November 22, 1995
Mr. Robert B. Hobbs, Jr. Hornthal, Riley, Ellis & Maland, L.L.P. Attorneys at Law Nags Head, North Carolina 27959
Re: Advisory Opinion; Effect of Dare County Land Use Update on Dare County Airport Authority’s Power to Enlarge the Dare County Regional Airport; N.C. Gen. Stats. § 113A-100 et seq., Coastal Area Management Act of 1974; N.C. Gen. Stats., Chapter 63, Aeronautics; 1971 Session Laws, Chapter 503, entitled AN ACT ENABLING THE COUNTY OF DARE TO ESTABLISH AN AIRPORT AUTHORITY, as amended.
Dear Mr. Hobbs:
You have asked two questions relating to the authority of the County of Dare, on the one hand, and your client, the Dare County Airport Authority (DCAA), on the other, vis-�-vis the creation and control of land use plans under the Coastal Area Management Act (CAMA), insofar as such land use plans may control or prohibit expansion of the Dare County Airport. These questions were prompted by the adoption by the Dare County Board of Commissioners on July 18, 1994, over the opposition of the DCAA, of a revision of ¶ 2.1.3(b) of the Dare County Land Use Plan to include in the Plan’s 1994 Update the following underlined language: The development of Dare County’s Airport and the surrounding area shall be carefully reviewed to minimize potential land use conflicts and hazardous conditions. Dare County does not support the expansion of the Dare County Regional Airport at its current location.
You state in your letter that the Dare County Land Use Update was subsequently approved by the Coastal Resources Commission.
Specifically, your questions are these: Question 1 Is Dare County and/or the Coastal Resources Commission prohibited from binding or restricting the Dare County Airport Authority, without the latter’s consent or support, to provisions of the County’s Land Use Plan which directly relate to the enlargement of airports, because of the DCAA’s powers under the DCAA enabling legislation, G.S. 153A-76(3), G.S. 6349(a), and other provisions of North Carolina law?
Question 2
If the answer to question 1 is yes, then by virtue of the DCAA Enabling Legislation and the provisions of Chapters 153A and 63 of the General Statutes, has Dare County delegated to the DCAA the responsibility for preparing its own land use plan (for purposes of G.S. 113A-110(c) and 113A-111) so that the DCAA may adopt its own land use plan (subject to approval by the Coastal Resources Commission) and apply directly to the Division of Coastal Management for development permits consistent with the DCAA land use plan?
In summary, it is our opinion that the answer to your Question 1 is that the quoted language in the Dare County Land Use Plan 1994 Update presents no legal impediment to the DCAA’s authority to expand the Dare County Regional Airport, except in the context of a CAMA permit
application; in other words, outside the context of a CAMA permit application, Dare County’s power to restrict the DCAA’s expansion plans is limited to its statutory authority under the DCAA’s enabling act to withhold approval of the issuance of revenue bonds, or the expenditure of the proceeds thereof, in order to finance such expansion. However, within the context of an application by the DCAA for a CAMA permit to enlarge the airport by development in areas of environmental concern, Dare County’s stated opposition in its Land Use Plan to expansion of the airport at its current site is consistent with the state guidelines regarding such development and would likely be given considerable weight, if not be viewed as controlling, by the Coastal Resources Commission.
It is our further opinion that the answer to your Question 2 is that Dare County has not delegated to the DCAA the responsibility for preparing its own land use plan (for purposes of G.S. 113A110(c) and 113A-111) so that the DCAA may adopt its own land use plan (subject to approval by the Coastal Resources Commission) and apply directly to the Division of Coastal Management for development permits consistent with the DCAA land use plan.
Discussion of Question 1 Chapter 503, 1971 Session Laws, entitled AN ACT ENABLING THE COUNTY OF DARE TO ESTABLISH AN AIRPORT AUTHORITY, as amended by Chapter 162, 1977 Session Laws; Chapter 492, 1979 Session Laws; Chapter 892, 1983 Session Laws; and Chapter 251, 1993 Session Laws, enabled Dare County, but did not require it, to establish the DCAA initially. Furthermore, the Act gave Dare County complete power to appoint and remove the members of the DCAA’s governing board.
However, the DCAA’s powers, upon its establishment, are granted by the General Assembly, not by the County of Dare. Section 11 of the Enabling Act provides as follows:
All rights and powers given to the counties or municipalities by the statutes of North Carolina, which may now be in effect or be enacted in the future relating to the development, regulation and control of airports and the regulation of aircraft are hereby vested in said Airport Authority, and the County of Dare may delegate its powers under the said acts to the Authority and the Authority shall have concurrent right with the County of Dare to control, regulate, and provide for the development of aviation in the County of Dare.
In our opinion, use of the word "may" in the clause beginning with the words, " and the County of Dare may delegate… " is a reference only to the County’s option to form the DCAA; the County delegated its powers when it exercised the option to establish the airport authority.
Perhaps principal among the statutory powers referred to in Section 11 of the Enabling Act are those set forth in Chapter 63, N.C. Gen. Stats., Aeronautics. N.C. Gen. Stats. § 63-1(14) provides, for purposes of Chapter 63, that:
"Municipality" means any county, city, or town of this State, and any other political subdivision, public corporation, authority, or district in this State, which is or may be authorized by law to acquire, establish, construct, maintain, improve, and operate airports and other air navigation facilities. [Emphasis supplied]
In pertinent part, Chapter 63 further provides: § 63-49. Municipalities may acquire airports.
- (a)
- Every municipality is hereby authorized, … to acquire, establish, construct, enlarge, improve, maintain, equip, operate, and regulate such airports and other air navigation facilities … either within and without the territorial limits of such municipality and within or without this State; *****
- (b)
- All property needed by a municipality for an airport or restricted landing area, or for the enlargement of either, or for other airport purposes, may be acquired by purchase, gift, devise, lease or other means if such municipality is able to agree with the owners of said property on the terms of such acquisition, and otherwise by condemnation in the manner provided by the Chapter entitled Eminent Domain, …. [Emphasis supplied]
The foregoing provisions are fully consistent with specific powers granted to the DCAA in Sections 4 and 9 of the Enabling Act.
Thus, it appears clear that the General Assembly has empowered the DCAA to enlarge the Dare County Regional Airport. Moreover, in our opinion, this is a power which the DCAA can exercise without the approval of Dare County, although it would appear to be subject to the power of the Commissioners of Dare County, pursuant to Sections 5 and 6 of the Enabling Act, to withhold approval of the issuance of revenue bonds, or the expenditure of the proceeds thereof, in order to finance such enlargement. Outside the power to establish the DCAA in the first place and to appoint and remove its governing board, these are the only powers over the DCAA which are explicitly given to the County in the enabling Act. In Davidson County v. City of High Point, 321 N.C. 252, 257, 362 S.E.2d 553 (1987), the North Carolina Supreme Court said: Counties, like cities, exist solely as political subdivisions of the State and are creatures of statute. They are authorized to exercise only those powers expressly conferred upon them by statute and those which are necessarily implied by law from those expressly given. Powers which are necessarily implied from those expressly granted are only those which are indispensable in attaining the objective sought by the grant of express power. [citations omitted]
Davidson presented the issue of the City of High Point’s right to provide sewer service to residents in newly annexed areas without obtaining Davidson County’s prior approval, which the county contended was required by a certain provision in an agreement between the county and the city concerning a city sewer facility to be built outside the city limits. Ruling that Davidson County had no authority to restrict or regulate the High Point’s provision of sewer service to its residents, the Supreme Court held that imposition of a county-approval provision on the city in providing sewer service to its citizens in newly annexed areas was outside the scope of the county’s authority and was therefore unenforceable.
Accompanying your request you provided a copy of a Memorandum of Understanding between the DCAA and Dare County on the subject of "Resolution of Management Issues" which we understand, and for purposes of this advisory letter assume, to have been fully executed by the governing boards of the DCAA and Dare County in February, 1990. Paragraph 5 of the Memorandum of Understanding between the DCAA and the County of Dare provides:
The DCAA was established by Enabling Legislation set forth in Chapter 502, 1971 Session
Laws. The Enabling Legislation provides for the concurrent powers and responsibilities of the DCAA and the Commissioners regarding the maintenance and operation of the Dare County Airport. Both parties confirm their desire for consultation and cooperation in carrying out their related public functions of operating and funding an airport to that end. In that connection, the parties desire that the DCAA shall have the authority for the day to day operation of the airport, including, but not limited to, the control and licensing of the facilities, dealings with the Federal Aviation Administration and other regulatory bodies, and the exercise of other powers set forth in the Enabling Legislation. The Commissioners retain the power: (a) to appoint membership of the DCAA as provided by the Enabling Legislation, (b) to provide funding to the DCAA in such proportions and upon such basis as may be determined by the Commissioners, consistent with the provisions of the Enabling Legislation, and (c) to exercise its right to request changes in the Enabling Legislation as may be advisable. The DCAA, by executing this agreement, does not agree to support such legislation. [Emphasis supplied]
As Davidson shows, such an agreement as this cannot change statutory powers. We quote this portion of the Memorandum of Understanding here because, in our opinion, it recognizes and correctly restates the respective statutory powers of the DCAA and the Dare County Board of Commissioners.
Effect of Coastal Area Management Act The next issues for consideration are a) the impact of the Coastal Area Management Act of 1974 (§ 113A-100 et seq.; hereinafter, "CAMA") on the power of the DCAA to enlarge the Dare County Regional Airport, and b) Dare County’s role in the CAMA statutory scheme.
CAMA delegates authority to the Coastal Resources Commission (hereinafter, "CRC") to develop, adopt and amend State guidelines for North Carolina’s coastal counties. The basic thrust of CAMA is directed toward protecting designated areas of environmental concern ("AECs") by requiring permits for development in those areas. See, Adams v. North Carolina Dep’t of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978); and Rankin v. Coleman, 394 F. Supp. 647, modified on other grounds, 401 F. Supp. 664 (E.D.N.C. 1975). Adams was a decision in which the North Carolina Supreme Court upheld CAMA against various attacks on its constitutionality. In Adams, the Supreme Court summarized CAMA’s major elements in a way that is instructive here:
The Coastal Area Management Act of 1974 is a "cooperative program of coastal area management between local and state governments." (G.S. 113A-101). Its basic objective is to "establish a comprehensive plan for the protection, preservation, orderly development and management of the coastal area of North Carolina." (G.S. 113A-102(a)).
*** Four basic mechanisms are utilized by the Act to accomplish its objectives: 2 I. State Guidelines For The Coastal Area Are To Be Promulgated By The CRC. G.S. 113A-106 through 108. The CRC is to develop State guidelines for the coastal area, specifying objectives, policies and standards to be followed in public and private use of land and water in the coastal area. These guidelines are to give particular attention to the nature of development which shall be appropriate within the various types of area of environmental concern designated by the CRC. *** All county land use plans … must be consistent with the guidelines. All development permits granted … must be consistent with the guidelines. ***
II. Land Use Plans Are To Be Adopted By Each County Within The Coastal Area. G.S. 113A109 through 112. A land use plan is to "consist of statements of objectives, polices, and standards to be followed in public and private use of land within the county" … . *** No development permit shall be issued under Part IV (infra) which is inconsistent with the approved land use plan for the county in which the development is proposed. ***
III. Designation Of Areas Of Environmental Concern By The CRC Through Rule Making. G.S. 113A-113 through 115. "The [CRC] shall by rule designate geographic areas of the coastal area as areas of environmental concern and specify the boundaries thereof. . . ." ***
IV. Permits Must Be Obtained For Development Within AEC’s. G.S. 113A-116 through 125.
295 N.C. at 686-688.
In evaluating CAMA’s impact, we must consider whether the DCAA is subject to CAMA’s restrictions. The answer is clearly "yes". For CAMA purposes, according to G.S. § 113A-103:
(9) "Person" means any individual, citizen, partnership, corporation, association, organization, business trust, estate, trust, public or municipal corporation, or agency of the State or local government unit, or any other legal entity however designated.
This broad definition of "person" unquestionably embraces airport authorities such as the DCAA. As we have already noted, under CAMA every "person", before undertaking any development in any AEC, must obtain a permit. G.S. 113A-118(a).
The function of Dare County’s land-use plan is to implement the county’s role under CAMA. Under CAMA, the impact of the land use plan is felt if, and when, a person requires a CAMA development permit. Such a permit is required before undertaking development in an AEC; otherwise, no permit is required. Thus, in enacting CAMA, the General Assembly gave all coastal counties a role in limiting development in AECs not only by private persons, but all local governments, municipal and public corporations, and state agencies.
A county could implement a land use plan through a county zoning ordinance and generally enforce that ordinance outside an AEC and the CAMA process. Were Dare County to do so one might suppose that this would create a general prohibition on the DCAA’s authority to enlarge the airport at its current location. However, on the basis of principles espoused by the Supreme Court in Davidson, it is our opinion that the County cannot override the DCAA’s statutory authority to enlarge the airport by means of a zoning ordinance. A zoning ordinance implementing a land use plan is still just a county ordinance. It cannot override, and effectively repeal, another municipality’s statutorily granted power to enlarge itself.
Implementation of a county’s land use plan through another statute, such as CAMA, has different implications. We believe CAMA’s purpose and effect is to limit all persons’ power, or right, to engage in development in AECs. If the DCAA proposes development within an AEC, then, being a "person" within the meaning of CAMA, it must obtain a CAMA permit. In that event, the "objectives, policies, and standards" set forth in the county’s land use plan become additional standards for issuance of a CAMA permit under a statutory provision that "No permit shall be issued under Part 4 of this Article for development which is inconsistent with the approved landuse plan for the county in which it is proposed." G.S. § 113A-111.
Thus, even without more, it would appear that the Dare County Land Use Plan’s stated objective, "Dare County does not support the expansion of the Dare County Regional Airport at its current location", would by law carry considerable weight in the context of an application for a permit to develop in an area of environmental concern. Indeed, experience has shown that the CRC treats as controlling land use plan provisions which are more restrictive than the state guidelines, for instance, by not permitting exceptions allowed under certain circumstances by the guidelines.
To interpret CAMA to have given Dare County the power to override DCAA’s statutory powers outside the CAMA permitting process would be to repeal sub silentio parts of DCAA’s enabling act. Such a statutory construction must be rejected, when the two statutes can be read in harmony. From this, then, it can be seen that Dare County’s land use plan can affect DCAA’s expansion plans only in the event DCAA’s expansion plans require a CAMA permit.
In looking at the maps included in Dare County’s Land Use Plan, it appears that expansion of the airport in certain directions could encroach into nearby estuarine shoreline, coastal wetlands, estuarine waters, or public trust areas, which have been designated as AECs. According to the applicable rule, Title 15A NCAC Subchapter 7H.0208 (a):
(1)Uses which are not water dependent will not be permitted in coastal wetlands, estuarine waters, and public trust areas. Restaurants, residences, apartments, motels, hotels, trailer parks, private roads, factories, and parking lots are examples of uses that are not water dependent. Uses that are water dependent may include: utility easements; docks; wharfs; boat ramps; dredging; bridges and bridge approaches; revetments, bulkheads; culverts; groins; navigational aids; mooring pilings; navigational channels; simple access channels and drainage ditches.
In our opinion, the airport would not constitute a water dependent use. Consequently, to the extent that any proposed expansion of the regional airport would encroach into one of these three AECs (coastal wetlands, estuarine waters, and public trust areas), Dare County’s stated opposition the airport’s expansion at its current location is entirely consistent with the applicable state guidelines, as required by G.S. § 113A-108. Just as G.S. § 113A-111 provides that "No permit shall be issued under Part 4 of this Article for development which is inconsistent with the approved land-use plan for the county in which it is proposed…", G.S. § 113A-108 (Effect of State guidelines) also provides in pertinent part that, "No permit shall be issued under Part 4 of this Article which is inconsistent with the State guidelines."
Under these circumstances, the CRC, in our opinion, could and would not ignore the County’s stated objective. It would appear that any airport expansion into coastal wetlands, estuarine waters, and public trust areas would face an uphill battle with or without the County’s stated opposition in its land-use plan.
The guidelines provide for exceptions in special circumstances, however. Title 15A NCAC Subchapter 7H.0208 (a), further provides:
(3)When the proposed development is in conflict with the general or specific use standards set forth in this Rule, the CRC may approve the development if the applicant can demonstrate that the activity associated with the proposed project will have public benefits as identified in the findings and goals of the Coastal Area Management Act, that the public benefits clearly outweigh the long range adverse effects of the project, that there is no reasonable and prudent alternate site available for the project, and that all reasonable means and measures to mitigate adverse impacts of the project have been incorporated into the project design and will be implemented at the applicant’s expense.
We have already noted that in practice the CRC has not granted exceptions to county land use plan provisions under authority of the foregoing rule. However, a prohibition in a land use plan may be absolute or conditional. We note that the statement of opposition in ¶ 2.1.3(b) of the Dare County Land Use Plan 1994 Update uses language that is more precatory than prohibitive, which suggests that it is less than absolute. Moreover, ¶ 1.4.3 of the Dare County Land Use Plan 1994 Update, entitled , "Transportation", contains the following discussion relative to the Dare County Regional Airport:
Dare County has limited capacity in other modes of transportation. Air transportation is limited to the Dare County Regional Airport on Roanoke Island, the First Flight Airport in Kill Devil Hills, and the Billy Mitchell Airport on Hatteras Island. At present, there are no scheduled passenger services by a regional carrier. A proposal to extend the runway at the Dare County Regional Airport is currently under review by the Dare County Airport Authority. Should the facilities be expanded, the availability of regularly scheduled commuter service will be a more likely possibility. In addition, a committee has been appointed by the Dare County Board of Commissioners to study the alternative of relocating the Regional Airport to a compatible site. In addition to serving the civil aviation needs of Dare County, the airports in the County have served as important staging centers for aviation-related activities during hurricanes and other storm events and function as elements of the Evacuation Plan for the County. [Emphasis supplied]
This language appears to us to raise the question whether the stated opposition of Dare County to the airport’s expansion at its current location was conditioned on the assumption of the availability of a "reasonable and prudent alternate site". If, in the context of a CAMA permit application by the DCAA, the CRC were to determine that the Land Use Plan’s statement of opposition was premised on this assumption, and the assumption proved to be false, then there might be a basis for application of the "cost/benefit" analysis described in Title 15A NCAC Subchapter 7H.0208 (a) (3).
Discussion of Question 2
CAMA allows for some delegation of a county’s authority to prepare or adopt a land use plan for CAMA purposes. G.S. § 113A-110 (Land-use plans) provides in part:
(c) The body charged with preparation and adoption of a county’s land-use plan (whether the county or the Commission or a unit delegated such responsibility) may either (i) delegate to a city within the county responsibility for preparing those portions of the land-use plan which affect land within the city’s zoning jurisdiction or (ii) receive recommendations from the city concerning those portions of the land-use plan which affect land within the city’s zoning jurisdiction, prior to finally adopting the plan or any amendments thereto or (iii) delegate responsibility to some cities and receive recommendations from other cities in the county. The body shall give written notice to the Commission of its election among these alternatives.
As we have already noted, an "airport authority" is a "municipality". A "city" is likewise a "municipality". However, we have not found any authority for the proposition that an "airport authority" is a "city" for purposes of CAMA or any other statute. Indeed, while "city" is not defined in CAMA, the act does contain the following definition within G.S. § 113A-103:
(8) "Local government" means the governing body of any county or city which contains within its boundaries any lands or waters subject to this Article.
CAMA’s narrow definition of "local government", in contrast to its broad definition of "person", suggests to us that the General Assembly was likewise using the word "city" only in its ordinary sense, which would not be broad enough to include "airport authority."
However, even if we were to interpret the word "city" to include airport authority, we do not read the Memorandum of Understanding between the DCAA and Dare County to constitute a delegation of responsibility for preparing those portions of the land-use plan which affect land within the DCAA’s zoning jurisdiction. Neither the premises of the Memorandum, nor its specific agreements, give any indication that such a delegation as that authorized in G.S. § 113A110 was contemplated. Moreover, we have seen no evidence that the County gave the CRC notice of such delegation as required by the statute. Consequently, our answer to Question 2 must be "no".
Daniel C. Oakley Senior Deputy Attorney General
James C. Gulick
Special Deputy Attorney General