impact of state regulation of coastal land in North Carolina a study of the effect of regulations under the Coastal area management act and the Dredge and fill law on land use and land values

[From the U.S. Government Printing Office, www.gpo.gov]

'I _AJ
41 C

THE IMPACT OF
STATE REGULATION OF COASTAL LAND

IN NORTH CAROLINA

A study of the effect of regulations under
the Coastal Area Management Act and
the. Dredge an.d Fill Law on land use and land values

Charles D. Liner

INSTITUTE OF GOVERNMENT
The University :of North Carolina at Chapel Hill

MAY 1980

A study conducted for the Office of Coastal Management,
North Carolina Department of Natural Resources
and Community Development

HD21 1
N8
L55
1980

ACKNOWLEDGMENT

I am indebted to many people for their help during this study. My
colleague Milton Heath took an active part in the planning and interviews for

the study, wrote the chapter on compensation, and reviewed the entire

manuscript.
Special thanks are due to members of the Office of Coastal Management's

staff--in particular, Stephen Benton, Glenn Dunn, Rob Moul, John Parker,

Charles Pattison, and Geoff Willett--and to the local permit officers,
realtors, government officials, and others who provided assistance.. Charles
W. Hollis, of the U.S. Army Corps of Engineers, was very helpful in providing

information on the Corps' permit program.
Many thanks also to Professor Orrin Pilkey, Jr. , of Duke University, for

his permission to use material from his book From Currituck to
I

Calabash. --C. D. L.

C7> US Department of Commerce
cz:@ I KOAA Coastal Services Center Library
2234 South Hobson Avenue
Charleston, SC 29405-2413

Outline

THE IMPACT OF STATE REGULATION OF COASTAL LAND IN NORTH CAROLINA

I. Introduction
A. Purpose of the study
B. Design of the study

Il. Public Regulation of Land Use in Coastal Areas
A. The present status of land use regulation in coastal areas
1. Federal laws and regulations
The Federal Coastal Zone Management Act of 1972
The Flood Insurance Act of 1968
The Clean Water Act of 1977
The Rivers and Harbors Act of 1899
2. State laws and regulations
3. Local ordinances
B. State Regulation of Land in Coastal Areas of North Carolina
1. The North Carolina Coastal Management Program
2. The Coastal Area Management Act (CAMA)
The Enactment of CAMA
Goals of CARA
Regulation and management under CAMA
Areas of Environmental Concern (AECs)
Coastal wetlands
Estuarine waters
Public trust areas
Ocean Hazard areas
Public water supply areas
Fragile coastal natural resource and cultural
resource areas
The CAMA permit system of land use control
The minor permit program
The major permit program
Criteria for approval'or denial of permit applications
3. The North Carolina Dredge and Fill Law
4. Other state regulation of land use in coastal areas

III. Regulation of Land in Ocean Hazard AECs
A. The basis for regulation in Ocean Hazard AECs
1. Island migration
2. The effects of storms and hurricanes
3. The rationale for regulation
B. Delineation of the Ocean Hazard AECs
C. CAMA Ocean Hazard AEC regulations
1. Erosion control
2. Construction standards
3. The setback requirement
4. Regulation of public facilities
5. Regulation for other purposes

D. Evaluation of the effects of CA14A regulations in Ocean Hazard AECs
I . Regulation* under the minor permit program
2. The effects of CAMA regulations in selected beach communities
3. Minor pe mit denials in other Ocean Hazard AECs
4. Lots potentially restricted by the combination of the CA14A
setback regulation and local zoning ordinances
5. CAMA major permits and dredge and fill permits

IV. Regulation in the Estuarine System AECs
T CAMA regulations for estuarine shoreline AECs
B. CARA regulations for coastal wetland AECs
C. Evaluation of the effects of CAMA regulations on land use in the
estuarine system AECs
1. Analysis of CAMA minor permit decisions
2.. Analysis of CAMA major permits and dredge- and fill permits

V. The Issue of Compensation

VI. Summary and Conclusions

I. INTRODUCTION

A. Purpose ofthe Study
This study was commissioned by the Office of Coastal Management of the
Department of Natural Resources and Community Development (NRCD) in response
to Resolution 33 of the 1979 North Carolina General Assembly, which directed

the Secretary of NRCD to conduct a study of:

(1) the impact of regulation under the Coastal Area Management Act and
the.Dredge and Fill Law on land use and land values of private lands subject

to such regulations,
(2) inequities or unfairness to landowners resulting from such

regulation, and
(3) funding that would be needed in order to adequately compensate

landowners for their losses as a result of such regulation.

B. Desi&n of-the Study
The study was designed (1) to assess the impact of regulations under the
Coastal Area Management Act (CAMA)l and the Dredge and Fill Law2 on land use
and land values in the coastal area, and (2) from this assessment to determine
whether regulations have resulted in inequities or unfairness to landowners
and the amount of money that would be required if compensation of landowners

was found to be warranted.

The assessment of the impact of regulation on land use and land values

was made by (1) analyzing provisions of the CAMA regulations and the Dredge

and Fill Law to determine how and to what extent they might restrict private

use of land, (2) analyzing the regulatory actions through the permit programs

of the Office of Coastal Management in selected areas to determine the extent

to which regulations have in fact restricted or altered the use of land, and

(3) by making field surveys in selected coastal areas to evaluate the impact

of regulations under local conditions.

Regulations under CAMA that affect land use apply mainly to three types

of "Areas of Environmental Concern" (AECs) that have so far been designated by

the Coastal Resources Commission--Coastal Wetlands, the Estuarine Shoreline,

and Ocean Hazard Areas. In each of these areas the circumstances that call

for regulation are different and require different kinds of regulations, and

the likely impact of regulations on land use and land values is different.

The analysis of regulations and regulatory actions was therefore divided into
two parts--(I) analysis of regulation in Ocean Hazard AECs; and (2) analysis

of regulation in estuarine system AECs, which include the Wetland and

Estuarine Shoreline AECs.

For the analysis of regulation in Ocean kazard AECsJ, regulatory actions

in the Ocean Hazard AECs of seven beach communities along t1he North Carolina

coast were analyzed. These COMMUnities, all of them incorporated

municipalities, are (from north to south) Kill Devil Hills, Nags Head, Pine

Knoll Shores, Emerald Isle, Wrightsville Beach, Long Beach, and Holden Beach.

Since these barrier island communities also contain Estuarine Shoreline and

Wetland AECs, regulatory actions in these AECs were also analyzed. In

addition, actions under Estuarine Shoreline and Wetland regulations and

Dredge and Fill Law regulations were analyzed in two counties, Beaufort (a

county with extensive estuarine shoreline and wetland areas but no ocean

shoreline) and Brunswick (a coastal county).
In analyzing the impact of CAMA and Dredge and Fill Law regulations on

land use and land values, care was taken to distinguish the impact of these
regulations from the impact of federal regulations, local ordinances, and

other state laws and regulations. Land in coastal areas is subject to many

laws and regulations, many of which existed before CAMA and the Dredge and

Fill Law were enacted. For example, a permit from the U.S. Amy Corps of

Engineers permit is required for almost every project that requires a CAMA

permit or a dredge and fill permit. Development in beach communities is

governed by local zoning and construction regulations and septic tank
regulations. For purposes of'this study, CARA and Dredge and Fill Law
regulations are not regarded as having a restrictive effect on land use if
other regulations would have an equally restrictive effect if these laws did,/

not exist.

During this study, local realtors, developers, government officials, and
private citizens were interviewed in order to obtain additional knowledge and

insight about the impact of regulation in tile areas selected for study. Since
the study's main task was to Assess the impact of regulations on land use and

land values, rather than to assess whether regulation in the coastal area is

needed or desirable, no attempt was made to hold public hearings, conduct

extensive interviews, or to obtain opinions from the general public.

The report is organized as follows. Chapter II describes the various
federal, state, and local laws and regulations that affect land use in coastal
areas, in particular the Coastal Area Management Act (CAMA) and the Dredge and

Fill Law. The evaluation of the effects of CAMA and the Dredge and Fill Law

regulations on land use and land values is contained @n Chapter 111, which

deals with the effects in Ocean Hazard AECs, and Chapter TV, which covers the

effects in estuarine system AECs. Chapter V discusses the legal issues

involved in compensating landowners for effects of regulatory actions and the

relevance of these issues to this study. Chapter VI briefly summarizes the

study and discusses some conclusions that might be drawn from it.

FOOTNOTES

1. N.C. Gen. Stat. 113A-100 to -134.

2. Id. 5 113-229.

11. PUBLIC REGULATION OF LAND USE IN COASTAL AREAS

A. The Present Status of Land Use Regulation in Coastal Areas

Land use in coastal areas is subject to regulation under numerous

federal, state, and local laws that govern land use everywhere, but coastal

area land is generally subject to more laws and regulations than other land

because of the environmentally complex nature of coastal areas, because the

public has a special interest in preserving the unique natural environment of

the coast, because of the economic value of the estuarine system, and because

accelerating economic development pressures can have especially serious

detrimental consequences in the fragile coastal environment. The coastal area

is subject to special regulations also because of the extensive public trust

areas and the importance of navigable waters.

1. Federal Laws and Regulations. The U.S. Council on Environmental

Quality has identified 27 major federal laws that affect private land use.

Fourteen of these laws have special significance for land use in coastal areas

(gee Table 1-1); of these fourteen, four laws have special significance for

this study because they have a,close relationship to CARA and Dredge and Fill
Law regulations.1 They are the Federal Coastal Zone Management Act, the

National Flood Insurance Act of 1968, the Clean Water Act of 1977,1 and the

Rivers and Harbors Act of 1899.

Table I-I

Federal Laws Affecting Private Land Use Practices That Have

Special Significance for Coastal Area Land

Nam (citation) Administering Agency Primary Purpose Land Use Effect

Natural Resource Laws

Land and Water Heritage Conservation and Provide financial incentives Requires adoption of
Conservation Fund Recreation Service for state and local govern- 5-year State Compre-
(16 USC 1 4601-5) ments to provide recreation hensive Outdoor Recrea-
areas and opportunities. tion Plans to guide
recreation land acqui-'
sition and development
activities.

Coastal Zone Office of Coastal Zone Assist coastal and Great Requires states to adopt
Management Act Management Lake states in preparing acceptable coastal
(16 USC 1 1451 et and implementing state plans as condition for'
seq.) coastal plans. continued federal
assistance; plans
generally deaignate
permissible use of
coastal lands.
Floodplain Manage- Council on Envtronmental Reduce the risk of flood Prohibits federal. agen-
ment Executive Order Qualityj Water-Resourcea loss and restore or preserve cies and licensees from
(E.O. 11988) Council and Federal natural floodplains. from building in the
Emergency Management 10-year floodplain un-
Administration less there is a practi-
cable alternative.

Protection of Wet- Council on Environmental Minimize the destruction of Requires federal agen-
lands Executive Quality wetlands. cies to avoid construc-
Order tion in wetlands unless
(E.O. 11990) there is no practicable
alternative.

Fish and Wildlife Fish and Wildlife Service Ensure wildlife conservation Fish and Wildlife Ser-
Coordination Act needs receive agency cow- vice and state wildlife
(16 USC 1 661 et sideration when water-related agencies can recommend
seq.) impacts will result from modifications of pro-
federal projects. jects to reduce impacts
on wildlife habitat.

Water Resources Water Resources Council Encourage the conservation, Establishes River Basin
Planning.Act development, and utiliza- commission to coordi-
(42 USC 5 1962 et tion of water on a nate water and related
seq.) coordinated basis. land development;
statewide water re-
source planning must be
consistent with these
planning policies.
Marine Protection, Office of Coastal Designate marine areas as Allows only activities
Research, and Sanc- Zone Management sanctuaries for conaerva- compatible with marine
tuaries Act of 1972 tion, recreation, or sanctuaries protection
(16 USC 1431-1434) ecological purposes. to be conducted within
sanctuary boundaries.
Endangered Species Fish and Wildlife Conserve ecosystems for the Requires that federal
Act of 1973 Service use of endangered or agency action antici-
(16 USC 5 1531 et threatened species. pate threats to and be
seq.) consistent with surviv-
al of endangered and
threatened species and
their critical habitats
whether or not the area
is designated as criti-
cal habitat.

Nam (citation) Administering Agency Primary Purpose Land Use Effect

Comnunity Development Laws

National Flood Federal Emergency Reduce the risk of lose due Requires designated
Insurance Act of Management Administration to flooding. flood-prone co-ini-
1966 ties to develop flood
(42 USC 1 4001) mitigation measures in-
cluding land use. ele-
vation and building
requirements as a
condition for flood
insurance coverage.

Disaster Relief Federal Emergency Mitigate losses from Requires state and
Act Management Administration disasters and provide local governments to
(42 USC 9 5121) emergency assistance for adopt measures which
major natural disasters. may discourage building
on hazard-prone lands.

National Historic Advisory Council on Protect districts, buildings, Requires that federal
Preservation Act Historic Preservation sites and objects signifi- agency actions consider
(16 USC 1 470 at cant to American history. impacts of their ac-
@eq.) tions on property
registered in or eligi-
ble for the National
Historic Register.

Pollution Control Laws

Clean Water Act Environmental Protection Reduce water pollution and Makes grants for sewage
(33 USC 1251 at Agency; U.S. Army Corps the discharge of toxic treatment plants.
seq.) of Engineers and waste materials into which may encourage or
all waters. permit growth; requires
state to regulate land
use practices to con-
trol pollution from in-
direct (non-point)
sources such as urban
areas; requires wetland
concerns to be consid-
ered in U.S. Army Corps
of Engineers dredge and
fill permits.

Rivers and Harbors Army Corps of Engineers Protect navigation, water Requires that effects on
Act of 1899 quality, fish and wild- wildlife habitat, wet-
(33 USC 1 401 at life, ecology, and aes- lands, historic re-
seq.) thetics of navigable sources, and coastal
waters. zones be considered be-
fore granting a permit
for activities in navi-
gable waters.

Deepwater Port Act United States Coast Guard Regulate the construction Requires land-based de-
of 1974 and operation of deep- velopment effects to be
(33 USC t 1501 at water ports on the seas considered in any port
seq.) to transfer oil from license and be consist-
tankers to shore. ent with state environ-
mental laws or coastal
zone programs.

Source: Council on Environmental Quality, Environmental.Quality 1979, Tenth Annual Report

(December, 1979), Table 8-1, pp. 486-489.

The Federal Coastal Zone Management Act of 1972. This act

authorizes federal aid to assist states in planning, implementing, and

administering coastal area management programs. Although the initial efforts

to develop a coastal area program in North Carolina began before this act was

passed, the act has significance for North Carolina's program in two ways.

First, approximately 80 per cent of the funds spent for planning and

administering the state's program come from this source. Second,

.consistency" provisions of Section 307 of the act--which require that federal

grant programs, licenses, permits, and development projects be 'consistent with

states' management*progams and policies--give the states the power to

influence federal actions in coastal areas. As a minimum, these provisions

improve state and federal coordination because the state must certify that

each federal action is consistent with the state coastal area management

program and with state policies (the state's objection can be overridden only

in cases of "national interest"). In North Carolina the consistency

provisions have a potentially more far-reaching effect because federal actions

must be consistent with local land-use plans, which are required by CAMA and

approved by the state. To this extent local governments have the power to

influence federal decisions through their land-use plans. So far the

consistency provisions have not had a significant effect on land use (in one

instance applications for Corps of Engineers permits were in conflict with a

local land-use plan, but because of special circumstances this conflict did

not affect the outcome).

The National Flood Insurance Act of 1968. This act established a

National Flood Insurance Program designed to reduce flood losses through

changes In building techniques and standards and a federally subsidized

insurance program. Although the program was intended to deal with the

nationwide problem of flooding, it applies to flooding in beach areas. Under

the program many owners of beach property are subject to special regulations

but also are eligible to receive federal flood insurance, at subsidized rates,

that they could not obtain f rom private insurance companies.

Cities and counties qualify for the program in two phases. They first

qualify' under the Emergency Program, which affords limited insurance coverage

to property owners in flood-prone areas regardless of risk. A local

government qualifies for the Regular Program after adopting ordinances that

require certain "flood plain management measures," such as standards for the

location and design of new buildings in flood-prone areas. In beach areas,

for example, perhaps the most significant requirement is that buildings be

elevated above the 100-year base flood level (the level of flooding in a flood

that has a 1 per cent'chance of occurring in any given year). When the

Regular Program is in effect, property owners are eligible for additional

flood insurance at subsidized rates that are based on the amount of risk in

specific areas defined by precise flood area maps.

The fact that federal flood insurance is available to owners of property

even in hazardous ocean areas is of special concern to some people involved in

coastal area management, who believe that the availability of insurance

encourages development in hazardous areas (the insurance is available even in

areas where the Coastal Resources Commission has denied permission to build).

From the standpoint of this study, the availability of flood insurance

undoubtedly increases the market value of oceanfront property because it

reduces the financial risks of building on the property.

The Clean Water Act of 1977: Section 404 Permits. While the Clean

Water Act covers many aspects of water quality, the Dredge and Fill Program

under Section 4042 has special significance for coastal land use. This

program, administered jointly by the U.S. Environmental Protection Agency

(EPA) and the Corps of Engineers, requires a permit from the Corps for the

discharge of dredge or fill materials into waters of the United States. and

adjacent wetlands.

There are three types of Section 404 permits. A "general permit" covers

certain types of activities, such as construction of bulkheads and

navigational aids, which have minimal environmental impact, both individually

and collectively within relatively small geographical areas.- A "nationwide

permit" (a kind of general permit with nationwide application) is issued for

discharge into small, minor waters or for certain minor activities, such as

placement of utility poles. General and nationwide permits require only

minimal review by the Corps. An "individual permit," on the other hand, must

be evaluated on a case-by-case basis by the Corps, which considers such

factors as environmental, economic, aesthetic,, health, recreationP and

water-use effects. An environmental assessment must be made for each proposed

p roject.

EPA is authorized under the act to transfer part of the authority for

approving Section 404 permits to states that have eligible programs, and the

Corps is considering a delegation to the State of North Carolina of Section

404 general permits in ocean beach areas. This authority has not been

transferred to the State of North Carolina, but in practice administration of

state permits for dredge and fill projects under CAMA and the Dredge and Fill

Law and the Corps' administration of Section 404 permits are closely related.

In accordance with Section 307 of the Federal Coastal Zone Management Act, all

projects must be certified as consistent with the state coastal area

management plan and state policies before they can be issued a Section 404

permit. The Corps may deny a permit even though the project is certified as

consistent, but it has done so only three or four times in the history of the

'3
p rog ram* The Corps' staff and the state's staff also work closely.

Applications for both the state and federal permits are made on the same form,

the two staffs exchange information, members of the two staffs usually make

field inspections t ogether, and efforts are made to settle differences in

opinion about proposed projects early in the review process so that the

applicant knows early where he stands with respect to both the state and

federal permits.

Although the state and federal permits for dredge and fill projects may

seem to be duplicative, the criteria for approval of permits differ

substantially for the two systems. Under the state's laws, the state must

find t hat a project will have certain adverse effects before it can deny a

permit. The Corps, on the other hand, may not issue a permit unless it finds,

after balancing the expected.benefits of the project against the expected
detrimental consequences, that the project is in the public interest.4 In

evaluating projects, the Corps must consider (1) the need for the proposed

structure or work, (2) whether alternative locations or methods are available,

(3) the extent and permanence of the benefits and detrimental effects on

public and private uses for which the area is suited, and (4) the probable

impact in relation to the cumulative effect of other existing and anticipated
structures or work in the general area.5

Thus Section 404 guideline@s differ in philosophy from the state's laws

and regulations and provide broader grounds for denying permits. Under state

legislation, the state mast find.that a project is inconsistent with state

regulations before it can deny a permit, while under the Section 404

guidelines the applicant must show that the proposed project is in the public

interest before it can obtain a permit. It is therefore possible that a

project may be eligible for a state permit, because no adverse effects under

existing regulations can be found, but ineligible for a Section 404 permit

because the Corps finds that the project is not in the public interest. Even

If the state should be delegated partial authority for issuing Section 404

permits, the state would be required to comply with the Section 404

guidelines, and EPA would retain the right to override state decisions.

The Rivers and Harbors Act of 1899. The Corps of Engineers has been

responsible for protecting navigable waters since the Rivers and Harbors Act

was enacted in 1899. in 1968 criteria used by the Corps to review pe mit

applications were broadened to consider factors related to fish and wildlife,

conservation, pollution, aesthetics, and ecology. At the same time, the Corps

redefined navigable waters to incltide all "presently, historically, and

reasonably potential" navigable waters and all waters subject to the ebb and

flow of the tide, up to mean high water in tidal areas and up to ordinary high

water in freshwater areas.6

Under Section 10 of the act, a pe mit from the Corps is required for all

structures and work (with a few,exceptions) in navigable waters. Section 10

permits.apply, for example, to dredging boat access channels and basins,

piers, docks, moorings, navigational aids, and canals connected to navigable

waters. The procedures and criteria for issuing Section 10 permits are

similar to those for Issuing Section 404 permits, as described above, except

that there are only two types of permits, general and individual, and
authority for issuing permits cannot be delegated to the states.7

2. State Laws and Regulations. As a result of the Federal Coastal Zone

Management Act (FCZMA) and a generally increased awareness and concern about

the-coastal environment, most states with ocean or Great Lakes shorelines have

moved to Increase regulation of coastal land. Thirty-one of the 35 states

eligible for FCZKA assistance have adopted new. laws and regulations or

improved implementation of existing laws as part of their state coastal area
management programs.8. Exist-tng and proposed state laws protect wetlands (30

states), floral and faunal habitats (24 states), beaches and dunes (25

states), barrier islands (9 states), reefs 01 states), and historic and
cultural resources (19 states).9

In North Carolina, renewed efforts to prote ct the coastal environment

through legislation began during the 1960s and culminated in the enactment of

CAMA in 1974.10 In 1965 the state's commercial fisheries law was revised to

clarify conflicttng claims to submerged land, and a sand dune protection law

was revised to allow more vigorous enforcement by local governments. A law

requiring registration of dredging and filling equipment on publicly owned

marshland, tideland, beaches, and navigable waters was enacted in 1967 in

orderto facilitate monitoring of dredge and fill activities (it was repealed

in 1977 because it was superseded by the Dredge and Fill Law). A major

package of coastal protection legislation was enacted in 1969. This

legislation required permits for dredging and filling in estuarine waters (the

Dredge and Fill Law), prohibited littering of navigable waters, required

permits for erecting signs and structures in navigable waters, and

appropriated funds for estuarine land acquisition, staffing of estuarine
protection programs, and a long7range study of the need for additional
legislation (a study that led to recommendations for provisions tinder CAMA).

Refinements in estuarine protection and sand dune protection laws were enacted

in 1971, and local government authority to finance beach erosion protection

projects was strengthened.

The earliest version of the Coastal Area Management Act, developed by a

legislative study group in 1972, was presented to the North Carolina General

Assembly in 1973. The proposed legislation was held over to the next session,

and, after a series of public hearings, a revised bill that strengthened
local participati"on in the program was enacted by the 1974 General Assembly

after numerous amendments.

The Coastal Area Management Act, the Dredge and Fill law, and other

statutes and regulations goveming land use in coastal areas are described

more fully in the following section.

3. Local Ordinances. Regulation of land use under CAMA is tied closely

to regulation of land use under local zoning, building, subdivision, flood

plain, sand dune, and other ordinances that apply to development in AECs.

Several aspects to the relationship between CAMA regulations and local

ordinances have important implications for this study.

First, CAMA regulations require that applicants meet all local

regulations before a CAMA pe mit and other state pe mits can be issued. An

applicant could therefore receive a CtUIA permit in one community for a project

that would be denied a CAMA pe mit in another community (because, for example,

the two communities have different minimum size-of-lot requirements).

Consequently, denial of a CAKA permit does not necessarily imply that CAMA
regulations have an effect on land use, because the denial may be based on the

failure to meet local ordinances rather than a failure to meet CAMA

regulations.

Another significant aspect of the relationship between CAMA regulations

and local ordinances is that the combined effect of CAMA regulations and local

ordinances may have an impact on land use in some cases in which neither alone

would have this effect. An important example, particularly for purposes of

this study, involves the CAMA ocean setback requirement and local street

setback requirements. On some shallow oceanfront lots bounded by streets,

neither the CAMA setback requirement nor local street setback requirements

alone would, prohibit construction of a residence, but the two requirements

combined may prohibit construction if the lot is not deep enough for both

requirements to be met.

Local ordinances may be more restrictive than CAMA regulations. In one

beach community surveyed in this study, for example, the local oceanfront

setback was greater than the CAMA setback and in fact placed all oceanfront

residences outside the AEC and therefore outside the jurisdiction of the CAMA

permit program.
Finally, because CAMA regulations may adequately fulfill some local

objectives, some types of local ordinances may not be needed, and CA14A

regulations may serve in lieu of some local ordinances. To simplify the

permit process, for example, the General Assembly has repealed legislation
authorizing sand dune ordinances applicable to Ocean Hazard AECs because they

duplicate CMA regulations. The CAMA ocean setback requirement may serve in

lieu of a local ocean setback ordinance.

B. State Regulation of Land in Control Areas

1. The North Carolina Coastal Management Program. The North Carolina
Coa.stal Management Program consists of the following components:11

a. state resource management laws, regulations, and standards
governing coastal area land (including the Dredge and Fill Law);

b. state policies concerning coastal management established by statutes
or by authority of statutes, including policies,with respect to
growth management, facilities siting, industrial promotion,
transportation, tourism and recreation, energy,,and environmental
prot6ction;12
ce the Governorls Executive Order Number 15 of October 27, 1977, which
requires that actions and policies of state agencies be consistent
with the goals and policies of the coastal management program; and

d. the Coastal Area Management Act.

Thus the authority for state regulation of resources and land use in
coastal areas is broad and extends beyoni CAMA and the Dredge and Fill Law,
which are the particular concern of this study. . Federal laws and regulations

and local ordinances extend the scope of government regulation even further,

as the last section indicated. Nevertheless, CAMA and the Dredge and Fill

Law are important components of the state's coastal management program and are

among the most important laws affecting land use in coastal areas.

2. The Coastal Area Management Act (CAMA)

The enactment of CAMA.13 The 1969 Session of the North Carolina

General Assembly, after enacting the Dredge and Fill Law, directed the

Commissioner of Commercial and Sports Fisheries of the Department of

Conservation and Development to conduct a study "with a view to the

preparation of a comprehensive and enforceable plan for the conservation of

the resources of the estuaries, the development of their shorelines, and the
use of the coastal zone of North Carolina."14 The Commissioner established a

Comprehensive Estuarine Plan Blue Ribbon Committee, which proposed legislation
I
to the 1973'Session of the General Assembly. After local government interest

opposed the legislation on grounds that local governments should have a

greater role in the program, the bill was held over to the next session.

After a series of public hearing, a substantially revised bill was submitted

to the 1974 Session, and after numerous amendments the bill was ratified on

April 12, 1974.

Goals of CAMA. The goals of CAMA, as enumerated in the act,

are as follows:15

To provide a management system capable of preserving and managing the
natural ecological conditions of the estuarine system, the barrier dune
system, and the beaches, so as to safeguard and perpetuate their natural
productivity a,nd their biological, economic and esthetic values;

To insure that 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;

To insure the orderly and balanced use and preservation of our coastal
resources on behalf of the people of North Carolina and the nation;

To establish policies, guidelines and standards for:

Protection, preservation, and conservation of natural resources,
including but not limited to water use, scenic vistas, and fish and
wildlife; and management of transitional or intensely developed areas and
areas especially suited to intensive use or development, as well as areas
of significant natural value;

The economic development of the coastal area, including but not limited
to construction, location and design of industries, port facilities,
commercial establishments and other developments;

Recreation and tourist facilities and parklands;

Transportation and circulation patterns Eor the coastal area including
major thoroughfares, transportation routes, navigation channels and
harbors, and other public utilities and facilities;

Preservation and enhancement of the historic, cultural, and scientific
aspects of the coastal area;

Protection of present commorr-law and statutory public rights in the lands
and waters of the coastal area;

Any other purposes deemed necessary or appropriate to effectuate the
policy of this Article.

Regulation and management under CAMA. The act establishes a

cooperative program of coastal area management between local and State

governments," with responsibility divided as follows:

Local government shall have the initiative for planning. State
government shall establish areas of environmental concern. With regard
to planning, State government shall act primarily in a supportive
standard-setting and review capacity, except where local governments do
not elect to exercise their intiative. Enforcement shall be a concurrent
State-.local responsibility.16

Under this framework.the act establishes what has been referred to under the

North Carolina Coastal Management Program as a "two-tiered" management plan.

The first "tier" of management involves the Areas of Environmental Concern

(AECs), which are designated by the Coastal Resources Commission as

geographical areas within the coastal area that have special environmental

significance and are of significance outside the local area. In these areas

development is subject to close state regulation under standards and

regulations promulgated by the Coastal Resources Commission under a state

permit system administered jointly by the state and local governments. The

Coastal Resources Commission is an appointed body established by the act to

supervise administration and set policy for the program.

The second "tter" of management involves all land in the coastal area

outside designated AECs. Outside AECs, the state's role is limited to actions
authorized by existing statutes, and "management" is accomplished through
land-use plans prepared and adopted by counties and municipalities under state
guidelines and approved by the Coastal Resources Commission. Land-use plans

have a potential effect on land use because:
(a) CAMA permits may not be issued for development that is inconsistent
with land-use plans (since CAMA permits are required only in AECs, this

effect is limited to land within AECs).

(b) Local ordinances and regulations that apply to AECs must be
consistent with the land-use plan; local ordinances and regulations affecting

land outside AECs.are subject to review by the Coastal Resources Commission,

which is authorized to recommend modifications to the local government.

(c) Federal actions involving grants, licenses, permits, and development
projects must be consistent with local land-use plans, as required by Section

307 of the FCZKA.

(d) In accordance with the Governor's Executive Order Number 15, certain
state agency actions and policies must be consistent with land-use plans.

Areas of Environmental Concern (AECs). Under CARA, the Coastal

Resources Commission is required to designate AECs in accordance with criteria
specified in the act and to establish standards and regulations applicable to
development in each AEC. Under authority of the act, the Coastal Resources

Commission has designated six categories or types of AECs, as described

below.

Coastal Wetlands are marshlands that are subject to regular or occasional

flooding by tides, including wind tides. They are environmentally significant

because they provide plant materials that form the basis for the food chain of

the estuary; they supply nesting, feeding, and refuge areas for waterfowl and

wildlife; they serve as an erosion buffer for upland areas; they act as a

nutrient and sediment trap; and they provide a unique and pleasant landscape.

Estuarine Waters are all the waters of the Atlantic Ocean within the

state's boundaries and all the waters of the bays, sounds, rivers and their

tributaries seaward of the line that separates coastal from inland fishing

water. In estuarine waters, fresh water mixes with salt water to form the

productive natural environment that supports over 90 per cent of the state's

commercial catch of fish and shellfish. Estuarine waters also provide

.economic benef its f rom wate rf awl hunting, ma rinas, boatya rds, ma rine repa I rs

and supplies, processing operations, tourism, commercial navigation, and

recreation.17

Public Trust Areas are all waters of the coastal area landward of the

line separating coastal from Inland waters in which the public has acquired
rights by prescription, custom, usage, dedication, or other means.18

Estuarine Shorelines are those non-ocean shorelines that are especially

vulnerable to erosiont flooding, or other adverse effects of wind and water

and are intimately connected to the estuary. The Estuarine Shoreline AEC
extends landward 75 feet from the mean water level.19

Ocean Hazard Areas include beaches, frontal dunes, inlet lands, and other

areas in which geologic, vegetative, and soil conditions indicate a
possibility of excessive erosion or flood damage.20 Ocean Hazard Areas are

designated under authority of G.S. 113A-113(b)(6), which authorizes Lhe

Coastal Resources Commission to designate as AECs "natural hazard areas where

uncontrolled or incompatible development could unreasonably end anger life or

property, and other areas especially vulnerable to erosion, floodtng, or other

adverse effects of sand, wind and water

Public Water Supply Areas include small surface water-supply watersheds
and public water-supply well fields.21

Fragile Coastal Natural Resource and Cultural Resource Areas contain

environmental, natural, or cultural resources of more than local significance

in which uncontrolled or incompatible development could result in major
J
irreversible damage to natural systems or cultural resources, scientific or.
educational values, or aesthetic qualities.22 Five types of AECs fall into
this category--Coastal Areas That Sustain Remnant Species,23 Coastal Complex
Natural Areas,24 Unique Coastal Geologic Formations,25 Significant Coastal
Archaeological Resourcest 26 and Significant Coastal Historic Architectural
Resources.27 Unlike other AECs, these AECs will be designated by the Coastal

Kesources Commission only after local governments, citizens, interest groups,

or state and federal agencies nominate specific areas for designation.

The CAMA 2emit system of land-use control. Once an AEC has been

designated, development projects within the area are required to have a CAMA

permit, which are of two kinds:

Major Permits are required for any "major development," which is defined

as any development that requires permission, licensing, approval,

certification, or authorization from a state agency, or will occupy a land or

water area larger than 20 acres, or involves drilling or excavating natural

resources on land or under water, or occupies on a single parcel of land a
structure with a ground area of more than 60,,000 square feet.28

Minor Permits are required for any "minor" development, which means

any development other than a "major development."
Authority for administering the permit program is shared by the Coastal

Resources Commission, the NRCD, and local governments. Local governments are
authorized, though not required, to act as a permit-letting agency for minor
permits. The Coastal Resources Commission hears appeals on permit decisions.
Standards and regulations apply. identically to minor and major permits.
The minor permit process. Each local government that elects to be a
permit-letting agency must submit a local implementation and enforcement
program for the Coastal Resources Commission's approval and must designate a
local permit officer (19 counties and 25 municipalities have so elected). The
local permit office.r is often a local building inspector or other official who
is responsible for local permits for construction and development. Most.
development projects require local approval, septic tank permits, sand dune
permits, erosion control approval, floodw@y zoning permits, buil ding pe mits,
electrical and plumbing inspection, or subdivision and zoning approval. The
local permit officer often can help applicants meet the local requirements,

and Coastal Resources Commission policies encourage flexibility and

coordination with other local permits.

After receiving a completed permit application--which consists of the
application form, a site drawing, and a $10 fee--the local permit officer has
30 days to place a public notice in a local newspaper, make necessary site
visits, and decide whether to grant the permit, grant a conditional permit, or

deny the permit (the period can be extended for 30 days if necessary to
consider the application properly). A conditional permit is issued for
projects that do not fully comply with regulations but would comply,if the

specified conditions were met. The practice of many local permit officers is

to restate regulations as conditions because the application did not meet

these regulations, because the application did not clearly indicate that the

regulations would be met, or because the local permit officer wants to call

certain regulations to the applicant's attention. For example, the officer

may state as a condition that dune grass disturbed by construction must be

,replanted, even though technically this is a regulation that must be met

before a permit can be approved. A conditional permit is not valid unless the

applicant acknowledges the conditions by signing and returning the permit in a

timely fashion.

Decisions of local permit officers to condition or deny permits may be

appealed; or a variance may be requested by the applicant, a holder.of legal

interest in the property, owners of adjacent property, the Secretary of NRCD,

a local government that does not issue permits, or people who can demonstrate

a history of substantial use of the property affected. An appeal, which must

be filed within 20 days of the local permit officer's decision, is heard by a

Coastal Resources Commission member acting as hearing officer. The hearing

officer reports to the full Commission) which must make a final decision

within 90 days of the application's date. If the Commission's decision is

adverse, the case can be appealed to a superior cou rt. A petition for a

variance is similar to an appeal except that the petitioner must show that (a)

strict application of the AEC regulations results in practical difficulties or

unnecessa ry, hardship, (b) these dif f iculties or ha rdships result from

conditions peculiar to the property, and (c) these conditions could not have

been anticipated by the Coastal Resources Commission when the regulations were

adopted.

The majo permit process. The Office of Coastal Management of NRCD'

processes applications for major permits. Under authority delegated by the

Coastal Resources Commission, it may grant a permit, grant a conditional

permit, or deny the permit. The Office's permit coordinators in Raleigh and

field consultants in Elizabeth City and Morehead City are trained to help

applicants determine requirements and prepare applications. The NRCD must act

on the application within 90 days, although a 90-day extension can be made

when additional time is necessary to consider the application. Proper public

notice must be given, field investigations must be made, and the NRCD must

circulate the application among state agencies that have purview or expertise

relevant to the proposed development. Each state agency may make an

independent evaluation and submit recommendations and suggestions. Since the

CAMA major permit is considered a comprehensive state permit, in that all

relevant agencies must review the application, the permit will usually be

granted only after other state permits are approved; if this practice should

extend the decision beyond the 90-day limit, however, the CAMA permit may be

issued on condition that some other state permit be granted. If the permit is

denied, the applicant has 20 days t,o appeal.

Almost all permits approved by the Office of Coastal Management have

conditions that specify how the proposed development is to be carried out.

Unless the applicant appeals the conditions, he is presumed to have amended

the proposal according to the conditions, and failure to comply with them is a

violation.

Criteria for approval or denial of permit applicatiors. Pe rmi t
applications may be denied on the following grounds:29

For coastal wetland, that the proposed development would contravene an

order of the Secretary of the NRCD, issued pursuant to G.S. 113-2309 to

control activities in coastal wetlands.

For estuarine waters, that the proposed development would be denied.a

state Dredge and Fill permit.

For a renewable- resource area, that the proposed development would result

in loss or significant reduction of continued long-range productivity
that would Jeopardize future water, food, or fiber requirements of more

than local concern.

For a fragile or historic area or an area that contains environmental or

natural resources of more than local significance, that the proposed

development would result in major or irreversible damage to the historic,

cultural, scientific, environmental, or scenic values or natural systems

identified in the act.

For fragile or historic areas and areas containing environmental or

natural resources of more than local significance that are specified in

the act and for public trust waters, that the/proposed development would

Jeopardize public rights or interests specified in the act. @

For natural hazard areas, that the development would occur in such a

manner as to unreasonably endanger life or property.

For areas affected by key facilities, that the development is

inconsistent with state guidelines or local land-use plans or that it is

inconsistent with the above provisions.

In any case, that the proposed development is inconsistent with state

guidelines or with local land-use plans.

If the proposed development is cons Istent with these criteria, a permit

must be granted. Or it may be issued on condition that the proposed

development is altered to be consistent with the criteria.

3. The North Carolina Dredge and Fill Law. Dredging means excavating

bottom materials (a) to create and maintain navigation channels, turning

basins, harbors, and marinas; (b) for laying pipeline; or (c) as a source of

material for fill or construction. Filling is the depositing of dredged

materials, either to create dry land or to dispose of dredge spoil produced
during dredging. 30

While dredging and filling operations can be economically beneficial,

they can adversely affect coastal waters in many ways. They can create

short- and long-term changes in water currents, circulation, mixing, flushing,

and salinity; they may increase turbidity and pollution and lower the

dissolved-oxygen level; and they may degrade local groundwater supplies. As a

result, the natural productivity of coastal wetlands, bottoms, and tidelands

may be diminished.

Dredge and fill projects in estuarine waters, marshlands, and tidelands

require a permit from the Corps of Engineers (Wilmington Office) and from

NRCD. The Dredge and Fill Law, under which the North Carolina permits are

required, was enacted- in 1969, but the administration of the permit process

and standards and regulations under the statute have now been incorporated

into the process underwhich CAMA is administered, and dredge and fill permits
are h@ndled the same way as CAMA major permits.

Permits may be denied if the dredge and fill project will have an adverse

effect on use of water by the public; on the value and enjoyment of property

of any riparian owners; on public health, safety, and welfare; on the

conservation of public and private water supplies; or on wildlife or
estuarine, freshwater, or marine fisheries. 31 Emergency permits may be

approved when life or structural property is in imminent danger as a result of
rapid erosion or sudden failure of a man-made structure.32

4. Other State Regulation of Land Use in Coastal Areas. State

regulation of land use in coastal areas is by no means.11mited to regulation

under CAMA.and the Dredge and Fill Law. Coastal land is also subject to

numerous state laws and regulations. The major state regulatory programs

affecting land use are listed below by the state department that has
administrative responsibility for the program:33

NRCD. This department administers a number of regulatory programs,

and its Office of Coastal Management is responsible for administering coastal

regulation under CAMA and the Dredge and Fill Law.

Water quality. A permit is required to discharge to surface waters or to
operate a wastewater treatment facility.34

Septic Tanks. A permit is required for septic tank systems with:a

capacity of over 3,000 gallons for residences,, businesses, and places
of public assembly.35

Withdrawal of surface or ground water. A permit is required to withdraw

more than 100,000 gallons of surface or ground water per day within a capacity

use area*36

oil refineries.. A special permit is required to construct an oil
refinery.37

Air pollution. A permit must be obtained to establish or operate any air

contaminant source, to buil d or operate equipment that will emit air

contaminants, to alter equipment that may emit air contaminants, or to enter

into a contract for the construction or installation of an air-cleaning

device-38

Construction of "complex sources." A permit is required before

constructing or modifying large parking lots; subdivisions, housing

developments, apartment complexes, and trailer courts of 500 or more units

that result in a population density of 12 persons per acre or more; large

stadiums or sports arenas; drive-in theaters with 700 or more parking spaces;
or large amusement parks or recreation areas.39

Well construction. A permit is required to construct a well with a

capacity of 100,000 gallons per day or more, to add a well to an existing
system with this capacity, or to construct a well in areas,where the well may

endanger groundwater resources or harm the public health, safety, and

welfare.40

Dam construction or alteration. Approval must be obtained to construct,

repair, alter, or remove a dam that is 15 feet or more high or covers 10 acre-

feet or more in volume.41

Mining. permits. A permit is required to mine or extract minerals, ores,
or other solid matter.42

Oil or gas well drilling. A permit is required for exploratory drilling
for gas and oil. 43

Geophysical exploration. A permit is required for all seismic

exploration work and geological, geophysical, or other surveys related to
discovery and location of oil, gas, or minerals in state-owned waters.44

Sedimentation erosion control. Approval must be obtained before engaging

in any "land disturbing activity" that involves one or more acres of land
(exceptions include stockpiling sand, stone, or gravel in processing yards and
agricultural and forestry activities).45

Land use along natural and scenic rivers. Land use is regulated in areas
designated as Natural and Scenic Rivers.46

The Department of Administration

Easements to fill. An easement is required to raise land above
the normal high water mark of navigable waters by filling.47

Acquisition of land for public purposes. The state may acquire land

through purchase, condemnation, lease, or rental in order to carry out the
public interest.48 Uses for which land may be acquired include public parks,

historic sites, and public access to public waters, development or

preservation of the estuarine areas, and development of waterways.

Siting of public utilities. Construction of elect ricity-gene rating

plants requires a "certificate of convenience and necessity" fro m the Public
Utilities Commission.49

State Ports Authority. This authority develops and operates the
state ports facilities.50

.Department of Cultural Resources. The department is authorized to

acquire, preserve, and protect property of historical, archeological,
architectural,, or cultural importance.51

Department of Human Resources.

Small septic tanks. A permit is required from the local health

department before constructing a septic tank with a capacity of less than

3,,000 gallons per day for residences and mobile homes.525

Solid wastes. Approval is necessary before operating a solid
waste disposal site or facility.53

Public water supply systems. Approval is required before constructing a

water supply system that serves 15 or more service connertions or 25 or more
year-round residents.54

The Department of Transportation.

State streets and highways. The department is responsible for land

acquisition and regulation in connection with construction and maintenance of
streets and highways.55

Preservation of scenic beauty along highways. The department is

authorized to regulate outdoor advertising and junkyards along highways and to
purchase certain land to improve or protect scenic beauty along highways.56

FOOTNOTES

1. Council on Environment al Quality, Environmental 22L1ity--L979, Tenth

Annual Report (December, 1979), Table 8-1, pp. 486-89.

2. Guidelines for the Section 404 program are found in 42 Fed. Reg.

323.1 et se'q-

3. Interview with Charles W. Hollis, Chief, Regulatory Functions Branch,

U.S. Army Corps of Engineers, Wilmington Office.

4. 42 Fed. Reg. S 320.4(a)(1).

5. Ibid.

6. U.S. Environmental Protection Agency, Office of Water Planning and

Standards, A Guide to the Dredge and Fill Permit Program (Washington: U.S.

Government Printing Office, July, 1979), p. 5.

7. Guidelines specific to section 10 permits are found in 42 Fed. Reg.

322.1 et seq.

8. Council on Environmental Quality, Environmental Quality - 1979, p.

501.

9. Ibid., Table 8-4, p. 502, and Table 8-5, p. 505.

10. This review is based on Milton S. Heath, Jr., General Backaround, An

Overview of the North Carolina Coastal Area Management Act (Chapel Hill, N.C.:

Institute of Government, January 1978), pp. 1-2.

11. For a comprehensive description and analysis of the North Carolina

Coastal Management Program, see U.S. Department of Commerce, Final

Environmental Im2act Statement Proposed Coastal Management Program for the

State of North Carolina, Volume 1, prepared by the Office of Coastal Zone

Management, National Oceanic and Atmospheric Administration, U.S. Department

of Commerce,,and the North Carolina Department of Natural Resources and

Community Development (July, 1,978).

12. See ibid., Chapter 3, for a discussion of these policies.

13. See Milton S. Heath, Jr., "A Legislative History of the North

Carolina Coastal Area Management Act," North Carolina Law Review, 53 (December

1974), pp. 345-398.

14. N.C. Sess. Laws 1979, Ch. 1164.

15. N.C., Gen. Stat. � 113A-102(b).

Id. � '113A-101.

17. 15 N*C.A.C* 7H.0206(b)o

18. Id. 7H. 0207(a).

19. Id. 7H.0209(b).

20. Id. 7H.0301.

21. Id. 7H.0401.

22. Id. 7H.0501.

23. Id. 7H.0505.

24. Id. 7H.0506.

25. Id. 7H.0507.

26. Id. 7H.0509.

27. Id. 711.0510.

28. Id. 7j. 0101(i).

29. Id. 7J.0402.

30. The first two paragraphs of this section are based on U.S.

Department of Commerce, Coastal Management ProEram and Final Environmental

Impact Statement, Vol. 1, pp. 127-28.

31. N.C. Gen. Stat. � 113-229(e).

32. Id. � 113-229(el).

33. This section is based on a compenditin of state legal authority for

coastal land regulation in U.S. Department of Commerce, Coastal Management

Program and Final Environmental Impact Statement, Vol. 11, Appendix C, pp.

129-223.-

34. N.C. Gen. Stat* � 143-215.

35. Id. 5 143-215.3.

36. Id. 143-215.15.

37. Id. 143-215.100.

38. Id. 143-215.108.

39. Id. 143-215.109.

40. Id. 87-88.

41. Id. 143-215.66.

42. Id. 74-51.

43. Id. 113-381.

44. Id. 113-391.

4 5.@ Id. 113A-54.

46. Id. 113A-30.

47. Id. 146-6(c).

48. Id. � 146-22.

49. Id. � 62-110.

50. Id. � 143-217.

51. Id. 121-9.

52. Id. 130-166.22.

53. Id. � 130-116.16.

54. Id. � 130-161.1.

55. Id. � 136-66.2.

56. Id. � 136, Art. 11, 12.

M. REGULATION OF LAND IN OCEAN HAZARD-AECs

A. The Basis for Regulation in Ocean Hazard AECs

Ocean hazard areas have been designated by the Coastal, Resources
Commission as Areas of Environmental Concern, on grounds that they are natural
hazard areas, and are therefore subject to regulation under CAMA. The Ocean
Hazard AECs include a narrow strip along the oceanfront that varies in width
f rom 60 feet, as measured from the first line of vegetation on the beach, to
several hundred feet in areas subject to wave action during 100-year storms
(in a few places the designated area extends from the ocean to the sound).
They include only a small proportion of developed or developable land on most
barrier islands, but they contain all oceanfront property, and they are
especially critical in terms of the CAMA goals because (1) they contain
property on or adjacent to ocean beaches, which provide recreation and
aesthetic enjoyment not only to owners of adjacent property but also to owners
and users of property outside the Ocean Hazard AEC and to the public; (2) they
contain property that is most susceptible to damage or destruction from

erosion and storms; (3) they contain barrier dunes, which protect property
landward of the Ocean Hazard AECs from wave and flood damage; and (4) they
contain the land that bears the brunt of the dynamic natural forces that are
constantly being exerted by the ocean and weather to shape and alter the

barrier islands.

The regulations that the Coastal Resources Commission has imposed on

development in Ocean Hazard AECs are intended primarily to deal with the

effects of (1) the geological process known to marine scientists and
geologists as "island migration," and (2) storms and hurricanes.1

1. Effects of Island Migration on the Ocean Pront. The summer

vacationer Is likely to get a false impression that the beach changes little

from season to season. Actually, the beaches and islands are constantly

changing, and in fact they are moving. The barrier islands that extend along

North Carolina's coast are "migrating" to the west because of a gradual rise

in the sea level caused by melting of polar ice (and possibly to geological

changes on the ocean floor). Although the rise in sea level and the migration

of islands is gradual, the effects on the ocean front can be dramatic. The

sea level is rising at an estimated rate of about 1.2 feet per century at Cape
Hatteras.2 But where land on the coast is very flat, as it is along the

Middle Atlantic coast, a gradual rise in sea level has a pronounced effect on

barrier island beaches. The average rate of erosion for the Atlantic Coast

from Little Egg Inlet, New Jersey, to Cape Lookout, North Ca r6lina, has been
.estimated to be about 4.9 feet per year.3 The average rate of erosion along

the North Carolina coast is somewhat lower but still substantial. It has been

estimated that a rise in the. sea level of one foot per century would result in

erosion of between 100 and 1,000 feet per century along the North Carolina

coast (erosion would be greater on the northern islands than on the islands
further south).4

Average rates of erosion caused by the rise in sea level do not tell the

full story, however, because erosion rates can vary -dramatically, even on the

same stretch of beach. The effects on particular stretches of beach depend on

ne,

aL
%U

14 OIL
40 \A1 'Z

OCEA N Die/ VE

..........
. ..........
..............................
...... v46RELINE.
ES S

:.4
OrFishing SHORELINE CIRCA 1956
Pier

ATLANTIC OC'EAN

Figure 111-1. Shoreline erosion at Yaupon Beach. This comparison of the shoreline as it existed
a round 1956 and in 1979, as estimated from local zoning maps, shows the erosion of numerous
oceanf ront lots. Estimated average annual erosion in this area is 5.7 feet.

many factors, including the orientation of the beach to extra-tropical storms
(primarily "northeasters," which cause the most changes),5 the proximity to

ocean inlets, and elevation. Since erosion involves a redistribution of sand

along the beach rather than a permanent loss of sand, some parts of the coast

may accrete rather than erode for some period of time. Some stretches of

beach may erode very gradually while other stretches experience serious

e ros ion. Numerous examples of this fact can be found in North Carolina: At

Long Beach the erosion rate along most of the developed beach is relatively

moderate; but Yaupon Beach, just to the north) has experienced severe erosion
that has placed several rows of oceanfront lots under water (see Fig. T11-1),
and even at Long Beach on a stretch of the beach near Lockwood Folly Inlet,

one oceanfront home had to be moved in 1978 after 80 feet of beach was eroded

within three months. At Nags Head, where the rate of erosion varies with

distance from Oregon Inlet (see Fig. 111-3), several homes were moved inland

during February 1980 because 20 feet of shoreline had eroded since the

previous summer. Erosion can be especially severe and sudden, of course,

during strong storms and hurricanes.

If man did not build structures on the ocean front, island migration
would present no problems. The shoreline would move slowly toward land, but
the beaches and dunes would return to their natural configuration by the

action of wind and waves, and the islands would gradually widen and retain

their elevation as sand is shifted by winds and inlet currents from the beach

to the sound. The construction of oceanfront buildings and engineering
devices to protect buildings interferes with the natural process and

eventually will leave narrow beaches obstructed and cluttered with remnants of

bulkheads and undermined buildings.

Ocean dunes have an important role in the natural proces's and also
protect man-made structures behind the dunes. The dunes "serve as a sand
reservoir that feeds the beach and back island, And provide elevation as a
temporary line of defense against wind and waves." They also constitute "the
natural,, main line of defense, against erosion and storm damage to man-made
structures."6 Although dunes serve to protect beach property temporarily,
like man-made structures on the oceanfront, they will eventually succumb to
the long-term process of island migration. Attempts to duplicate the
protective function of dunes by building bulkheads or seawalls are not merely
temporary expedients--they hasten the process of beach erosion, increase
erosion on the beach next to them, and interfere with the process by which the

beach is re-formed further inland as island migration continues. Du ring
storms, high-energy waves flatten a beach; this process dissipates the waves'
energy and allows sand to be returned to the beach later by ordinary wave
action. But when a bulkhead or seawall is built, the force of waves is
expended directly against the bulkhead or seawall and is then reflected to th4
beach, causing the beach gradient to steepen, which in turn increases the
storm-wave energy striking the beach. Bulkheads and seawalls increase the
intensity of long-shore currents, prevent exchange of sand between the beach
and dunes, and increase wave and current action at the ends of the wal'l,
increasing erosion at those points.7 Groins and jetties, which are built
perpendicular to the beach to trap sand, rob other areas of sand, and
therefore one groin or jetty requires another.8
Thus, it is argued, attempts to save bea ches through "shoreline
enginee-ring" may not only be Ineffective in the long-run but may also tend to
destroy the beaches they are designed to save. Examples often cited are the

high s'eawalls and absence of beaches in parts of New Jersey (the process has

been referred to as "New Jerseyization") and in the disappearance of the beach

at Miami Beach.

2. The Effects of Storms and Hurricanes. While island migration is a

gradual process, erosion can be swift and dramatic during storms and

hurricanes, which also have an awesome potential for destroying property

directly through the force of winds, waves, and pressure changes. Although

hurricanes are more spectacular and have greater potential for causing damage

to structures wherever they are located on the barrier islands, the

extra-tropical storms, especially northeasters, cause more erosion and

shoreline change because of their greater frequency. The frequency of

hurricanes on the Outer Banks is 0.5 per year, for example, while the
f requency of extra-tropical storms there is 34 per year.9

The normal or typical path of hurricanes carries them over or near North

Carolina's barrier islands (Cape Hatteras is known as "Hurricane Alley").

Over the long term, a major hurricane can be expected to hit the North

Carolina shoreline every two to three years. During the 1950s, seven major

hurricanes hit the North Carolina coast, and three others passed nearby. The

most notorious was Hurricane Hazel, which devastated southern beaches in 1954;

it destroyed 89 buildings at Wrightsville Beach and damaged hundreds of
othersio and left, according to local residents, only four or five residences

standing on Holden Beach. During the 1960s and 1970s, hurricanes tended to

miss the North Carolina coast, and the few that came close by, like David in

1979, did relatively little damage.

Thus much of the existing development on the coast occurred during a long

lull in hurricane activity that permitted people to forget the awesome

destructive potential of these storms. Hurricanes can generate winds of 190

mph or more and cause the tides to rise 12 feet or more above mean sea level

(this does not include the height of waves above the sea level). During

hurricanes and other major storms, the islands are subjected to severe

erosion, wind damage, sudden air pressure changes, overwash, and even the

formation of new inlets. During hurricanes storm water is pushed landward

between the islands and the mainland. When the storm center passes, this

water recedes toward the ocean and may form an inlet or wash over the Island.

The shoreline near inlets is especially unstable because of the strong

currents that pass through them during storms and normal tides. Inlets can

shift suddenly, and over relatively short periods of time they can migrate

over a considerable area of the islands. Yet it is common to see expensive
@omes built near inlets, where the ocean v Iistas can be especially dramatic.

On the eastern end of Holden Beach, four blocks of ocean front lots platted in

the late 1930s lie under Lockwood Folly Inlet (see Fig. 111-2), and several

houses have been'moved from adjacent oceanfront lots. On the western end of

the island is a subdivision platted in January 1978; as of December 1979,

several oceanfront lots had already been eroded away, and the road constructed

behind them had been destroyed by water.

3. The Rationale for Regulation. The natural process of beach erosion

because of island migration and the hazards to life and property from stoms

and hurricanes suggest a number of reasons for regulations to protect the

public interest. These reasons may be classified under two headings. First,

development of land or development practices may cause "external

effects"--that is, the actions of private landowners may cause ham to other

property own ers or to the public. Second, owners or users of private property
may themselves suffer lnju,ry, loss of life, or property damage or destruction

because of improper development practices.
External effects. A person who develops oceanfront property may
impose losses on other property owners or the public in a number of ways.

Erosion of the beach in front of a structure may cause the structure to
encroach on the beach. A dramatic example is found at W rightsville Beach,
where the Holiday Inn (constructed in 1967) and several adjacent residences
(constructed during the last three or four years) now obstruct the beach--to
walk eastward on the beach at high tide, one must wade through the surf or

walk behind these structures. In the past it was common for developers to
level dunes, either to provide a flat building space or to provide an
unobstructed view of the surf. This leveling reduces or eliminates the
natural protective function of the, dunes and causes flooding on adjacent
property during storms or high tides. As discussed earlier, bulkheads or
seawalls built to protect structures from erosion increase the beach gradient
and may increase erosion on adjacent beach areas. Furthermore, they cannot
withstand wave forces very long, and their remnants may obstruct the beaches.

Oceanfront structures that cannot withstand the forces of storms may cause
damage to other property as roofs, boards, or entire structures are blown or
washed against other structures. And, of course, poorly constructed
structures may lead to injury or loss of life to those in the residences or to

others.
Private loss or q22,@&e. Owners of private land on the oceanfront
may suffer damage, destruction, capital loss, and (conceivably) injury or loss
of life because of erosion or storms. Although most owners of oceanfront

property have seen the value of their property increase substantially over the

years, many property values have been reduced substantially by erosion and

inlet migration.

The potential for private losses presents several public policy issues.

In some cases a person who builds a residence on oceanfront property risks

damage or loss to only his own property if the house is well constructed so

that it does not ham other property during storms. For example, a person who

builds on a lot between two existing houses may not significantly increase the

potential harm to the public interest that would be caused by erosion in front

of the structures. Should this person be allowed to build the residence if

there is a substantial risk that it will be undermined by erosion in, say, 15

or 20 years? Even if the person knows the risks involved and, is willing to

build the house anyway, does the state have a duty to keep him from building

it because another person may purchase it laterwithout knowing the risks?

There are two opposing viewpoints on this issue. One view is that

building structures close to the ocean is foolish because of the risks of

erosion and storm damage, and therefore regulations should prohibit such

structures or at least require that they be placed far enough f rom the ocean

to escape destruction from erosion during their life. The other viewpoint is

that a person should be allowed to build a structure on the beach as long as

he is willing to accept the risk of property loss and as long as his structure

does not produce external effects that would ham other property owners or the

public.

Given the substantial risks of building oceanfront structures, it is

understandable that many people consider it foolish to build them close to the

ocean. But there are several reasons for building close to the ocean despite

the risks. First, if the structure is damaged or destroyed, the owner may be

able to recover his losses through the federal flood insurance program, which

costs the owner relatively little in premiums because the prog ram is

subsidized by the federal government (owners covered by this program are

likely to recover losses that are due to storm damage; whether they will be

able to recover losses due to regular erosion is questionable since the loss

must result from an unpredictable event, and erosion is often predictable).

Second, if an owner suffers losses that are not covered by insurance, he may

deduct his losses as a casualty loss on his state and federal income tax

returns. Since most owners of oceanfront property are well off and therefore

in high income tax brackets, a substantial proportion of their losses ran be

offset by the casualty loss deduction. Third, oceanfront property has been

rising in value, and therefore the potential for loss may be offset somewhat

by expected capital gains. Finally, in a rational decision to invest in

oceanfront property, a person would discount future costs and benefits, and

costs incurred in later years have a relatively low present value while

benefits received in earlier years have a relatively high present value. In

other words, the present value of the amount of money needed to cover a loss

sustained in the future is relatively small (for example, the present value of

a dollar that is due in 20 years is only $0.21 at 8 per cent interest).

For these reasons it may be entirely rational for people to build

oceanfront structures even when they are fully aware of substantial risks of

damage or loss. Thus it may be argued that the rationale for prohibiting

people from taking the risk is questionable unless there are external effects

associated with the development. It may be more appropriate to have laws that

require full disclosure of the risks involved to prospective purchasers and to

regulate only the external effects associated with the development. For

example, it may be appropriate to allow construction close to the ocean but

prohibit bulkheads, to impose construction standards adequate for storms, and

to require owners of structures to remove them once erosion has caused them to

encroach on the beach.

On the other hand, it can be argued that structures should not be

permitted close to the ocean becaus:e eventually, when the beach has eroded and

the structure is threatened, owners will insist on the right to protect

their property with bulkheads and seawalls, and the public may have to pay for

beach restoration (as in the beach-restoration project currently under way

at Wrightsville Beach at a cost of $2.5 million in public funds).

B. Delineation of Ocean Hazard AECs

The Coastal Resources Commission has designated as AECs certain areas

near the ocean where, "because of their special vulnerability to erosion or

other adverse effects of sand, wind, and water, uncontrolled or incompatible
development could unreasonably endanger life or property."11 These ocean

hazard areas include beaches, frontal dunes, inlet lands, and other areas

where "geologic, vegetative, or soil conditions indicate a substantial
possibility of excessive erosion or flood damage."12 The Commission has
defined three Ocean Hazard System AECs, as described belaw.13

1. Ocean Erodible Area s are areas "in which there exists a substantial

possibility.of excessive erosion and significant shoreline fluctuation." The

seaward boundary is the mean law-water line. The landward boundary is

delineated by (a) a "setback" from the first line of vegetation on the beach,

and (b) the 100-year-storm recession line. The setback is determined by

.42

multiplying the average annual rate of erosion in feet times the factor 30, a
number chosen apparently, to approximate the life of a beach-f ront structure or

the maximum life of a mortgage. If the average annual erosion rate were three
feet per year, for example, the setback would extend landward 90 feet from
the first line of vegetation. The minimum setback distance is 60 feet, so the

Ocean Hazard Area is a minimum of 60 feet wide, as measured from the first

line of vegetation. The 100-year-storm recession line is the line of erosion
expected from the strongest storm likely to occur in a period of 100 years.
Thus the Ocean Erodible Area is at least 60 feet wide but may be wider if the

average rate of erosion exceeds two feet per year or if the 100-year-storm

recession line is landward of the setback.
2. High Hazard Flood Areas (also called "velocity zones" or "V-zones")
are areas subject to high-velocity waters in a 100-year storm as identified on

flood insurance rate maps for the federal flood insurance program. In a reas

with low elevation, the high-hazard flood area may extend landward of the

Ocean Erodible Area, and in a few places it may extend across the entire

island.

3. Inlet Hazard Areas are those lands identified by the State Geologist

as having a substantial possibility of excessive erosion that are located

adjacent to inlets. The area is delineated by the expected extent of

migration of the inlet.

The lands within these three areas are designated AECs and therefore are

subject to regulation under CARA. On most barrier islands only a small

percentage of land and development falls within these AECs. On beaches where

erosion rates are low and frontal dunes are high, the Ocean Hazard system of

AECs may include only 60 feet of land, as measured from the first line of

vegetation. At Pine Knoll Shores, a local ordinance requires oceanfront

residences to be set back 100 feet from the first line of vegetation, so even

oceanfront houses do not fall within the AEC and therefore are not subject to
CAMA regulations (only walkways and other construction on the dunes within the
60-foot setback require CAMA permits). In Dare County, where the islands are
low and narrow, and in Topsail Beach and Surf City, the High-Hazard Flood Area

extends well inland of the Ocean Erodable Area in places.

C. 'CAMA Ocean Hazard AEC Regulations

The Coastal Area Management Act provides indirectly a rationale for
regulation of private development in the Ocean Hazard AECs. One goal of the
act is "to provide a management system capable of preserving and managing the

natural ecological conditions of the estuarine system, the barrier dune
system, and the beaches, so as to safeguard and perpetuate their natural
productivity and their biological, economic, and aesthetic values."14 This
goal makes clear the intent to protect beaches and barrier dunes, but it does
not provide a clear rationale for regulating land behind the barrier dunes.
Justification for such regulation might be traced to other stated goals: "To

insure that the development of the coastal area proceeds in a manner

consistent with the capability of the land . . . for development, use, or
preservation based on ecological considerations; to insure the orderly and
balanced use and preservation of our coastal resources; @(and) to establish
policies, guidelines, and standards for: (i) protection, preservation, and

conservation of natural resources o 9 . and management of transitional
areas (and) areas of significant natural value."15

A more direct indication of the act's intent is the authority it gives

for the Coastal Resources Commission to designate Ocean Hazard AECs. Ocean

Hazard ABCs may be designated as "natural hazard areas where uncontrolled or

incompatible development could unreasonably endanger life or property, and

other areas especially vulnerable to erosion, flooding, or other adverse

effects of sand, wind, and water These natural hazard areas must

fall specifically in one or more of the following categories:

a. Sand dunes along the Outer Banks;
b. Ocean and estuarine beaches and shoreline;
c. Floodways and floodplains;
d. Areas where geologic and soil conditions are such that there is a
substantial possibility of excessive erosion or seismic activity, as
identified by the State Geologist; or
e. Areas with a significant potential for air inversions, as identified
by the Environmental Management Commission.16

This provision suggests that one rationale for regulating use of land

behind the barrier dunes is the protection of ILfe and property; another

rationale would be the land's special vulnerability to adverse effects of

sand, wind, and watex. Thus the act provides clear guidance that regulations

should protect and preserve the beaches and barrier dunes, while regulations

for the use of land behind the barrier dunes should deal with effects of

natural hazards, including erosion and flooding. The act does not expressly

say that development behind the barrier dunes can be regulated on grounds

that, because of erosion, structures may eventually encroach on the beach, but

taken as a whole the provisions referred to have been read by the Commission

as granting this authority. The act does seem to authorize regulations that

would prohibit development of oceanfront property in such a way as to

"unreasonably" endanger property, even if only private costs are involved and

the property owners are willing to assume the risks involved.

Regulations imposed by the Coastal Resources Commission on construction

within Ocean Hazard AECs fall gene-ally into four categories according to

purpose: (1) regulations to control shoreline, beach, and dune erosion; (2)

regulations to ensure construction standards adequate to -protect property from

ocean and weather hazards; (3) regulations that require buildings to be set

back a minimum distance from the first line of vegetation to reduce property

damage and beach encroachment; and (4) regulations governing construction of

public facilities that may have adve*rse effects on the coastal environment.

1. Erosion Control. Before CAMA, a common practice of builders was to

level barrier dunes to provide R flat building space or to obtain a view of

the ocean. Little was done to protect vegetation on dunes during construction

or to restore vegetation after construction. Bulkheads and seawalls were

commonly used in attempts to prevent erosion even though, as explained above,

they are at best a temporary s6lution and tend to increase erosion o f the

beach in front of and adjacent to them.

Several CAMA regulations are designed to protect primary and frontal

dunes from destruction or damage from construction:

In order to avoid weakening the protective nature of primary and frontal
dunes, no development will be permitted that involves the removal or
relocation of primary or frontal dune sand or vegetation thereon. If
.possible, other dunes within the ocean hazard area shall not be
disturbed. 17

All development (except accessways across dunes) must be placed landward of
the crest of the primary dune,18 and structural accessways must be built to

have a minimum impact on the dunes--they must be less than six feet wide, only
the posts or pilings may touch the sand, and vegetation must be rest-ored.19

In the past, owners of qceanfront property could buy time by constructing

seawalls, bulkheads, groins, or jetties to protect their property from beach

e rosion. But seawalls or bulkheads are vulnerable to the force of ocean waves

and, as explained above, they have external effects because they increase

erosion on the beach adjacent to'them. Under curreat CA114A regulations,

seawalls, bulkheads and other "shoreline erosion control structures" (except

beach nourishment and berm projects) will not be allowed if their purpose is
to protect property constructed after June 1, 1979.20 Owners may obtain

permits to protect threatened property In emergencies if the property was
constructed before June 1, 1979.21

lhki
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Remnants of bulkheads, septic tanks, and cisterns* litter the beach at
Kill Devil titl1s.

Regulations also gove m establishment of new dunes and dune

stabilization.22 New dunes must be aligned with existing dunes; existing

dunes may not be broadened or extended toward the ocean; damage to existing

vegetation must be minimized and vegetation must be restored; sand of the same

nature must be brought in from outside the Ocean Hazard AEC; and no new dunes

may be established in Inlet Hazard Areas.

2. Construction Standards. Structures on the oceanfront are subjected to

extraordinary forces of wind, tide, waves, and flooding. When oceanfront
structures are damaged or destroyed, they in turn may cause damage as winds and
water propel fragments or entire structures against nearby property. CAMA
regulations therefore impose special standards on construction within Ocean
Hazard areas.23 The regulations, which are intended to minimize damage due to

fluctuations in ground elevation and wave action during a 100-year-storm,
require that construction comply with the "Windstorm resistive" construction
standards of the North Carolina Residential Building Code, that pilings be 8

inches in diameter or 8 inches square, that pilings be placed eight feet below

the lowest ground elevation under the structure, that pilings for structures
built on a primary dune or nearer to the ocean be placed four feet below mean
sea level, that foundations be designed to meet ground elevation and wave
forces during a 100-year storm, that decks and walkways be designed to break
away from the structur;--, that all pilings be adequately treated, that the
lowest structural part of the building be above the 100-year-storm elevation,
..that exposed metal structural connections be adequately rust-proofed, that
utility systems be located and constructed to minimize storm damage, and that
walls benea@th the 100-year-storm levels be designed to break away without harm
to the structure. Except for the standard on size of pilings, these standards
are also required by flood plain ordinances under the federal flood insurance
p rog ram. (Construction standards also prohibit impermeable surfaces such as
asphalt and cement above the functional parts of septic tank systems.)

Mobile homes are not permitted in the Ocean Hazard ABCs unless they are
placed in mobile home parks that existed as of June 1, 1979 (under the federal

flood insurance program mobile homes are not permitted in V-zone areas,
although the effective date of this restriction varies with the'date of
adoption of the flood plain ordinance).

3. The Setback Reauirement. The setback requirement is currently the

most controversial CAMA regulation. It has resulted in several permit

denials, and it possibly proscribes building a structure on numerous

oceanf ront lots. Before July 1, 1979, CAMA regulations required structures to

be placed behind the crest of the primary dune.. Since dunes are quite

irregular, it was often difficult to identify the primary dune. The

regulation was therefore changed to require that (a) st'ructures be placed

behind the crest of an existing primary dune but (b) if a primary dune is not

present, the structure must be placed the "maximum feasible distance" behind

the first line of vegetation but at least behind the setback line that defines

Ocean Erodible Areas (that is, a distance from the first line of vegetation

equal to 30 times the annual erosion rate in feet). The problem presented by

this regulation is that many oceanfront lots were not very deep when they were

platted during previous decades or-more commonly--the lots have eroded. Most

beach towns have an ordinance requiring structures to be set back, usually 30

feet, from the street right-of-way (or, in some cases, from the center of the

street). The minimum CAMA setback is 60 feet; so a structure 30 feet deep

would require that the lot be at least 120 feet deep if the local street

setback was 30 feet. Although variances can sometimes be granted to. reduce

the street-side setback, some lots are not deep enough to permit construction

even then. I n most beach communities the CAMA setback is 60 to 70 feet, so

the setback prohibits structures on only small lots (but because some local

ordinances incorporate a setback or impose a minimum lot size, the structure

would not be allowed even if CARA did not exist). In one stretch of beach

beginning in Long Beach and extending through Yaupon Beach to Caswell Beach, a

high erosion rate of over four feet per year results in a CAMA setback of 140

feet, which proscribes development of several existing lots.

4. Regulation of Public Facilities. The regulation governing public

facilities reads as follows:

In order to avoid excessive public expenditures for maintaining
public safety, construction or placement of growth-inducing public '
facilities to be supported by public funds will be pe.mitted in the ocean
hazard area only when such facilities:
(1) clearly exhibit overriding factors of national or state interest and
public benefit,
(2) will not exacerbate existing hazards or damage natural buffers,
(3) will be reasonably safe from flood and erosion related damage,
(4) will not promote growth and development in ocean hazard areas.
Such facilities include, but are not limited to sewers, waterlines,
roads, bridges, and erosion control structures.@4

.5. Regulation for Other Purposes. CAMA regulations have other purposes

than those discussed above:

--Valuable architectural or archaelogical resources are protected;25

--Development must not create undue interference with legal access to or
use of public resources;26 and

--Impe meable surfaces such as asphalt and cement may not be placed above
functioning parts of septic tank system.27

D. Evaluation.of the Effects of CAMA Reaulations in Ocean Hazard AECs

1. Regulation Under the Minor Permit Program. To evaluate the effects

that CAMA regulations have had on land use and land values in Ocean Hazard

AECs, an analysis was made of the disposition of minor permit applications

between the date the permit programs became effective, March 1, 1978, and

November 30, 1979, in a sample of beach communities located in different parts

of the North Carolina coastline. The communities selected were, from north to

south, Kill Devil Hills, Nags Head, Pine Knoll Shores, Emerald Isle, Wrights-

ville Beach, Long Beach, and Holden Beach. Minor permits for development in

Ocean Hazard AECs in these communities during the first two years of the

permit program represented 57.1 per cent of all minor permits issued for
development in Ocean Hazard AECs. The selected beach communities are
relatively well-developed communities located in generally highly developed

areas of the coast. The only area not represented was the relatively

undeveloped portion of the Outer Banks between Nags Read and Cape Lookout.

All minor permit applications for development in Ocean Hazard AECs in

these communi-ties were examined and analyzed. Table 111-1 shows the
disposition of minor pe mit applications at the seven beach communities. Of
the 191 permit applications, 173 (90.6 %) were approved, nine (4.7 %) were
approved with one or more conditions, and nine (4.7 %) were denied. The
official records show a larger number of conditional permits, but in this

tabulation many of these conditional permits were counted as approved pe mits

because in many instances the conditions merely restated regulations or
standards that are required to be met before a permit is approved. Local
permit officers often restate regulations as conditions to call the regulation
to the attention of the applicant (for example, a common condition is that

dunes must be replanted if they are damaged during construction). While this

practice serves a useful purpose, such conditions add nothing of substance to
the regulations; therefore permits conditioned in this manner were regarded as

approvals for purposes of this analysis.

Table 111-2 shows the types of development covered by the minor permits

in the seven communities. Almost three-fourths (73.8 per cent) of the permits

covered construction of residences, and over half (59.7 per cent) covered
single-family residences. Walkways and decks were covered by 11 per cent of

the permits.

Table TIT-1

Final Action Taken on Ocean Hazard Area Minor Pennit Applications
At Beaches Selected for the Study, March 1,, 1978, to November 30, 1979.

Conditional permits grantedl Permits denied Total
Beach Permits granted % of no.
a rea no. % of total no. % of total no. total appli-
cations

Emerald Isle 28 80.0% 5 14.3% 2 5.7% 35
Holden Beach 25 86.2 2 6.9 2 6.9 29
Kill Devil Hills 3 75.0 0 0.0 1 25.0 4
Long Beach 46 92.0 0 0.0 4 8.0 50
Natys Head 49 98.0 1 2.0 0 0.0 50
Pine Knoll Shores 9 .100.0 0 0.0 0 0.0 9
Wrightsville Beach 13 -92.9 1 7.1 0 0.0 14

Total 173 90.6% 9 4.7% 9 4.7% 191

1. CAMA penTiit officers often restate regulations as conditions on the permit.
These cases were counted as permits granted rather than conditional permits since the
offL;:ers' purpose is merely to call the atnintion of the applicant to the
regulations.

Table 111-2

Distribution of CAMA O@,-ean Hazard Area Permits in
Selected Beach Communities

Number of Percentage
Ty2e of activity Permits of total

Construction of
oceanfront residences:
Single family residences 114 59.7%
Duplex residences 24 12.6
Multiple unit residences 2 1.0
Additions to residences 1 0.5
Total 141 73.5

Construction of commercial
st ructures 2 1.0

Construction on dunes:
Walkways-and decks 21 11.0
Emergency vehicle access 3 1.6
Public access ramp 1 0.5
Total 25 13.1

Erosion control measures:
Bulkheads 8
Repair frontal dune 5 2.6
Total 13 6.9

Other:
Pie rhouse 1 2.5
Push sand before construction 6 3.1
Move house 1 0.5
Remove sand from deck 2 1.0

Total 191 100.0

Permits were denied in only four of the communities--Emerald Isle (2),

Holden Beach (2), Long Beach (4), and Kill Devil Hills (1). No denials

occurred in Nags.Read, Fine Knoll Shores, or Wrightsville Beach. Each

denied-permit case is described later. Only twice did a denial prevent an
applicant from building a structure on his lot (i.e., Holden Beach Denial #1

and Kill Devil Hills Denial #1). In five of the denials, permit applications

to build residences of a certain size on oceanfront lots were denied but the

denial did not proscribe the construction of a residence of a size and

configuration that would meet the CAMA setback and local street setback

requirements (in one case a house has been built on a lot for which a permit

was denied earlier). The other denials involved construction of a bulkhead

and emergency bulldozing to fill a gap in sand dunes. Thus in only two out of

191 cases in the selected communities did CAMA regulatory actions proscribe

development of property, and in one of these cases the proposed development

would not have complied with local ordinances. Both of these cases involved

eroded lots that are highly vulnerable to ocean and weather hazards. In both

cases a residence that previously existed on the property had been moved to

avoid damage or destruction. And in both cases the area had a history of

severe and chronic erosion. The nine permit denials are described below:

Permit Denials that proscribe development of lots

Rolden Beach deniat #1.. The applicant proposed to build a single-family

residence on an oceanfront lot in the Inlet Hazard Area on the east end of

Holden Beach, an area where numerous lots had been covered by water because of

movement of Lockwood Folly Inlet (see Fig. 111-2). Many lots to the east of

the applicant's lot have been cover ed by water, and several houses have been

moved from lots to the east. In 1938 the distance from the center of the road

fronting the applicant's lot to the toe of the dune was 302 feet. By 1962

this distance had been reduced to 96 feet, and the escarpment was only 10 feet

f ram the foundation of a house that has been moved from the lot. In 1974,

storm overwash came to about 20 feet from the center of the road. In 1977,

the distance from the center of the road to the first line of vegetation was

105 feet. Sometime before the application was filed, the Corps of Engineers

placed fill from inlet dredging on the lot, but this material was expected to

erode quickly. At the time of application, the lot was 85 feet deep (measured

from the high-water line) and 50 feet wide (4,250 square feet). The lot had

been appraised for tax purposes as underwater land with a taxable value of

$100.

When the application was made, the CAMA setback regulation was not in

effect (the lot would not have met this requirement). The application was

denied on grounds that development would "unreasonably endanger life and

property," that the lot was not consistent with local ordinances requiring a

minimum of 5,000 square feet, that the lot was below the minimum elevation

required by the flood plain ord-inance, and that the proposed development would

not meetia local requirement that oceanfront residences be located 100 feet

from the mean high-water line.

The applicant appealed the denial. The hearing officer found that the

permit application should be denied because it violated G.S. 113A-120(6) in

that, development would unreasonably endanger life or p rope rty--" namely, a

residential unit built on this lot has a substantial probability of being

damaged by storms, normal. erosion, or water from the irtllet"--and further

because it violated G.S. 113A-120(8) in that it was inconsistent with the

local land-u*se plan, local ordinances, and flood-plain regulations. The

Commission affirmed the denial.

Kill Devil Hills Denial #1. The applicant proposed to build a single-

family residence measuring 24 feet wide and 32 feet deep on an oceanfront lot

that measured 72 feet from the first line of vegetation to the rear of the

property line. The lot had no primary dune, and the remains of a timber

seawall were located about 26 feet from the rear property line. The town

required a 10-foot setback from the road right-of-way, and the CAMA setback

from the first line of regulation in this area is 78 feet. Thus the setback

line was behind the rear property line (i.e., in the road right-of-way). The

lot is located in an area that has had chronic erosion problems, and in

February 1980 there was evidence of recent overwash on this and other lots in

the vicinity. The applicant's variance petition was denied.

Permit Denials that Do Not Proscribe Development of Oceanfront Lots

Emerald Isle Case 1. The owner of an oceanfront lot 50 feet wide by 150

feet deep applied for a CAMA permit to build a two-story duplex residence 30

feet wide and 38 feet deep (including a 10-foot deck). The siting of the

residence had to be consistent with a local ordinance requiring a 30-foot

street setback and the CAMA setback of 60 feet from the first line of

vegetation. The CA14A setback was not the only constraint in this situation,

however, because even without the setback requirement the structure would have

had to be sited in approximately the same position in order to be behind the

crest of the primary dune. A single-family house could have met the

requtrements for a CAMA permit, but because a duplex required two septic tank
systems instead of one, the planned construction did not have enough space

after the local and CAMA setback requirements were met for the two septic tank

systems. A septic tank permit was obtained on the condition that the dune be

leveled to provide space for the two septic tanks, but CAMA regulations did

not permit the dune to be leveled.

Thus while the CAMA setback, together with the local setback ordinance

and septic tank requirements, proscribed the building of a duplex, it did not

proscribe the building of a single-family residence, and therefore the market

value of the lot probably would not be seriously affected.

Long Beach Deniat #I. The applicant wanted to build a single-family

residence measuring 34 feet wide and 38 feet deep (excluding front and rear

porches) on an oceanfront lot that had no primary dune. The distance from the

first line of vegetation to the porch would have been 47.8 feet, and the

distance from the rear porch to the road would have been 30 feet, the minimum

allowed under local ordinances. The annual erosion rate is less than two feet

per year, so the CARA setback here is 60 feet. The applicant was therefore

limited to building a house 41.8 feet deep, including front and rear

porches--12.2 feet less than the proposed structure; this limitation

nevertheless would have allowed the applicant to build a two-story residence

of 2,840 square feet (assuming the same width as the proposed structure).

Long Beach Denial #2. The applicant wanted to build a single-family

residence measuring 50 feet wide and 34 feet deep on an oceanfront lot

measuring 91 feet deep and 74 feet wide that had no primary dune. The house

would have been 33 feet from the first line of vegetation, or 27 feet within

the CAMA setback line. Since the town would have allowed the applicant to

place the structure 20 feet from the road right-of-way instead of 30 feet, as

proposed, the applicant was restricted to building a residence only 27 feet

deep. He could therefore have built a two-story house of 2,700 square feet.

Long Beach Case #3. The applicant proposed to build a single-family
residence measuring 34 feet wide and 32 feet deep on an oceanfront lot that
was 50 feet wide and approximately 89 feet deep. The structure would have
been only 39 feet from the first line of regulation instead of a minimum of 60
feet, as required by the CAMA setback regulation. A variance was requested
but denied. The lot is large enough for a house to be built on it if it is

designed to meet the setback requirement.
Long Beach Case #4. The applicant proposed to build a single-family
residence measuring 34 feet wide by 36 feet deep with an eight-foot front
porch on an oceanfront lot 50 feet wide and approximately 97 feet deep. The
CAMA setback regulation required the structure to be at least 60 feet from the
.first line of vegetation; the applicant proposed to place the house only 31
feet from the first line of vegetation. The setback requirement does not,
however, prohibit the applicant from building a residence on this lot if it

had maximum dimensions 20 feet deep and 34 feet wide.

Other Denials

HoLden Beach Case #2. The applicant proposed to bulldoze sand to fill a
gap in the dunes in order to prevent overwash that might damage a road and the
area behind the dune. The permit was denied because the proposed action was
not considered to be necessitated by an emergency, as required by the
regulations, and because the applicant planned to push sand from the beach
area (regulations provide that sand must be hauled f rom the outside the area).
Emerald Isle Case #2. The owner of an existing single-family residence

located in an area where the erosion ratio is low--less than two feet per

year--applied to build a bulkhead in front of the property, to which the

owners of adjacent property objected. The permit was denied on grounds that

it was not needed and that it might increase erosion on adjoining property.

This denial appeared to have no appreciable effect on the value of the owner's

property, since the residence was not imminently threatened by erosion.

2. The Effects of CAMA Regulations in Selected Beach Communities

Holden Beach. Holden Beach, an eight-mile-long barrier island on

the southern portion of the North Carolina coast in Brunswick County, has

experienced severe erosion on the eastern and western ends of the island

because of inlet migration and gradual erosion of the middle portion of the

island. The entire island was subject to overwash before Hurricane Hazel, and

though overwash has been common only on the western end since then, the

insufficient vegetation and elevation makes the island susceptible to damage
f rom wind, waves, and stonirsurge flooding during major storms. 28 Hurricane

Hazel did major damage here; according to residents, it left only four or five

residences standing.

The effects of inlet migration are dramatically demonstrated at Holden

Beach. On the eastern end, several blocks of lots platted in 1937 have been

covered by water because of migration of Lockwood Folly Inlet (Fig. 111-2),

the nearby oceanfront has been severely eroded, and several residences have

been moved to avoid destruction. The weste rn end of the island remains

undeveloped, but a subdivision was platted in January 1978 and a loop road was

constructed. Since then, many of the oceanfront lots have been eroded and

part of the loop road behind the oceanfront lots has been destroyed.

The average annual rate of erosion on this portion of the coast is

moderate, and the effects of erosion on oceanfront structures have been

relatively minor (except near'inlets) because, on most of the oceanfront, two

lots were platted in front of the main road. Since the oceanfront lots have

eroded somewhat over the years, the two front lots have usually been treated

as one, and in recent years residences have been placed on the second lot or

centered on the two lots.'

Because the two oceanfront lots are treated as one,'the effect of the

CAMA setback requirement has been relatively minor. The CAMA setback at

Holden Beach is 68 feet, and the town requires a 25 foot setback from the

road. Since most of the oceanfront lots were platted originally to be 125

feet deep, the effects of erosion would have prevented development on many of

these lots. In a few cases the two oceanfront lots are not owned jointly, and

the owner of the lot next to the ocean cannot build a house on his lot.

According to local realtors, owners could not build on the f ront lot even

without the CAMA setback'requirement because of erosion, and therefore the

common practice has been for the owner of the oceanfront lot to sell to

the purchaser of the second row lot. The CAMA setback requirement presents a

problem on only one portion of the beach where a road exists behind the first

oceanf ront lots. According to the local permit officer, however, it will

probably be possible to build on these lots.

According to local officials and realtors, the CAMA regulations have not

greatly affected land use or land values at Holden Beach largely because

restrictions and standards had been imposed by the town before the CAMA

regulations became effective. The town had a 100-foot ocean setback before

the CAMA setback was imposed. It also requires a minimum lot size of 5,000

E R W
%N.TRACO,,ST1,L
AT I_

oods
-4
41

.................
........... ............. ......... .......

IK
7. ....... . ..............
occ" AL vo.

..........................
LH I . ..... 19TI SHORELINE
............................ g _ft ....
......... J. . 14o@en,
L.S. Holden, Subdivision Eastem Extension Subdivision

ATLANTIC OCEAN

Fijure 111-2. Erosion in the Inlet Hazard Area at Holden Beach. The J. H. Holden Subdivision
was platted in 1937. The shoreline is drawn from local zoning maps. A CAMA permit for
development of one of the oceanfront lots in the J. H. Holden subdivison was denied (see Holden
Beach case #1).

square feet for single-family residences and 7,500 square feet for duplexes.

Town building ordinances also require that structures meet state building code

standards and flood plain ordinances impose special construction standards;

and therefore, except that CAMA standards requl:re 8" pilings, CAMA building

code standards do not impose extra requirements. According to the local

permit officers, no lots would be denied a permit solely because of CAMA

regulations.

Two permits were denied at Holden Beach, both because the applicant

failed to meet local ordinances as well as CAMA regulations.

That CA14A regulations have not in general restricted building on the

oceanfront is e@ident in the trend toward larger structures. The average area

of oceanfront residences for 1976 through 1979 is as follows:

Number of Average floor space

Year residences built in square feet

1976 13 131 344

1977 22

1978 12 1#864

1979 5 2P390

Source. Holden Beach building permits.

Since CAMA regulations have not restricted development at Holden Beach,

it is unlikely that they have caused any reduction in Ocean Hazard Area

property values. This conclusion is supported by local officials and

realtors. The town manager, who is also the CAMA permit officer, stated that

nothing in the CAMA regulations causes land values to decline. Realtors note

that the first oceanfront lots cannot be developed, but they recognize that

these lots could not be developed anyway because of the effects of erosion and

local ordinances. Oceanfront property values here, as elsewhere, have

increased substantially. According to local realtors, oceanfront lots that

sold for $14,00,0-$15,000 thousand before 1974 increased in value to an aver-age

of $22,000 in 1977 and to an average of $40,000 in 1979.

Local realtors interviewed during the field visit believed that CAM

regulations had not significantly affected land use or land values, and one of

them said that regulations are necessary because people will not use "common

sense." But they were not entirely satisfied. One realtor believed that

property owners should be allowed to protect their property by erosion control

measures and that regulations should be more flexible to take into account the

varying conditions at different beaches. Another realtor complained about the

delay caused by the permit process (in 1979 approval of minor permits required

an average of 21 days, which includes the time required to give public notice

of the permit application).

In summary, it appears that CAMA regulations have not significantly

affected land use and land values in the Ocean Hazard Area of Holden Beach.

Local restrictions existed before the CAMA regulations came into effect, and

the two permit denials at Holden Beach would have been denied even without

CAMA because of local ordinances.

Long Beach. Long Beach occupies more than half of Oak Island, a

barrier island just east of Holden Beach. The western end of the island is an

Ocean Inlet Hazard Area subject to inlet migration and shoreline erosion.

Oceanfront lots near Lockwood Folly Inlet have been subjected to severe

erosion. One oceanfront residence had to be moved in 1978 after about 80 feet

of oceanfront eroded during a three-month period, leaving the septic tank line

dangling in the air, In the main part of Long Beach from the inlet area to

59th street, the danger to oceanfront property varies considerably, depending

on elevation and the condition of dunes. The area f rom 54th street to 57th

street is the site of a former inlet that existed from about 1949 to 1956.29

The CAMA setback for Long Beach west of 58th street is 60 feet, but for Oak

Island east of 58th street, an area that includes Yaupon Beach and Caswell

Beach, the CAMA setback is 140 feet because the average annual rate of erosion

is about 4.5 feet.

In contrast to Holden Beach, where the main road lies behind the second

raw of oceanfront lots, at Long Beach the main road lies behind the first row

of oceanfront lots. Because the oceanfront lots are not very deep,

approximately 79 oceanfront lots are undevelopable because of the combined

effect of the CARA setback, which is 60 feet from the first line of

vegetation, and the local road setback requirement, which is 30 feet (except

in blocks where 25 per cent of the lots have been developed, in which case new

residences can line up with existing residences).

The scope of this problem is not yet evident from the number of permit

applications. Four permits have been denied, but in each case a residence of

different dimensions could be built on the lot. In fact, in one case a fairly

large residence has been built (the ocean-side porch was cantilevered over the

setback line). But construction would not be feasible on the 79 lots

identified by local officials. One owner has already requested and received a

lower property tax valuation, from $12,500 to $500, because of the,setback

requirement, and the town faces the prospect that other owners will request a

lower valuation.

While at many places along the coast the need for the CAMA setback seems

obvious, the situation at Long Beach raises questions about the uniform

application of the setback requirement at this location. First, along much of

the developed beach at Long Beach the rate of erosion has been fairly

mode rate--although, as noted above, there is evidence of severe erosion on

some parts of the beach and considerable danger from major storms at certain

locations. Second, the 79 lots are interspersed among lots with existing

residences. Even if residences already exist on both sides, owners of these

lots are not permitted to build on them even if they are aware of the dangers

f rom erosion and storm damage and are willing to accept the risks of damage or

destruction. More houses probably would not exacerbate the problems of beach

encroachment caused by existing residences unless the owners were allowed to

protect them by building seawalls or bulkheads. Under existing CAMA standards

houses built after June 1, 1979, cannot be protected by bulkheads (bulkheads

can be built as an emergency measure to protect residences built before that

date if the erosion scarp is within 20 feet of foundation pilings or septic

tank lines). Third, a relatively slight relaxation of the CAMA setback might

permit construction of residences that might be no closer to the ocean than

existing houses.

In contrast to the developed area of Long Beach, the area just east of

58th street was undeveloped until recently, when construction began on a new

subdivision. Houses in this subdivision line must be set back 140 feet

instead of 60 feet, but this requirement does not prohibit d.evelopment because

lots and roads were laid out to meet the CAMA requirements.

Emerald Isle. Emerald Isle is an 11-mile-long beach community on
the western end of Bogue Banks in Carteret County. Part of the island 6re is

considered relatively safe for development because of high elevation, high,

protective dunes, and moderate erosion. The western end, however, is

susceptible to eastward migration of Bogue Inlet, severe erosion, and shifting

dunes. The narrow part of the island west of Indian Beach West is regarded as
a relatively poor area for development30 because here the island is low and

narrow and lacks protective dunes. The area is considered to be vulnerable to

inlet formation and storm-flooding and overwash, which has in fact occurred

during previous major storms.

CAMA regulations have not had a significant effect on oceanfront

development at Emerald Isle*, Two of the 35 permit applications were denied,

but neither denial was prohibitive. In one case the lot on which the

applicant wanted to build a duplex was such that part of the dune would have

had to be removed to provide an adequate area for two septic tank fields.

Except for CARA regulations, the owner would have been able to bulldoze sand

from the dune in order to accomplish this purpose (the town had a dune

ordinance, which is to be replaced by CAMA dune regulations; however, the CAMA

regulations apply only to the Ocean Hazard Area, while the town ordinance

applied to all dunes). The owner could have built a single-family residence

on his lot, and therefore the market value for the lot was probably not much

affected by the denial for a duplex. The second denial was for a proposed

bulkhead in front of a single-family residence where the rate of erosion was

moderate. The application was denied after o-omers of the adjacent property

objected that the bulkhead was not needed and might cause erosion on their

p rope rty.

Local officials and realtors generally agree that CAMA regulations have

not significantly affected land use or land values at Emerald Isle. Although

the earliest lots were usually only 150 feet deep, in developing areas lots

are 250 to 350 feet deep and are protected by high dunes. The local permit

officer says that there is little conflict over CAMA regulations now and that

people are used to the regulations and generazIly accept them. One realtor

stated that CAMA regulations have "not affected values at all." (Oceanfront

lots sell for an average of about $40,000 compared with less then $20,000 four

years ago). lie also believes that CAMA regulations do not significantly

increase costs of construction, although he questions the need to place

pilings four feet below mean sea level when a structure is being built on a

high dune. This realtor also believes that CAMA has had a positive effect by

stopping the practice of flattening dunes and leveling trees; and that CAMA

has caused people to changes their thinking about development. He says that

people do not want bare, flat lots and that good development practices

fostered by CAMA regulations enhance values and improve land.

Pine Knoll Shores. Pine Knoll Shores) located on Bogue Banks,
contains beach areas that are regarded as relatively safe for development.-31

The dune line is fairly continuous, the dunes and the general elevation are

high, and maritime forests have been preserved. Pine Knoll Shores is

substantially different from most developed areas on the coast. The land was

held in an undeveloped state,for several decades by the Roosevelt,family, and

it has been developed in an orderly fashion by professional developers

retained by the family. Pine Knoll Shore is essentially a planned community,

and standards have been imposed and maintained to insure sound develolxnent.

CAMA regulations have had little or no effect at Pine Knoll Shores

because more stringent local requirements had been imposed earlier. For

example, the local setback regulation is 100 feet,.whereas the CAMA setback is

only 60 feet. Because the Ocean Hazard AEC is only 60 feet deep in most

places, CAMA permits are required only for walkways and decks built over the

dunes within the AEC (and generally these are exempt), not for residences and

structures placed behind the CARA setback line.

Wrightsville Beach. Wrightsville Beach is a heavily developed beach

community that has had chronic problems of beach erosion. It contains one

dramatic example of the consequences of building oceanfront structures in

areas susceptible to erosion.

A series of measures have been taken to correct the effects of chronic

e ros ion. In 1962 an artificial berm was constructed; in 1965 nearly 3 million

cubic yards of sand were pumped onto the beach; and the beach was "nourished,"
or replenished with sand, again in 1966 and 1970.32 In 1976 sand was

bulldozed from artificial dunes to flatten the steep beach, but in 1977 the
beach was again steep and an escarpment had formed.33 During February 1980

local officials estimated that 30 to 40 feet of the protective berm had eroded

since August of 1979. A new beach-restoration project is now under way

that--at a cost of $2.5 million in federal, state,, and local funds--will

replace the sand and rebuild the protective berm.

Before 19651 Wrightsville Beach and Shell Island were separated by

Moore's Inlet. The inlet was filled by man.in 1965, and about 1967 a Holiday

Inn was built on the oceanfront. Local officials estimate that at that time

200 to 300 feet of sand stretched between t1he building and the beach. Today

waves pass beyond the seawall in front of the building, and rip-rap (rocks

used as a seawall) has been placed in front of the seawall to slow erosion.

Several residences were built on the oceanfront lots northeast of- the Holiday

Inn during the late 1970s. Their owners have since constructed expensive

bulkheads and added rip-rap. During normal high tides the surf passes around

the bulkheads, and the beach becomes impassable unless one walks through the

surf*or behind the residences. Some undeveloped lots nearby have been eroded

almost completely away.

An example of beach encroachment--the Holiday Inn and nearby residences at
Wrightsville Beach.

Despite the chronic erosion problems at Wrightsville Beach, CAMA

.regulations have not had a significant impact on land use in the Ocean Hazard

AEC. The CAKA setback regulation has not affected development significantly

because most lots have been developed and because, as a condition imposed by

the Corps of Engineers for the berm project of 1962, the town agreed to

incorporate a building-setback line (which varies in depth according to

zones). About 11 oceanfront lots cannot be developed to meet the CAMA setback

regulation and local ordinances, but they are in the section near the Holiday

Inn where erosion has been especially severe, so they would probably not be

developed anyway. A development of 19 homes that was to be built on a tract

of land near the Holiday Inn had to be scaled down--two or three homes were

eliminated--as a result of the CAMA setback regulation, but recent erosion and

overwash during Hurricane David suggest that scaling-down would have been

advisable anyway, and the value of the land was probably not affected

significantly.

Thus, while there are chronic erosion problems at Wrightsville Beach,

periodic beach- rest oration projects and an existing setback line have--for the

time being at least--protected oceanfront property except in the area where

Moorels Inlet was located, and losses in property values there cannot be

attributed to CAMA.

Nags Head and Kill Devil Hills. Nags Head and Kill Devil Hills

occupy the southern end of Currituck Banks from Kitty Hawk south to the Cape

Hatteras National Seashore. While the erosion rate for much of the beach is

regarded as moderate (see Fig. 111-3), two areas had serious erosion problems.

As Fig. ITI-3 shows, the erosion rate is worse toward Lhe south end of the

island because of the proximity of Oregon Inlet.

One of the most dramatic illus-

trations of the effects of eroston on

oceanfront devel6pment occurs at the

In
southern boundary of Nags [lead.

February 1980, several of the houses

had to be moved away from the ocean

(at the expense of the federal flood

'V. lain insurance program) after about
P
J_': 20 feet of a steep escarpment had
eroded in frovit of them (one owner had

bought his residence wi-thin the pre-

vious year). One of these residences

is a well-known landmark because it

consi I white geodesic
sts of severa

.. ........ . . ........
Several homes were moved away from the ocean at domes. Photos of the house taken
this location in Nags Head after the escarpment
eroded about 20 feet during the 1979-80 winter. around 1969 show several hundred feet

of sand in front of it. In February 1980 it was propped up over a 15-foot
escarpinent with part or the structure gone and pipes dangling in the air (see

photo).
The other problem area is in the northern section of Kill Devil Rills (it
extends into Kitty Hawk). Here the high erosion rate has severely narrowed

the oceanfront lots, which are bordered by a road. Some homes in this area
have been destroyed during previous storms, some have been moved, and evidence
of erosion and overwash exists all along this stretch. Tn February 1980, the

beach was littered with exposed s6ptic tanks, cisterns, and remnants of

destroyed bulkheads. Recent overwash beyond the first raw of houses was

evident.

Feet
Per Year

EROSIO

z
25

A T L A N T I C

8@ mft C-G

poll . ......
DOW MAMD
@17

S
0
0
.Kl7rTVrMA%7(
RLA r 84V

pft.

;@O

Figure 111-3. Variation in the average annual rate of erosion at Nags Read and Kill Devis Rills.
Robert Dolan, Bruce Haden, and John Haywood, "A New Photogramatic Method for Determining
Shoreline Erosion," Coastal Engineering, Vol. 11 (1978), pp. 21-39.

Despite erosion problems, CAMA regulations so far have not significantly

affected development in Nags Head. None of the 50 minor permit applications

there have been denied. No oceanfront lots in Nags Read are undevelopable

because of CARA regulations.

Nags Head contains one notable example of the positive effects of CAMA

regulations. The Chawanook Subdivision, an oceanfront residential

development, was designed to meet CAMA regulations. The developers curved the

road inland to provide deeper oceanfront lots, built common walkways over the

dunes before construction of houses began, and, with the help of the local

permit officer, incorporated a setback line for the oceanfront lots that would

place all of the residences in the subdivision well behind residences on the

adjacent property, which are very near the ocean.

In the northern part of Kill Devil Hills (and in Kitty Hawk), the CAMA

setback requirement prohibits development on many narrow oceanfront lots that

have been eroded. The local permit officer estimated that of approximately 78

vacant oceanfront lots in Kill Devil Rills, 28 are undevelopable because of

the combination of the C&MA setback requirement and a local requirement that

structures be set back 10 feet from the road right-of-way. (Kitty Hawk has

many more lots like this.) One application for construction of a

single-family residence on a lot in this area has been denied. A house that

previously existed on the lot has been moved. Even measuring the depth of

this lot is difficult because it seems to be part of the beach. Local realtors

conceded that this lot and others like It were ilot safe for development and

should not be built on.

The issues involved in the use of the CA14A setback in this area of the

beach are considerably different from those found in Long Beach, where the

setback regulations also prohibit development on vacant lots in an already-

developed area. Data on erosion and casual observation suggest that building

residences on some of these lots would be very risky, perhaps foolhardy, at

this part of Kill Devil Hills, whereas many of the lots at Long Beach seem

comparatively safe from erosion. The existing houses at Long Beach are not in

imminent danger from erosion or overwash, whereas at least some of those in

Kill Devil Hills are vulnerable to storm damage and are already being

undermined and threatened.

3. Minor Permit Denials in Other Ocean Hazard AECs. During the first

year the CAMA minor permit program was in effect (March 1, 1978, to February

28) 1979), 14 out of a total of 707 applications for minor permits in both

Ocean Hazard and Estuarine System AECs were denied--a denial rate of 2 per

cent. Eleven of the denials were in Ocean Hazard AECs; three were in

Estuarine System AECs. During the second year (March 1, 1979, to February 29,

1980), 10 of a total of 239 applications for minor permits in Ocean Hazard

AECs were denied--a denial rate of 5 per cent. For the second year, 30 of a

total of 825 applications for both Ocean Hazard and Estuarine System AECs were

denied--a denial rate of 3.6 per cent.

Following are brief summaries of some denial cases in Ocean Hazard AEC9

outside the beach communities selected for this study (the case descriptions

are based on appeals records).

Surf City Denial. The applicant was denied a permit to build an

oceanfront residence 42 feet wide by 28 feet deep. The proposed structure

would have been built in front of the only dune high enough and continuous

enough to provide protection against the ocean; the foundation would have been

18 feet from the first line of vegetation. The permit was denied before the

CAMA setback became effective.

Caswell Beach Denial. The applicant was denied a permit to build an

oceanfront residence 24 feet deep on a lot that measured 102 feet from the

first line of vegetation to the rear property line. Since the average erosion

rate in this area is 4.7 feet per year, the CA14A setback was 140 feet from the

first line of vegetation, and therefore no building on this lot could meet

CAMA regulations.

Kitty Hawk Denial #1. The applicant was denied a permit to build an

oceanfront residence on a lot that contained only 86 feet of land behind the

forward edges of the frontal dune. Since the CARA setback is 103 feet at this

location, no construction would meet the CAMA setback requirement. In

addition, the dune would have to be disturbed to build the proposed septic

tank.

Kitty Hawk Denial #2. The applicant was denied a permit to build an

oceanfront residence 24 feet deep on a lot that had no frontal dune and

measured only 32 feet from the first line of vegetation @o the rear property

line. Because the CAMA setback here is 78 feet and the local street setback

is 15 feet, no development is feasible on this site. Remains of a wood

bulkhead suggests that a structure once existed on this lot.

Seahaven Beach Denial #1. The applicant proposed to build an

oceanfront residence 24 feet deep on a lot with no primary dune and to.build a

bulkhead behind the oceanward row of pilings. The distance from the first

line of vegetation to the rear property line is 64 feet. The CAMA setback is

60 feet, and Onslow County requires a 30-foot setback from the road

right-of-way. Construction on this lot is not feasible under these

regulations.

Seahaven Beach Denial #2. This case was essentially identical to

Seahaven Beach Denial #1.

Seahaven Beach Denial #3. The applicant proposed to build an

oceanfront residence 24 feet deep on 2 lots. The distance from the first line

of vegetation to the structure would have been 33 feet, and the distance from

the rear of the house to the road right-of-way would have been 15 feet; the

proposed structure was therefore inconsistent with. the 60-foot CAMA setback

requirement and the Onslow County 30-foot road setback.

4. Lots Potentially Restricted bX the Combination of the CAMA setback

regulation and local zonin& ordinances. During January and February of 1980,

the staff of the Office of Coastal Management, at the request of the Coastal

Resources Commission, tried to identify the platted oceanfront lots along the

entire North Carolina coast that are too small to be consistent with both the

CAMA setback requirement and the local street or road setbacks contained in

local zoning ordinances. The identification was made by examining aerial

photos and zoning maps., consulting with local permit officers, and making

field visits. A lot was considered too small to develop if the CAMA setback,

which is determined by multiplyingthe annual erosion rate by 30 and is

measured from the first line of vegetation, and local street or road setbacks

left less than 20 feet for building of a structure.

That these lots are identified in this manner as "too small to develop"

cannot be attributed to CAMA alone. Some of them are in areas where severe

and chronic erosion may make development extremely risky, if not foolhardy.

This is possibly the case in some parts of southern Kitty Hawk and northern

Kill Devil Hills, in the eastern end of Holden Beach, and in Yaupon Mach-all

areas where CAMA permits have been denied. Even though some people have
proposed to develop lots in these areas, many lots would probably remain
undeveloped even if CAMA did not exist because of the high risks involved. In

other cases local street or road setback requirements alone would force

structures too near the water, or minimum lot-size requirements would make the
lots undevelopable under local ordinances (as happened in Holden Beach Denial

The estimate of the number of lots too small to develop under CAMA and

local setback requirements appears in Table 111-3 for each beach area. The

estimate is that from 458 to 511 lots, out of a total of 3,028--are
undevelopable. Almost 200, or about 39 per cent, of the total number of lots

a re on the one s t retch of . beach in Ki 11 Devi 1 Hi I Is and Ki t ty Hawk whe re two
CAMA permits have been denied. About 370, or 75 per cent, of the total number

are in that area and in three other problem areas--West Onslow Beach, Long
Beach, and the inlet area at the eastern end of Ocean Isle. Other lots are in
special problem areas like the stretch near the Holiday Inn at Wrightsville
Beach, Yaupon beach (where erosion has destroyed several rows of oceanfront
lots), and the eastern end of Holden Beach near Lockwood Polly Inlet (where

many platted lots are now covered with water).

It is difficult to use these estimates to evaluate the effects of CAMA

regulations on land values. First, many of the lots would have a very low
market value because their size has been reduced by erosion and because of the

inherent risks attributable to high erosion rates. As in Holden Beach Denial

#1, some lots have been assessed for property taxation as underwater lots.
Second, to evaluate the effect of the CAMA setback on land values, it must be

determined whether a lot would be undevelopable even without the CAMA setback

because of restrictions imposed by local ordinances.

On the other hand, some of the lots do have a significant market value

and could be developed successfully (though at some risk) if it were not for

the CAMA setback requirement. This is true at Long Beach, where--at least on

most of the oceanfront--erosion has been moderate and people have been willing

to buy lots and build on them. Most of the problem lots at Long Beach are

assessed at $12,000 to $15,000 each, though their market value is considerably

higher--perhaps $35,000 to $40,000. The assessed valuation of the one lot

that does not meet the CAMA setback requirement has been reduced to only

$500.

5. CAMA Major Permits and Dredge and Fill Permits in Ocean Hazard AECs.

During the first 1 3/4 years of the CAMA permit program, only three CA14A

permits for major development were issued for the seven beach communities
selected for analysis.34 There were no denials. A permit was issued for the

Town of Holden Beach to lay a water pipeline across Lockwood Folly Inlet to

Ocean Isle. Two permits were issued for projects at Nags Head--one for

bulldozing sand on the beach and one for an oceanfront hotel. Only the hotel

did not also require a federal permit.

There were, however, denials in Ocean Hazard AECs of Brunswick County.

The same applicant was denied two permits to build seawalls at Yaupon Reach,

where there has been chronic and severe erosion. The average rate of erosion

there is'5.7 feet per year, but the beach has apparently been eroding 12 feet

per year at this site. The pilings of-a completed residence were only 26 feet

from a four-foot-high scarp, atie., pilings of an incomplete residence on an

adjacent lot were only 17 feet from a five-foot-high scarp.

Table m-3

Oceanfront Lots Potentially Undevelopable Because of a Combination of
Erosion, the CAMA Setback Regulation, and Local Setback Ordinances

Estimated
number of lots Estimated
potentially total number of
Beach undevelopablel undevel02ed lots.

Southern Shores 0 37
Kitty Hawk 166 180
Kill Devil Hills 28 60
Nags Head 0 300
Rodanthe, Waves, Salvo 0 23
Avon 0 64
Buxton 1 1
Frisco, Hatteras 0 0
Atlantic 3 5
Pine Knoll Shores 0 82
Emerald Isle 0 50
West Onslow 55-66 100
Surf City 15 464
Topsail 21-40 430
Wrightsville 11 30
Ca rolina. 0 75
Wilmington, Hanaby 5-12 NA
Kure 2-5 18
Yaupon 10 38
Long 79 266
Caswell 5-8 8
Holden 30 275
Ocean Isle 34-45 299
Sunset 2 67
Figure 8 0 150
Totals 458 to 511 31,028

1. A lot was considered to be undevelopable if the combination of the
CAMA setback requirement and local street or road setbacks left a depth of
less than 20 feet for construction.

Source: Survey in Winter 1980 by staff members of the Office of Coastal
Management based on aerial photos, maps, consultation with local
permit officers, and field visits.

FOOTNOTES

1. A good introduction to these subjects is Orrin H. Pilkey, Jr.,

William J. Neal, and Orrin H. Pilkey, Sr., From Cu rrituck to Calabash: Living

with North Carolina's Barrier Islands (Research Triangle Park, N.C.: North

Carolina Science and Technology Research Center, 1978).

2. Stephen V. Shabica, Shoreline Changes at Cape Hatteras Natural

Seashore,, 1937-77 (Resources Management Report No. 27, Natural Park Service,

Coastal Field Research Laboratory, NSTL Station, Mississippi, November 1978),

p. 59

3. Robert Dolan, Bruce Hayden, Cary Rea, and Jeff rey Heywood, "Shoreline

Erosion Rates Along the Middle Atlantic Coast of the United States," Geology,

7 (December, 1979), 605.

4. Pilkey, et al., From Currituck to Calabash, p. 21.

5. Robert Dolan, Bruce Hayden and Jeffrey Heywood, "Shoreline Forms and

Shoreline Dynamics," Science, 197 (July, 1977), 51.

6. Pilkey, .2t al., From Currituck to Calabash, p. 56.

7. Ibid., p. 45.

8. Ibid., p. 43.

9. National Park Service, Statement for Mana&ement, Cape Hatteras

National Seashore (January, 1978).

10. Pilkey, et al., From Currituck to Calabash, p. 97.

11* 15 N.C.A.C. 7H.0301o

12. Id.

13. Id. 7H.0304.

14. N.C. Gen. Stat. 5 113A-102(b)(1).

15. Id. 5 113A-1029b)(4).

Ask
16. Id. S 113A-113(b)(6).

17. i5 N.C.A.C. 7H.0306(b).

18. 15 NCAC 7H.0306(a)(1).

19. Id. 7H. 03 08(a ) (2

20. Id. 7H. 0308(a) (7).

21. Id. 7H. 03 08(a) (3

22. Id. .7H. 0308(b) -

23. Id. 7H.0308(d).

24. Id. 7H. 03 06( c) .

25. Id. 7H.0509-.0510.

26. Id. 7H.0306(h).

27. Id. 7H.0308(d)(10).

28. Pilkey, et 11., From Currituck to Calabash, p. 109.

29. Ibid., p. 109.

30. Ibid., p. 87.

31. Ibid., p. 84.

32. Ibid., p. 40; also based on interviews with local officials.

33. Ibid., p. 40. See the photo on p. 41.

34. Only five major permits for development in Ocean Hazard AECs were

issued or denied in the entire state during the first thirteen months of the

CAMA permit program (see Table IV-2).

IV. REGULATION IN THE ESTUARINE SYSTEM AECS

The Coastal Resources Commission has designated four types of estuarine

system AECs--Estauririe Waters, Coastal Wetlands, Public Trust Areas, and the

Estuarine Shoreline. Public Trust Areas include estuarine waters and certain

inland waters. Regulation of land use involves primarily the Estuarine

Shoreline AEC and the Coastal Wetland ABC (because land use involves

bulkheads, channel excavation, boat ramps, piers, docks, and jetties that

extend into the wetlands), and therefore this study is limited to an analysis

of regulation in these two AECs.

A. CAMA Regulation in Estuarine Shoreline AECs

The Estuarine Shoreline was designated an AEC because it is considered to

be a component of the estuarine system and because development on the

shoreline "influences the quality of estuarine life and is subject to the
damaging processes of shore front erosion and flooding."I The Estuarine

Shoreline is delineated as the area within 75 feet of the mean high-water

level or the normal water level. along the estuaries, sounds, bays, and

brackish waters.

Use standards for the Estuarine Shoreline AECs provide that development

must not have a significant adverse impact on estuarine resources*

Development must "substantially preserve" and not weaken or eliminate natural

barriers to erosion (such as peat marshland, resistant clay shorelines, and
cypress-gum protective fringe areas).2 Areas covered by impervious surfaces

must be minimized and limited to 30 per cent of the lot's area within the
AEC.3 Development must conform to standards under the North Carolina

Sedimentation Pollution Control Act; these include provisions for a buffer

zone' around land-disturbing development, limits on graded slopes, and
revegetation of disturbed land. 4 Development must not significantly interfere

with existing public access rights or use of navigable waters or public
resources,5 and major public facilities are not permitted if they are likely
to require excessive public expenditures for maintenance and continued use.6

Development may not cause-major or irreversible damage to valuable, documented
historic architectural or archaeological resources.7

BO CAMA Resulations for Coastal Wetlands AECS

Marshes that are subject to regular or occasional flooding by tides have

been designated as areas of environmental concern'because they provide decayed

plant materials and nutrients that form the basis for the food chain in the

estuaries, they provide nesting and feeding areas 'for waterfowl and wildlife,

they serve as a buffer against shoreline erosion, and they serve as nutrient
and sediment traps.8 The Coastal Resources Commission has assigned the

highest priority of land use to "the protection and management of coastal

wetlands so as to safeguard and perpetuate their biological, social, economic

and aesthetic values."9

General-use standards allow only water-dependent uses in coastal

wetlands, estuarine waters, and public trust waters. Restaurants, residences,

apartments, motels, hotels, trailer parks, private roads, factories, and

parking lots, for example, are not permitted, while utility easements, docks,

wharfs, boat ramps, dredging, bridges, revetments, bulkheads, culverts,

groins, navigational aids, mooring pilings, navigational channels, access

channels, and drainage ditches are permitted if they meet all appropriate
standards and regulations.10 To receive a permit, a project must be

consistent with the Coastal Resources Commission management objective for

coastal wetlands. There mist be no suitable alternative site outside the AEC.

The project must not violate water and air quality standards, measurably

increase siltation, create stagnant water bodies, impede navigation or create

undue interference with access to or use of public trust or estuarine waters,

or cause major or irreversible damage to valuable documented archaeological or.

historic resources. Timing of the development must be such as to have a

minimum adverse effect on life cycles of estuarine resources. And a

combination of site and design must be chosen that will have a minimum adverse

effect on the productivity and biological integrity of coastal marshland,

shellfish beds, submerged grass beds', spawning and nursery areas, important

nesting and wintering sites for waterfowl and wildlife, and important erosion
boundaries." Specific-use standards apply to various types of development in
Coastal Wetlands, Estuarine Waters, and Public Trust Areas:12

Navigational Channels, Canals, and Boat Basins. These must be located
and aligned to avoid highly productive shellfish beds, beds of submerged
vegetation, and regularly 'or irregularly flooded marshes.
Hydraulic Dredging. The terminal end of a dredge pipeline must be at
least 50 feet from a containment dike and a maximum distance from spillways in
order to allow adequate settlement of, suspended solids. Excavated material
must be'confined on high ground by adequate retaining structures and

stabilization measures. Effluent from diked areas in which excavated
materials are being placed must be ret urned to the area being dredged, if
possible, or contained and directed to a point waterward of emergent
vegetation, or, when conditions require it, below mean low water. Dredge
spoil and effluent from dredging in closed shellfish waters must be returned

to these waters.
Drainage Ditches. Ditches must not be more than six feet wide and four
feet deep unless necessary for adequate drainage; only ditches larger than
this are subject to regulations. Spoil from ditches through regularly flooded
marshes must be placed landward of these marshes 'in a manner that will insure
that sediment will not enter the water or marsh; spoil from irregularly

flooded marshes must be placed on noir-wetlands whenever this is feasible.

When new ditches are excavated through high ground, an earthen plug or other

method must be used to minimize siltation to adjacent water bodies. Ditches

must not adversely affect officially designated primary ntirsery areas,
productive shellfish beds, sublaerged grass beds, or other important documented

estuarine habitats.

Nonagricultural DrainMe. Ditches must be designed,to minimize the
volume of flow to surface and ground water and to provide for passage of

migratory organisms. They must not create stagnant water pools or significant

changes in velocity of flow or divert or restrict water flow to important

wetlands or marine habitats.

Marinas. Marinas must be in areas that do not require dredging (except

for dredging necessary for access to high-ground sites) and must not disturb

valuable shallow water and wetlands habitats, Marinas must be designed to

minimize use of public waters, must provide adequate wastewater pump-out

stations, and must use necessary means to minimize pollution and adverse

effects on navigation and public use of waters.

Docks and Piers. Docks and piers must not significantly interfere wtth

waterflows, present a navigational hazard, or extend more than 80 feet from a

federally maintained channel. To minimize shading of marsh vegetation, piers

and docks over vegetated marshes must not be more than six feet wide and

platforms on the end mist not exceed 500 square feet.

Bulkheads and Other Shore Stabilization Measures. Bulkheads must be

placed approximately at the mean high-water level or normal-water level and

must be landward of significant marshland or marshland fringes. Bulkhead fill

material must be obtained from an upland source unless the bulkhead is part of

a permitted project that involves excavation from a norr-upland source.

Bulkheads built below the mean high-water level or the normal water level to

reclaim land lost to erosion are limited to the area lost to erosion in the

year before a permit was applied for.

C. Evaluation of the Effects.of CAMA Regulations on Land Use in the

.Estuarine System AECs

To evaluate the effects of CAMA regulations on land use and land values

in the estuarine system AECs, an analysis was made of regulatory decisions on

CAMA permit applications for minor and major development (including dredge and

fill operations) in selected areas from March 1, 1978, the date the CAMA

permit program because effective, to November 30, 1979. The analysis of minor

permits involved all permit applications filed in the seven beach communities

selected for analysis of Ocean Hazard AEC pemits--that is, in Kill Devil

Hills, Nags Head, Pine Knoll Shores, Emerald Isle, Wrightsville Beach, Long

Beach, and Holden Beach--plus the permit applications filed in Beaufort and

Brunswick counties. In regard to major permits, all applications filed in

Beaufort and Brunswick counties during the same period were analyzed.

1. Analysis of CAMA Minor Permit Decisions. For the entire coastal

region, 980 permits for minor development in estuarine shoreline and wetland

AECs were granted during the first two years of the CAMA permit program (March

1, 1978, to February 29, 1980). During the same period 293 permits were

granted or denied in the selected areas. Thus the selected areas accounted

for 29.9 per cent of the estuarine system AEC minor permits during the first

two years of the program. Of the 980 minor permit applications for the entire

coastal areas, only seven were denied. Data on the number of conditional

permits granted during the first year are not available, but in the second

year 41 conditional permits, or 9.3 per cent of the total, were issued.

In the areas selected for detailed analysis, 260 applications for permits

were filed during the first 1 3/4 years of the permit program. Of this total,

248 (95.4 per cent) were approvel, 11 (4.2 per cent) were granted with

conditions, and one (0.4 per cent) was denied. As in the analysis of Ocean

Hazard AEC permits, permits were classified as conditional permits only when

the conditions did not merely restate CAMA regulations. Table IV-1 shows the

type of activities or structures covered by the permits. In the beach

communities over three-quarters of the permits involved residences. In the
two counties most of the permits covered residences (24.5 per cent), bulkheads
(28.4 per cent), or piers, docks, boathouses, or walkways (22.8 per cent).
The one denial involved a proposed residence of over 4,000 square

feet on inland waters at Wrightsville Beach. The proposed development

violated the standard that no more than 30 per cent of the lot be covered with

impermeable surfaces, but the permit was denied also on grounds that the size
@of the house violated local zoning ordinances The applicant reapplied for a
permit to build a somewhat smaller house with a smaller paved driveway, and a

large residence now exists on the lot.

Since conditions attached to permits can possibly affect use of land, the
conditions attached to the eleven conditional permits were reviewed (only true
conditions, rather than restatements of standards, were considered). Five of

the eleven conditional permits involved townhouses to be built by one

developer. The conditions for these permits required the developer to take

certain measures during construction in order to prevent erosion and

siltation. In two cases involving single-family residences, one applicant was
required to raise the elevation of the lots to 7.5 feet above mean sea level,

in accordance with local flood plain regulations, and the other applicant was

required to revise the site plan to conform to local side setbacks. A
condition placed on another application for a permit to Wild a single-family

residence was that a bulkhead be constructed. The condition in still another

single-family case was that an existing bulkhead be corrected to eliminate

siltation. In another case a buffer zone was required between a mobile tome

foundation and marsh grass, and in the last case a buffer zone was required

between a road fill and marsh grass.

Table IV-1

Type of Activity or Structure Covered by Minor Permits
in Estuarine System AECs in Selected Areas

Seven beach Beaufort and Brunswick
communities counties
Type of activity or structure Number Percentage Number Percentage

Residences:
Single-family 114 72.2% 25 24.5%
Duplex 1 0.1
Multiple units 6 3.8
Remodeling 1 0.1
Additions 1 0.1
Bulkheads 8 5.1 29 28.4
Piers, docks,"boathouses, walks 18 11.4 23 22.5
Commercial structures 4 2.5 2 2.0
Boat ramps 3 2.9
Jetties and breakwaters 1.1 10.8
Road repair 2 2.0
Filling 1 1.0
Ma rinas 1 1.0
Marine railways 1 1.0
Golf courses 1 1.0
Boat storage shed 1 1.0
Enlarge canal 1 1.0
Other 5 3.2 1 1.0

T5_8 100.0% 102 100.0%

2. Analysis of CAMA Major Permits and Dredge and Fill Permits. The

primary objective of this study was to estimate the impact of CAMA regulations

and the Dredge and Fill Law on land use and land values in coastal areas. In

the estuarine system AECs, almost every project that requires a state permit

also requires a permit from the Corps of Engineers under authority either of

Section 10 of the Rivers and Harbors Act of 1899 or Section 404 of the Clean

Water Act of 1977 (see Chapter 11, Section A. 1. ). As Chapter II pointed out,

the state and federal permit programs are closely related. Applications for

both state and federal permits are made on the same forms, and state and

federal staff members make field inspections together and consul t regularly.

Under Section 307 of the Federal Coastal Zone Management Act, a federal permit

cannot be issued unless the state certifies that the proposed project is

consistent with the state coastal management program and state policies; in

practice, the state certifies projects as consistent if they are eligible for

a state permit.

Although federal permits are therefore contingent on the state's approval

of a permit, federal criteria for evaluating permit applications are broader

and potentially more restrictive. The state can deny a permit only if it

shows that the proposed project will have an adverse effect, while the Corps

of Engineers may deny a permit if it finds that the project is not in the

public interest. For example, if the Corps evaluates the expected benefits to

the public, it may deny a permit if there is an alternative "upland" site

suitable for the project. The C3rps' geographical jurisdiction extends beyond

the state's jurisdiction, which is limited to the ABCs. Thus the Corps may

deny permits that the state cannot deny. In practice this is done very

infrequently, and in most cases a project that qualifies for a state permit

will also qualify for a federal permit. But, if CAMA had not been enacted,

almost all projects in the estuarine system AECs that require state permits

under CAMA and the Dredge and Fill Law would still be required to have a

Section 10 or Section 404 permit.

Data are not available on the total number of CAMA major permits

(including dredge and fill permits) issued or denied for development in

estuarine system AECs. However, Table IV-2 shows the number of estuarine

system AEC permits issued or denied during the first 13 months of the CAMA

permit program. The 30 permits for development in Beaufort and Brunswick

counties equaled 18.2 per cent of the total.

Table IV-2

Major CAMA and Dredge and Fill Permits Issued or Denied
for Development in Estuarine System AECs, by County,
March 1. 1978 to March 31, 1979

County Number of permits

Beaufort 11
Bertie 2
Brunswick 19*
Camden I
Ca rte ret 23
Chowan 4
Craven 5
Currituck 14
Da re 14**
Gates 0
He rtf ord I
Hyde 6
New Hanover 21*
Onslow 7*
Pamlico 15
Pasquotank 5
Pender 4
Pe rquimans 7
Tyrrell I
Washington 5
165

*Plus one major permit for development in Ocean Hazard AECs.

**Plus two major permits for development in Ocean Hazard AECs.

Source: Office of Coastal Management

Table IV-3 shows the number of approved and denied permits for dredge and
fill projects for each year from 1970 to 1979. The percentage of denials has
declined dramatically @since the early years of the program. Less than 4 per'
cent of the applications were denied in 1979. The decline is due to the fact
that applicants have become more familiar with, and perhaps more resigned to,

the requirements necessary to obtain a permit and also because state
personnel, who now meet with applicants to discuss proposed projects before
they formally apply, counsel them on the standards and regulations that must

be met before a permit can b.e.issued.
All major permits issued for piroject,s in estuarine system AECs in

Beaufort and Brunswick counties from March 1, 1978, the effective date of, the

CAMA permit program, to November 30, 1979, were reviewed. These permits
include dredge and fill projects as well as projects that fall under other
CAMA regulations. Thirty-one applications for major permits were filed in
Beaufort County and 30 in Brunswick County. Of the 61 applications, 60 were
approved with conditions and one was denied. The one denial involved filling
a private beach to cover stumps that posed a hazard to bathers and to provide
an improved beach. The state objected because, among other reasons, covering
the stumps would not be effective and the stumps could be removed.
Table IV-4 shows the types of activities covered by the major permits.

Almost all the activities would have needed a permit under the Dredge and Fill

Law even if CAMA had not been enacted. Possible exceptions are some of the

bulkhead constructions and exploration of a Civil War shipwreck.

Table IV-3

Dredge and Fill Permits Issued and Denied, 1970 to 1979

Permits Permits Percentage
Year Issued Denied Denied

1970 199 13 6.5%

1971 235 26 11.1

1972 230 44 19.1

1973 224 43 19.2

1974 198 18 9.1

1975 205 7 3.4

1976 223 21 9.4

1977 183 15 8.2

1978 220 10 4.5

1979 153 6 3.9

Source: Office of Coastal Management

All but three of the proposed projects required federal Section 10

permits, Section 404 permits, or both. Exploration of a Civil War shipwreck

and two projects of state age ncies did not require federal permits. All other

projects would have been subject to regulation under federal permit programs

even if CAMA had not been enacted.

Table IV-4

Kinds of Activities Covered by CAMA Major Pe mits Issued
in Beaufort and Brunswick Counties

.Number of Percentage
Activity__ rnits of total
-EL --
Excavating or maintaining boat 15 24.6%
channels or boat basins

Bulkhead construction or repair 19 31.1
Bulkheading and filling 10 16.4
Bulkheading and dredging 1 1.6
Excavating, widening, or 3 4.9
maintaining ditches
Filling 4 6.6
Laying pipeline 2 3.3
Marine railway construction 2 3.3
Preparing roadbed 1 1.6
Constructing settling basin 1 1.6
Exploring Civil War shipwreck 1 1.6
Constructing jetties 1 1.6

Other 1 -1.6

61 100.0%

FOOTNOTES

1 15 N.C.A.C. 7H.0209.

2. Id. 7H.0209(e)(1).

3. Id. 7H.0209(e)(2).

4. Id. 7H.0209(e)(3).

5. Id. 7H. 0209(e) (5).

6. Id. 7H.0209(e)(6).

7. Id. 7H.0209(e)(8).

8. Id. 7H.0205(b).

9. Id. 7H.0205(d).

10. Id. 7H.0205(d).

11. Id. 7H.0208(a).

12. Id. 7H.0208(b).

V. THE ISSUE OF COMPENSATION

The issue of compensation is raised by that part of Resolution 33 which

requires a study of .(3) funding that would be needed in order to

adequately compensate landowners for their losses as a result of such

regulation." Two aspects of the issue are addressed here: the procedures

established by CAMA concerning compensation, and the case law concerning

compensation requirements.

A. Compensation Procedures Under CAMA

CAMA contains two relevant provisions. One is a general statement in

G.S. 113A-128 disclaiming any authority under CAMA for governmental actions

that would constitute a taking in violation of the federal or state

constitution. This provision seems to have more political than substantive

content, since it only states what would be the law in any event.

The other provision, contained in G.S. 113A-123(b), establishes a

procedure for expedited judicial determination of takings issues that may be

raised in the future by landmm.,@rs concerning actions by the Commission under

CAMA. When this provision was proposed as a House Committee amendment to the

coastal area management bill in 1974, it was summarized in a memorandum from

committee counsel as follows:

Expedited Procedure for Raising "Takings" Questions

This amendment gives a landowner access to the courts to raise the
question: was an order of the Commission so restrictive of property
rights as to be the equivalent of a taking of property for public use
without Just compensation?

If governmental-action does have this effect, it would violate
constitutional just compensation requirements. The bill already
expresses (in G.S. 113A-128) the intent not to authorize any actions that
would amount to a "taking" of property. This amendment simply provides a
machinery for implementing the original intent of the bill.

Under the amendment, "takings" questions could be raised In Superior
Court within 90 days after a landowner is notified of an order of the
Commission. The Court would be directed to expedite the trial of these
cases. If the court finds the Commission's order to be so restrictive of
property rights as to amount to an unconstitutional "taking," the Court
would direct the Commission to exclude the plaintiff's land from its
order. The Commission could then institute condemnation proceedings, if
it wished, or could reconsider the scope or nature of its order.

The procedure proposed by this amendment is identical to one
established by existing law, under the Coastal Wetlands Act (G.S.
113-230).l

To this description it only need be added (1) that G.S. 113A-123(b)

declares that this expedited procedure shall be an exclusive method for

determining takings issues under CAMA, and (2) that the test of a taking under

G.S. 113A-123(b) is whether the Commission's action "so restricts the use of.

[the landowner's] property as to deprive him of the practical use thereof,

being not otherwise authorized by law." The "practical use" test stems from a

dictum in an early North Carolina zoning case, Helms v.City of Charlotte, 255

N.C. 647 (1961). The phrase "being not otherwise authorized by law" in G.S.

113A-123(b) makes it "plain that the benefits of the takings procedure are not

available in cases where, for any reason, a 'taking' is authorized by
law-- 9 . eege, (by] the constitution, legislation, case law, etc."2

Most important, the expedited procedure for takings cases in C.S.

113A-123(b) and the general provision in G.S. 113A-128 reflect the

legislature's active concern that landowners who believe that their property

has been taken or is in danger of being taken as a result of CAMA proceedings

will have a full and prompt opportunity to test their claims. Indeed, the

addition of the expedited procedure by way of amendment was one of three key
features of a compromise that made possible the enactment of CAMA in 1974.3

This is an unusual procedure that goes further than most regulatory laws in

responding to landowner concerns over potential regulatory takings. CAMA does

not, however, attempt to fund the actual payment of established compensation

claims; that would have to await further legislative action.

B. Case Law Concernina Compensation Requirements

The regulatory-takings question has been extensively litigated in recent

years in various state courts. Among the pertinent issues prominently

litigated have been flood plain zoning, down-zoning, shoreline land use

regulation, and estuarine land and water use regulation. A large body of

legal literature addresses the subject, and a number of theories have been

advanced to explain the cases in which regulatory takings have been found or

denied by the courts. No effort will be made here to summarize that. large

body of general case law and literature, beyond restating several basic

propositions.

(1) Some state courts, including"North Carolina's, will probably find in

some instances that there has been a regulatory taking that must be

compensated.

(2) No North Carolina decisions have yet addressed the particular takings

questions that seem likely to arise under CAMA's ocean hazard and estuarine

protection AEC provisions. Definitive answers to these questions will have to

await future court decisions.

(3) One useful classification of takings cases involves distinguishing

(a) the decisions that lay heavy or exclusive weight upon the diminution in
value of the affected property from (b) the decisions that balance the loss of

value to the landowner against the public benefit from the regulation.

(4) The Helms decision, from which the CAMA "practical use" test was
drawn, at first glance may seem to lay heaviest stress on diminution in value.
Two recent analyses of the North Carolina decisions, however, have suggested
that a balancing test is implicit in the Helms decision.4 This view has been

summarized as follows:

Professor Glenn, in a discussion of the Helms case, rather
persuasively argues that the court is not looking merely at the
diminution of the value of the property, but is balancing the loss of
value to the landowner against the public benefit to be secured by the
regulation. What the court has in effect done, Professor Glenn argues,
is to say that if the benefit secured by zoning plaintiff's property
residential is small compared to the harm inflicted on plaintiff by the
regulation a taking has occurred. Although there is no express language
in Helms to the effect that the court is using a balancing test, the
court's approach to the facts indicates that it is, and in any event,
when Helms is read together with [other relevant zoning cases] cases, a
strong inference can be drawn that diminution of value alone does not
cause a taking and that the court is willing to look at other factors
than just ha rm to the landowner. This suggests that in cases in which
@the taking issue is raised, attorneys for the regulating agency should be
able to make good use of arguments concerning the public harm and costs
generated by the unregulated use of the land in Iuestion and of the
public benefits to be secured by the regulation.
The prospects for decisions on CAMA's hazard area provisions have been

specifically commented on as fuiixws:
Land-use regulation to control flood damages in the coastal area has
several aspects that set it apart from land-use regulation to protect
against riverine flooding. For one thing, private ownership of the land
stops at the mean high-tide line, and title to the land seaward of that
line, the foreshore, remains in the state. Also, several state
regulatory programs already are in existence that in one way or another
can be utilized to protect against flood hazards. These are the Coastal

Area Management Act, especially the provisions authorizing the
designation of areas of environmental concern, the control of dredging
and filling, and the act protecting sand dunes along the Outer Banks.
This is not to say that taking questions may not arise with regard to
existing state programs, but rather to point out that there are
comprehensive state programs aimed at preserving dunes, vegetation, and
natural areas along the coast, and that these programs are strong
evidence of a paramount public purpose in support of the regulations that
extends beyond control of flood damage. The availability of factual data
regarding actual damage caused by hurricanes and other storms over the
years, and the plainly demonstrated need for control measures can also be
used to buttress support for regulation. A typical regulation that has

been upheld in other states is an ordinance establishing a setback line
seaward of which no buildings may be constructed. It would also seem
that such devices as requiring buildings to be elevated and floodproofed
would be upheld if reasonable under the eircumstances.6

(6) As a general matter, CAMA's estuarine waters provisions seem, if

anyth ing, less vulnerable to adverse takings decisions than the hazard area

provisions, because of the strong public interest in protecting the public

fisheries that are so dependent on the estuarine waters.

(7) The task of predicting future decisions of the North Carolina Supreme

Court on takings questions that may arise under CAMA is complicated by the

provisions in G.S. 113A-123(b), described above, that direct the courts to

consider whether the "practical use" of coastal land is so restricted that, if

not "otherwise authorized by law," a taking has occurred. Only future court

decisions can determine whether this statutory test departs from or merely

incorporates by reference the line of decisions on takings issues that is

evolving in other contexts.

In Adams v. Department of Natural Resources, the North Carolina Supreme

Court was presented with the argument that CAMA authorized regulatory takings.

The court rejected these claims as premature, since the plaintiffs had not

been denied a development permit, a variance or an exemption.

Recent litigation in other states under statutes similar to GAKA has been

summarized as follows:

Decisions outside of North Carolina show that the courts of other
jurisdictions are confronting similar issues under their coastal
management laws. Though it is too early to identify clear decisional
directions, these decisi 'ons show the beginnings of trends on takings
questions and on other issues that are likely to confront the courts in
North Carolina and other coastal states.

In Tom'a River Affiliates v. Department of Environmental Protection
(1976), New Jersey's highest court . . . decided on the merits that
denial of a development permit did not constitute a regulatory taking if
reasonable development alternatives were available to the landowner. A
similar result was reached by the Washington State Supreme Court in
Department of Ecology v. Pacesetter Construction Company, sustaining an
injunction against construction of a shoreline-f ront house in violation
of setback and height limitations established under the Washington
Shoreline Management Act. In reaching this decision, the Washington
Court applied a balancing test to reject an argument that the regulations
amounted to a "taking. ..7

too

FOOTNOTES

1. Heath, A Legislative History of the Coastal Area Management Act, 53

N.C.L. Rev. 345, 396, 138 (1975).

2. Id. at 396, no. 139.

3. Id. at 361-62, no. 54.

4. Glenn'. The Coastal Area Management Act in the Courts: A Preliminary

Analysis, 53 N.C.L. Rev. 303, 330 (1975). Campbell & Heath, Legal Aspects of

Flood Plain Management, U.N.C. Water Resources Research Institute Report No.

137 (1979),' pp. 37-38.

5. Campbell & Heath, 2k. cit. supra note 4, at 37-38.

6. Id. at 40.

7. Heath & Moseley, A Progress Report on the Coastal Area Management

Act, 45 Popular Government 35 (Spring 1980).

101

VI. SUMMARY AND CONCLUSIONS

A. Summary

The purpose of this study, which was conducted in response to a.

resolution of the 1979 General Assembly, was to assess the impact of

regulation under the Coastal Area Management Act (CAM.A) and the Dredge and

Fill Law on land use and land values in the coastal area; and from this

assessment to determine (1) whether regulation has resulted in inequity or

unfairness, and (2) the amount of money that would be required to compensate

landowners for reduced land values.

The assessment of the impact of regulation on land use and values was

made by (1) analyzing the laws and regulations that affect land use in the

coastal area; (2) analyzing CAMA and Dredge and Fill Law regulations; (3)

analyzing state regulatory actions under the CAMA permit programs for minor

and major development, including dredge and fill projects, in a sample of

seven beach communities and two counties; and (4) making field surveys in

selected beach areas to evaluate the impact of regulations under local

conditions.

Since land use in coastal areas is affected by numerous federal, state,

and local laws and regulations, it was necessary to distinguish the effects

due solely to CAMA and Dredge and Fill Law regulations. Even in the absence

of these two laws, land use would be affected by many federal, state, and

102

local laws and regulations. Except for development in Ocean Hazard AECS

landward of the high-tide line, almost every development project that requires

a CAMA or Dredge and Fill permit also requires a permit from the Corps of

Engineers under Section 404 of the Clean Water Act of 1977 or Section 10 of

the Rivers and Harbors Act of 1899, and federal guidelines for these permits

are potentially more restrictive than state guidelines. Similarly, in the

selected beach communities local ordinances impose restrictions through

minimum lot-size requirements, oceanfront and street setback requirements,

sand dune regulations, building codes, and so forth. In most denials of a

CAMA permit, the proposed development failed either to comply with local

ordinances or to meet a combination of state and local regulations (i.e., the

CAMA setback requirement and local street setback requirements).

CAMA regulations governing land development apply only to land within

designated AECs, which now include only a very small portion of the land in

the twenty-county coastal area--primarily a 75-foot strip along the estuarine

shoreline and a strip as narrow as 60 feet along the beaches of the barrier

islands. Outside the AECs, the effect of CAMA on land use is limited to the

requirement imposed by the act that land-use plans must be made by 'Local

governments. However, Section 307 of the Federal Coastal Zone Management Act

requires that federal grant programs, licenses, permits, and development

projects be consistent with the state's management program, which includes the

local land-use plans, and state policies.. Thus the "consistency" provision of

Section 307 gives the state some limited power to affect land use outside the

AECs. So far, however, the consistency provisions have not.,' affected)federal
decisions. eve.

To assess the impact of regulation on land values and land use in

designated AEC9, regulatory decisions under the pe mit programs for minor and

103

major development and dredge and fill projects were analyzed. A sample that

included seven beach communities--Kill Devil Hills, Nags Head, Wrightsville

Beach, Pine Knoll Shores, Emerald Isle, Long Beach, and Holden Beach--and

Beaufort and Brunswick counties--was chosen to represent different parts of

the coast and different types of land, and applications for permits in these

jurisdictions during the first 21 months (Mlarch 1, 1978 to November 30, 1979)

of the program were reviewed and analyzed. The analysis of permits in Ocean

Hazard AECs of the selected beach communities appears in Chapter 111.

Analysis of pe.rmits for development in estuarine shoreline and wetland AECs in

the selected beach communities and in Beaufort and Brunswick counties is found

in Chapter IV.

Ocean Hazard AECs. The basis for regulation in Ocean Hazard AECs are

the natural hazards due to beach erosion (which is a manifestation of a

natural process of Island migratLon caused by a gradual rise in the sea level)

and storms and hurricanes. CAMA regulations for development in Ocean Hazard

AECs fall generally into four categories: (1) regulations to control

shoreline, beach, and dune erosion; (2) regulations to ensure construction

standards adequate to protect life and property from ocean and weather

hazards; (3) a regulation that requires buildings to be set back f rom Lhe.

ocean a prescribed minimum distance, the distance being determined by the

averige annual rate of erosion in feet times the factor 30 (which was chosen

apparently to represent either tlie physical life of a building or the maximum

life of a mortgage); and (4) regulations governing construction of public

facilities that may have adverse effects on the coastal environment.

The only regulation that is likely to have a significant impact on

development in Ocean Hazard AECs is the one that requires buildings to be

constructed behind the setback line. Tn some areas oceanfront lots are

104

too narrow to permit construction of a building that complies with the CAMA

oceanfront setback requirement and local ordinances that require buildings to

be placed a minimum distance from the street. The CAMA setback line varies

from a minimum of 60 feet, as measured from the first line of vegetation, to

140 feet in areas with high rates of erosion.

There were 191 applications for CAMA minor development permits in the
Ocean Hazard AECs of the selected beach communities. during the first 1 3/4

years of the permit program. Of this total, 173 (90.6 per cent) were
approved, nine (4.7 per cent) were approved with one or more conditions

(conditions that merely restated regulations were not considered as true

conditions), and nine (4.7 per cent) were denied. Permits were denied in only

four of the beach communities. There were no denials in Nags Head, Pine Knoll

Shores, or Wrightsville Beach. Only two denials prevented an applicant from
building -on his land (see Holden Beach Denial #1 and Kill Devil Rills Denial
#1 in Chapter III). . Both of these cases involved eroded lots that were very

vulnerable to ocean and weather hazards. In both cases a residence that

previously existed on the property had been moved to avoid damage or

destruction, and in both cases the area has had a history of chronic erosion.

Five of the denials did not prohibit construction of a residence of a size and

configuration that would meet the CAMA and local setback requirements; two

others involved emergency bulldozing of sand and construction of a bulkhead.

Thus, in only two out of 191 minor permit cases in the Ocean Hazard AECs of

the selected beach communities did CAMA regulations clearly act to prohibit

development, and in one of these cases (and possibly in both) the proposed

development would not have been allawed under local ordinances. Only three

105

applications for major development permits were filed in the selected beach

communities, and all were approved with conditions.

While the analysis of permit decisions suggests that CAMA regulations

have so far not had a major impact on beach development, in fact the CAMA

setback regulation in combination with local street setback requirements does

prohibit development of numerous oceanfront lots. Most of the denied permits

for development of oceanfront lots have been denied because of the CAMA

setback requirement, and future applications for development of many other

such oceanfront lots could be denied on this basis. The potential impact of

the requirement varies considerably along the coast. At Pine Knoll Shores

erosion is moderate, and the local setback line is further inland than the

CAMA setback line. At Holden.Beach neither the CAMA or local street setback

requirements will have a major effect because on most sections of the beach

residences can be built on the two rows of lots between the beach and the

road. At Long Beach, on the other hand, there is only one row of lots between

the beach and the road, and the CAMA setback requirement proscribes

development of about 79 lots.

About 500 lots have been tentatively identified--through aerial, map, and

field surveys--as too narrow to permit construction of a building at least 20
feei deep that would be consistent with both CAMA and local setback

requirements. Some 200, or 39 per cent, of these lots are on a single stretch

of the beach in Kill Devil Hills and Kitty Hawk where, because of chronic

erosion, the lots have become very narrow. About 175, or 36 per cent, of the

lots are in three other problem areas--West Onslow Beach, Long Beach, and the

inlet area at the eastern end of Ocean Isle. Most of the other lots are in

106

special problem areas like the site of the Holiday Inn at Wrightsville Reach;

like Yaupon Beach,. where erosion has destroyed several rows of oceanfront

lots; and like the eastern end of Holden Beach near Lockwood Folly Inlet,

where many platted lots are now under water.

The fact that these lots as undevelopable under CAMA regulations does not

necessarily mean that it was CAMA regulations that prevented development or

reduced land values. In many cases the lots have been eroded, and market

values reflect the hazards of building on them. In other cases, however, the

lots would have a substantial market value except for the CAMA setback

requirement, and some people would undoubtedly be willing to accept the risks

of building on them. This is best illustrated by the situation at Long Beach,

where relatively narrow oceanfront lots are bounded by a street. Erosion is

moderate at most places on the beach (less than two feet per year), but the

CAMA setback line is the minimum prescribed in the regulations, that is, 60

feet. The 79 lots identified as undevelopabie are not in one area,but rather

are interspersed among developed lots. Although development of these lots is

not without risks (there has been serious erosion at some points along the

beach and there is a substantial danger from major storms), many of the lots

would probably be developed eventually and have substantial market

value--perhaps $30,000 to $40,000 at current prices--except for the CAMA

setback requirement. Furthermore, some of the lots might be developable under

CAMA regulations if the setback requirement were relaxed slightly.

Thus, while uniform application of the setback requirement may be

necessary and appropriate for the areas of the coast that have serious erosion

problems, and this appears to be the case for many of the lots identified as
undevelopable, in certain instances other options might be considered. AS'm`all

107

variances might be granted on the basis of particular circumstances; laws o'r
regulations might require full disclosure of risks to builders and prospective
purchasers; or owners might be required to move buildings if they should ever

encroach on the beach as a result of erosion (this is not to say that these
options necessarily are all available today under CAMA).
Of the seven selected beach communities, only two have been significantly
affected by CAMA regulations--Long Beach, because of the potential impact of
the CAMA setback requirement, and Kill Devil Hills, where about 28 of the
approximately 78 undeveloped lots are undevelopable because of the CAMA
setback requirement (whether the latter lots would be developed is
questionable because of the hazards due to erosion and the necessity to comply
with local ordinances). Wrightsville Beach has chronic erosion problems, but,

except for the development near the Holiday Inn, these problems have been
controlled by a series of beach-restoration projects (including a $2.5 million
project now under way), and CAMA regulations have not significantly affected
development. CAMA regulations have not had a significant impact so far at

Nags Head, Pine Knoll Shores, Emerald Isle, or Holden Beach.
Estuarine System AECs. Applications for CARA permits for minor and major

development and dredge and fill permits in the Estuarine Shoreline and

Wetlands AECs in the seven selected beach communities and in Beaufort and

Brunswick counties were analyzed. Of the 248 minor permit applications filed,

236 (94.5 per cent) were approved, 11 (4.2 per cent) were approved with

conditions (not including conditions that amounted to restatements of

regulations), and one (0.4 per cent) was denied. The denial involved a minor
permit for a residence on the estuarine shoreline at Wrightsville Beach that

108

was too large to comply with local zoning ordinances and the CAMA regulation

requiring that no more than 30 per cent of a lot be covered with impermeable

surfaces; the applicant later built a still quite large residence on the lot.

The conditions attached to permits did not substantially restrict development

of land. For the entire coastal area, out of a total of 980, only seven

applications, for minor permits for development in the estuarine shoreline and

wetlands AECs were denied during the first two years of the permit program*

Of the 61 applications for permits for major development in estuarine

shoreltne and wetland AECs in Beaufort and Brunswick counties during the first

1 3/4 years of the CAMA permit program, only one was denied; that denial
involved a project to cover a private beach with sand to cover stumps that
posed a hazard to bathers. It did not prevent use of the beach, because the

stumps could have been removed. All proposed development projects on
privately owned land also required either Section 404 or Section 10 permits
from the Corps of Engineers. The percentage of denied applications for Dredge
and Fill permits has declined sharply since the program began in 1970. In
1979, six out of 153 applications, or 3.9 per cent, were denied. All dredge
and fill projects require federal pirmits as well as state pe mits, and it is

therefore doubtful that the denied state permits restricted land use.

B. Conclusion

1. The impact of regulation on land use and land values. The analysis of

permit decisions in the areas selected for study suggests that regulations

under CAMA and the Dredge and Fill Law have not so far had a major impact on

109

deve lopment in the coastal area. Of the few denials, only two prevented
applicants from developing their land, and in at least one of these cases the
proposed project did not comply with local ordinances.. For the entire coastal
area, relatively few applications have been denied; and in the case of
projects in the Estuarine Shoreline and Wetland AECs, almost all the projects
would have required federal permits that are issued under guidelines at least

as restrictive as state guidelines.
However, the CAMA oceanfront setback requirement, in combination with
local setback requirements, potentially restricts development of a

considerable number of oceanfront lots. Since many of these lots are narrow,
severely eroded, or in very vulnerable areas, the restrictive effect of the
setback requirement may be entirely consistent with the goals of CAMA and may
serve to protect unwary people from property losses. The situation at Long
Beach, on the other hand, illustrates some of the more complicated issues

involved in the uniform application of a setback regulation.

2. Inequitiesor Unfairness Resulting from Regulation. The findings of
this study suggest that in general there has been no widespread inequity or
unfairness resulting f rom CAMA and Dredge and Fill Law regulation because
regulation has not in general restricted owners from developing land.
The question of inequity in regard to some of the oceanfront lots
restricted by the CAMA setback requirement, however, is difficult. For lots
that have been severely eroded or are highly vulnerable to natural hazards,
wise policy may require that landowners and those who might purchase the
property later be prevented from taking risks that they may not fully
recognize or appreciate. Furthermore, it may be in the public interest to

C J-
L

prevent building ofr t ctures that will soon be in the surf and encroaching
,i ru
on public property s a result of erosion (like, for example, the Holiday Inn

and nearby residences at Wrightsville Beach). No question of equity is raised

by these cases.

On the other hand, a regulation that may be appropriate for some areas or

lots may not be appropriate for all areas or all lots. The situation at Long

Beach, for example, poses seri ous questions about the setback requirement in

terms of equity among neighboring landowners. A difference of a few feet in

the setback might, in some of the cases, determine whether a lot could be

developed and therefore would significantly affect its market value.

3. The Question of Compensation. One purpose of this study was to,

estimate the amount of money that would be required to compensate landowners

for the effects of regulations on land values. The findings of this study

suggest that CAMA and Dredge and Fill Law regulations have not in general

significantly affected the value of land because they have not significantly

restricted the use of land. While regulations may impose restrictions on the

way land is developed, except where development is restricted by the ocean

setback requirement, few instances have been identified in which regulations

prevented owners from developing or using property. Even the denial of permit

applications has not proscribed development in all cases, and usually

development would be subject to similar regulations under federal laws or

local ordinances.

However, the combination of the CAMA setback requirement and local

setback ordinances has a potentially significant effect on the value of some

oceanfront lots. Aside from fundamental questions about the appropriateness

of compensation in these cases, it is not possible to estimate the amount by
which property values have been reduced solely by the CAMA setback,
requirement. Many of the lots in question are too small or too vulnerable for
development, and this undoubtedly is reflected in their market values. For
example, one lot for which a permit was denied was classified for tax purposes

as an underwater lot and assessed for $100. On the other hand, some lots

identified as undevelopable at Long Beach might have a' market value of perhaps
$30,000 to $40,000 except for the CAMA setback requirement. The market value
of the affected lois may not fall substantially because owners and buyers may
Speculate that the setback requirement may be changed or that variances will
be granted. Finally, it is difficult to determine whether development of all

the lots in questions could comply with local ordinances; if some of these

lots could not be developed even in the absence of the CAMA setback
requirement, none of the reductions in property value could be. attributed to

CAMA regulations.

Because conditions vary so much from one beach community to another and

even from one lot to another) the amount of money, if any, that would be

appropriate to compensate landowners for the effects of, regulations would have
to be determined on a case-by-case basis through the courts. The act provides,

for an accelerated court process to hear claims of landowners for

compensation, and this judicial procedure provides an obvious method to
determine whether compensation is warranted and the amount of money that would

be appropriate.

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