July 27, 1982
Subject:
Zoning; Coastal Area Management Act.
Requested By:
Dexter Hayes, Planning Director of New Hanover County
Question:
Can New Hanover County regulate the location, density and construction of floating homes located in public waters and adjoining its shorelines?
Conclusion:
Yes, through its zoning authority and land use plan required by the Coastal Area Management Act.
Consistent with its legislative grant of authority, the Coastal Resources Commission (CRC) has adopted a regulation which designates estuarine waters as an area of environmental concern. See
G.S. 113A-113(b) and 15 NCAC 7H Section .0200. The Coastal Area Management Act (CAMA) requires all local entities which develop a land use plan to give special attention to "the protection and appropriate development of areas of environmental concern designated" by the CRC. The plans are required to set forth the entities’ statements of objectives, policies, and standards to be followed in the public and private use of land within the county along with "special criteria for particular types of land or water use in particular areas." G.S. 113A-110. Such land use plans have the force and effect of law for any area within the county which requires a CAMA permit for development activity. G.S. 113A-111. In the goals section of CAMA, the legislature has declared the coastal management system created by the Act has as one goal "to insure the development or preservation of the land and water resources of the coastal area proceeds in a manner consistent with the capability of the land and water for development, use or preservation based on ecological considerations." G.S. 113A-102(b). Thus, the county has a duty under the Coastal Area Management Act to review the uses of the estuarine system and develop a management system consistent with State guidelines and the Act which embodies the county" determination of the best use of that resource area. The decisions on how to best achieve the goals of the Act are vested in the county with limited oversight, through its own guidelines, by the CRC. G.S. 113A-107.
The county is authorized through the Act to regulate any development over or use of the estuarine system. The definition of "floating homes" embodies in the proposed ordinance indicates such structures will require use and/or development of estuarine waters. Therefore, the county acts within the scope of its land use authority when it regulates the use and/or development of estuarine waters by "floating homes."
As with most land use plans, it is generally accepted that the local entity will achieve the particulars of its development standards through zoning and other regulatory ordinances. The legislative grant of zoning authority to counties includes the ability to regulate and restrict the location and use of buildings and structures as well as the density of population. G.S. 153A-340.
While no decision of our appellate courts was located on the question as to whether the zoning authority extends to include development over estuarine waters within the bounds of the county, it is the opinion of this Office that such authority was delegated to the counties in chapter 153A of the General Assembly. For development over water as with all other development, the zoning authority is limited by the enabling legislation. To exert such authority over "floating homes" are structures or buildings within the meaning of G.S. 153A-340.
Your letter of inquiry included several other questions. It has long been the policy of this State that any private use of lands covered by navigable waters may be allowed only after issuance of an easement to the user by the Department of Administration. G.S. 146.12. Through consultation with the State Property Office, this policy has been confirmed as regards floating homes. Thus any person desiring to utilize lands covered by navigable waters must first request permission from that office before locating the "floating home" over lands covered by navigable waters.
This is one example of the State’s regulatory authority which the county must consider in the development of a regulatory plan to control "floating homes." The field is not a precluded area for regulation by the county although certain aspects of the development may be regulated under other authority. This Office is not able to itemize those areas and refers you to your county attorney for that review.
Rufus L. Edmisten Attorney General
Daniel F. McLawhorn Assistant Attorney General