Does a South Carolina city have to give public notice before annexing land by petition, and who checks the petitions?

Official title

Opinion addressing annexation procedures under Sections 5-3-140 and 5-3-150(3) of the South Carolina Code (2004 and Supp. 2023).

Requester

Requested by Mr. Richard W. Anderson, Chester County Assessor.

Plain-English summary

The Chester County Assessor asked the Attorney General whether a recent annexation by the City of Chester was legal. He flagged several apparent problems with the four annexation petitions: they were undated and signed by a buyer rather than the owners (with no power of attorney), they cited § 5-3-140 (the method for government-owned land) even though the parcels were privately owned, and the city gave no newspaper or sign notice.

The Attorney General declined to rule on whether the annexation was legal. As it has said many times, the office "does not have the authority of a court or other fact-finding body" and cannot adjudicate factual questions, and judging this annexation would require resolving facts about the petitions and ownership. Instead, the office laid out the general law to help the assessor understand the framework.

South Carolina allows several methods of annexation under Chapter 3 of Title 5. Two are relevant here. Section 5-3-140 covers territory belonging entirely to the federal government or the State, which may be annexed on the government's petition (a State petition meaning one executed by the State Fiscal Accountability Authority). Section 5-3-150(3) is the "100% petition method," under which contiguous property may be annexed by a petition signed by all persons owning real estate in the area; once the governing body agrees and enacts an ordinance, the annexation is complete.

The AG made two general-law points. First, neither method requires express public notice. For the 100% petition method, the South Carolina Supreme Court has explained that because every owner must consent by signing, there is no notice provision and outsiders generally cannot challenge it; the same logic applies to § 5-3-140, where the government owning all the land files the petition. Second, a court would likely find it is the municipal governing body's responsibility to determine whether the petitions meet the statutory requirements, since the statutes say the annexation is complete upon the body's acceptance and ordinance, with no special election required (in contrast to the 25%-elector method in § 5-3-300, which does require a special election).

The opinion closed with a timing caution: a challenge to a valid annexation is subject to the statute of limitations in § 5-3-270, which requires filing a notice of intent to contest within 60 days and beginning an action within 90 days. It noted, however, that a challenge to an annexation that is actually void may not be barred by those deadlines.

What this means for you

County assessors and other officials reviewing an annexation: The opinion will not tell you whether a particular annexation was valid; that is a factual and legal determination for a court. It does confirm that the two petition-based methods do not require public newspaper or sign notice, so the absence of notice is not by itself a defect.

Municipal governing bodies: The AG read the statutes to place on you the responsibility of confirming that annexation petitions meet the statutory requirements (for example, that all owners signed under the 100% method) before accepting them and adopting the ordinance.

Property owners and neighbors: If you want to contest an annexation you believe is invalid, watch the § 5-3-270 deadlines closely: a notice of intent within 60 days and an action within 90 days. The AG noted those limits may not bar a challenge to an annexation that is genuinely void, but that is a question for a court.

Common questions

Did the AG say the City of Chester's annexation was illegal?
No. It declined to decide, explaining that the legality of a specific annexation turns on facts the office cannot adjudicate. It set out the general law instead.

Does South Carolina require public notice before a petition annexation?
Not for the two methods discussed. The AG concluded that neither the 100% landowner-petition method (§ 5-3-150(3)) nor the government-land method (§ 5-3-140) contains an express notice provision, because the petitioning owners or government already consent.

Who is responsible for checking that the annexation petitions are valid?
The municipal governing body. The AG concluded a court would find it is the council's responsibility to determine whether the petitions meet the statutory requirements before accepting them and enacting the annexation ordinance.

How long do I have to challenge an annexation?
Under § 5-3-270, a person must file a notice of intent to contest within 60 days after the result is published or declared and begin an action within 90 days. The AG noted those deadlines may not apply where the annexation is void, citing Vicary v. Town of Awendaw.

Background and statutory framework

S.C. Code Ann. § 5-3-10 lets a city or town council extend its corporate limits in the manner set by Chapter 3 of Title 5. Section 5-3-140 provides for annexing territory belonging entirely to the federal government or the State on the government's petition, with a State petition meaning one executed by the State Fiscal Accountability Authority. Section 5-3-150(3) sets out the 100% petition method for contiguous property signed by all owners, and bars a governing-body member who owns affected property from voting. By contrast, § 5-3-300 governs the 25%-elector petition method and requires a special election, which is why the AG read the silence in §§ 5-3-140 and 5-3-150(3) as deliberate.

On notice and challenges, the AG relied on St. Andrews Public Service District v. City Council of Charleston, 349 S.C. 602, 564 S.E.2d 647 (2002), and State, by State Budget and Control Bd. v. City of Columbia, 308 S.C. 487, 419 S.E.2d 229 (1992), as quoted in Ex parte State ex rel. Wilson, 391 S.C. 565, 707 S.E.2d 402 (2011), which describe the 100% method as a "fast track" available only with unanimous owner consent and not subject to a notice requirement. The statute of limitations point rests on § 5-3-270 and Vicary v. Town of Awendaw, 427 S.C. 48, 828 S.E.2d 229 (Ct. App. 2019), which held a challenge to a purported annexation was not time-barred when the annexation was void. The office applied standard construction principles from Sloan v. Hardee, 371 S.C. 495, 640 S.E.2d 457 (2007), and related cases.

Citations

• S.C. Code Ann. § 5-3-140 (annexation of federal- or State-owned territory by petition)
• S.C. Code Ann. § 5-3-150(3) (100% landowner-petition annexation method)
• S.C. Code Ann. § 5-3-10 (authority to extend municipal limits)
• S.C. Code Ann. § 5-3-300 (25%-elector petition method requiring a special election)
• S.C. Code Ann. § 5-3-270 (statute of limitations for contesting annexation)
• St. Andrews Public Service District v. City Council of Charleston, 349 S.C. 602, 564 S.E.2d 647 (2002)
• State, by State Budget and Control Bd. v. City of Columbia, 308 S.C. 487, 419 S.E.2d 229 (1992)
• Ex parte State ex rel. Wilson, 391 S.C. 565, 707 S.E.2d 402 (2011)
• Vicary v. Town of Awendaw, 427 S.C. 48, 828 S.E.2d 229 (Ct. App. 2019)
• Sloan v. Hardee, 371 S.C. 495, 640 S.E.2d 457 (2007)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-annexation-procedures-under-sections-5-3-140-and-5-3-150-3-of-the-south-carolina-code-2004-and-supp-2023/
• Original PDF: https://www.scag.gov/media/rhtj2kzg/03533248.pdf

Original opinion text

Alan Wilson
ATTORNEY GENERAL

March 14, 2024

The Honorable Richard W. Anderson
Chester County Assessor

P.O. Drawer 580
Chester, SC 29706

Dear Mr. Anderson:

We received your letter requesting an Attorney General’s opinion regarding the legality of a recent
annexation by the City of Chester (the City). By way of background, you informed us:
In October 2022, the City passed an annexation ordinance pursuant to section 5-3-

150(3) of the South Carolina Code (2004), of four parcels of undeveloped land.
The annexation was a result of four petitions for annexation, The petitions
reference section 5-3-140 of the South Carolina Code (Supp. 2023).
The
annexation petitions have the following errors:
1 . The petitions are not dated and are signed by the buyer, not the owners, without
a power of attorney or other authorization.
2. The petitions reference section 5-3-140 for annexation of property owned by the
State or federal land, not privately owned property.

3. The City failed to give public notice, via newspaper, signs, or other notification.
   Attached to your letter was information pertaining to the ownership of the parcels that were
   annexed to the City and the City’s notification of the annexation, a dated copy of the annexation
   ordinance, and undated copies of the petitions for annexation.
   Law/Analysis

We begin by noting this Office is unable to issue an advisory opinion to determine facts. As we
have stated in prior opinions, “[b]ecause this Office does not have the authority of a court or other
fact-finding body, we are not able to adjudicate or investigate factual questions.” Op. S.C. Att'v
Gen., 2006 WL 1207271 (S.C.A.G. April 4, 2006) (alteration in original) (quoting Op. S.C. Att'y
Gen., 1989 WL 406130 (April 3, 1989)). Therefore, because it would involve a determination of

Dennis Si ijldjng

Post Oi'fice Box i 1 549

“ COLC.viiJJA, SC 2921 1-1549

« TELEPHONE 2O3-73-I-397O .

, acsimji i- LG3-T53-62.ST

The Honorable Richard W. Anderson
Page 2

March 14, 2024

facts, we cannot render an opinion as to the legality of the annexation referenced in your letter.
However, we provide the following law in the hope it may be helpful to you.
Section 5-3-10 of the South Carolina Code (2004) provides, “Any city or town council may extend

the corporate limits of the municipality in the manner set forth in this chapter.” Chapter Three of
Title Five of the South Carolina Code provides for alternate methods of annexation when the area
proposed to be annexed is owned by the federal government or the State or when the annexation
petition is “signed by all persons owning real estate in the area requesting annexation” (the 100%
petition method).
If the territory proposed to be annexed belongs entirely to the federal government
or to the State of South Carolina and is adjacent to a municipality, it may be annexed
upon the petition of the federal government or of the State to the city or town

council thereof. As used in this section, a petition by the State shall mean a petition
executed by the State Fiscal Accountability Authority. Upon agreement of the city
or town council to accept the petition and the passage of an ordinance to that effect,
the annexation is complete.

S.C. Code Ann. § 5-3-140 (Supp. 2023).
Notwithstanding the provisions of subsections (1) and (2) of this section, any area
or property which is contiguous to a municipality may be annexed to the

municipality by filing with the municipal governing body a petition signed by all
persons owning real estate in the area requesting annexation. Upon the agreement
of the governing body to accept the petition and annex the area, and the enactment
of an ordinance declaring the area annexed to the municipality, the annexation is
complete.

No member of the governing body who owns property or stock in a

corporation owning property in the area proposed to be annexed is eligible to vote
on the ordinance. This method of annexation is in addition to any other methods
authorized by law.
S.C. Code Ann. § 5-3-150(3) (2004).
When interpreting a statute, the primary goal is to determine the General Assembly’s intent.

Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (“The cardinal rule of statutory
construction is to ascertain and effectuate the intent of the legislature.”). “[I]n ascertaining the

intent of the [Legislature, a court should not focus on any single section or provision but should
consider the language of the statute as a whole.” In re Hosp. Pricing Litig., King v. AnMed Health,
377 S.C. 48, 59, 659 S.E.2d 131, 137 (2008). “When a statute's terms are clear and unambiguous
on their face, there is no room for statutory construction and a court must apply the statute
according to its literal meaning.” Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007).
“When interpreting a statute, the Court must read the language in a sense which harmonizes with

The Honorable Richard W. Anderson
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March 14, 2024

its subject matter and accords with its general purpose.” Allen v. S.C. Pub. Emp. Ben. Auth., 41 1

S.C. 61 1, 616, 769 S.E.2d 666, 669 (2015).
If proceeding under the 100% petition method, “all persons owning real estate” in the area
As held by the
Supreme Court of South Carolina:

requesting annexation must file a petition with the municipal governing body.

The 100% petition method provides neither an express notice provision nor an
authorization for third parties to challenge the annexation.

The absence of such

provisions in the 100% petition method is readily understood in light of the
requirement that all property owners in the annexed area consent by signing the
annexation petition.

Notably, residents of the annexing municipality are not

permitted to challenge a 100% petition annexation. Rather, “[i]n order to challenge

a 100% annexation, the challenger must assert an infringement of its own
proprietary interests or statutory rights.”

St. Andrews Public Service District v.

City Council of Charleston, 349 S.C. 602, 604, 564 S.E.2d 647, 648 (2002) (citing
State, by State Budget and Control Bd. v. City of Columbia, 308 S.C. 487, 489, 419
S.E.2d 229, 230 (1992)).

In sum, the 100% petition method is a “fast track” for

annexation that may be used only when all of the property owners consent.
Ex parte State ex rel. Wilson, 391 S.C. 565, 572, 707 S.E.2d 402, 406 (2011) (alteration in

original). Accordingly, because all persons owning real estate in the area to be annexed must file
a petition for annexation with the municipal governing body, express notice of the annexation is
not required.

If proceeding under section 5-3-140, either the federal government or the State Fiscal
Accountability Authority must petition to the municipal governing body for annexation of territory
belonging entirely to the federal government or the State. Like the 100% petition method, section

5-3-140 does not contain an express notice provision. See Sloan, 371 S.C. at 498, 640 S.E.2d at
459 (“When a statute's terms are clear and unambiguous on their face, there is no room for statutory
construction and a court must apply the statute according to its literal meaning.”). Applying our

State Supreme Court’s reasoning in Wilson to section 5-3-140, because the government having
sole possession of the land in the area to be annexed must file a petition for annexation with the
municipal governing body, express notice of the annexation is not required.
Further, we believe a court would find that under these alternate methods of annexation, it is the

municipal governing body’s responsibility to determine whether the petitions meet the statutory
requirements. Sections 5-3-140 and 5-3-150(3) contain similar language indicating that upon
agreement of the municipal governing body to accept the annexation petition and the enactment of
an ordinance to that effect, the annexation is complete. The statutory language is silent as to any
additional requirements such as a special election. See Allen, 41 1 S.C. at 616, 769 S.E.2d at 669
(“When interpreting a statute, the Court must read the language in a sense which harmonizes with
its subject matter and accords with its general purpose.”); cf. S.C. Code Ann. § 5-3-300 (2004)

The Honorable Richard W. Anderson
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March 14, 2024

(providing under the annexation procedure requiring the filing of a petition signed by twenty-five

percent or more of the qualified electors who are residents within the area proposed to be annexed,
a special election must be held).
We note, however, that an action challenging a valid municipal annexation is subject to the statute
of limitation provisions under section 5-3-270 of the South Carolina Code (2004). See S.C. Code
Ann. § 5-3-270 (‘'When the limits of a municipality are ordered extended, no contest thereabout

shall be allowed unless the person interested therein files, within sixty days after the result has
been published or declared, with both the clerk of the municipality and the clerk of court of the
county in which the municipality is located, a notice of his intention to contest the extension, nor
unless, within ninety days from the time the result has been published or declared an action is
begun and the original summons and complaint filed with the clerk of court of the county in which

the municipality is located.”); Vicary v. Town of Awendaw, 427 S.C. 48, 56, 828 S.E.2d 229, 234
(Ct. App. 2019) (holding a challenge to a purported annexation was not barred by the statute of
limitations when the annexation was void).
Conclusion

We cannot opine as to the legality of the annexation referenced in your letter because it would
involve a determination of facts, which is beyond the scope of an opinion of this Office. Op. S.C.
Atfy Gen., 2006 WL 1207271 (S.C.A.G. April 4, 2006) (“[B]ecause this Office does not have the

authority of a court or other fact-finding body, we arc not able to adjudicate or investigate factual
questions.” (quoting Op. S.C. Atfy Gen., 1989 WL 406130 (April 3, 1989))).

However, in an

effort to assist you, we have set forth the generally applicable law' for sections 5-3-140 and 5-3-

150(3).

If proceeding under section 5-3-140, either the federal government or the State Fiscal

Accountability Authority must petition to the municipal governing body for annexation of territory
belonging entirely to the federal government or the State. If proceeding under section 5-3-1 50(3),
all persons owning real estate in the area requesting annexation must file a petition with the
municipal governing body. As discussed, neither of these alternate annexation methods are subject
to an express notice provision and we believe a court would find it is the municipal governing

body’s responsibility to determine whether the petitions meet the statutory requirements.

Sincerely,

Elizabeth McCann
Assistant Attorney General

The Honorable Richard W. Anderson
Page 5

March 14, 2024

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General