Push for regulatory changes to DCM authority could stretch into 2025

Recent changes to House Bill 385 provisions dealing with the statutory authorities of state agencies as they relate to developers and archaeological finds could indicate a more comprehensive reform to come in the long session of 2025. In a housing affordability crisis fueled by supply restrictions, advocates say increased transparency and regulatory certainty are crucial to meet housing demand.

Provisions within Section 11 of HB385, regarding the statutory authority of the NC Division of Coastal Management (DCM), made headlines recently, specifically in regards to a coastal development in Carteret County that stumbled upon potentially significant Native American artifacts. What followed the discovery was a tangled web of bureaucracy that brought the housing development to a standstill, as it remains til this day.

While media reports have repeatedly asserted the modified provisions to Section 11 of HB385 would allow the Carteret County developers to merely “bulldoze” the archaeology sites, it was never true; the development in question, as an existing permit holder, would not have been subject to the reforms. But now the legislative language has changed.

New Language

Initially introduced to Section 11 of HB385 by Sen. Michael Lazarra, R-Onslow, the original text aimed at realigning DCM’s current regulatory practices for consistency with the Legislature’s original intent when establishing the Coastal Area Management Act (CAMA). That exact language is not included in a Proposed Committee Substitute (PCS) presented last week. Instead, it’s replaced with seemingly smaller changes to provide increased transparency among the agencies and more regulatory certainty for developers.

Though the legislation still wouldn’t affect the Carteret County development at the root of the media-generated public outcry, the new language in the PCS has nonetheless drawn consistent opposition from regulators.

Entities like the Office of State Archaeology say they already provide the proposed information to property owners, and so there’s no need to codify it in law. Even the relatively softer language serves to alter the balance of leverage between government regulators, who want to claim jurisdiction over archaeology finds, and private property owners, who would naturally like to exercise their property rights.

Transparency

The legislative changes would require the NC Department of Natural and Cultural Resources (DNCR) and Office of State Archaeology to offer full disclosure of any mapped potential archaeological sites to property buyers and owners:

“The responsible official or body shall deny an application for a permit only upon finding: issuance of written findings supported in detail, including its basis for concluding that conditions as may be identified pursuant to subsection (b) of this section are insufficient to avoid the finding […],” read the legislation.

The substituted language stipulates that permit denials must be specific, allowing for owners to incorporate and amend development proposals:

It also spells out that relevant agencies can only act within their own statutory authority, and cannot unreasonably restrict development:

The stifling burden of bureaucratic creep and unreasonable restrictions has been a key contention of the Cedar Point developers (whose Carteret County project still wouldn’t be subject to these changes). The initial furtive legislative attention may indicate a more comprehensive overview of such authorities, especially of DCM, could be coming in the long session. Lawmakers are keen to address regulatory burdens that contribute toward suppressing housing supply as their constituencies struggle to afford the American Dream of homeownership.

For their part, the regulating agencies are looking forward to continuing discussions with lawmakers, saying the latest attempts at reform, “undermine archaeology protections.”

Chris Millis, director of regulatory affairs for the NC Home Builders Association, told Carolina Journal that, in their view, the language governing these agencies needs to be broader and more comprehensive than what was originally introduced. He believes the issue may deserve more attention in the long legislative session of 2025, due to the complexity of the issue and the sheer weight of the housing affordability crisis on the People of North Carolina.

“[I}t has been realized that the relationship between the Division of Coastal Management (DCM) and the Office of State Archaeology needs further examination relative to their impact to development within our state’s coastal counties,” said Millis. “I am sincerely grateful for the attention, time, and effort that lawmakers serving in the General Assembly, specifically for the leadership of Sen. Lazzara and Sen. Sanderson have demonstrated in an attempt to balance reasonable regulatory protections with property rights and how this balance directly affects the final purchase price of a home.”

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

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