What did “highland,” public notice and the 14-day filing period mean for SC development agreements?

Plain-English summary

A South Carolina legislator forwarded three questions about local-government development agreements. In February 2002, the AG said “highland” in the statute lacked a fixed definition but, from related sources, appeared to mean land other than marshland, waterway, wetland, submerged land or tideland. He said a more definitive meaning required legislative or judicial clarification.

The AG also said the proposed agreement’s duration should be public before execution because the public-hearing notice had to tell people where to obtain the proposal, and duration was a required agreement term. For recording, he applied the general time-computation rule: exclude the day the agreement was entered and include the final day, extending it past a weekend or holiday. If a developer missed the filing period, he said the local government would be the aggrieved party and any civil remedy depended on the agreement and damage.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Local governments and developers

The opinion supplied a working meaning for highland while acknowledging uncertainty. It also said the agreement’s duration should be available to the public before execution and gave the time-computation method for recording.

People following public hearings

The AG tied public knowledge of agreement duration to notice and access to the proposed development agreement before the required hearings.

Common questions

What counted as “highland”?
A: The AG inferred that it excluded marshland, waterways, wetlands, submerged land and tidelands, while saying no definitive statutory definition existed.

Should the agreement’s duration be public before signing? A: The opinion said yes, because the proposed agreement was available before hearings and duration was a required term.

When did the 14-day recording count start?
A: The AG excluded the day the local government entered the agreement and used the general rule extending a deadline that ended on a weekend or holiday.

What penalty followed a late filing?
A: The letter identified no fixed penalty; it said a potential civil remedy depended on the agreement’s terms and actual damage.

Background and statutory framework

The letter discussed §6-31-40 on highland, §6-31-50 on public hearings and notice, and §6-31-120 on recording within fourteen days. It applied the South Carolina Rules of Civil Procedure’s time-computation guidance to the filing period.

Citations and references

• §6-31-40: highland requirement.
• §6-31-50: pre-agreement public hearings and notice.
• §6-31-120: recording period.

Official title

Regarding the South Carolina Local Government Development Agreement Act.

Requester

The Honorable Edie Rodgers, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-1-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02feb1rodgers.pdf
• Source note: The linked PDF appends a separate February 4, 2002 letter about the national motto after this opinion; the transcription below ends with the February 1 letter.

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE C ONDON
ATIORNEY G ENERAL

February 1, 2002

The Honorable Edie Rodgers
Member, House of Representatives
326-B Blatt Building
Columbia, South Carolina 29211

Re:

South Carolina Local Government Development Agreement Act

Dear Representative Rodgers:
You have forwarded to this Office certain questions regarding the above Act raised by one of your constituents. Specifically, the following three questions have been presented: 1.

As referenced in S.C. Code Ann. §6-31-40, what is the definition of highland?;

2.

As referenced in S.C. Code Ann. §6-3 l-60(A)(2), should the duration of the agreement be public knowledge prior to the execution of the agreement?; and

3.

As referenced in S.C. Code Ann. §6-31-120, When does the fourteen day count begin? And, if the fourteen day period is not met, what if any action and/or penalty should be taken and by whom?

Each question will be addressed in tum.
l. Definition of Highland
S.C. Code Ann. §6-31-40 requires that a certain portion of the property which is the subject of a development agreement be "highland." The Act does not contain a specific definition of the term "highland." Therefore, the term should be given its plain and ordinary meaning. 1 In an effort to determine the plain and ordinary meaning of"highland ," I have researched other statutory provisions

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Where the legislature elects not to define a term in a statute, the courts will interpret the term in accord with its usual and customary meaning. Adoptive Parents v. Biological Parents, 315 S.C. 535, 446 S.E.2d 404 (1 994). REMBERT

c. D ENNIS B UILDING

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POST OFFICE B ox 11 549

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COLUMBIA, S.C. 292 11 -1549

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TELEPHONE: 803-734-3970

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FACS IMILE: 803-253-6283

The Honorable Edie Rodgers
Page 2
February 1, 2002

of the Code and relevant case law. Unfortunately, neither of these sources provides a concrete definition of the term. From these sources, however, I believe that we can determine a sufficient meaning of"highland" for purposes of interpreting Section 6-31-40.

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Section 5-l-30(A)(4) addresses the area ofland necessary for incorporation ofa municipality. In this section, highland is distinguished from marshland and waterway. Likewise, in Section 4-3-231, a property description is provided which distinguishes between acreage consisting of highland and marshland. In Section 48-43-30(B)( 1)(1), for purposes of oil and gas exploration, a distinction is made between highlands and wetlands or submerged land. Wetland is described in Section 47-20-10(16) as "lands that have a predominance ofhydric soil, are inundated or saturated by water or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions, and, under normal circumstances, do support a prevalence of hydrophytic vegetation."2 Finally, in Section 50-5-955, with reference to designating and maintaining public shellfish grounds, it can be inferred that highland property is that which is capable of development. In Town of Sullivan's Island v. Felger, 318 S.C. 340, 457 S.E.2d 626 (1996), it was reiterated that highlands do not include "tidelands." Tidelands generally mean all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved. See Lowcountry Landtrust v. State, 347 S.C. 96, 552 S.E.2d 778 (SC App. 2001). Coastal wetlands include marshes, mudflats, and shallows and means those areas periodically inundated by saline waters whether or not the saline waters reach the area naturally or through artificial water courses and those areas that are normally characterized by the prevalence of saline water vegetation capable of growth and reproduction. Id, See also S.C. Code Ann. §48-39-1 O(G). From these sources, it can be gleaned that "highland" would be such a piece of property which is not a marshland, waterway, wetland, submerged land or tideland. A more definitive definition would have to be provided by legislative or judicial clarification.

2. Duration of Agreement as Public Information
   S.C. Code Ann. §6-31-50 provides that, "[b]efore entering into a development agreement, a local government shall conduct at least two public hearings." Prior to these hearings, notice of such must be published in a local newspaper. Among other things, the notice "must specify a place where a copy of the proposed development agreement can be obtained." See §6-3 l-50(B)(2). Pursuant to Section 6-31-60(A)(2), a development agreement must include, among other things, the duration of

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This definition is specific to Chapter 20 of Title 47, Confined Swine Feeding Operations," but does provide insight into the meaning of the term "wetland."

The Honorable Edie Rodgers
Page 3
February 1, 2002

the agreement. Accordingly, it appears that the Legislature has clearly expressed the intent that the duration of a proposed agreement be made public knowledge prior to the execution of the agreement.

3. Computation of the Filing Period

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S.C. Code Ann. §6-31-120 provides that "[w]ithin fourteen days after a local government enters into a development agreement, the developer shall record the agreement with the register of mesne conveyance or clerk of court in the county where the property is located." The Act contains no further specifications concerning the computation of the fourteen day period. Therefore, the general law in this area should be looked to for guidance. Rule 6 of the South Carolina Rules of Civil Procedure states that:
.... [i]n computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a State or Federal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor such holiday. (Emphasis added).

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It is my opinion that this rule is the appropriate guideline to follow in computing the fourteen day filing requirement of Section 6-31-120. See OP. ATTY. GEN. (Dated January 21, 1981) (Section 15-1-20
[predecessor of Rule 6] appropriate where statute itself is silent on issue of computation).

As to who should take action ifthe developer fails to timely file the agreement, ostensibly the local government entity would be the aggrieved party and seek what ever civil remedy is available. The nature of the remedies available to the local government would likely depend on the terms of the agreement and the extent of damage done by the developer's breach. I would suggest that the local government pursue such a matter with their local attorney (i.e. the city or county attorney). This Jetter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

David K. Avant
Assistant Attorney General
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