Real Estate Coastal Development | Client Update
September 2007
Coastal Development Practice Group
Significant Changes to Coastal Stormwater Permitting
on the Horizon
In This Issue:
Under current regulations, a special permitting program and
stormwater regulations apply to developments in the twenty
coastal counties (or for projects that drain to Outstanding
Resource Waters or High Quality Waters) that also require
either a CAMA major permit or a Sedimentation and Erosion
Control Plan (more than one acre of land disturbance). The
current rules are codified beginning at 15A N.C.A.C. 2H.1000
and generally require that developments protect sensitive
waters by limiting impervious surface, by maintaining
vegetative buffers adjacent to waters, and by transporting
stormwater runoff through vegetative conveyances.
Significant Changes to Coastal
Stormwater Permitting on the
Horizon
Based on a determination by the Division of Water Quality that
the coastal stormwater program is not effective in protecting
coastal water quality, the Environmental Management
Commission (the “EMC”) is now considering significant changes
to these rules, in particular to 15A N.C.A.C. 2H.1005 (the
“Proposed Rules”). Last year, as part of the resolution of the
debate regarding so-called Phase II stormwater rules, the
General Assembly adopted post-construction requirements for
development and increased stormwater requirements for
certain development projects in Brunswick, New Hanover, and
Onslow counties, but not for projects in the other 17 coastal
counties. The Proposed Rules generally seek to extend these
same requirements to the remaining 17 coastal counties.
The Coastal Resources Commission
Considers Changes to “Static” Line
Rule
Impending Sandbag Deadline
New Procedures for Requesting a
Variance from the Coastal Resources
Commission
Terminal Groin Legislation
In short, the Proposed Rules will subject more projects to
stormwater permitting requirements; drastically decrease the
impervious surface thresholds to qualify for low density
options; and impose stringent design requirements for
engineered controls.
Coastal Development Practice Group
Currently, only projects disturbing more than an acre of land
or requiring a CAMA major permit require a coastal stormwater
permit. Under the Proposed Rules, all development activities
within the twenty coastal counties that disturb 10,000 square
feet (less than a quarter acre), including projects that disturb
less than 10,000 square feet but that are part of a larger
common plan of development that disturbs more than 10,000
square feet, must obtain a stormwater permit.
Stanford Baird
919.743.7334
Eric Braun
919.743.7315
Bill Brian
919.466.1261
Charlotte Mitchell
919.743.7352
Mack Paul
919.743.7326
Alan Peterson
919.743.7301
Allen Prichard
704.331.7497
Lacy Reaves
919.743.7304
The Proposed Rules reduce the low density limit from 25% built-upon area to 12% in areas near
shellfishing waters and from 30% to 24% for projects in other areas. In addition, development projects
within 575 feet of the mean high water line of outstanding resource waters involving greater than 12%
must comply with the high density requirements and install engineered stormwater controls.
With respect to engineered controls, the Proposed Rules establish stringent design standards, similar to
the Phase II design standards, to which all required controls must conform. In addition, under the
Proposed Rules, coastal wetlands are prohibited from inclusion in overall project area when calculating
impervious surface density.
The Proposed Rules are now in the public comment period of the rulemaking process, which ends on
October 15, 2007. Four public hearings have been scheduled: September 18 in Beaufort; September 20 in
Manteo; September 25 in Morehead City; and October 2 in Wilmington. The public comment period and
the public hearings are the time during which concerns regarding the Proposed Rules may be addressed to
the Division of Water Quality. The EMC may be forced to amend the Proposed Rules, and delay the
effective date of the Proposed Rules, if sufficient substantive comments are received during the public
comment period. As currently projected by the EMC, the Proposed Rules will become effective on March 1,
2008.
The Coastal Resources Commission Considers Changes to “Static” Line Rule
At its July meeting, the Coastal Resources Commission (the “CRC”) approved for public hearing
amendments to the CRC’s rules related to the “static” line for beaches that have undergone large-scale
nourishment projects. The proposed changes have the potential to render many oceanfront lots that are
currently undevelopable, developable in the future subject to certain restrictions.
Under current rules, the actual vegetation line is used as the reference point from which oceanfront
development setbacks are measured. For beaches on which a large-scale beach nourishment project has
been undertaken, the pre-project vegetation line, also referred to as the “static” line, becomes the
reference point from which oceanfront development setbacks are measured. Currently, eleven beach
communities are subject to a “static” line, and for many of these communities, the “static” line has the
effect of rendering a significant percentage of oceanfront property non-conforming or unbuildable.
The proposed changes would allow communities subject to a “static” line to petition the CRC for a “static
line exemption,” which will be granted if the community can demonstrate the following:
•
•
•
A plan to maintain the beach nourishment project for 30 years;
Adequate financial resources to implement the plan; and
The availability of sand resources to implement the plan.
Assuming the community can demonstrate the above, the actual vegetation line, as opposed to the
“static” line will be used as the reference point from which setbacks will be measured. The proposed rules
involve development restrictions, including: disallowing development to occur oceanward of adjacent
structures of similar use; and limiting square footage of buildings to 2,000 square feet. Additionally, a
community would not be eligible for a static line exemption until five years after a large-scale beach
nourishment project is commenced.
The CRC will hear public comments on the proposed rule changes at its November 29-30 meeting in
Greenville. The proposed rule changes could become effective in early 2008.
Impending Sandbag Deadline
As envisioned by the Coastal Area Management Act and its regulations, sandbags are intended to be
temporary erosion-control measures until a longer-term solution such as the relocation of oceanfront
structures or a beach nourishment project can be implemented. However, in many instances, coastal
conditions, weather events, and the amount of time required to implement a beach nourishment project
have necessitated leaving sandbags in place for a longer period of time than allowed under the
regulations, in effort to protect threatened property.
In response to these practical realities, the CRC established a May 2008 deadline for the removal of most
sandbags. The Division of Coastal Management (“DCM”) estimates that massive numbers of sandbags
must be removed by this deadline. As this deadline approaches, DCM is seeking guidance from the CRC as
to how aggressively DCM should pursue removal of buried sandbags (i.e., bags that are buried but not
covered with vegetation) and how aggressively DCM should pursue bags that have become exposed. DCM
is currently working to locate all of the sandbags that must be removed and plans to compile a list of
property-owner notifications by this fall or winter.
Oceanfront property owners and local governments should continue to pay close attention to the issue
and, as the orders to remove sandbags appear to be impending, should work toward a strategy for
responding to the orders in order to protect threatened structures before the opportunity to protect such
structures is lost.
New Procedures for Requesting a Variance from the Coastal Resources Commission
At its July meeting, the CRC voted to adopt amendments to the procedures for consideration of variance
requests, which procedures are currently are codified in 15A N.C.A.C. 07J.0701-.0703 (the
“Amendments”). In short, the Amendments interfere with an affected party’s procedural due process
rights and have the potential to cost an affected party significant time and, consequently, money before
relief may be granted.
The Amendments would allow any affected party whose application for a major or minor development
permit has been denied or issued with an unfavorable condition to petition for a variance, provided the
party does not wish to challenge the permit decision. Any person who wishes to challenge the permit
decision must do so prior to seeking a variance. In effect, the aggrieved party must obtain a decision from
an Administrative Law Judge and a final decision by the CRC and exhaust all appeals, prior to seeking a
variance. This change eliminates the current option of pursuing both review of a permit decision and a
variance simultaneously from an Administrative Law Judge in the Office of Administrative Hearings
(“OAH”). Pursuing both the permit challenge and the variance request in the OAH allows the aggrieved
party to save both time and money and to have a neutral body hear all evidence and make key
determinations of fact and law before the variance request is ultimately ruled on by the CRC. This option,
along with its ancillary benefits, has been taken away under the Amendments.
The Amendments allow an affected party to seek only a variance, as is the case under current rules.
However, a variance may be petitioned for only if the affected party first: a) stipulates that the CRC rules
prohibit the development sought to be undertaken; b) either exhausts all appeals with respect to the
permit challenge or expressly waives the right to challenge the permit altogether; c) seeks relief from all
local requirements restricting use of the property; and d) allows any pending litigation between the
affected party and any other person, which has the potential to render the variance request moot, to be
resolved. These Amendments in effect attempt to preclude affected parties from seeking full relief under
the law, as such relief was intended by the General Assembly and set forth in the Coastal Area
Management Act, and thus impede procedural due process rights.
In the case of a permit renewal, if a variance is sought following the denial of a renewal request, the
Amendments, in effect impede, and perhaps even preclude, the affected party’s right to seek a vested
rights determination as the Amendment would require the affected party to stipulate that the development
is inconsistent with the rule from which a variance is sought and waive the right to challenge the denial of
the renewal request.
Finally, the Amendments remove the current requirement that a variance petition be considered no later
than the second regularly scheduled meeting following date of receipt by DCM. Instead, the Amendments
require that variance petitions be scheduled in chronological order based on date of receipt and that
petitions must be received at least 6 weeks in advance of a scheduled meeting to be considered at that
meeting. This change will undoubtedly increase the amount of time it will take to get before the CRC for a
decision on the variance petition and makes it easier for DCM staff to delay a petition’s being considered
by the CRC.
The Amendments were adopted by the CRC in July and are projected to take effect, pending approval by
the Rules Review Commission, in October 2008.
Terminal Groin Legislation
Many coastal communities experience significant beach erosion in the vicinity of inlets. Also, much of the
eroded sand ends up in inlets, impeding navigation and increasing the number of dredging events. To
address this situation, Sen. R.C. Soles introduced a bill entitled Inlet Stabilization Pilot Program during this
year’s legislative session. The bill would allow the construction of a terminal groin as a pilot project to
study its effectiveness. A community would petition the CRC for authorization to construct the terminal
groin. The community would have to prepare an Environmental Impact Statement, analyzing alternatives
to a terminal groin, and would have to make a binding commitment to remove the device should the CRC
determine the adverse effects outweigh the benefits.
The bill passed the Senate overwhelmingly. It is currently in the House Environment and Natural
Resources Committee. Certain environmental groups oppose the legislation based on general opposition to
“hardened structures” on the coast. Sen. Basnight, who has been a strong advocate for the ban on
hardened structures, supports the pilot project. Proponents recognize that terminal groins have been
effective at stabilizing inlets, as demonstrated by the experience with the Pea Island terminal groin. Also,
they can reduce environmental impacts by reducing the need for beach nourishment, inlet dredging and
inlet relocation. The bill remains eligible for consideration during the 2008 legislative session.
About Us
Equipped with an experienced team of real estate and land use attorneys, we can help you navigate the
increasingly complex and contentious world of coastal development regulations. Effective land use
representation requires a thorough knowledge of the legal, intergovernmental, and political environments
in which you operate. We pride ourselves on retaining attorneys who are active in local governmental and
business affairs and have experience serving on various local government boards and commissions,
including boards of adjustment, airport authorities and planning commissions. We have handled
development and land use matters all along the Coastal Carolinas, including recent matters in Brunswick,
New Hanover, Carteret, Beaufort, Washington, Currituck and Dare Counties.
This newsletter is published as a service to clients and others interested in real estate development issues.
The information provided herein is general in nature and should not be relied upon as legal advice as to
specific factual situations. Our coastal development group welcomes your comments or inquiries about this
newsletter or about any specific matters you may wish to discuss with us.
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