place in the WSWP overlay district except in conformity with the regulations herein specified for
the watershed sub-district in which it is located. All development must minimize built-upon
surface area; direct stormwater away from surface waters; and incorporate best management
practices to minimize water quality impacts. No area required for the purpose of complying with
the provisions of this Article shall be included in the area required for another building.
(2)
Exceptions. 
a.
Existing Development. Existing development shall be subject to the regulations contained
in §42-295 (Nonconforming Lots). Expansions to structures classified as “existing
  
development” must meet the requirements of this subsection; however, the built-upon
area of the existing development is not required to be included in density calculations.
b.
Lots Created as Part of Any Ordinance. Any lot or parcel created as part of any
subdivision that is exempt from the requirements of this Chapter shall be subject to the
land use requirements (including impervious surface requirements) of this subsection,
except that such lot or parcel must meet the minimum stream buffer requirements of §42-
251 (Perennial and Intermittent Surface Water Buffers) to the maximum extent
practicable.
c.
Cemetery Lots. The division of a tract into plots or lots used as a cemetery.
D.
Sub-Districts and Sub-District Regulations. 
(1)
General. The regulations of this subsection shall apply uniformly to each class or kind of structure
or land located within any of the enumerated sub-district classifications. Within the sub-districts as
established below, the requirements set forth in this subsection shall be complied with in addition
to any other applicable general or special requirements of this Chapter. 
(2)
Impact on Water Quality and Public Health. No activity, situation, structure or land use shall be
allowed within a WSWP overlay sub-district that poses a threat to water quality and/or the public
health, safety and welfare. Such conditions may arise from inadequate on-site sewage systems
which utilize ground absorption; inadequate sedimentation and erosion control measures; the
improper storage or disposal of junk, trash or other refuse within a buffer area; the improper
management of stormwater runoff; or any other situation found to pose a threat to water quality.
The Water Quality Administrator shall monitor land use activities within the watershed areas to
identify situations that may pose a threat to water quality. Where such activities are found, the
Water Quality Administrator shall take any appropriate action or proceeding to restrain, correct or
abate the condition and/or violation
(3)
Water Supply Watershed Protection Sub-Districts and District Purposes. Sub-districts include:
a.
WP-WS-I North Fork of Mills River and Bradley Creek Watershed Overlay Sub-District.
The intent of the sub-district is to provide maximum protection for water supplies within
essentially natural and undeveloped watersheds in public ownership by allowing only
low-intensity uses. Impacts from nonpoint source pollution shall be minimized.
b.
WP-WS-II-CA Mills River Critical Area Watershed Overlay Sub-District. The intent of
the sub-district is to maintain a predominately undeveloped land use intensity pattern
allowing only very low-density developments.
c.
WP-WS-II-BW Colt Creek and Mills River Balance of the Watershed Overlay Sub-
Districts. The purpose of the sub-district is to maintain predominately undeveloped land
use intensity. Projects in this sub-district must, to the maximum extent practicable,
minimize built-upon surface area; direct stormwater away from surface waters; and
incorporate best management practices to minimize water quality impacts.
d.
WP-WS-III-CA Lower Mills River Critical Area Watershed Overlay Sub-District. The
purpose of the sub-district is to maintain a predominantly undeveloped land use intensity
pattern. 
e.
WP-WS-III-BW Lower Mills River Balance of Watershed Overlay Sub-District. The
intent of the sub-district is to maintain predominantly underdeveloped land use intensity.
Projects in this sub-district must, to the maximum extent practicable, minimize built-upon
surface area; direct stormwater away from surface waters; and incorporate best
management practices to minimize water quality impacts.
f.
WP-WS-IV-CA Upper French Broad River Critical Area Watershed Overlay Sub-
District. Only new development activities that are required by this Chapter to submit a
soil erosion and sedimentation control plan because one or more acres of land have been
disturbed are required to meet the provisions of this Chapter related to water supply
watershed when located in a WS-IV watershed. New development activities within this
  
sub-district that do not require a soil erosion and sedimentation control plan are not
required to meet the water supply watershed provisions of this sub-district.
g.
WP-WS-IV-PA Upper French Broad River Protected Area Watershed Overlay Sub-
District. The intent of the WP-WS-IV-PA Upper French Broad River watershed overlay
sub-district is to provide protection for water quality while accommodating moderate to
high land use intensity. Development projects undertaken within this sub-district may
qualify for an exemption from the density and built-upon limits as set out in this section if
the project meets the criteria outlined in §42-61 (Water Supply Watershed Protection
Overlay District (WSWP) D (Sub-Districts and Sub-District Regulations) (6)
Sedimentation and Erosion Control Exemption. For projects implementing a natural
drainage and filtering system within the low-density option the built-upon limitations
indicated herein below shall apply. If stormwater runoff is filtered naturally and is not
passed by gutters, drains, pipes, paved swales or other similar conduits, qualification for a
natural drainage and filtering system bonus shall not impose a more stringent
requirement than the provisions of this Chapter regulating the subdivision of land, or the
North Carolina erosion and sedimentation control permit requirements.
(4)
Water Supply Watershed Protection Sub-District Regulations on Density, Built-Upon Area,
Setbacks, and Stormwater. 
a.
Low Density Option. 
1.
Engineered Stormwater Controls. Not required. 
2.
Average Lot Size. Average lot size shall apply to single-family development and
shall be calculated excluding road right-of-way as per Table 2.14.
3.
Maximum Percent Built-Upon Limits. Maximum percent built-upon limits shall
apply to multifamily residential and nonresidential development as per Table
2.14. For the purpose of calculating built-upon area, total project area shall
include total acreage in the tract on which the project is to be developed.
4.
Perennial and Intermittent Surface Water Buffers. 30 feet (See §42-251
(Perennial and Intermittent Surface Water Buffers).
b.
High-Density Option. Where new development exceeds average lot size requirements or
percent built-upon area under the low-density option, the development shall be
considered high-density.
1.
Engineered Stormwater Controls. High-density projects are required to control
runoff from the first inch of rainfall over a 24-hour period. Stormwater
controls shall adhere to the requirements of §42-240 (Stormwater
Management Regulations) and §42-241 (Structural and Nonstructural
Stormwater BMPs Maintenance).
2.
Maximum Percent Built-Upon Limits. New high-density development shall
not exceed the prescribed percent built-upon area as per Table 2.14. 
3.
Perennial and Intermittent Surface Water Buffers. The requirements of §42-
251 (Perennial and Intermittent Surface Water Buffers) shall apply and shall
be expanded to a minimum of 100 feet landward of all perennial surface
waters.
4.
Total Suspended Solids Removal Requirement. Stormwater controls shall be
designed to remove 85% of TSS.
Table 2.14 provides sub-district average lot size density and built-upon area limitations.
Table 2.14. Water Supply Watershed Protection Sub-District Regulations on Density and Built-Upon Area
  
Sub-District
Low-Density Option
High-Density Option
Natural Drainage &
Filtering Bonus
Average Lot
Size
Maximum Percent
Built-Upon Limits
Maximum Percent
Built-Upon Limits
WP-WS-I
Not Applicable
Not Applicable
Not Applicable
Not Applicable
WP-WS-II-CA
80,000 sq.ft.
6%
24%
Not Applicable
WP-WS-II-BW
40,000 sq.ft.
12%
30%
Not Applicable
WP-WS-III-CA
40,000 sq.ft.
12%
30%
Not Applicable
WP-WS-III-BW
20,000 sq.ft.
24%
50%
Not Applicable
WP-WS-IV-CA
20,000 sq.ft.
24%
50%
Not Applicable
WP-WS-IV-PA
(Drainage & Filtering Bonus)
20,000 sq.ft.
(14,250 sq.ft.)
24%
(36%)
70%
Yes
(Low-Density Option)
(5)
Water Supply Watershed Protection Sub-District Permitted Uses. Table 2.15 outlines specifically
prohibited uses within each sub-district. Table 2.16 provides specifically permitted uses within
each sub-district, with additional standards required as a result of water supply watershed
designation. Any proposed permitted use herein must also be permitted by the underlying general
use district(s) (See §42-62 (Table of Permitted and Special Uses). 
Table 2.15. Water Supply Watershed Protection Sub-District Prohibited Uses
USE TYPE
WP WS SUB-DISTRICT
PR = Prohibited
I*
II
CA
II BW
III
CA
III BW
IV
CA
IV PA
Landfills
PR
PR
PR
PR
Landfills, Discharging
PR
PR
Landfills, Leachate Discharging
PR
PR
Nonresidential Development
PR
Residential Development
PR
Sites for land application of new residuals or petroleum contaminated
soils
PR
PR
PR
PR
*Note: The only uses permissible in the WP-WS-I district are noted in Table 2.16, Water Supply Watershed Protection Sub-District
Permitted Uses with additional standards.
Table 2.16. Water Supply Watershed Protection Sub-District Permitted Uses with Additional Standards for Permitted Uses
USE TYPE
WP WS SUB-DISTRICT
P = Permitted, PAS = Permitted with Additional Standards
I
II
CA
II BW
III CA
III BW
IV CA
IV PA
  
Agriculture, Subject to provisions of the Food Security Act of 1985
and Food, Agriculture, Conservation and Trade Act of 1990 and all
rules and regulations of the Soil and Water Conservation
Commission.
PAS
PAS
PAS
PAS
Agriculture, Subject to provisions of the Food Security Act of 1985
and the Food, Agriculture, Conservation and Trade Act of 1990.
PAS
PAS
PAS
Power Transmission Lines
P
Restricted Road Access
P
Silviculture, Subject to the provisions of the Forest Practices
Guidelines Related to Water Quality.
PAS
PAS
PAS
PAS
PAS
PAS
PAS
Water Withdrawal, Treatment and Distribution Facilities
P
(6)
Sedimentation and Erosion Control Exemption.
a.
Qualifying Criteria. Development projects undertaken within a WP-WS-IV-PA Upper
French Broad River watershed overlay sub-district may qualify for an exemption from
the density and built-upon limits as set out in this section if the project meets all of the
following criteria:
1.
Requirement for Sedimentation and Erosion Control Plan. The development
project does not require a sedimentation and erosion control plan and permit
under the rules and regulations promulgated by the North Carolina
Sedimentation Control Commission.
2.
Nonresidential. The development is nonresidential.
3.
Initial Development Activity. The development is the initial development
activity on the project site or tract and is not an expansion of any improvements
already existing on the project site or tract having a built-upon area as defined
in this subsection. 
b.
Evaluation of Criteria. In evaluating whether the development project meets the criteria
listed above for the sedimentation and erosion control exemption, the following rules
shall apply:
1.
Exemption Limitations. The exemption shall not be available to nonresidential
subdivisions, nonresidential cluster development(s) or nonresidential
development projects being developed in phases.
2.
Residential Developments. The exemption shall not be available for single-
family or any other residential development projects, including general home
occupations.
3.
Discontinuance of Construction. If construction of the development project is
discontinued for a period of time in excess of 180 consecutive calendar days,
any further construction shall be considered an expansion to improvements
already existing on the project site or tract. Any such further construction shall
meet the requirements of this subsection. However, only the built-upon area of
said further construction and the remainder of the project site or tract shall be
used in the density calculations. 
4.
Damage and Destruction. Any exempted development project may be
repaired/reconstructed if damaged or destroyed. Any such reconstruction or
repair shall not be considered an expansion of an improvement already existing,
provided that the repair/reconstruction restores the building or built-upon area to
substantially the same condition and built-upon area as before any such damage
or destruction. To the extent that any such repair/reconstruction enlarges the
  
impervious surface associated with the building or built-upon area being
repaired/reconstructed, the repair/reconstruction shall be considered an
expansion to an exempted development project and shall be required to meet the
density and built-upon limits contained in this subsection in accordance with
subsection c.
c.
Exempted Expansions. Expansions to development projects which were exempted under
the terms listed above shall not be exempted from the terms of this section. All such
expansions shall be required to meet the requirements of this section. However, only the
built-upon area of the expansion and the undeveloped area of the project site or tract
shall be used in the density calculations. 
E.
Mixed-Use Development. In cases where both residential and nonresidential uses are proposed for one (1)
lot in single ownership, such mixed-use developments may be permitted without further subdivision of the
lot. However, each use must adhere to its respective density/built-upon area requirements. For purposes of
this subsection, home occupations shall, be considered as residential uses. 
F.
Existing Development.
(1)
Existing Development. Existing development may be continued and maintained subject to the
provisions provided herein. Expansions to structures classified as “existing development” must
meet the requirements of this section; however, only the built-upon area of the expansion and the
undeveloped area of the lot are used in the built-upon calculations.
(2)
Existing Vacant Lots. Existing vacant lots are lots for which plats or deeds have been recorded as
of May 23, 1994 in the office of the Register of Deeds of Henderson County. An existing lot may
be used for any of the uses allowed in the watershed area in which it is located provided that
where the lot size is less than the minimum specified in this subsection; the Water Quality
Administrator is authorized to issue a permit.
(3)
Use of Land. Uses of land existing at the time of the initial adoption of watershed regulations for a
particular area and where such use of the land is not permitted to be established hereafter in the
watershed area in which it is located may be continued in accordance with this Chapter (see
Article VIII Subpart B (Water Supply Watershed Protection)).
(4)
Reconstruction of Buildings or Built-upon Areas. Any existing building or built-upon area not in
conformance with the restrictions of this subsection that has been damaged or removed may be
repaired and/or reconstructed, provided that the following are complied with:
a.
Repair or reconstruction is initiated within 12 months and completed within two (2) years
of such damage.
b.
The total amount of space devoted to built-upon area may not be increased unless
stormwater control that equals or exceeds the previous development is provided.