§42-37.
Estate Residential District (R-40)
A.
Purpose. The Estate Residential District (R-40) is established to maintain the zoning in place prior to the
adoption of this Chapter 42. This district is established as a district in which the principal use of the land is for
low-density residential use. This district is intended to ensure that residential development not having access
to public water supplies and dependent upon septic tanks for sewage disposal will occur at a sufficiently low
density to provide a healthful environment. This district is also intended to be a quiet, low-density
neighborhood consisting of single-family residences. The R-40 District shall not be extended from the
locations designated on the Official Zoning Map, nor shall new R-40 District areas be designated except
where initiated by the Board of Commissioners or Planning Board. The R-40 District may be altered or
removed with the completion of Community Plans.
B.
Dimensional Requirements. Each use allowed in this district shall at a minimum conform to the following
requirements. In some cases a specific use may be required to meet the Supplemental Requirements as set
forth in §42-63 (Supplemental Requirements). The Conservation Subdivision option shall be available in the
R-40 District. Minimum lot sizes shall not apply when using the Conservation Subdivision option and an
average density of one (1) unit per 40,000 square feet shall be applied.
Table 2.11. R-40 Dimensional Requirements
(1) Minimum Lot Area (sq ft)
40,000
Minimum Lot Area Per Dwelling (Family Unit) (sq ft)
40,000
(3) Yard Setbacks (feet)
Front or ROW
(2) Major Roads
75
All Others
60
Side
35
Rear
35
Maximum Height (feet) 
Unlimited
(1)
The minimum lot area for portions of the tract with a slope of 60 percent or greater (where such
slope areas of the tract account for ten (10) percent or more of the tract) shall be twice the minimum
lot area of the district.
(2)
Major roads shall include: Interstate 26, US Highway 64, US Highway 25, US Highway 176, NC
Highway 280, NC Highway 191, Kanuga/Crab Creek Road (SR 1127), Clear Creek Road (SR 1503),
Upward Road (SR 1722), and the Upward Road Connector (SR 1783).
(3)
Yard setbacks shall be measured from the centerline of right-of-way. Where the road is a major road
and is more than two (2) lanes (including parking lanes), the yard setback requirements shall be
measured and begin at a point on the pavement 12 feet from the edge of the paved road abutting the
property in subject.
C.
Permitted Uses. Within the R-40 District, the following uses are permitted:
(1)
Dwelling, single-family, and manufactured homes (multi-section), excluding manufactured homes
(singlewide) and mobile homes (See SR 1.5 (Dwelling, Manufactured/Mobile Home (multi-
section/singlewide) and SR 1.8 (Dwelling, Single Family Detached).
(2)
Church, provided that:
a.
The structures are placed not less than 50 feet from any property line;
b.
They are located with access to a street, as shall be determined by the Zoning Administrator;
and
c.
There is a planted buffer strip along the side and rear property lines, except where such lines
run parallel and contiguous with streets, streambeds, lakes and railroad tracks.  (See also SR
5.19 (Religious Institution))
(3)
Cemetery (On property contiguous to or adjacent to the principal church assembly building) (See
also SR 5.3 (Cemetery/Mausoleum/Columbarium (excluding crematoriums).
(4)
Church bulletin boards not exceeding 12 square feet in area.
(5)
Signs not more than four (4) square feet in area advertising the sale or rental of property on which
they are located.
  
(6)
Utility Substation (See SR 9.13 (Utility Substation).
(7)
Customary Accessory Building (Including private garages, noncommercial greenhouses and
workshops).
a.
Shall be permitted in rear yards, provided that they are located not less than five (5) feet
from any property line; 
b.
May be permitted in side yards, provided that their placement shall not exceed the minimum
side yard setback requirement for that district or use;
c.
Shall not be permitted in front yards, except in the following cases: 
1.
Where, by definition, more than one (1) front yard exists, such as in corner lots or
double fronted lots; or
2.
Where the measurement of a lot's perimeter boundary is equal to or exceeds 50
percent of the abutting road right-of-way;
d.
In Subsection c.1. and c.2. above, an accessory building shall not be located closer to the
center line of the abutting road than is otherwise permitted by this Chapter; 
e.
In these cases only, such determination shall be made by the Zoning Administrator on a
case-by-case basis. Determinations shall take into account orientation of the structure and
dwelling, road and driveway location, topographical features, traffic volume, and visual
buffers; and
f.
In no case shall an accessory building be permitted in any front, side or rear yard if it
exceeds 15 feet in height or if it occupies more than 30 percent of the required yard area;
however, height restrictions do not apply on lots of one (1) or more acres. Maximum
building height for private boathouses shall be 25 feet measured from the full pond
elevation (lakes) or mean sea level elevation (rivers).
(8)
School (Public/Private/Charter) (See SR 5.20 (School (Public/Private/Charter).
(9)
Civic and cultural buildings, including auditoriums, theaters for the performing arts, museums, art
galleries, symphony and concert halls and historical societies, provided that:
a.
The structures are placed not less than 50 feet from any property line; 
b.
They are located with access to a street, as shall be determined by the Zoning Administrator;
c.
There is a planted buffer strip along the side and rear property lines, except where such lines
run parallel and contiguous with streets, streambeds, lakes and railroad tracks;
d.
The facility is not operated for profit and satisfactory proof of the tax-exempt status of the
organization is exhibited to the Zoning Administrator;
(10) Communications Facilities, Category 1 (See SR 9.3 - Communications Facilities, Category 1).
(11) Family Care Home (See SR 1.10 - Family Care Home).
(12) Solar Panels (See SR 2.11 - Solar Panels).
D.
Permitted with a Special Use Permit. Within the R-40 District, the following uses are permitted with a
special use permit provided that the conditions listed below are met. This special use permit shall be issued in
accordance with §42-356 (Special Use Permits):
(1)
Park (See SR 4.16-Park).
(2)
Camp (See SR 4.3 -Camp).
(3)
Tennis Club (See SR 4.24 -Swim and Tennis Club).
(4)
Racquet Club.
(5)
Golf Course (See SR 4.7 -Golf Course and/or Country Club) (Miniature golf courses and private
driving tees operated for commercial purposes are not allowed.).
(6)
Customary Incidental Home Occupation (permitted as accessory uses in a residence). Customary
incidental home occupations include, but are not limited to: dressmaking, cooking, baking, music
instruction, and the practice of such professions as insurance, medicine, artistry, architecture, and
accounting. Customary incidental home occupations must:
a.
Be conducted entirely within a dwelling;
b.
Be carried on by the occupants thereof; 
c.
Be clearly incidental and secondary to the use of the dwelling for residential purposes;
d.
Not change the character thereof; 
  
e.
Not install or use mechanical equipment except such as is normally used for domestic or
professional purposes;
f.
Not have over 25 percent of the total floor space of any structure in use for a home
occupation; and
g.
Not be conducted in any accessory building. 
(7)
Library (See SR 5.14 (Museum/Library/Archive).
(8)
Bed-and-Breakfast Inn (See SR 1.2 (Bed and Breakfast Inn).
(9)
R-O Residential Open Spaces Development. 
a.
Any use permitted in the R-40 District, with any conditions pertaining thereto, shall be a
permitted use.
b.
Establishment of R-O Development. An R-O Development shall be considered to conform
to the requirements of such district when the following
c.
circumstances exist: 
1.
An entire tract of land under one (1) ownership is being subdivided at one (1) time
pursuant to an overall plan of development which includes open spaces, such as
golf courses, lakes, recreational areas, meadows, parks, woods or other open or
green spaces. All required open space shall be dedicated to the public and accepted
by the County or transferred to a property owners' association or transferred to a
private club, subject to deed restrictions forbidding its later subdivision or
development for other than residential open space purposes. 
2.
Such open spaces consist of one (1) or more parcels of land in the proposed
subdivisions which have a total of at least ten (10) percent of the entire tract. No
parcel of land less than one (1) acre in area shall be considered in arriving at the
total area of the open spaces
3.
The gross residential density of the area being subdivided will be no more than the
density that would have been permitted in the total area of said tract being
subdivided, without regard to the special provisions applying to an R-O
Development hereinafter set out in subsection c. 
(a)
No R-O Development shall be established
unless and until there is delivered to the Zoning Administrator a written
instrument in recordable form, executed by the owner or owners of all
interests in the proposed tract to be subdivided, providing that in
consideration of the designation of said subdivision as an R-O
Development and benefits accruing to such owners in the subdivision
from such designations, and in recognition that purchasers of lots in the
subdivision will rely upon the continuing existence of such open spaces, it
is irrevocably agreed upon that such spaces will remain open with no
buildings thereon, except as may be reasonably incidental to the use of the
open spaces for the purpose designated. These restrictions shall be
binding upon the present owners of the proposed subdivision and open
spaces and upon their successors in title and may be enforced by the
Zoning Administrator or other appropriate public authority as provided in
this Chapter or by the owner of any lot in the subdivision by suit for
mandatory injunction or for damages. 
i.
Said written instrument shall also
contain a legal description of each open space, shall describe
the use (if any) which the owner proposes and shall provide
that if such open space is not maintained as agreed, the
owners of a majority of the lots in the subdivision shall have
the right to form an association which shall have the right to
  
perform such maintenance at the expense of the members
thereof.
ii.
Said written instrument shall further
provide that if such open spaces shall be foreclosed and sold
for nonpayment of taxes, said association of lot owners and
anyone claiming under them shall be forever barred from
asserting any right, title or interest in or to said open spaces
(b)
If the proposed R-O Development is
established, the written instrument described in subsection b (3) (a) shall
be recorded in the office of the Register of Deeds for Henderson County. 
(c)
Application to create an R-O Development
shall be accompanied by the written instrument above referred to and a
major site plan, in accordance with §42-331 (Major Site Plan Review).
Applications to create an R-O Development shall comply with the
applicable requirements for subdivision application. 
d.
Dimensional requirements in R-O Development. The dimensional requirements shall be
reduced as follows for lots within the R-O development:
1.
If the total open space pursuant to subsection b above is less than ten (10) percent
of the area of the tract being subdivided, said requirement shall not be reduced at
all;
2.
If the total open space pursuant to subsection b above is at least ten (10) percent
and less than 20 percent of the total tract being subdivided, each dimensional
requirement shall be reduced ten (10) percent; 
3.
If the total open space pursuant to subsection b above is at least 20 percent and less
than 30 percent of the total tract being subdivided, each dimensional requirement
shall be reduced 20 percent; 
4.
If the total open space pursuant to subsection b above is at least 30 percent of the
total tract being subdivided, each dimensional requirement shall be reduced 30
percent. 
e.
Nothing herein shall be deemed to require the County to accept any such open space that is
dedicated to the public. 
(10) R-A Residential Apartment.
a.
The purpose of the R-A Residential Apartment Development is to permit establishment of
apartment developments in the R-40 District and to minimize any detrimental effects of
such developments on existing land uses. Within an R-A Development, apartments and
customary accessory buildings shall be permitted as per the requirements of §42-37 (Estate
Residential District (R-40)) C (7) (Customary Accessory Building). 
b.
R-A Developments may be located in the R-40 District subject to a finding by the Zoning
Board of Adjustment (ZBA), on advice and recommendation of the Planning Director, that
certain conditions shall be met. 
1.
Location. Subject to the provisions of this section, an R-A Development may be
established in an area contiguous to and abutting for at least 400 feet on either US
25, US 64, US 176, US 74, NC 191, NC 280, I-26 or Kanuga Road, or may be
established on a minor street intersecting one of the aforementioned major streets
within a distance not to exceed 1,500 feet from the point of intersection of the two
(2) streets. 
2.
Minimum Size. The minimum area for an R-A Development shall be one-and-one-
half (1 ½) acres. 
3.
Design Requirements. The proposed development of an R-A Development shall be
considered in accordance with an overall plan which shall include provisions for: 
  
(a)
Landscaping. The proposed development shall
be designed as a single architectural scheme with appropriate common
landscaping. 
(b)
Parking. Parking space shall be provided
within the development at a ratio of one-and-one-half (1 ½) spaces for
each apartment unit. 
(c)
Area Regulations. No building shall be erected
at a distance of less than 60 feet from the center line of any minor street
on which the lot abuts, nor less than the required side or rear lot line
setback of the adjacent district; however, in no instance shall the
minimum side and rear lot line setback be less than 10 feet. The distance
at the closest point between any building or group of attached buildings
shall not be less than 15 feet. 
(d)
Screening. A ten (10) foot evergreen planted
buffer strip shall be provided wherever the development adjoins the
boundary or property line of a residential zoning district
(e)
Traffic Circulation. The location of driveways,
parking spaces and interior streets shall be designated on said plan. 
c.
Procedures for Application and Review. An applicant desiring to develop an R-A 
Development shall adhere to the following procedures: 
1.
Special Use Permit Application. The applicant shall submit to the Board of
Commissioners a written application for a special use permit in accordance with
§42-356 (Special Use Permit). 
2.
Development Plan. A copy of the development plan shall be submitted to the
Planning Director for review and recommendations. The Zoning Board of
Adjustment (ZBA) shall not issue a special use permit until it has received
recommendations from the Planning Director
(a)
The development plan shall include the
following information and supporting documentation: 
i.
The scale of the map, which shall be
not less than one (1) inch to 50 feet with contours at five (5)
foot vertical intervals showing pertinent topographical
features. 
ii.
The location, use, plan and dimension
of each building or structure to be constructed. 
iii.
The location, dimensions and
arrangements of all access ways, entrances, exits, off-street
parking facilities, streets and sidewalks. 
iv.
The locations, dimensions and
arrangements of all open spaces and areas devoted to
planting, lawns, trees or similar purposes, with a description
including the height and density of all trees or planting to be
used for screening. 
v.
The location and description of all
facilities to be used for sewage disposal, water supply,
stormwater drainage and all utilities. 
(11) Communication Facilities, Group 2 where such towers are limited to: 
       a.
monopole towers, and
       b. 
a height no greater than 100 feet (See also SR 9.3).
(12) Wind Mill/Turbine, Accessory
= 40 ft (See SR 3.16).
(13) Wind Mill/Turbine, Accessory > 40 ft (See SR 3.17).