Does the North Carolina Constitution require a three-fifths supermajority vote of both houses of the General Assembly before the State can grant a flood-control flowage easement on Umstead State Park land to Wake County?

Plain-English summary

William B. Umstead State Park, the wedge of forest sandwiched between Raleigh, Cary, and the airport, was constitutionally dedicated to the State Nature and Historic Preserve. Wake County wanted to build "Structure #25" in the Crabtree Creek Watershed Project, a flood-control dam located downstream of the park, that would increase the time floodwaters lingered in part of the park during heavy rains. The county needed a flowage easement from the State to allow that temporary inundation. The Division of Parks and Recreation and the State Building Division asked whether granting the easement required a three-fifths vote of both houses of the General Assembly.

Special Deputy Attorney General T. Buie Costen concluded no.

Article XIV, § 5 of the NC Constitution dedicates protected lands to a Preserve "for the benefit of all its citizenry" and identifies park, recreational, and scenic preservation, pollution control, and the protection of forests, wetlands, beaches, and historical sites as proper state functions. The three-fifths supermajority is required only when dedicated property is used for purposes unrelated to these protections.

A flood-control project led by a political subdivision of the State that has effects on state park land was, in the AG's analysis, not "unrelated" to the dedicated purposes. Wake County is a political subdivision. Conservation of water (flood control) sits squarely within the constitutional policy ("to conserve and protect its lands and waters"). And G.S. § 143-260.9 expressly permits the administering agency to carry out maintenance and improvement that is "appropriate to, and consistent with" the dedicated purpose.

The Division of Parks and Recreation had done a careful analysis (which the opinion quotes at length) showing:

• The bulk of the impact would be in a floodplain area the Master Plan already designated as natural and undeveloped.
• Modeling showed no significant change in flood pool size during major flood events.
• Vegetation analysis showed that woody vegetation would tolerate the increased inundation; symptoms of stress required 40+ hours of additional flooding beyond the 100-year flood event.
• The Piedmont Beech National Natural Landmark within the park sits upslope from the floodplain and would be unaffected.

Given that record, the AG concluded the easement was consistent with park purposes and could be granted by the State without legislative supermajority approval.

Currency note

This opinion was issued in 1986. 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. Article XIV, § 5 remains in the NC Constitution. G.S. § 143-260.9 remains the controlling statute. Crabtree Creek Watershed Project Structure #25 is part of the regional flood-control infrastructure, and Umstead Park continues to absorb some Crabtree floodwaters. The AG's specific conclusion was tied to the engineering and ecological record before it; a comparable easement today would require the same kind of substantive analysis.

Background and statutory framework

Article XIV, § 5 was added to the NC Constitution in 1972 as part of the broader environmental-protection movement. It set up the State Nature and Historic Preserve as a constitutional category for the most-protected state lands: those that would not be subject to ordinary executive-branch repurposing. The three-fifths supermajority requirement for repurposing dedicated property was meant to make that property essentially permanent, removable from preservation status only by a strong legislative supermajority.

But the constitutional drafters also recognized that dedicated lands cannot be perfectly static. Existing structures need maintenance. Adjacent infrastructure projects can have spillover effects. So the Constitution allowed the General Assembly to "prescribe by general law the conditions and procedures" for dedicating property and for handling subsequent uses. § 143-260.9 was the general law that filled in this constitutional framework.

The 1986 opinion is a good worked example of how to apply this framework. The first question is: is the proposed use unrelated to the dedicated purpose? If yes, three-fifths approval is needed. If no, the agency proceeds in the ordinary administrative way, with § 143-260.9 confirming the agency's authority.

The opinion is also notable for the procedural posture: rather than just analyze the legal question abstractly, the AG quoted the underlying ecological and engineering analysis at length. That gave the answer real substance: the easement was approved not because flood control was always compatible with park purposes, but because the particular easement had been carefully studied and shown to be minimal-impact.

Common questions

What would have triggered the three-fifths requirement?

If the proposed use had been clearly unrelated to land and water conservation, such as building a parking lot or a commercial facility on dedicated park land, then the three-fifths legislative vote would have been required. The Constitution treats some uses as compatible with the preserve and some as incompatible; the AG's job is to characterize which side a particular proposal falls on.

Was the Division of Parks and Recreation's analysis legally required?

§ 143-260.9 requires that the proposed work be "appropriate to, and consistent with" the dedicated purpose. The Division's substantive analysis was how the AG verified the consistency. Without that analysis, the AG might have concluded that the use was not necessarily consistent and that the safer path was three-fifths approval.

Could a private flood-control beneficiary have invoked this framework?

The opinion turned partly on Wake County being a "political subdivision of the State" engaged in a public flood-control project. A purely private flood-control project would not fit the framework the same way; private projects on dedicated park land would generally require legislative approval if they had any meaningful impact on park use.

What if downstream homeowners would have benefited primarily from the dam?

The opinion focused on the public-purpose nature of the county's flood-control project; downstream homeowners benefiting from public flood-control infrastructure is consistent with the public purpose. The analysis would have been more complicated if the project's primary benefit had flowed to a private developer or private landowner.

Source

• Landing page: https://ncdoj.gov/opinions/william-b-umstead-state-park-flowage-easement-to-wake-county/

Citations

• N.C. Const. art. XIV, § 5 (State Nature and Historic Preserve)
• G.S. § 143-260.9 (dedication does not prevent maintenance and improvement consistent with dedicated purpose)

Original opinion text

Requested By: Charles L. Holliday State Building Division

Dr. Wes Davis Division of Parks and Recreation

Question: Does dedication of Umstead State Park to the State Nature and Historic Preserve authorized by Article XIV, § 5, Constitution of North Carolina, require a vote of three-fifths of the members of each House of the General Assembly before a flowage easement may be granted to Wake County for flood control purposes?

Conclusion: No.

The purpose and policy of the State Nature and Historic Preserve is stated in the Constitution as follows:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty.

Legislative approval is required only for use of the park property for other purposes unrelated to the above. We note that Wake County is a political subdivision of the State and the purposes of their flood control project extend beyond the park boundaries and are embraced within the purposes above stated.

We further note that the Constitution also provides:

The General Assembly shall prescribe by general law the conditions and procedures under which such properties or interests therein shall be dedicated for the aforementioned public purposes.

Pursuant to that constitutional grant of authority, the General Assembly has enacted G.S. 143-260.9:

§ 143-260.9. Dedication shall not affect maintenance and improvement of existing structures or facilities.

The dedication of property to the State Nature and Historic Preserve shall not prevent the administering State agency or local governing body from carrying out normal maintenance and improvement of existing structures or facilities that are appropriate to, and consistent with the purpose for which the property in question was obtained by the State agency or local governing body.

The Division of Parks and Recreation has conducted extensive investigation to determine that the proposed easement is consistent with and not detrimental to the proposed uses of the Park. We are furnished with extensive reports, maps and data by memorandum dated February 10, 1986, in support of the Division's conclusions. The following are excerpts from the memorandum:

The easement is needed by the County in order to proceed with Structure 25 in accordance with the Crabtree Creek Watershed Project. Although the dam structure itself will be located downstream of the Park, not on the park land, the structure will, during periods of heavy rain, increase the time that flood waters are retained in the Park. According to studies by the DNRCD, the increased retention time will not adversely affect plant or animal communities within the easement area or affect the continued use of the area for park (recreation and conservation) purposes.

What effects will the flooding have on future recreation development at Umstead Park? The 1974 Umstead Master Plan shows the area in question to remain as a natural area, without development. (See Master Plan, attached as Exhibit Three).

The only planned development which lies within the 100 year floodplain would be a bridge/roadway connecting the two, currently separated, park entrances. Since this bridge would lie within the 100 year floodplain, with or without Structure #25, and since hydrologic modeling shows no significant change in the size of the flood pool even during the 100 year event with Structure #25 in place, we would not be required to relocate or redesign the bridge to a higher standard than that required under existing circumstances.

What recreational opportunities are foregone by the flooding at Umstead? The impact of Structure #25 at Umstead is felt only through an increase in the time water is retained in the floodplain at elevations which will not change from those now in existence. Activities which would normally occur in an undeveloped natural area would be precluded by some amount of time, depending on the severity of the flood event.

What effects will the flooding have on the flora and fauna at Umstead State Park? A recently completed vegetative analysis, attached, concluded that:

If the duration of inundation through time is as predicted, it is anticipated that the impact on existing woody vegetation will be minimal. Before symptoms of stress will be observable for those species discussed, the duration of flooding would have to be extended for 40 hours beyond the 100 year flood event. On Figure 2, two broad areas of floodplain are depicted that will be flooded for substantially longer periods than at present during 10, 25, 50, and 100 year flooding events. These two areas are the two largest expanses of floodplain and are comprised of 36 acres.

No adverse impacts due to inundation are anticipated within the Piedmont Beech National Natural Landmark. (The features for which the natural area was designated are located upslope from the floodplain). A small part of the National Landmark is situated within the 235-240 ft. contour interval. This portion is comprised of a narrow strip of floodplain, creek bank, and creek at the base of the slopes. However, no intolerant species grow in this area. (page 14).

Based upon the information furnished, this Office concludes that the proposed easement is appropriate to, consistent with and not detrimental to, the purposes of the park. Therefore Legislative approval is not required.

LACY H. THORNBURG
Attorney General

T. Buie Costen
Special Deputy Attorney General