Does a South Carolina town have to accept a subdivision's roads, and who maintains them?

Official title

Opinion addressing a municipalities acceptance of a proposed dedication of roads and its responsibilities in accepting the dedication.

Requester

Requested by William H. Johnson, Esq., attorney for the Town of Santee.

Plain-English summary

The town attorney for Santee asked the Attorney General about a developer's request that the Town accept the dedication of roads in a new subdivision. The Town's problem was blunt: it does not have the resources to maintain roads. It asked three questions, framed around the road-maintenance statutes (the letter referenced both § 5-27-10 and § 5-27-110): does the law require Santee to take these roads, who can enforce the maintenance duty, and does the Town's inability to pay excuse it?

The office's answers, in order. First, nothing requires the Town to accept the dedication. Section 5-27-10 lets a municipality buy land for streets, but it does not compel a town to acquire or accept roads, and South Carolina courts have long held the public is not forced to take on the burdens of an offered dedication. So accepting these subdivision roads is a discretionary decision for the Town council.

Second, the maintenance duty has teeth once you accept. Section 5-27-110 covers towns under 1,000 residents (Santee's 2020 population was 797) and requires them to keep streets necessary for public use open and in good repair. Reading it alongside the parallel statute for larger municipalities (§ 5-27-120, which the courts have said "clearly defines the duty to the general public of a municipality to maintain its streets"), the office concluded that if Santee accepts the dedication, it must maintain those roads. Enforcement runs through a criminal penalty: § 5-27-110 ties neglect to the misdemeanor penalty in § 57-17-80 (a fine of $100 to $500), and whether to bring that charge rests with the Town's prosecuting authority or the solicitor. The office found no private right of action; the duty runs to the general public, not to any one resident, though the Town could still face civil liability under the Tort Claims Act.

Third, money is not an excuse. The word "shall" makes maintenance mandatory, and neither § 5-27-110 nor § 57-17-80 mentions cost or carves out an inability-to-pay exception. A court cannot read one in. The office's practical takeaway: if the Town is worried it cannot afford upkeep, it should weigh that before deciding whether to accept the dedication, not count on it as a defense afterward.

What this means for you

Small-town councils (under 1,000 residents): The opinion frames accepting a road dedication as a one-way door. You are free to say no, but if you accept, § 5-27-110 obligates you to keep the roads open and in good repair, with no excuse for limited budgets. The office's advice is to assess maintenance capacity before accepting.

Municipal attorneys: The opinion confirms that acceptance of an offered dedication is discretionary (Corbin v. Cherokee Realty Co.), that the maintenance duty under § 5-27-110 is mandatory and parallels § 5-27-120, and that there is no private right of action, though Tort Claims Act liability remains available (Vaughan v. Town of Lyman).

Developers and subdivision residents: The opinion suggests a town can decline to take over your subdivision's roads, and you cannot force acceptance. If the town does accept and then lets the roads deteriorate, your recourse is not a private suit under this statute; it would run through the Tort Claims Act or through the prosecutor's discretion to charge under § 57-17-80.

Prosecutors and solicitors: The opinion places enforcement of the maintenance duty in your discretion, treating the § 57-17-80 misdemeanor as the enforcement mechanism for a town's neglect.

Common questions

Does my town have to accept the roads in a new subdivision?
No. The opinion concludes acceptance of a dedication is discretionary. A municipality cannot be compelled to take roads it does not want.

If the town accepts the roads, does it have to maintain them?
Yes. For a town under 1,000 residents, § 5-27-110 requires keeping streets necessary for public use open and in good repair. The duty is mandatory once the roads are accepted.

Can the town refuse to maintain roads because it can't afford to?
No. The opinion finds no cost exception in the statute. Because maintenance is mandatory and the law does not mention cost, a court cannot read in an inability-to-pay excuse.

Can a resident sue the town for failing to maintain a road?
Not directly under § 5-27-110, according to the opinion, because that statute creates a duty to the general public, not a private right of action. The opinion notes a town could still be liable under the Tort Claims Act.

What happens if a town neglects its roads?
Section 5-27-110 ties neglect to the misdemeanor penalty in § 57-17-80 (a fine of $100 to $500). Whether to charge is up to the town's prosecuting authority or the solicitor.

Background and statutory framework

Section 5-27-10 authorizes a municipality to purchase land to open, lay out, or establish streets, vesting fee simple in the city or town for public use, but it does not require any such acquisition. Section 5-27-110 imposes on towns of fewer than 1,000 inhabitants the duty to keep streets necessary for public use open and in good repair, investing them with the road powers of county governing bodies and making neglect punishable under § 57-17-80. Section 5-27-120 imposes a parallel duty on municipalities over 1,000 residents. Section 57-17-80 makes a governing body's neglect of required road repairs a misdemeanor punishable by a fine of $100 to $500.

The office relied on Corbin v. Cherokee Realty Co. for the principle that the public is not compelled to accept an offered dedication, and on a 1973 opinion that a county may reject dedication of a private road as it sees fit. For the maintenance duty it drew on its 2016 opinion reading § 5-27-120 and on Vaughan v. Town of Lyman, which described the municipal duty to maintain streets as one owed to the general public and held that liability now flows through the Tort Claims Act rather than a statutory private right of action (citing the implied-cause-of-action test from Adkins v. S.C. Department of Corrections). On enforcement, it cited prosecutorial-discretion authority and the U.S. Supreme Court's decision in Leeke v. Timmerman that the decision to prosecute lies with the prosecutor. On the no-cost-exception point, it applied the "shall is mandatory" rule and the principle that courts cannot add words to a statute (Fort Hill Natural Gas Authority v. City of Easley).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-a-municipalities-acceptance-of-a-proposed-dedication-of-roads-and-its-responsibilities-in-accepting-the-dedication/
• Original PDF: https://www.scag.gov/media/kosnzugn/03657692.pdf

Original opinion text

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Alan Wilson
Attorney General

August 1 , 2024

William H. Johnson, Esq.
Johnson DuRant, LLC

Post Office Box 137
Manning, South Carolina 29102
Dear Mr. Johnson:

We understand you are the town attorney for the Town of Santee (the “Town”) and wish to request
an attorney general’s opinion on behalf of the Town. In your letter you state:
The Town has been presented with a request to accept dedication of certain

roads located within a newly developed subdivision, citing S.C. Code Ann. Sec.
5-27-110. Council has requested an opinion from your office clarifying the
application of the section. The Town does not have the resources to maintain
roads.
The questions include:

1)

Does S.C. Code Ann. Sec. 5-27-10 apply to the Town of Santee,
which has no capability to maintain roads?

2)

Who has standing to enforce the statute?

3) What are the considerations of the enforcement of the statute if the
costs of compliance exceed the ability of the Town to levy and
collect revenue?
Law/Analysis

Section 5-27-10 of the South Carolina Code (2004) states as follows:
Whenever the mayor and aidermen of any city or the intendant and wardens of
any town in this State shall think it expedient to widen, open, lay out, extend or
establish any street, alley, road, court or lane, they may purchase the lot, lots or
parts of lots of land necessary for such street, alley, road, court or lane, and the
fee simple of such land shall be vested in such city or town for the use of the
public from the day of delivery of the deed of sale.

This provision gives municipalities specific authority to purchase land for the establishment or
improvement of roads and streets within its corporate boundaries. Therefore, the Town has
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William H. Johnson, Esq.
Page 2

August 1 , 2024

authority to acquire property for streets and roads for public use, but we did not find any indication
in section 5-27-10 of the Legislature’s intent to require a municipality to acquire certain roads.
Additionally, our courts recognize the public is not compelled to assume the burdens imposed by
accepting an offered dedication. Corbin v. Cherokee Realty Co., 229 S.C. 16, 25, 91 S.E.2d 542,
546 (1956); As we stated in a 1973 opinion, “the law in this state is beyond cavil that the county
is not required to accept dedication of a private road and can reject dedication as it so desires.” Op.
Att’y Gen., 1973 WL T16T1 (S.C.A.G. Mar. 9, 1973).
We believe the same is true for
municipalities. Thus, the Town has discretion as to whether to accept the proposed dedication.
In your letter, you also mention section 5-27-110 of the South Carolina Code (2004).

This

provision states:

Every town council of a town of less than one thousand inhabitants shall keep
all streets and ways which may be necessary for public use within the limits of
the town open and in good repair and for that purpose they are hereby invested
with the powers, rights and privileges granted by law to the governing body of
the county without the limits of the town. For neglect of duty they shall be liable
to the pains and penalties imposed by § 57-17-80 upon governing bodies of

counties for like neglect.
S.C. Code Ann. § 5-27-110. This statute only applies to towns with less than one thousand
inhabitants. According to data from the 2020 census, the Town’s population is 797. Therefore,
presumably this provision is applicable to the Town.
While we did not find any case law or prior opinions interpreting section 5-27-1 10, we discussed
a similar provision, section 5-27-120 of the South Carolina Code, in a 2016 opinion. Op. Att’y
Gen., 2016 WL 7031993 (S.C.A.G. Nov. 15, 2016). Section 5-27-120 applies to municipalities

with populations greater than one thousand residents and provides:
The city or town council of any city or town of over one thousand inhabitants
shall keep in good repair all the streets, ways and bridges within the limits of
the city or town and for such purpose it is invested with all the powers, rights
and privileges within the limits of such city or town that are given to the

governing bodies of the several counties of this State as to the public roads.
S.C. Code Ann. § 5-27-120.

Our 2016 opinion stated the language in this statute “is plain and

clear that municipal councils in municipalities having a population greater than 1000 shall repair
the streets within the municipal limits.” Op. Att’y Gen., 2016 WL 7031993 (S.C.A.G. Nov. 15,
2016) (emphasis in original). We continued by stating: “The court in Vaughan v. Town of Lyman,
370 S.C. 436, 635 S.E.2d 631 (2006), agrees with this conclusion, stating that section 5-27-120
‘clearly defines the duty to the general public of a municipality to maintain its streets.’” Id. Based
on the similar language in sections 5-27-110 and 5-27-120, we believe a court would conclude

section 5-27-110 requires municipalities with less than one thousand residents to keep the streets

William H. Johnson, Esq.
Page 3

August 1 , 2024

necessary for public use within its corporate limits open and in good repair. As such, if the Town
were to accept the proposed dedication, we believe it is responsible for keeping the roads subject
to the dedication open and in good repair.
You also question who has standing to enforce section 5-27-110. Section 5-27-110 mandates
municipalities that neglect their duty to keep their roads open and in good repair “shall be liable to
the pains and penalties imposed by § 57-17-80” on county governing bodies. Section 57-17-80 of
the South Carolina Code (2018) states:
If the members of the governing body of any county neglect to have repaired
any of the highways and bridges which by law are required to be kept in repair,
they shall be guilty of a misdemeanor and, upon conviction thereof, shall be
fined in a sum of not less than one hundred nor more than five hundred dollars,
in the discretion of the court.

Thus, the Legislature established a criminal penalty for violating section 5-27-110. As we stated
in a 2014 opinion, it is a “long-standing rule of law that the decision of whether or not to bring a
criminal case to trial in this State rests almost exclusively with the prosecutor.” Op. Att’y Gen.,
2014 WL 3752137 (S.C.A.G. July 14, 2014). The United States Supreme Court in Leeke v.
Timmerman, 454 U.S. 83, 87, 102 S. Ct. 69, 71, 70 L. Ed. 2d 65 (1981) found inmates lacked
standing to challenge the efforts of state prison officials to block the prosecution of prison guards
accused of assaulting prisoners, as the decision to prosecute is solely within the discretion of the
prosecutor. Therefore, we believe it would be up to the Town’s prosecuting authority or possibly
the solicitor to enforce the requirements set forth under section 5-27-1 10.
Regarding potential civil liability, we note the absence of an express private right of action for the
enforcement of section 5-27-110. “Where a statute does not specifically create a private cause of
action, one can be implied only if the legislation was enacted for the special benefit of a private
party.” Adkins v. S.C. Dep’t of Corr., 360 S.C. 413, 418, 602 S.E.2d 51, 54 (2004). As mentioned
above, our Supreme Court in Vaughan, 370 S.C. 436, 635 S.E.2d 631, stated section 5-27-120
created a duty to the general public. Moreover, that Court went on to conclude: “This Court

continues to acknowledge the duty of a municipality to maintain its streets; however, we no longer
observe the statutory basis for a private right of action. Instead, liability is now imposed through
the waiver provisions of the Tort Claims Act. See S.C. Code Ann. § 1 5-78-10, et seq. (2005).” Id.
at 442, 635 S.E.2d at 635 (2006). We believe a court would similarly find section 5-27-1 10 created

a duty to the general public rather than a special benefit to a private party. Therefore, we do not
believe the Legislature intended to create a private right of action giving individuals standing to
bring civil suits against the Town for violations of section 5-27-110. However, a court could also
find, as did the Supreme Court in Vaughan, that the Town could be held liable under the Tort
Claims Act.
Lastly, you ask about what may be considered in enforcing the requirements under section 5-27-

110 and whether the Town’s inability to pay for maintenance and repairs may excuse compliance.

William H. Johnson, Esq.
Page 4

August 1 , 2024

“The primary rule of statutory construction is to ascertain and give effect to the intent of the
legislature.” Mid-State Auto Auction of Lexington, Inc, v. Altman, 324 S.C. 65, 69, 476 S.E.2d
690, 692 (1996) (citation omitted). The plain language of a statute is the best evidence of the
Legislature’s intent. Grier v. AMISUB of S.C., Inc., 397 S.C. 532, 538, 725 S.E.2d 693, 697
(2012). “Ordinarily, the use of the word “shall” in a statute means that the action referred to is
mandatory.” S.C. Dep’t of Highways & Pub. Transp. v. Dickinson, 288 S.C. 189, 191, 341 S.E.2d
134, 135 (1986) (citation omitted). Based on the plain language in section 5-27-1 10, it mandates
municipalities keep roads open and in good repair. It does not mention consideration of the cost of
compliance or excuse compliance due to costs. Moreover, section 57-17-80, enforcing this
requirement, similarly does not mention costs or excuse compliance due to costs. Therefore, we

do not believe a court would be at liberty to read such exceptions into the law. Fort Hill Nat. Gas
Auth. v. City of Easley, 310 S.C. 346, 349, 426 S.E.2d 787, 788-89 (1993) (stating a court cannot
add words to a statute which would give it a different meaning). If the Town is concerned with the
ability to repair and maintain the roads in the proposed dedication, it should consider this in

determining whether to accept the dedication.
Conclusion

While section 5-27-1 10 of the South Carolina Code allows a municipality to purchase property for
the purpose of establishing or improving its streets and roads, we do not find this statute requires
such a purchase. Moreover, the Town’s decision to accept the dedication of certain roads as public
roads is within the discretion of the Town’s governing body. However, if the Town chooses to

accept the dedication, we believe section 5-27-110 requires it to keep the roads open and in good
repair. In addition, this statute does not appear to provide an exception due to a town’s inability
to pay. If the Town fails to maintain its roads in accordance with section 5-27-110, the Town may
be subject to the criminal penalties provided under section 57-17-80. Whether or not the Town is
charged pursuant to section 57-17-80 is a matter of discretion by the Town’s prosecuting authority.
However, we do not believe this provision provides a private right of action for failing to comply
with section 5-27-110.
Sincerely,

Cydney MillingCJ
Assistant Attorney General

William II. Johnson, Esq.
Page 5
August 1 , 2024

REVIEWED AND APPROVED BY:

/

Robert D. Cook
Solicitor General