The need for more housing is widely acknowledged, especially in North Carolina, where a housing affordability crisis is making it difficult for many residents to own homes. Home builders and developers are eager to meet this demand, but they face significant obstacles due to a complex web of regulations, ranging from local zoning laws to federal environmental protections. They add years to development timelines and increase costs, often making projects financially unviable. Significantly increasing the supply of housing is easier said than done.

A prime example of these regulatory challenges is occurring now in Carteret County. In the town of Cedar Point, a subdivision development has encountered a major roadblock after the discovery of Native American artifacts and some human remains. State archaeologists believe these findings are of historical significance, which has halted the project after only about three dozen homes were built. This situation has highlighted the confusion and delays as the lines of bureaucratic jurisdiction become blurred, and projects can be held up without any clear indication of just where one’s jurisdiction ends and the other’s begins.

Essentially, state archaeology officials are blocking further progress indefinitely. The impasse generated a legislative proposal to clarify the relevant jurisdictions and authorities among agencies like the Division of Coastal Management (DCM) and the Department of Cultural and Natural Resources (DCNR), when it comes to encroaching on property rights.

The proposal, within context of the Native American artifacts discovery, generated dramatic media accounts of politicians seemingly clearing the way for greedy developers to “bulldoze” archaeological sites, specifically the site in Cedar Point, to sell more beach houses.

Provocative? Absolutely. Accurate? Not so much.

‘This law becomes effective on…’

The legislative changes in question reside in Section 11 of House Bill 385, where language clarifies the jurisdiction and limited authorities of entities involved in the enforcement of the Coastal Area Management Act (CAMA) regulations.

CAMA regulations are carried out by DCM — a division within the Department of Environmental Quality (DEQ) — with a statutory authority limited to designated “areas of environmental concern” (AECs) along North Carolina’s coast. Under current CAMA regulations, DNCR also comments on projects across the state, particularly along the coast, when concerning items of cultural significance like Native American artifacts developers might uncover when clearing land for a build.

These statutes are where the changes are being made, ostensibly to allow those developers to bulldoze the Indian burial grounds in Carteret County for profit. Except, in reviewing the bill history, the initial introduction of the CAMA provisions within H385, through the current version of the text, the language changes would only apply to new applications, not existing permit holders.

Subsection text from House Bill 385

Since the Cedar Point developers applied for and received a CAMA permit from DCM in 2022 for their development, they wouldn’t be subject to the statutory clarifications or agency realignments within HB 385.

While the proposed provisions do further spell out specific lanes of jurisdiction for the respective agencies, it falls well short of giving developers the green light to “bulldoze” archaeological sites. In fact, in responses to questions for this article, a public information officer for DCM told Carolina Journal their agency opposes the changes, in part, because they think it will lengthen timelines for permit approval to as long as six months.

Alphabet Soup

DMA enforces CAMA under the authority of DEQ and sometimes works with DCNR.

“The primary goal of the Coastal Area Management Act is to balance protection of the public trust (environmental, cultural, aesthetic, recreational use) with private use and economic development,” DCM responded through a spokesperson. “DCM has a 50 year history of finding this balance, coordinating with other state and federal regulatory and resource agencies to continuously streamline the permitting process. This has made NC one of the most efficient coastal management programs in the nation. Some of the HB385 provisions stand to reverse years of progress to the detriment of the public.”

However, the public finds it increasingly unlikely to afford a home, due to a supply problem that many view as arbitrary.

“DCM collaborates with DNCR throughout the permitting process if DNCR requests archaeological work on a project, including after a permit is issued if there is a condition placed on the permit related to archaeological resources,” added the DCM spokesperson.

Carolina Journal spoke with Chris Millis, director of regulatory affairs for the NC Homebuilders Association, about the proposed changes, agency opposition, and the Carteret County project that started the ruckus.

“In my view, there is no issue with each regulatory agency effectively and efficiently enforcing their rightful statutory authority to carry out their respective policy directives set forth by the legislature,” Millis told Carolina Journal. “Most often, issues arise when a regulatory agency acts outside of its bounds and begins to enforce regulations beyond its statutory authority. The consequences of this unlawful action can lead to significant cost increases due to the loss of time and value while harming the end user, often a homebuyer.”

Millis, a former lawmaker, said the current legislative effort is to clarify and realign DCM’s original authority per CAMA to keep them within their statutory lane when interfacing with DNCR and their respective statutory authority. He said, he and others have fielded a multitude of complaints from respected environmental lawyers when the two agencies began to mix and overstep their enforcement authority in ways that erode regulatory certainty, violate property rights, and damage affordability.

“Such uncertainty and unpredictability surely will lead to the cooling of coastal development if it continues, and the statutory reforms are needed to clarify the bounds of agency authority under CAMA,” said Millis. “Regardless of the details of the Cedar Point development, NCHBA wants our state environment and cultural heritage preserved as prescribed by law, not as dictated by agency fiat.”

The proposed language is like a new prescription label with more explicit instructions, presumably so the ordeal in Cedar Point isn’t repeated in the future.

Bridgeview UNMASKED

The development called Bridgeview, where American Indian artifacts were discovered in Carteret County, is located, generally, on the mainland side across from the beach town of Emerald Isle on the barrier island of Bogue Banks.

Permitted in July 2022, human remains were encountered during the course of digging a house foundation in July of 2023. The developers reportedly stopped work and followed the notification process as required by law; the remains were collected by the State Archeology Office; and, the developer was allowed to proceed with construction. Notably, the locations of the remains were outside of the AEC (permit area), which, presumably, is outside of CAMA’s statutory authority.

Incidentally, the unmasking of the finds and irresistible media coverage — incorrectly alleging that Bridgeview is the beneficiary of the current proposals — has led to trespassers attempting to visit the excavation grounds. Typically such discovery locations are kept under wraps in an effort to protect them from theft or damage.

According to developers, before and since that discovery, 39 homes have been constructed (each with in-ground septic installs), four stormwater/sediment basins have been installed, and over 20,000 linear feet (over 3 miles) of underground utility lines have been installed throughout the property — without any other bones encountered.

Even then, developers say they agreed to conduct additional archaeological investigations on their dime even while DCNR’s enabling statute, says the property owners aren’t expected to pay for any of it. They have also agreed to enter into an Unanticipated Discovery Plan ensuring any future discoveries of such remains would be managed responsibly in coordination with DNCR as construction proceeds.

“The developer acted in good faith and spent the time (nearly a year) and hundreds of thousands of dollars to conduct these investigations,” said Millis.

The investigations identified some potential areas where there could be human remains. The developers maintain they’ve offered DNCR reasonable access to the property to further investigate these areas at its own cost, but DNCR declined and instead ordered the developer to stop work.

Stuck in limbo, the developers have received no offers of compensation from the state and aren’t allowed to proceed. Hence, the impetus for clarifying language included in HB 385.

“No landowner should be subjected to arbitrary and capricious action by state agencies to incapacitate a property to ‘potential findings’,” said Millis. “The time for DNCR to request investigation and object to the development was before the permit was issued. DCM issued a permit authorizing the development, and DNCR is now using that permit as a means to try and stop the project. This agency overreach and contradiction have caused this developer’s project to be paused indefinitely.”

Culture and commerce

CAMA regulations are widely known among the 20 Coastal North Carolina counties subject to the regulations. While homebuilders everywhere face a litany of specific building codes and regulations, the big government effect is magnified on the coast by CAMA and additional environmental regulations.

The coast is also home to a long history: that of early colonists and settlements and the natives living there for thousands of years prior. The representatives from DNCR do their best to discover, learn from, and preserve that history when it’s discovered. The quest for preservation though is always balanced against the need for current development and the rights of property owners.

That need for balance is especially acute as North Carolinians bear the high-cost burden of low housing supplies, and builders face a bureaucratic landscape that would give any business manager pause when deciding to deploy capital.

“We want our state environment and cultural heritage preserved as prescribed by law, not as dictated by agency fiat,” concludes Millis.

HB 385 has been re-referred to the Senate Judiciary Committee.