Zoning; Municipal Corporations; Coastal Area Management Act

Subject:

Zoning; Municipal Corporations; Coastal Area Management Act.

Requested By:

Wayland J. Sermons, Jr., Town Attorney for Town of Bath

Questions:

(1)

Can the Town establish a building line to which riparian owners may extend piers or docks to reach deep water?

(2)

Can the town exercise zoning ordinance powers over waters of adjacent creeks which are within the one (1) mile extraterritorial zoning jurisdiction?

Conclusions:

(1)

Yes, under G.S. 146-12.

(2)

Yes, under G.S. 113A-110 and G.S. 160A-360 et seq.

(1)

G.S. 146-12 provides in pertinent part:

When any such easement (for riparian owners to lands covered by navigable waters) is granted in front of the lands of any incorporated town, the governing body shall regulate the line on deep water to which wharves may be built.

In a series of cases that arose in the Town of Edenton, this issue was fully explored by the Supreme Court at the end of the last century. Bond v. Wool, 107 N.C. 139, 12 S.E. 281 (1890); Wool v. Town of Edenton, 115 N.C. 10, 20 S.E. 165 (1894); Wool v. Town of Edenton, 117 N.C. 1, 23 S.E. 40 (1895). In the latest of those cases, the Court held that, upon application of a riparian owner, this statute imposes a duty on the authorities of an incorporated town situated on navigable waters to regulate the line on deep water to which entries can be made for easements to build wharves and piers for deep water access. The town is authorized by the statute to establish the line for all such navigable waters or to respond to individual requests. As the Court finds in the case, a riparian owner may request the town reconsider and alter the line if it was not the true line on deep water for the owner’s tract.

(2) On July 27, 1982, this Office issued an official opinion at the request of the Planning Director of New Hanover County which dealt with the same general question of authority. It was concluded in that opinion the Coastal Area Management Act requires authorized units of local government to consider in their land use plans the development, use, or preservation of the areas of environmental concern established by the Coastal Resources Commission. The creeks adjacent to the Town of Bath are within the public trust area of environmental concern established by the Commission at 15 NCAC 7H.0207. Thus, the Town may regulate the development, use, or preservation of adjacent creeks within the town’s zoning jurisdiction through its land use plan adopted pursuant to G.S. 113A-110. Such land use plans have the force and effect of law. G.S. 113A-111.

In State v. Eason, 114 N.C. 787, 19 S.E. 88 (1894), the Supreme Court declared that towns bounded by navigable streams have regulatory jurisdiction to the low water mark of such streams. Subsequent to that decision, the General Assembly enacted G.S. 160A-360 et seq. In that statute, the Town was granted the additional power to regulate through its zoning ordinances, "a defined area extending not more than one mile beyond its limits." If the Town’s charter specifically includes the waters of the adjacent creeks, it may exercise the full charter powers over the waters of the creek. Otherwise it is limited in its authority to the zoning power and the limited authority discussed in (1) above.

Rufus L. Edmisten Attorney General

Daniel F. McLawhorn Assistant Attorney General