If a North Carolina county or city passes a floodplain ordinance, does it apply to the State of North Carolina when the State builds something on State-owned land inside that county or city?
Plain-English summary
The State Property Officer asked whether the State Construction Office had to comply with floodway or floodplain ordinances that a county or city had enacted, when the State was putting up a building on State-owned land within that county or city. The answer turned out to depend on which statute the local government had used to enact the ordinance.
The general background rule, which the AG invoked here, is that statutes of general application do not bind the sovereign State unless the statute says so. The 1978 AG quoted this principle from Yancey v. Highway Commission, 222 N.C. 106 (1942). Local governments cannot regulate State construction unless the General Assembly has either (1) authorized the local government to do so and (2) made that authorization expressly applicable to the State.
The AG worked through two separate statutory regimes for floodplain regulation:
Chapter 143, Part 6 (G.S. 143-215.51 through 143-215.61): floodway-specific authority. This Part gives local governments regulatory authority over floodways. It contains no express language making its rules applicable to the State. Under the Yancey rule, Part 6 of Chapter 143 does not bind the State of North Carolina. Floodplain ordinances passed by counties or cities exclusively under this authority therefore do not control State construction.
Chapter 153A, Article 18, Part 3 (counties) and Chapter 160A, Article 19, Part 3 (municipalities): general zoning authority. These are the broad zoning chapters. Both expressly state that their provisions are "applicable to the erection, construction, and use of buildings by the State of North Carolina and its political subdivisions" (G.S. 153A-347; G.S. 160A-391). So a county or municipality can subject State buildings to its zoning authority to the extent that the zoning chapters confer that authority.
The AG then asked whether floodplain regulation was a proper subject for general zoning. The zoning statutes do not list "floodplain" explicitly, but they authorize regulation for "safety from fire, panic and other dangers" and for promoting "health and the general welfare" (G.S. 153A-341, 160A-383), and they direct the regulator to consider an area's "peculiar suitability for particular uses." The susceptibility of land to flooding fits all three. G.S. 143-215.61, within the Part 6 floodway regime, also expressly preserves local authority "to enact" floodplain regulations "in the interest of floodplain management" outside Part 6.
So a county or city that enacts a floodplain ordinance under its general zoning authority can bind the State as to the State's "erection, construction, and use of buildings." A county or city that enacts a floodplain ordinance only under Chapter 143, Part 6 cannot.
There is an important narrow limit at the end of the opinion: even when the State is bound, the zoning chapters reach only buildings. If the State is constructing something that is not a building (a road, a flood control structure, an open utility right-of-way), the zoning chapters do not reach that activity and so cannot subject it to local floodplain control.
Currency note
This opinion was issued in 1978. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's floodplain management framework has been substantially built out since 1978, including the State Floodplain Mapping Program and various amendments to Chapter 143 and the local zoning chapters. The basic doctrine the AG applied (sovereign immunity from general statutes absent express inclusion) remains a North Carolina rule, but the specific statutory cross-references should be re-verified before reliance.
Historical context: what the AG concluded
The opinion's main move is to separate the two statutory tracks for local floodplain regulation, then apply the general state-sovereignty rule to each.
Part 6 of Chapter 143 was, at the time, the dedicated floodway statute. It empowered local governments to regulate within floodways. But because Part 6 said nothing about the State, the AG read it under the default Yancey rule: general grants of regulatory authority do not bind the State unless they expressly do.
The general zoning chapters were a different track. Chapter 153A, Article 18, Part 3 (counties) and Chapter 160A, Article 19, Part 3 (municipalities) contained an express provision making zoning "applicable to the erection, construction, and use of buildings by the State." The AG followed that express provision through to its consequences: if a floodplain ordinance is a valid exercise of general zoning authority, then it binds the State, but only as to buildings. The opinion's reading of the zoning purposes ("safety from fire, panic and other dangers," "health and the general welfare," "peculiar suitability for particular uses") was favorable to including floodplain rules within ordinary zoning.
The opinion was self-aware about its limits. There were no appellate decisions construing whether floodplain rules fit within general zoning, so the AG was reasoning by inference from the statutory language and purposes, not from binding case law. The AG also flagged the building-only limit of the zoning chapters' reach.
For local-government attorneys, the practical takeaway in 1978 was: ground your floodplain ordinance in Chapter 153A, Art. 18, Part 3 or Chapter 160A, Art. 19, Part 3 if you want it to apply to State construction. For State Property Office staff, the takeaway was: identify the statutory basis of any local floodplain rule before assuming you can ignore it.
Common questions
Did the AG say a county could regulate where the State puts up a State office building?
Yes, but only conditionally. The AG said that if the county's floodplain ordinance was a proper exercise of its general zoning authority under Chapter 153A, Article 18, Part 3, then it applied to the State's "erection, construction, and use of buildings" because Chapter 153A expressly extends to State buildings. If the ordinance was based only on Chapter 143 Part 6 (the floodway-specific statute), the State was not bound.
Why doesn't the State have to follow every local ordinance?
Because of the longstanding rule, recited in the opinion, that general statutes do not apply to the sovereign State unless the statute expressly says so. The AG cited Yancey v. Highway Commission, 222 N.C. 106 (1942), for that proposition. Without express language including the State, local regulatory authority granted by general statutes does not reach State activity.
Did the opinion bind the State to follow local floodplain rules in every case?
No. Even where the AG concluded a county or city ordinance applied to the State, the application was limited to the "erection, construction, and use of buildings." Anything the State constructs that is not a building (the opinion gives no examples, but roads, dams, flood control works, and utility corridors are typical) falls outside the zoning chapters' reach.
Did the AG cite any prior decisions about floodplains?
The AG noted that "there appear to be no decisions by our appellate courts on the question raised." The conclusion was therefore reached by reading the zoning statutes' purposes and the Yancey sovereign-immunity rule together, not by following precedent specific to floodplain regulation.
Where in the statutes is the State-buildings clause that does the work here?
G.S. 153A-347 (counties) and G.S. 160A-391 (municipalities). Both make the relevant Part 3 zoning provisions applicable to the State's erection, construction, and use of buildings.
Background and statutory framework
Three statutory regimes are in play.
First, Chapter 143, Part 6 (G.S. 143-215.51 through 143-215.61) gave local governments specific regulatory authority over floodways. The Part contains no express provision making its rules binding on the State. G.S. 143-215.61 explicitly preserves local floodplain authority outside Part 6: it provides that Part 6 "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."
Second, Chapter 153A, Article 18, Part 3 contains the general zoning authority of counties. G.S. 153A-340 authorizes zoning for health, safety, morals, and welfare. G.S. 153A-341 sets the goals of zoning: securing safety from fire, panic, and other dangers, promoting health and the general welfare, and making zoning regulations with reasonable consideration of the character of the district and its peculiar suitability for particular uses. G.S. 153A-347 makes all provisions of Part 3 "applicable to the erection construction, and use of buildings by the State of North Carolina and its political subdivisions."
Third, Chapter 160A, Article 19, Part 3 is the parallel municipal zoning authority. G.S. 160A-381 authorizes the regulation. G.S. 160A-383 mirrors the county purposes provision. G.S. 160A-391 makes Part 3 applicable to State buildings just as G.S. 153A-347 does for counties.
The doctrinal anchor is Yancey v. Highway Commission, 222 N.C. 106 (1942), which the AG cites for the rule that general statutes do not apply to the sovereign State unless the State is expressly mentioned.
Citations
- Chapter 143, Part 6 (G.S. 143-215.51 through G.S. 143-215.61)
- G.S. 143-215.51
- G.S. 143-215.61
- Chapter 153A, Article 18, Part 3
- Chapter 160A, Article 19, Part 3
- G.S. 153A-340
- G.S. 153A-341
- G.S. 153A-347
- G.S. 160A-381
- G.S. 160A-383
- G.S. 160A-391
- Yancey v. Highway Commission, 222 N.C. 106 (1942)
Source
- Landing page: https://ncdoj.gov/opinions/floodplain-ordinances/
Original opinion text
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