Could Florence County expand a fire district into an area served voluntarily by Pamplico without a referendum?

Plain-English summary

Pamplico’s mayor asked whether Florence County could add nearby unincorporated land, long served voluntarily by the town’s fire district, to a different county fire district and tax it without a referendum. The July 2001 informal opinion said the fire-protection statutes did not require a referendum. They did require published notice, a public hearing, an opportunity for supporters and opponents to speak, and an ordinance making the specified findings before the district and tax could be established.

The county’s authority had another limit. The statute excluded areas already receiving fire protection from another political subdivision unless the governments agreed. The court decisions discussed in the letter required a valid service contract or comparable formal municipal action for that protection. The mayor reported no formal contract with the outlying landowners. The AG said a mere informal understanding appeared insufficient, but only a court could determine whether a valid contract actually existed.

Currency note

This opinion was issued in 2001. 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

County councils

The opinion allowed district designation and related taxes without a referendum, subject to the statute’s hearing and ordinance steps and the exclusion for qualifying preexisting service.

Town fire services and residents

The letter treated a valid prior service agreement as potentially preventing county inclusion of land already served by Pamplico. It left the existence of such an agreement to fact-finding.

Common questions

Was a voter referendum required?
A: The AG said no referendum appeared in the cited process, which instead required public notice, hearing and an ordinance.

Did thirty years of voluntary town fire service automatically block the county? A: The opinion said the case law called for a valid contract or other formal municipal action; it did not decide whether those facts existed here.

Did the AG decide Pamplico’s contract rights?
A: No. The letter said only a court could finally resolve whether a qualifying contract existed.

Background and statutory framework

Section 4-19-10 authorized county fire service areas and excluded certain areas served by another political subdivision. Section 4-19-20 supplied notice, hearing and ordinance requirements. The letter discussed City of Darlington v. Kilgo and Carolina Power & Light Co. v. Darlington County on the importance of a valid prior service contract.

Citations and references

• Section 4-19-10: county fire-protection authority and service-area exclusion.
• Section 4-19-20: procedures for establishing a fire-protection district.
• City of Darlington v. Kilgo and Carolina Power & Light Co. v. Darlington County: existing municipal service contracts.

Official title

Concerning the legality of a county council’s proposal to change the boundaries of a fire district.

Requester

The Honorable Dozier M. Munn, Mayor, Town of Pamplico

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-5-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01july5munn.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNE Y GENERAL

July 5, 2001
The Honorable Dozier M. Munn
Mayor, Town of Pamplico
P.O. Box 296
Pamplico, South Carolina 29583
RE: Informal Opinion
Dear Mayor Munn,
By your letter of June 18, 2001, you have requested an opinion of this Office concerning the legality of a county council's proposal to change the boundaries of a fire district. By way of background, you inform me that the Florence County Council has already given first reading to an ordinance that would expand the service area of the Hannnah-Salem-Friendfield Fire District. The Hannah-Salem-Friendfield Fire District now borders an area outside the municipal limits of Pamplico, but served by the Pamplico Fire District for approximately thirty years. Although the Pamplico Fire District voluntarily provides fire protection to this unincorporated area, no formal contract exists between the District and the landowners for the provision of the service. Florence County Council now intends to designate a portion of this unincorporated area traditionally served by the Pamplico Fire District as part of the Hannah-Salem-Friendship Fire District and levy a tax for the provision of the service. You ask if the County Council may proceed without having a referendum. South Carolina Code of Laws Section 4-19-10 grants the governing bodies of counties broad powers for the provision of fire protection services. Section 4-19-10 states in relevant part: The governing body of each county has the following powers: (a) To establish, operate, and maintain a system of fire protection. (b) To designate, subject to the provisions of§ 4-19-20, the areas ofthe county where fire protection service may be furnished by the county under the provisions of this chapter (referred to in this chapter as service areas); provided, however, that these service areas shall exclude those areas where fire protection is then beingfurnished by some other political subdivision unless an agreement be entered into between the county and such other political subdivision for the joint exercise offire protection

REMB ERT

c. DENNIS BUILDING

~~)

•

P OST 0FACE Box 11549

•

COLUMBIA, S.C. 292 11 - 1549

•

TELEPHONE: 803-734-3970

•

FACSIMILE: 803-25 3-6283

Mayor Dunn
July 5, 2001
Page 2of4
powers within the service area of such political subdivision and the sharing of the costs thereof (1) To effect the levy and collection of ad valorem taxes without limit as to rate or amount upon all taxable property in each service area wherefire protection services are furnished to effect the payment of principal and interest of all bonds issued pursuant to this chapter or required for the maintenance and operation of the fire protection system. (m) To exercise any and all other powers necessary to operating and maintaining a system of fire protection.

(Emphasis added).
Furthermore, Section 4-19-20 provides for the procedural requirements that must be followed prior to the imposition of a tax upon the area. Section 4-19-20 states in part: Before the establishment of a fire protection district pursuant to this chapter, the governing body must comply with the following requirements: ( 1) The governing body shall, by resolution, order a public hearing to be held on the question of the establishment of the district. (2) Notice of the hearing must be published once a week for three successive weeks in a newspaper of general circulation in the county and the notice must state: (a) the time and place of the public hearing, provided that the date of the public hearing must not be less than sixteen days following the first publication of the notice; (b) a description of the area to be included within the proposed fire protection district: (c) whether there must be levied within the proposed fire protection district ad valorem taxes for the operation and maintenance of it; (d) whether there must be imposed rates and charges within the proposed fire protection district for the operation and maintenance of it; and (e) whether the governing body is empowered to issue general obligation bonds of the county, payable from an ad valorem tax levied within the district, for the purpose of providing fire protection service in it. (3) The hearing must be conducted publicly and both proponents and opponents of the proposed action must be given full opportunity to be heard. (4) Following the hearing, the governing body, by ordinance, may establish thefire protection district and, in order to provide for the operation and maintenance of it, authorize the levy ofan annual ad valorem tax on all taxable property within the fire protection district or the imposition ofrates and charges for fire protection services within the fire protection district, or both. The governing body shall specifically

Mayor Dunn
July 5, 2001
Page 3of4
find by ordinance that the establishment of the fire protection district satisfies the requirements and conditions set forth in Section 4-19-10 and in this section. The governing body also shall provide forthe administration ofthe fire protection district. The fire protection district may be operated as an administrative division of the county, or the governing body may appoint a commission consisting of three to seven members and provide for their duties and terms of office .... (Emphasis added).

I
I

I

As the emphasized language above illustrates, the county council has the authority to designate areas within the county for fire protection services and levy the appropriate tax on the areas served. Nothing in these statutes requires the county to conduct a referendum before enacting the ordinance for the creation and taxation of the serviced area. The county is limited, of course, by the procedural requirements of the statute. Although not quoted above, Section 4-19-20 (6) provides that a person must challenge the actions of the governing body in a court of common pleas within twenty days of the last published notice of the county's final action. Another limitation on the establishment of the new fire district, or the extension of fire protection to other areas in the county, is the provision in Section 4-19-10 (b ), which states that the new service area designated by the county "shall exclude those areas where fire protection is then being furnished by some other political subdivision." This provision was the basis for a challenge by a city against a county administrator and county council after the county attempted to include unincorporated areas of the county in the creation of a new fire district. See City of Darlington v. Kilgo, 302 S.C. 40, 393 S.E.2d 376 (1990). The South Carolina Supreme Court found that the General Assembly intended to allow municipalities to continue to provide the fire protection services in areas previously served under contract, stating: "It is our view that S.C. Code § 4-19-IO(b) protects the rights of cities and customers who have contracted for fire protection under§ 5-7-60 and that, in the absence of an agreement, newly created county fire districts must exclude areas served by cities under contract." Id. at 43, 393 S.E.2d at 378. The Court later clarified the significance of the pre-existing agreement in Carolina Power & Light Co. v. Darlington County, 315 S.C. 5, 431 S.E.2d 580 (1993). The Court examined the issue of the existence of a contract between a city and a utility located outside the city's corporate boundaries, stating: The statutes as interpreted in Kilgo, supra, clearly require a valid contract with the city to avoid inclusion in the county fire district. As we stated in Kilgo, the legislative intent of the statutes is to allow counties to establish taxing districts for fire protection services without invading the province of another political subdivision or fire district. By necessity, it is required that a contract be in existence to prevent an encroachment by a county fire district when boundaries are established. The use

Mayor Dunn
July 5, 2001
Page 4of4
of some public authorization or ordinance by the appropriate municipal government is critical to put a county on notice, and to insure that there is no inclusion of an area already receiving fire service. Id. at 582. Thus, the court requires some formal action by the municipality either entering into the contract or recognizing the existence of the contract for the exclusion in Section 4-19-10 (b) to apply.

I
I

You have informed me that the Town of Pamplico has no formal contract with the landowners who reside outside the corporate limits of the town but in the area to be included in the new service area. Although the existence of a contract is a factual question that only a court could ultimately resolve, case law suggests that something more than a simple understanding between the outlying landowners and the Pamplico Fire District would be required to prevent the county from taking action pursuant to Section 4-19-10 et seq. This letter 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 nor officially published in the manner of a formal opinion. With kind regards, I remain Very truly yours,

Susannah Cole
Assistant Attorney General