Could a South Carolina council adopt a comprehensive plan without a favorable planning commission vote?

Plain-English summary

Mount Pleasant's planning commission asked whether a governing body could adopt a comprehensive plan or amendment without the commission's affirmative recommendation. The AG concluded that the commission had to recommend the plan or change before adoption. It read the planning statute to require a recommendation by resolution supported by a majority of the entire commission membership.

The opinion relied on a South Carolina Supreme Court decision stating that a council could not approve a plan until the commission had recommended it. That decision also explained the statutory voting requirement for the recommendation.

Currency note

This opinion was issued in 2007. 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.

Common questions

Q: Was a planning commission recommendation needed before a council adopted a comprehensive plan? A: Yes. The AG read the statute and the cited court decision to require the commission's recommendation before adoption.

Q: How many commissioners had to support the recommendation? A: The opinion quoted a requirement for affirmative votes from at least a majority of the commission's entire membership.

Q: Did the same rule apply to amendments?
A: The AG expressly included changes to an existing comprehensive plan in its conclusion.

Background and statutory framework

The opinion examined provisions assigning comprehensive-plan development and recommendations to local planning commissions and adoption to governing bodies. It distinguished a commission recommendation from the governing body's final adoption decision.

Citations and references

The opinion quoted S.C. Code Ann. § 6-29-510(E), discussed section 6-29-520(B), and relied on McClanahan v. Richland County Council.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-22-2007-5/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/brock-s-g-10-22-07-os-8473-sc-local-government-planning-enabling-act-of-1994.pdf

Original opinion text

October 22, 2007

Stephen G. Brock, Chairman
Mt. Pleasant Planning Commission
34 Hopetown Road
Mount Pleasant, SC 29464
Dear Mr. Brock:
We received your letter requesting an opinion on behalf of the Mount Pleasant Planning Commission (the “Commission”) concerning the South Carolina Local Government Planning Enabling Act of 1994. You state your question as follows: “The question is whether a comprehensive plan and amendments to a comprehensive plan require affirmative recommendation by the jurisdiction’s planning commission before adoption.” Law/Analysis The South Carolina Local Government Comprehensive Planning Enabling Act of 1994 (the “Act”) is contained in chapter 29 of title 6 of the South Carolina Code. Section 6-29-320 of the South Carolina Code (2004), incorporated among these provisions, allows local governing bodies, including municipalities, to create local planning commissions. The primary function of local planning commissions is to develop and revise plans and programs “for the physical, social, and economic growth, development, and redevelopment of the area within its jurisdiction.” S.C. Code Ann. § 6-29-340 (2004). Article 3 under the Act, describes the comprehensive planning process undertaken by local governments. This process includes the development and maintenance of a comprehensive plan by the local planning commission including “elements considered critical, necessary, and desirable to guide the development and redevelopment of its area of jurisdiction.” S.C. Code Ann. § 6-29-510(A) (2004). Section 6-29-510 provides a list of planning elements that a local comprehensive plan must include. S.C. Code Ann. § 6-29-510(D) (2004). In asking whether or not the local planning commission must recommend a plan or a revision to an existing plan prior to its adoption by a local governing body, you refer us to three particular statutory provisions. The first is section 6-29-510 of the South Carolina Code (2004), contained among the provisions explaining the planning process. Subsection (E) of this provision states: (E) All planning elements must be an expression of the planning commission recommendations to the appropriate governing bodies

Mr. Brock
Page 2
October 22, 2007
with regard to the wise and efficient use of public funds, the future growth, development, and redevelopment of its area of jurisdiction, and consideration of the fiscal impact on property owners. The planning elements whether done as a package or in separate increments together comprise the comprehensive plan for the jurisdiction at any one point in time. The local planning commission shall review the comprehensive plan or elements of it as often as necessary, but not less than once every five years, to determine whether changes in the amount, kind, or direction of development of the area or other reasons make it desirable to make additions or amendments to the plan. The comprehensive plan, including all elements of it, must be updated at least every ten years. S.C. Code Ann. § 6-29-510(E). Next, you point out a provision in section 6-29-520 of the South Carolina Code (2004) stating as follows: (B) Recommendation of the plan or any element, amendment, extension, or addition must be by resolution of the planning commission, carried by the affirmative votes of at least a majority of the entire membership. The resolution must refer expressly to maps and other descriptive matter intended by the planning commission to form the whole or element of the recommended plan and the action taken must be recorded in its official minutes of the planning commission. A copy of the recommended plan or element of it must be transmitted to the appropriate governing authorities and to all other legislative and administrative agencies affected by the plan. Finally, you alert us to section 6-29-530 of the South Carolina Code (2004): The local planning commission may recommend to the appropriate governing body and the body may adopt the plan as a whole by a single ordinance or elements of the plan by successive ordinances. The elements shall correspond with the major geographical sections or divisions of the planning area or with functional subdivisions of the subject matter of the comprehensive plan, or both. Before adoption of an element or a plan as a whole, the governing authority shall hold a public hearing on it after not less than thirty days' notice of the time and place of the hearings has been given in a newspaper having general circulation in the jurisdiction. In McClanahan v. Richland County Council, 350 S.C. 433, 567 S.E.2d 240 (2002), the Supreme Court considered an action challenging the procedures by which Richland County Council adopted Richland County’s comprehensive use plan. The appellant argued because the County’s

Mr. Brock
Page 3
October 22, 2007
planning commission failed to recommend the plan prior to County Council’s first and second readings of the plan, Richland County Council illegally adopted the plan. Id. The Court looked to provisions contained in section 6-29-510, as referenced above, and interpreted these provisions as follows: “Because the Plan must include the enumerated planning elements and the planning elements must be an expression of the Commission’s recommendations to the Council, the Council cannot approve the plan until the Commission has recommended the plan.” Id. at 438-39, 567 S.E.2d at 242. However, the Court determined Richland County Council properly adopted the plan because the planning commission recommended it prior to the Council’s first reading. Id. at 440, 567 S.E.2d at 243. In addition, the Court in McClanahan addressed the appellant’s arguments that Richland County Council violated section 6-29-520(B) in a footnote. Id. at 439 n.8, 567 S.E.2d at 243 n.8. In responding to this argument, the Court stated “this statute is for the purpose of stating that the Plan can be recommended only if the resolution to recommend is carried by the affirmative votes of at least a majority of the members of the Commission. This statute is not concerned with whether the Council can give first reading to a plan without the Commission’s recommendation.” Id. Based on the Court’s interpretation of the provisions of the Act, we gather that the local planning commission must recommend the comprehensive plan or the changes thereto in order for the local governing body to adopt such a plan or revisions to a plan. Furthermore, according to section 6-29-520(B), the planning commission’s recommendation must be “by the affirmative votes of at least a majority of the entire membership” of the planning commission. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Cydney M. Milling
Assistant Attorney General