Floodplain Ordinances

Subject:

Requested By: J. K. Sherron, Director State Property Officer

Question: Would the State Construction Office be bound by county or municipal Floodway/Floodplain Ordinances when building on State property located within a county or municipality?

Conclusion: If such ordinances are adopted pursuant to Part 3, Article 18 of Chapter 153A, or Part 3, Article 19 of Chapter 160, A, they would be binding upon the State Construction Office with regard to the "erection, construction, and use of buildings" by the State.

Part 6 of Chapter 143 (G.S. 143-215.51 through G.S. 143-215.61) grants local governments a measure of regulatory authority over floodways. Nowhere in this Part is there any express grant to local governments of regulatory authority over the sovereign State.

Ordinarily, general statutes do not apply to the State unless the State is expressly mentioned therein. Yancey v. Highway Commission, 222 N.C. 106 (1942). Therefore, we conclude that Part 6 of Chapter 143 does not apply to the State of North Carolina.

It should be noted, however, that G.S. 143-215.61 provides that the provisions of Part 6 of Chapter 143 shall not preclude the imposition by local governments of land use controls and other regulations in the interest of floodplain management for a floodplain or floodway. In some instances a county or municipality may enact a floodplain ordinance pursuant to its general zoning authority. Part 3, Article 18 of Chapter 153A and Part 3, Article 19 of Chapter 160A relate to the zoning authority of counties and municipalities. Each of these Parts contains a provision making all of the provisions of these Parts "applicable to the erection construction, and use of buildings by the State of North Carolina and its political subdivisions." G.S. 153A-347; 160A-391. (Emphasis supplied.)

These provisions would subject the State to the regulatory control of a county or municipality to the extent that such control is vested in a county under Part 3, Article 18 of Chapter 153A or in municipalities under Part 3, Article 19 Chapter 160A. Therefore, it becomes necessary to examine each of these Parts to determine whether floodplain regulations are a proper subject for inclusion in county or municipal zoning ordinances.

For the purpose of promoting health, safety, morals and welfare, counties and municipalities are specifically authorized to regulate the location, construction and use of buildings. G.S.

153A-340; G.S. 160A-381. This grant of authority applies to State buildings. G.S. 153A-347;

G.S. 160A-391.

The statutes relating to zoning by counties and municipalities set forth the goals to be accomplished by zoning ordinances. G.S. 153A-341; G.S. 160A-383. One purpose is to secure safety from fire, panic and "other dangers." The phrase "other dangers" could be interpreted as including floods. These sections also provide that such regulations should be designed "to promote health and the general welfare." Floodplain regulations would appear to fit into this category. The sections further provide that zoning regulations should be made with reasonable consideration as to the character of the district and "its peculiar suitability for particular uses." The susceptability of an area to flood would appear to be a reasonable element to consider in determining its suitability for a particular use.

There appear to be no decisions by our appellate courts on the question raised. However, in view of G.S. 143-215.61 and the broad, general language of the statutes relating to the general zoning authority of counties and municipalities, we conclude that a floodplain ordinance adopted pursuant to Part 3, Article 18 of Chapter 153A or Part 3, article 19 of Chapter 160A would be binding upon the State with regard to the "erection, construction, and use of buildings" by the State.

As pointed out above, the application of these Parts to the State is expressly limited to the "erection, construction, and use of buildings." The zoning authority contained in these Parts would not be applicable when the State is constructing something other than a building.

Rufus L. Edmisten Attorney General

Roy A. Giles, Jr. Assistant Attorney General