Native American bones, a bureaucratic moron, and a stalled housing development in Carteret County

The need for more housing is widely recognized, especially in North Carolina, where the housing affordability crisis is making homeownership difficult for many residents. Homebuilders and developers want to meet this demand, but face significant obstacles due to a complex web of regulations, from local zoning laws to federal environmental regulations. They add years to development timelines and increase costs, often making projects financially unviable. Increasing housing supply significantly is easier said than done.

A perfect example of these regulatory challenges is currently taking place in Carteret County. In the town of Cedar Point, a housing development has hit a major snag after the discovery of Native American artifacts and some human remains. State archaeologists believe the discoveries are of historical significance, which halted the project after only thirty houses had been built. This situation has highlighted confusion and delays as the lines of bureaucratic jurisdiction blur and projects can be put on hold with no clear indication of where one’s jurisdiction ends and another’s begins.

Essentially, state archeology officials are blocking further progress indefinitely. Amid the impasse, a legislative proposal has emerged to clarify the appropriate jurisdictions and authorities among agencies such as the Division of Coastal Management (DCM) and the Department of Cultural and Natural Resources (DCNR) when it comes to property rights violations.

The proposal, in the context of the discovery of Native American artifacts, sparked dramatic media reports of politicians apparently paving the way for greedy developers to “demolish” archaeological sites, most notably the Cedar Point site, in order to sell more beach houses.

Provocative? Absolutely. Accurate? Not so much.

“This Act enters into force on…”

The legislative changes referred to are contained in Art. 11 of House Bill 385, where the language clarifies the jurisdiction and limited powers of entities involved in enforcing the Coastal Area Management Act (CAMA).

CAMA regulations are administered by the DCM – a division of the Department of Environmental Quality (DEQ) – with statutory authority limited to designated “areas of environmental concern” (AEC) along the North Carolina coast. Under current CAMA regulations, DNCR also comments on projects throughout the state, particularly along the coast, when it comes to culturally significant items, such as Native American artifacts, that developers may discover while clearing land for construction.

These laws are being amended, ostensibly so that developers can bulldoze Indian burial grounds in Carteret County for profit. With the exception of the bill history review, the initial introduction of CAMA provisions under H385, through the current version of the text, the language changes would only apply to new applications, NO existing permit holders.

Because Cedar Point developers applied for and received a CAMA permit from DCM in 2022 for their development, they would not be subject to statutory clarifications or agency changes under HB 385.

While the proposed regulations detail specific areas of jurisdiction for the relevant agencies, they definitely do not give developers the green light to “demolish” archaeological sites. In fact, in response to questions for this article, DCM’s public information officer told the Carolina Journal that their agency opposes the change, in part because they believe it will extend permit approval deadlines by up to six months.

Alphabet Soup

The DMA enforces the CAMA under the supervision of the DEQ and sometimes cooperates with the DCNR.

“The primary purpose of the Coastal Areas Management Act is to balance the protection of public trust (environmental, cultural, aesthetic and recreational) with private use and economic development,” DCM responded through a spokesman. “DCM has a 50-year history of finding this balance by working with other state and federal regulatory agencies and resources to continually improve the permitting process. This makes NC one of the most effective coastal management programs in the country. Some provisions of HB385 could reverse years of progress to the detriment of society.

However, the public finds it increasingly less likely to afford a home due to a supply problem that many consider arbitrary.

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

The Carolina Journal spoke with Chris Millis, director of regulatory affairs for the N.C. Homebuilders Association, about the proposed changes, agency opposition and a project in Carteret County that has caused confusion.

“In my opinion, there is no problem with each regulatory agency effectively and efficiently enforcing its statutory authority to carry out appropriate policy directives set forth by the legislature,” Millis told the Carolina Journal. “Most often, problems arise when a regulatory agency acts beyond its boundaries and begins to enforce regulations beyond its statutory authority. The consequences of this illegal activity can lead to significant increases in costs due to loss of time and value, while harming the end user, often the home buyer.”

Millis, a former legislator, said the current legislative effort is aimed at clarifying and realigning DCM’s original powers for individual CAMAs to keep them within the statutory lane when dealing with DNCR and their appropriate statutory authority. He said he and others have filed multiple complaints from respected environmental lawyers as the two agencies have begun to conflate and exceed their enforcement powers in ways that undermine regulatory certainty, violate property rights and harm affordability.

“Such uncertainty and unpredictability will certainly lead to a cooling of coastal development if it continues, and statutory reforms are needed to clarify the limits of agency authority under CAMA,” Millis said. “Regardless of the details of the Cedar Point development, NCHBA wants our state’s environment and cultural heritage preserved in accordance with the law, not the agency’s provisions.”

The proposed language resembles a new prescription label with more explicit instructions, presumably to prevent the Cedar Point ordeal from happening again in the future.

Bridgeview UNMASKED

The settlement called Bridgeview, where American Indian artifacts were discovered in Carteret County, is typically located on the landward side of the site, across from the coastal town of Emerald Isle on the barrier island of Bogue Banks.

Permitted for July 2022, human remains were found while digging the foundations of the house in July 2023. Developers reportedly stopped work and complied with legal requirements; the remains were collected by the State Archaeological Office; and the developer could continue construction. It is worth noting that the remains were located outside the AEC (permitted area), which is likely outside the scope of CAMA’s statutory powers.

Incidentally, debunking of the finds and compelling media coverage – erroneously maintaining that Bridgeview is the beneficiary of the current proposals – have led to attempts by trespassers to visit the excavation sites. Typically, such discovery sites are kept secret to protect them from theft or damage.

According to developers, before and after this discovery, 39 homes were built (each with underground septic tanks), four stormwater/sediment tanks were installed, and more than 20,000 linear feet (over 3 miles) of underground transmission lines were installed. installed throughout the property – without encountering any other bones.

Even then, developers say they agreed to do additional archaeological research with their own money, even though DCNR statute states that property owners are not supposed to pay for it. They also agreed to enter into a Contingency Discovery Plan that will ensure responsible management of any future discoveries of such remains in coordination with DNCR as construction progresses.

“The developer acted in good faith and devoted time (almost a year) and hundreds of thousands of dollars to conduct an investigation,” Millis said.

Investigations have identified some potential areas where these may occur could be human remains. The developers maintain that they offered DNCR reasonable access to the properties to further investigate these areas at their own expense, but DNCR refused and instead ordered the developer to cease work.

Stuck in limbo, developers have not received any offers of compensation from the state and cannot proceed. Hence the impetus to clarify the language in HB 385.

“No landowner should be subjected to arbitrary and capricious actions by state agencies to incapacitate property in order to make “potential determinations,” Millis said. “The time within which DNCR could have requested an investigation and raised objections to the development had passed before the permit was issued. DCM issued a permit authorizing the development, and DNCR is now using it to try to stop the project. The agency’s excessive efforts and contradictions have resulted in this developer’s project being suspended indefinitely.”

Culture and trade

CAMA regulations are widely known in the 20 coastal North Carolina counties subject to these regulations. While home builders around the world face a litany of specific building codes and regulations, the government’s heavy influence on the coast is magnified by CAMA and additional environmental regulations.

The coast is also home to a long history: the history of the first colonists and settlements, and the natives who have lived there for thousands of years. DNCR officials are committed to uncovering this history, learning from it, and preserving it when it is uncovered. However, the pursuit of protection is always balanced by the need for ongoing development and the rights of property owners.

This need for balance is especially acute as North Carolinians face high costs due to low housing supply and construction companies face a bureaucratic landscape that will give any business manager pause before deciding to commit capital.

“We want our country’s environment and cultural heritage to be protected in accordance with the law, not the decrees imposed by the agency,” Millis concludes.

HB 385 has been referred back to the Senate Judiciary Committee.