Can a coastal North Carolina county like New Hanover regulate where floating homes can be located, how dense they can be, and how they can be built when those homes sit on public waters that border the county's shoreline?
Plain-English summary
New Hanover County's planning director, Dexter Hayes, was working on a proposed ordinance to regulate floating homes (houseboats that are docked or moored more or less permanently as residences) on the county's estuarine waters. The question was whether the county had the legal authority to do that. Floating homes sit on water, not land. Could a county's zoning and land use authority reach over to water?
Assistant AG Daniel McLawhorn, for AG Edmisten, said yes, by two routes that worked together:
Route 1: The Coastal Area Management Act (CAMA). The Coastal Resources Commission (CRC) had designated estuarine waters as an "area of environmental concern" under G.S. § 113A-113(b) and 15 NCAC 7H .0200. CAMA requires every coastal local government with a land use plan to give special attention to AECs (areas of environmental concern). § 113A-110 spells out the content of the plans: objectives, policies, standards, and "special criteria for particular types of land or water use in particular areas." § 113A-111 gives the local plan the force and effect of law in CAMA-permitted development areas. Combining these provisions, the county has authority to regulate the use of estuarine waters by floating homes through its CAMA land use plan, provided the regulations are consistent with state CAMA guidelines and policy.
Route 2: Zoning authority under G.S. § 153A-340. The general county zoning power authorizes the regulation and restriction of the "location and use of buildings and structures" as well as "the density of population." The AG read "buildings and structures" broadly enough to include floating homes, even though they sit on water rather than land. No NC appellate decision had directly addressed this question, but the AG saw no reason to read the zoning statute as limited to land-based structures. The zoning authority and the CAMA authority operated in parallel: a county could implement its CAMA land use plan policies through zoning ordinances.
The AG flagged one significant additional state-law layer. G.S. § 146-12 (the AG cited it as "G.S. 146.12") requires any private use of submerged lands beneath navigable waters to be authorized by an easement from the Department of Administration. The State Property Office had confirmed to the AG that this easement requirement applies to floating homes. So a floating home owner needs not just the county permit, but also a state easement to occupy the submerged land under the floating home.
The AG closed with practical guidance: the field is not preempted by state law, but the county must consider what other state regulatory authorities (CAMA permitting through the Division of Coastal Management, submerged-lands easements through the State Property Office, environmental review under various other statutes) may apply to specific aspects of floating-home development. The county attorney needed to coordinate the ordinance design with those other state programs.
Currency note
This opinion was issued in 1982. 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. CAMA has been amended substantially since 1982, including changes to AEC designations, permit categories, and the relationship between state and local plans. The Coastal Resources Commission has issued many rule updates affecting estuarine waters specifically. The submerged-lands statute has also been amended; the easement process is now more elaborate. Anyone with a current floating-home regulation question must read the current statutes, the current 15A NCAC chapters, and any local ordinance from the relevant county.
Background and statutory framework
CAMA was enacted in 1974 to give NC coastal communities and the state a coordinated framework for managing development in the 20 coastal counties. The Act's basic architecture has three layers: state designation of areas of environmental concern (done by the CRC), local land use plans (developed by counties and qualifying municipalities), and CAMA permits issued for individual development activities in or affecting AECs.
The AEC designation for estuarine waters reflects the ecological importance of the brackish-water systems where rivers meet the ocean. Estuaries are nurseries for fish, habitat for shellfish, buffers against storm surge, and central to coastal ecology. Allowing intensive residential use through floating homes without coordination could disrupt those functions, both ecologically (waste discharge, disruption of bottom sediment, light and noise) and from a navigation perspective (mooring lanes, channel access).
The county's role under CAMA is to develop a land use plan that addresses local objectives and meets state guidelines. The plan becomes operative through the CAMA permit process: any major development requiring a CAMA permit must be consistent with the local plan. The local government can also impose local permit requirements that supplement the CAMA permit. The combination of state and local regulatory layers is by design.
Zoning is the traditional tool for implementing land use plans, including coastal land use plans. The AG's reading of § 153A-340 as extending to water-based structures was natural in this context. A floating home is functionally a residence; the difference between a residence on stilts above the marsh and a residence floating on the water is a thin line. Counties have always zoned the former; the AG saw no statutory or constitutional reason they could not zone the latter.
The submerged-lands easement requirement is a separate state property law issue. NC owns the beds of navigable waters under the public trust doctrine. Private use of those beds (whether for piers, marinas, or moored homes) requires authorization from the state, traditionally through an easement issued by the Department of Administration. This is not a CAMA or zoning matter; it is a property-rights matter that operates in parallel.
Common questions
Did this opinion ban floating homes?
No. The opinion confirmed county authority to regulate floating homes; it did not require any particular regulatory approach. The county could allow floating homes with controls, restrict them to specific zones, or prohibit them altogether. The question for the AG was about authority to regulate, not about the substance of the regulation.
What is an "area of environmental concern"?
CAMA defines AECs as areas requiring special protection due to natural significance or fragility. The CRC designates the categories: estuarine waters, public trust waters, public trust shorelines, ocean hazard areas (beach erodible zones), and certain natural and cultural resource AECs. Once an area is designated, both state and local planning rules apply with special emphasis.
Do floating-home regulations apply to weekend houseboats?
The question of what counts as a "floating home" requiring regulation is up to the county's definition. A houseboat used for occasional recreation may or may not fit the county's regulatory definition, depending on how the ordinance defines the term. The AG's opinion does not specify the line; it confirms the county's authority to draw the line.
What if a floating home is in federal navigable waters?
Federal regulation (Coast Guard, Corps of Engineers) may also apply to certain navigation, dredging, and shoreline activities. The opinion does not address potential federal preemption. The general framework is that state and local regulation can coexist with federal regulation unless there is direct conflict, but specific questions need specific analysis.
Source
Citations
- N.C. Gen. Stat. § 113A-102(b)
- N.C. Gen. Stat. § 113A-107
- N.C. Gen. Stat. § 113A-110
- N.C. Gen. Stat. § 113A-111
- N.C. Gen. Stat. § 113A-113(b)
- N.C. Gen. Stat. § 146-12
- N.C. Gen. Stat. § 153A-340
- 15 NCAC 7H Section .0200
Original opinion text
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