Could Bluffton revise the area map after voters signed an annexation petition, and could signers ratify the change?

Plain-English summary

The Attorney General said Bluffton could not materially change an annexation map after voters signed the petition and treat their original signatures alone as approval of the changed area. Re-circulating the petition with the amended map and obtaining signatures was a clear route. The AG said ratification by existing signers might also substantially comply with the statute if town council found that they knowingly approved the amended area and the ratification was clearly tied to the new map.

Currency note

This opinion was issued in 2003. 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

Petition organizers

The petition had to describe the area sufficiently while being circulated. Adding commercial property after signatures changed the area voters had been asked to approve.

Town council

The AG said council had to decide whether enough qualified electors had signed or clearly ratified the petition for the area actually proposed. It suggested making any ratification explicit and linking it to the amended map.

Common questions

Could organizers re-circulate the petition with the revised map?
Yes. The opinion identified that as a clear option before submission.

Did the AG guarantee that ratification would be upheld?
No. It said a reviewing court may find substantial compliance if council established actual assent.

Background and statutory framework

Organizers used the 25-percent elector petition-and-election method and wanted to add property before submitting the petition. The opinion applied § 5-3-300 and the case-law requirement that signers see a sufficient description of the annexation area.

Citations and references

The opinion discussed S.C. Code Ann. § 5-3-300 and General Battery Corp. v. City of Greer.

Official title

Relating to an annexation petition. Specifically, asking can the map be amended prior to the petition being submitted to the Bluffton Town Council and if the map is amended can the people who have already signed the petition ratify the modification to the map.

Requester

Terry A. Finger, Esquire, Bluffton Town Attorney

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-25-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03june-25-Finger.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
A1TORNEY GENERAL

June 25, 2003

Terry A. Finger, Esquire
Bluffton Town Attorney
Post Office Box 24005
Hilton Head, South Carolina 29925-4005

Re:

Town of Bluffton - Annexation Petition

Dear Mr. Finger:
You have requested an opinion from this Office related to an annexation petition which is to be presented to the Bluffton Town Council. By way of background, you indicate that

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An annexation petition has been circulated by a group of qualified electors to annex certain property into the Town of Bluffton pursuant to the 25% elector petition/election method. When the petition was originally circulated, it had attached to it a map showing the proposed area to be annexed. Prior to the petition being submitted and accepted by town council for certification, it became apparent that the annexation stood a better chance of succeeding if certain additional commercial property was added to the original map.

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Given this background, you specifically ask the following questions: 1.

Can the map be amended prior to the petition being submitted to the Bluffton Town Council?

2.

If the map is amended, can the people who have already signed the petition ratify the modification to the map? If so, what form of ratification is necessary?

3.

If ratification is not possible, does the petition need to be re-circulated and resigned with the new map attached prior to being submitted to the Town Council?

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Posr OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

Mr. Finger
Page 2
June 25, 2003

LAW/ANALYSIS

As our Supreme Court has long recognized, "[i]t is well settled that in the absence of constitutional limitations, the legislature has plenary power over municipalities, including the right to regulate the manner in which the boundaries of such governmental units may be extended or diminished." Town of Forest Acres v. Town of Forest Lake, 226 S.C. 349, 85 S.E.2d 192 (S.C. 1954). Pursuant to Chapter 3, Title 5 of the South Carolina Code of Laws, the General Assembly has provided a number of options to municipalities to change their corporate limits. The option relevant to the situation described in your letter, the circulation of a petition by qualified electors"... pursuant to the 25% elector petition/election method" is found in S.C. Code Ann. §5-3-300. Subsections (A), (B) & (C) of Section 5-3-300 provide that

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L,;

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(A) In addition to other methods of annexation authorized by this chapter, any area which is contiguous to a municipality may be annexed to the municipality by the filing of a petition with the council signed by twenty-five percent or more of the qualified electors who are residents within the area proposed to be annexed. (B) The petition must contain a description of the area to be annexed, the signature of the qualified elector, the address of residence, and the act or code section pursuant to which the proposed annexation is to be accomplished. (C) If the municipal council finds that the petition has been signed by twenty-five percent or more of the qualified electors resident within the area proposed to be annexed, the council may certify that fact to the county election commission of the county in which the area is situated. Upon receipt of a written resolution certifying that the petition meets the requirements of this section, the county election commission shall order an election to be held within the area proposed to be annexed to the municipality on the question of extension of the corporate limits of the municipality by annexation of the area proposed to be annexed. Among other things, the petition must include a description of the area to be annexed and the signature of the elector. As for the description of the area to be annexed, our Court has consistently held that the description must be" ... sufficient to enable a person of ordinary reason and intelligence to identify the property involved .... " See Harrell v. City of Columbi~ 216 S.C. 346, 58 S.E.2d 91 (1950). It is also clear that this sufficient description must be provided " ... at a time when the petitions [are] being circulated." See General Battery Corp. v. City of Greer, 263 S.C. 533, 211 S.E.2d 659 (1975). Further, while the petition for annexation must include those elements set out in Section 5-3300(B), there is no prescribed form that the petition must take. With regard to the sufficiency of the signatures on the petition, our Court has indicated that it is" ... the duty of the [municipal] Council to determine, as a question of fact, whether or not the petitions [have] been signed ... " by the requisite number of qualified persons. Harrell v. City of Columbi~ 211 S.E.2d at 95. In absence of charges or evidence of fraud, accident or mistake, a municipal council's certificate that petitions for annexation of areas to a municipality have been signed by the necessary persons is generally not open

Mr. Finger
Page 3
June 25, 2003
to question. Id. Additionally, it has been held that substantial compliance with statutes related to annexation is sufficient. See General Battery C0rp. v. City of Greer, 211 S.E.2d at 664.

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The above represents general law related to the annexation of territory by municipalities in South Carolina. You have specifically asked questions related to the amendment of the map (description) of the area to be annexed prior to the petition being submitted to the Town of Bluffton. In a prior opinion, this Office recognized that "[t]he South Carolina statutes on annexation do not provide for amendments of the petition, it should be noted that it does not expressly prohibit them either." See Op. S.C. Atty. Gen., dated January 28, 1988. In that opinion, we noted that "[t]o change the geographical description of an area after individuals have already signed the petition presents an interesting question of whether the individuals would have signed the annexation petition with the amended geographical boundaries. Even a slight variation may have been sufficient to have changed an individual's mind about signing the petition." In that case, we opined "[i]n that any alteration to the description would alter the petition that induced persons to sign the petition, it would not appear that the petition could be altered at this time." Supra. Apparently, the situation addressed in the January 28, 1988 opinion involved a petition that had already been presented to the municipal council and the amendment was contemplated without further action on the part of those who had signed the petition. CONCLUSION Based on the general law and our prior opinion cited above, it would appear that a map or description of an area to be annexed to a municipality cannot be materially amended after the signature of a qualified elector has been affixed to a petition requesting annexation. It also appears, however, that an amendment to the map or description of the area to be annexed is not prohibited as long as the signatures on the petition represent the electors' assent to the annexation of the area actually intended to be annexed. In the situation you describe, it appears clear that the petition, along with the amended map, could be re-circulated and resigned prior to the presentation of the petition to Town Council. As to whether or not" ... the people who have already signed the petition [can] ratify the modification to the map" presents a more difficult question. As stated above, it is for the municipal council to determine as a matter of fact that a sufficient number of qualified persons have signed the petition. If a council determines that a person has actually ratified his or her previous signature and that ratification expresses his or her ac;sent to the annexation of the area reflected on the amended map, it seems that a reviewing court may find that S.C. Code Ann. §5-3-300 has been substantially complied with. I would suggest that, in the case a petition with ratified signatures is presented, Town Council ensure that the ratification is clearly indicated and that the ratification is clearly related to the amended map. Sincerely,

David K. Avant
Assistant Attorney General