October 12, 1995
Roger N. Schecter, Director Division of Coastal Management
P.O. Box 27687 Raleigh, N.C. 27602
Re: Advisory Opinion; Request for Advice on Application of the Coastal Reserve Statutes,
N.C.G.S. § 113A-129.1, et seq., and Rules Adopted Pursuant to the Statutes.
Dear Mr. Schecter:
This letter is offered in response to your request of August 24, 1995 for advice on application of certain development and use restrictions set out in the Coastal Reserve statutes and rules to private property within the designated Reserve boundaries. In order to address your questions, it is first necessary to review the history of the North Carolina Coastal Reserve Program and adoption of the statutes and rules governing the program.
Section 315 of the Coastal Zone Management Act of 1972, 16 U.S.C. § 1451, et seq., (CZMA) established a National Estuarine Sanctuary Program that provided for designation of certain estuarine areas as estuarine sanctuaries to be preserved and used for research purposes. The statute also created a federal grant program under which the Secretary of Commerce could make grants to the coastal states "for purposes of acquiring such lands and waters and any property interests therein, as are necessary to ensure the appropriate long-term management of an area as a national estuarine reserve". The Coastal Zone Management Reauthorization Act of 1985 amended section 315 of the CZMA by renaming the federal system the "National Estuarine Research Reserve System".
North Carolina began acquiring estuarine lands for inclusion in what is now the National Estuarine Research Reserve System with the acquisition of Zeke’s Island in 1980. That acquisition was followed by acquisitions for the Rachel Carson Reserve in 1983, the Currituck Banks site in 1984 and the beginning of acquisitions in the Masonboro Island Reserve in 1985. Those four original sites were acquired with the assistance of federal grant funds for inclusion in the National Estuarine Research Reserve System and included both estuarine waters and lands to acquired with federal grant assistance. At the time, the North Carolina Coastal Reserve System did not exist; neither the coastal reserve statutes, N.C.G.S. § 113A-129.1, et seq., nor the State’s administrative rules governing use of reserve lands, T15A NCAC 70, had been adopted.
Under federal rules adopted by the National Oceanic and Atmospheric Administration (NOAA) to implement Section 315, the state’s grant application was required to include "[a] description of the proposed site and its major resources, including location, proposed boundaries, and adjacent land uses". 15 CFR § 921.11(e)(2). NOAA approves Estuarine Research Reserve designations based on the proposed acquisition boundaries. See 15 CFR §§ 921.12 and 921.13. Actual acquisition of property included in the Rachel Carson Estuarine Research Reserve took place over a period of six years (1983-1989) and acquisitions in the Masonboro Island Estuarine Research Reserve have been underway since 1985 and are not yet complete.
In 1986, the Department of Natural Resources and Community Development (predecessor to the Department of Environment, Health and Natural Resources) as the grant recipient, adopted rules governing the administration and use of lands in the four North Carolina components of the National Estuarine Research Reserves. T15A NCAC 7O. Those rules prohibited certain activities on reserve lands.
The Department acquired Permuda Island in 1987 and began acquisitions in Buxton Woods in 1988 with state funds; those sites were not designated as National Estuarine Research Reserves. In 1989, the General Assembly created the North Carolina Coastal Reserve System for purposes of "acquiring, improving and maintaining undeveloped coastal land and water areas in a natural state", N.C.G.S. § 113A-129.2(a)(1989). The Permuda Island and Buxton Woods sites (already acquired or under acquisition) became part of that system – as did the four sites already designated under the National Estuarine Research Reserve System. Since creation of the North Carolina Coastal Reserve System, the State has acquired or begun acquisition of two additional sites to be included in the state system – Bald Head Woods (acquisition completed in 1995) and Kitty Hawk Woods.
With this as background, the two questions raised in your memorandum are addressed below:
Question 1: Do the restrictions on use of coastal reserve lands set out in the statutes and rules governing the coastal reserve program apply to privately-owned lands within the boundaries shown on the coastal reserve maps?
No. THE COASTAL RESERVE STATUTE CREATEs A FRAMEWORK FOR state ACQUISITION and management of estuarine lands and waters; it does NOT purport to regulate private PROperty. The only language in the coastal reserve statutes expressly limiting the use of reserve lands appears in N.C.G.S. § 113A-129.2(e) which states as follows:
All lands and waters within the system shall be used primarily for research and education. Other public uses, such as hunting, fishing, navigation, and recreation, shall be allowed to the extent consistent with these primary uses. Improvements and alterations to the land shall be limited to those consistent with these uses.
Words and phrases of a statute must be interpreted in context; individual expressions must be interpreted as part of a composite whole, in a manner which harmonizes with the other provisions of the statute and which gives effect to the reason and purpose of the statute. Jolly v. Wright, 300
N.C. 83, 265 S.E.2d 135 (1980).
The statute creating the state coastal reserve system identifIES its purpose as being "acquiring, improving and maintaining undeveloped coastal land and water areas in a natural state".
N.C.G.S. 113A-129.2(a). The statute further provides that "[a]ll acquisitions or dispositions of property for lands within this system shall be in accordance with the provisions of Chapter 146 of the General Statutes". N.C.G.S. §113A-129.2(d). This language indicates that the General Assembly’s intent in creating the Coastal Reserve System was to create a framework for state acquisition of undeveloped natural areas at the coast.
The statute expressly speaks of acquisition of these land and water areas. The uses of reserve lands identified in the statute – research, education and "other public uses" – anticipate public occupation and use of lands within the system. The fact that the only uses identified as appropriate on coastal reserve lands are public uses reinforces the fact that the General Assembly INTENDED the lands within the Coastal Reserve System to be public lands.
Conversely, nothing in the statute indicates an intent to create a new regulatory program for private property. The statute does not include any regulatory mechanism – such as a permit requirement – through which such restrictions could be enforced on privately-owned property. Many, although not necessarily all, privately owned lands within the designated coastal reserve boundaries will be within the jurisdiction of the Coastal Area Management Act (N.C.G.S. § 113A-100, et seq.; CAMA) and development on those lands requires a CAMA permit and compliance with all CAMA development standards. CAMA permits, however, are required only in Areas of Environmental Concern (AECs) designated by the Coastal Resources Commission pursuant to N.C.G.S. § 113A-113. The CRC has not designated the coastal reserve sites as separate AECs; only those parts of the coastal reserves that fall within the generic AEC designations (e.g., public trust waters and the estuarine shoreline AEC) are subject to CAMA permit requirements.
Several of the designated coastal reserves may include areas outside of CAMA permit jurisdiction – most often the upland area landward of the estuarine shoreline or ocean hazard AEC. To the extent there are private in-holdings within the proposed boundaries of the coastal reserves and outside of CAMA permit jurisdiction, the coastal reserve statute provides no means of enforcing any restrictions on development or use.
As noted above, the statute presumes that coastal reserve lands will be used only for public purposes; it identifies acceptable public uses and allows "[i]mprovements and alterations…consistent with these uses". N.C.G.S. § 113A-129.2(e). The only criteria established by statute for development on reserve lands are that: 1. it must be related to one of the identified public uses; and 2. it must be consistent with the overall intent to preserve these areas in a natural state. This provides further evidence that the legislature adopted the coastal reserve statutes to provide a framework for acquisition of public lands and not to create a new regulatory program for private property.
Finally, the application of the statutory language limiting use of reserve lands to research, education and "other public uses" to privately-owned lands would have the effect of confiscating private lands for public use without compensation. The confiscatory effect would result from the restriction of the use of those lands to public uses, denying the property owner any ability to make private use of the property. That result would be directly contrary to the plain statement in
N.C.G.S. § 113A-128 that:
[n]othing in this Article authorizes any governmental agency to adopt a rule or issue any order that constitutes a taking of property in violation of the Constitution of this State or of the United States.
This injunction applies not only to decisions of the Coastal Resources Commission under CAMA, but also to actions of the Department of Environment, Health and Natural Resources in implementing the coastal reserve statutes which are also codified in Article 7 of Chapter 113A.
With regard to application of the Department’s coastal reserve rules, the Department is authorized by statute to define the areas to be included in the coastal reserve system and set standards for use of those lands. The Department must do so in a manner consistent with the statutory authority. The statutes do not authorize the Department, by simply drawing a proposed acquisition boundary around privately-owned property, to prohibit all development on such property and appropriate it for public use.
In fact, the Department of Environment, Health and Natural Resources, Division of Coastal Management has never applied the coastal reserve statutes and rules to privately-owned property within proposed coastal reserve boundaries. In implementing the coastal reserve program, DCM has interpreted the statutory language concerning uses of reserve property to apply to lands actually acquired by the state pursuant to the statute (and to state-owned submerged lands) and not to privately-owned lands within the coastal reserve boundaries. On issues of statutory construction, the interpretation of the agency with responsibility for implementing the statute is entitled to great weight. MacPherson v. City of Asheville, 283 N.C. 299, 196 S.E.2d 200 (1973).
QUESTION 2: IF THE WATER AREAS WITHIN THE COASTAL RESERVE ABUT PRIVATELY OWNED SHORELINE MAY THE STATE PROHIBIT THE PRIVATE PROPERTY OWNER FROM BUILDING A PIER OR BOAT RAMP FOR WATER ACCESS FROM THEIR PROPERTY ONTO STATE-OWNED SUBMERGED LANDS WITHIN THE COASTAL RESERVE PURSUANT TO THE COASTAL RESERVE STATUTES?
No. The Coastal reserve statutes do not in themselves support a decision to deny permission to build a pier on privately-owned shorelines abutting waters within a designated coastal reserve. The Division of coastal Management may, however, deny a CAMA permit for such a pier based on inconsistency with CAMA development standards unless denial of a permit would constitute a taking under N.C.G.S. §113A-128.
sUBMERGED LANDS WITHIN THE DESIGNATED COASTAL RESERVES ARE OWNED BY THE STATE AND HELD IN TRUST FOR THE USE OF THE PUBLIC. THUS, THERE IS NO QUESTION THAT THE COASTAL RESERVE STATUTES AND RULES APPLY TO THE SUBMERGED LANDS within the coastal reserve boundaries. As discussed above, however, the coastal reserve statutes do not operate to regulate private property above mean high water. The question that you raise about pier construction necessarily involves development on both private property and state-owned submerged lands and is not clearly addressed in the coastal reserve statutes.
The statutes limit use of reserve lands to education, research and "[o]ther public uses, such as hunting, fishing, navigation and recreation" to the extent consistent with the primary uses. The statute goes on to state that "[i]mprovements and alterations to the lands shall be limited to those consistent with these uses". Since the statute recognizes fishing, navigation and recreation as uses allowed on reserve lands and allows improvements and alterations consistent with those uses, there appears to be no absolute statutory bar to construction of a pier on submerged lands within coastal reserve boundaries. The statute could be interpreted, however, to limit such structures to those associated with research and education activities or those available for public use.
The reserve use requirements set out in T15A NCAC 7O .0202 also do not specifically bar construction of piers, boat ramps or similar structures on reserve lands. The broadest restriction appearing in the rules prohibits "acts or uses which are detrimental to the maintenance of the property in its natural condition…including, but not limited to, disturbances of the soil, mining, commercial or industrial uses, timber harvesting, ditching and draining, deposition of waste materials". In the context of the statute, which allows improvement and alteration of reserve lands consistent with the public uses enumerated in the statute, the Department has the authority to permit structures on reserve lands. If private piers are entirely prohibited under the coastal reserve statutes and rules, it will be solely because of their private rather than public nature.
This result would contradict the conclusion reached above that the coastal reserve statutes do not regulate privately owned upland property. A total prohibition against pier construction on private property abutting waters within a designated coastal reserve would, in fact, be a severe restriction on use of that privately-owned shoreline and limit the riparian owner’s common law right to construct a pier for water access.
North Carolina recognizes riparian rights to be property rights that cannot be taken for public purposes without compensating the owner. Mason v. Huber, 78 N.C.App. 16, 337 S.E.2d 99 (1985). In addition to the right to make reasonable use of the adjoining waters, the following rights arise from the ownership of land bounded by navigable waters:
- the right to be and remain a riparian proprietor;
- the right of access to and from the water, including its navigable parts;
- the right to build a pier or wharf out to the navigable water, subject to reasonable regulations by the State, and
- the right to accretions or alluvium.
Shepard’s Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44 S.E. 2d 39 (1903). [Emphasis added.]
Nothing in the statute indicates that the Legislature considered the impact of a coastal reserve designation on riparian rights – or even recognized the potential for an impact. As discussed above, the focus of the statute is on creating an acquisition program for coastal lands and defining the uses of the properties acquired. In reviewing the history of the coastal reserve system, we have found no evidence that the State has acquired this particular property interest from the owners of private in-holdings within coastal reserve boundaries. Absent acquisition of this property interest, nothing in the statute indicates an intent to restrict development on privately-owned shorelines adjoining lands and waters within a coastal reserve.
The legislature had no direct role in designating the coastal reserve components and delineating the boundaries; the Department of Environment, Health and Natural Resources designated the components and established the boundaries by rule. Since actual designation of the coastal reserves occurred after adoption of the statutes, neither knowledge of the sites nor their boundaries can be imputed to the legislature. While the coastal reserve statutes clearly allow inclusion of estuarine waters ( and the state-owned submerged lands underlying those waters) in the coastal reserves, the statutory scheme indicates that the legislature intended that those waters would be contiguous to state-owned lands within the reserve and not riparian property in private ownership. Instead, in several instances DEHNR has included both privately owned upland property and the estuarine waters abutting those privately owned shorelines within designated coastal reserve boundaries.
As noted above, DEHNR drew certain of the coastal reserve boundaries to include privately owned upland property (such as Masonboro Island) because those boundaries represented the area for proposed state acquisition. DEHNR then also included within the boundaries a buffer of estuarine waters around the lands proposed for acquisition. All of the estuarine waters designated as part of a coastal reserve immediately adjoin lands owned by the State or proposed for State acquisition and the waterward boundary of the coastal reserve is set off from any privately owned shoreline that is not proposed for acquisition (such as the Beaufort waterfront across from the Rachel Carson site and the mainland shoreline in the vicinity of the Masonboro Island site). Thus, it appears that DEHNR, in setting coastal reserve boundaries, intended to include only those estuarine waters immediately adjacent to lands to be acquired by the State.
This approach is fully consistent with the intent of the statute. The questions that you raise arise from the fact that the State has not yet acquired all of the lands proposed for State acquisition. Actual State acquisition of these areas or revision of the boundaries to include only those land areas actually acquired by the State would resolve the issue and eliminate the potential conflict between the intent of the coastal reserve statutes and the Department’s implementation of the coastal reserve program. Nothing in the statutes, however, authorizes DEHNR to prohibit pier construction on privately-owned shoreline based solely on a designation of the waters adjoining the shoreline as part of a coastal reserve.
The Division of Coastal Management may regulate pier construction on these shorelines under CAMA development standards. The riparian right to build a pier for access to the water clearly is a qualified right, subject to state regulation and subordinate to the rights of the public under the public trust doctrine. As the Supreme Court stated in Bond v. Wool, 107 N.C. 139, 12 S.E. 281 (1890) :
a littoral proprietor and a riparian owner…have a qualified property in the water frontage belonging, by nature to their land, the chief advantage growing out of the appurtenant estate in the submerged land being the right of access over an extension of their water fronts to navigable water, and the right to construct wharves, piers or landings, subject to such general rules and regulations as the Legislature, in the exercise of its powers, may prescribe for the protection of public rights in rivers or navigable waters. [Emphasis added.]
In Weeks v. N.C. Dept. of Natural Resources and Community Development, 97 N.C. App. 215, 388 S.E.2d 228, rev. denied, 326 N.C. 601, 393 S.E.2d 890 (1990), the Court of Appeals applied this principle to hold that denial of a CAMA permit for a proposed pier of 900 feet in length did not constitute a taking of the property owner’s riparian rights. In doing so, the Court noted the balance required between public and private rights:
[P]laintiff’s right in the appurtenant submerged land is subordinate to public trust protections, such as those evinced in N.C.G.S. § 113A-120(a)(5) (permits may be denied upon a finding that the "development will jeopardize the public rights and interest" in the waterways and lands "under or flowed by tidal waters or navigable waters, to which the public may have rights of access or public trust rights"). The Legislature’s authority to protect public trust rights always is limited by plaintiff’s right to retain some use or value of his property.
In support of the Weeks permit denial, the CRC had made extensive findings concerning the adverse impact of the proposed pier on other public trust uses due to its unusual length. In finding that the State was entitled to summary judgment on the takings claim in Weeks, the Court noted that: (1) the CRC had not foreclosed the possibility of permitting a pier of some length on the plaintiff’s property; and (2) the uncontested facts indicated that the near-shore submerged lands were also subject to many recreational uses.
All of these cases support the State’s right to limit (and possibly prohibit) pier construction based on adverse environmental or public trust impacts. Such an action would be consistent with the common law limitation on the riparian right to build a pier or wharf – that it is subject to regulation "for protection of the public rights in rivers or navigable waters". Complete denial of the right to construct a pier for water access may be subject to challenge only if it is unsupported by a determination that construction of the pier would interfere with public trust rights or cause environmental harm.
We hope this is of some assistance. Daniel C. Oakley Senior Deputy Attorney General
Robin W. Smith
Assistant Attorney General