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 asked whether the county could regulate the location, density, and construction of floating homes in public waters adjoining its shores. The Attorney General answered yes, through county zoning authority and the land use plan required by the Coastal Area Management Act (CAMA). The opinion decides the county has authority to regulate these subjects; it does not approve a particular ordinance or decide whether the county could prohibit floating homes altogether.

The Coastal Resources Commission had designated estuarine waters as an area of environmental concern. The opinion says CAMA land use plans must include objectives and standards for land use and “special criteria for particular types of land or water use in particular areas.” Such plans have the force and effect of law in areas requiring a CAMA development permit. The Attorney General concluded that the proposed floating homes would use or develop estuarine waters, so county regulation of that use fell within its CAMA land use authority. The county's management system had to be consistent with state guidelines and the Act.

The opinion also relies on G.S. 153A-340, which authorizes counties to regulate the location and use of buildings and structures and population density. Although it found no appellate decision directly addressing zoning over estuarine waters, the Attorney General read the county's delegated zoning authority to extend there, subject to its enabling legislation.

A separate state property rule also mattered. The opinion says private use of land beneath navigable waters requires an easement from the Department of Administration, and the State Property Office confirmed that rule applies to floating homes. The Attorney General told the county to consider other state authority while developing its regulatory plan and referred further review to the county attorney.

Currency note

This opinion was issued in 1982. Check current CAMA rules, county ordinances, and state requirements before relying on it for a floating home today.

Background and statutory framework

The opinion connects the county's CAMA land use plan with its general zoning authority. It cites G.S. 113A-113(b) and 15 NCAC 7H Section .0200 for the designation of estuarine waters as an area of environmental concern. It cites G.S. 113A-110 for the required contents of local plans and G.S. 113A-111 for their force of law in areas requiring a CAMA permit. Under G.S. 153A-340, the county may regulate the location and use of structures and population density.

The Attorney General says those powers reach floating homes that use or develop estuarine waters within the county. He also states that zoning remains limited by its enabling legislation. The opinion does not spell out an approved location rule, density limit, construction standard, or complete ban.

Common questions

What did the opinion say New Hanover County could regulate?

It answered a question about the location, density, and construction of floating homes adjoining county shorelines. The opinion concluded the county could regulate through its CAMA land use plan and zoning authority.

Did the opinion authorize a countywide ban on floating homes?

It did not decide that question. The opinion addresses authority to regulate and says zoning is limited by the statute granting that authority. It does not evaluate a ban or any specific proposed restriction.

Does a county rule replace permission to use submerged state land?

No. The opinion says a person seeking to place a floating home over land covered by navigable waters must first request permission from the State Property Office for the required easement.

Did the opinion resolve every other state rule that might apply?

No. It says some aspects of floating-home development may be regulated under other authority, does not itemize them, and refers the county to its attorney for that review.

Source

• Landing page: https://ncdoj.gov/opinions/zoning-coastal-area-management-act/

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