Can a South Carolina county stop a city from annexing nearby land, and do cities have to coordinate annexation with the county's comprehensive plan?

Plain-English summary

A state representative asked the Attorney General three questions about municipal annexation: (1) whether a county has any way, beyond the protest deadlines in Title 5, to stop a city from annexing land next to its limits or to block other city land-use actions that hurt the county; (2) what entity decides when a city is "overreaching" by annexing or passing ordinances that affect areas outside its limits; and (3) whether, given the planning statutes, cities should be working with counties to head off land-use problems. The concern behind the questions was that cities may be annexing land without making findings about their comprehensive plans or consulting the county.

The AG's answers all trace back to one principle: annexation is a legislative function, and the General Assembly has "complete power" over the boundaries of South Carolina municipalities.

On the framework. The General Assembly created three ways a municipality can annex privately owned land, each started by filing a petition with the city council:

• The 25% petition and election method (§ 5-3-300): a petition from at least 25% of qualified electors in the area triggers an election run by the county election commission, with newspaper notice before and after.
• The 75% method (§ 5-3-150(1)): a petition from 75% of freeholders owning 75% of the assessed value lets the council annex by ordinance, but only after a published public hearing and written notice to the county's chief administrative officer (and to special purpose districts and fire departments).
• The 100% or "fast track" method (§ 5-3-150(3)): a petition signed by all property owners. The Supreme Court has called this a "fast track" because it has no notice requirement and third parties generally cannot challenge it.

How much notice the county gets depends on which method is used, with the 100% method giving the least. The AG noted that, unlike the scheme for special purpose districts (§§ 5-3-310 to -315, requiring a negotiated service plan), the Code contains no provision requiring a city and county to consult or jointly plan when a city annexes.

Question 1 (can a county stop an annexation?). The AG said it was unclear what standing a county would have or what the claimed "negative impacts" would be. Annexations carry a "presumption of validity" when there are no substantive defects and the city makes a good-faith attempt to comply with the statutes. Importantly, standing to challenge a zoning change is not automatically standing to challenge an annexation; the two are different. The AG advised consulting legal counsel to identify the specific harm and whether any recognized mechanism reaches it.

Question 2 (who decides "overreach"?). The AG repeated that the General Assembly has complete power over municipal boundaries. If the legislature finds the current scheme produces negative effects, it can amend the annexation statutes.

Question 3 (should cities work with counties?). Section 6-7-10 declares the legislature's intent that municipalities and counties, "acting individually or in concert," plan for future development, and it encourages (but does not require) regional coordination and cooperation. Because the General Assembly authorized local governments to act "individually or in concert," the AG said it had no basis to say which approach is better.

What this means for you

County officials worried about a nearby city's annexation

Based on this opinion, the county's tools are limited. Annexation is the General Assembly's domain, completed annexations carry a presumption of validity, and there is no general statutory mechanism for a county to veto or coordinate a city's annexation of contiguous private land. The amount of notice you receive depends on which method the city uses. The opinion points counties toward identifying a concrete legal harm and consulting counsel, rather than assuming a right to block the annexation.

Municipal officials considering an annexation

The opinion describes the three statutory methods and their differing notice requirements, including the written notice the 75% method requires to the county's chief administrative officer, special purpose districts, and fire departments. The opinion does not require a city to make comprehensive-plan findings or to consult the county before annexing private land, but it does describe the presumption of validity as resting on a "good faith attempt to comply with applicable statutory requirements."

Local government attorneys

The opinion is a useful map of the annexation methods and the standing landscape. Two points stand out: standing to challenge a zoning change (e.g., under § 6-29-760(C)) is distinct from standing to challenge an annexation, and challenges to a 100% "fast track" annexation are sharply limited (generally only by a person asserting an infringement of their own proprietary interests or statutory rights, or by the State acting in the public interest). The opinion expressly declines to identify the county's standing or specific remedies, treating that as fact-dependent and a matter for counsel.

State legislators

The AG framed the policy question as one for the General Assembly: it has complete power over municipal boundaries and may amend the annexation statutes if it concludes the current scheme produces negative effects. The opinion does not recommend any particular change.

Common questions

Can my county sue to stop a city from annexing land next to us?
The opinion does not give a yes/no. It says it is unclear what standing a county would have and what the negative impacts are, notes the presumption of validity for annexations, and advises consulting counsel to pin down a specific legal harm and whether a recognized challenge mechanism reaches it.

Does a city have to follow or consider the county's comprehensive plan before annexing?
The opinion does not identify any statute requiring a city to make comprehensive-plan findings or coordinate with the county before annexing private property. It contrasts this with the special-purpose-district statutes, which do require a negotiated plan.

What's the difference between the annexation methods?
The 25% method uses a petition plus a county-run election with newspaper notice; the 75% method allows annexation by ordinance after a public hearing and written notice to the county and others; the 100% "fast track" method (all owners sign) has no notice requirement and limited third-party challenge rights.

If I can challenge a zoning change, can I also challenge the annexation?
Not necessarily. The AG cited Ex parte State ex rel. Wilson for the point that a statute giving adjoining landowners standing to challenge zoning changes does not give standing to challenge an annexation; they are different legal questions.

Background and statutory framework

The South Carolina Constitution directs the General Assembly to set the procedures for incorporating municipalities and readjusting their boundaries. S.C. Const. art. VII, § 8. The AG has long opined that annexation "is a legislative function and the General Assembly has complete power with respect thereto," and the Supreme Court has recognized that, absent constitutional limits, a legislature's power over municipal boundaries is broad. Gen. Battery Corp. v. City of Greer, 263 S.C. 533, 211 S.E.2d 659 (1975).

The three annexation methods live in Chapter 3 of Title 5: § 5-3-300 (25% petition and election), § 5-3-150(1) (75% freeholder petition with public hearing and notice), and § 5-3-150(3) (100% owner petition, "fast track"). Section 5-3-100 addresses annexation of land owned entirely by the county and adjacent to the municipality, by resolution of both governing bodies plus a municipal ordinance. Sections 5-3-310 to -315 govern annexation involving special purpose districts and require a service plan, negotiated or, failing agreement within ninety days of the authorizing referendum, formulated by a committee (§§ 5-3-311, 5-3-312).

On planning, § 6-29-510(B) and (E) require comprehensive-plan elements to consider conflicts with adjacent jurisdictions and to express planning-commission recommendations on the wise use of public funds and future development, with periodic review. Chapter 7 of Title 6 (§ 6-7-10 et seq.) declares the General Assembly's intent that local governments, "acting individually or in concert," plan for development, and encourages regional coordination, while providing that any county or municipality "may, but shall not be required to," exercise those powers.

On standing, the AG cited Vicary v. Town of Awendaw (presumption of validity; the 100% method's limited challenge rights), Ex parte State ex rel. Wilson (zoning-challenge standing is not annexation-challenge standing; 100%-petition challenges are limited), St. Andrews Pub. Serv. Dist. v. City Council of City of Charleston (limiting "outsider" annexation challenges), and Nat'l Tr. for Historic Pres. v. City of N. Charleston (§ 5-3-100 is a method for annexing property the municipality wholly owns).

Citations

• S.C. Code Ann. § 5-3-10 et seq. (municipal annexation)
• S.C. Code Ann. §§ 5-3-150(1), 5-3-150(3), 5-3-300 (the three annexation methods)
• S.C. Code Ann. § 5-3-100 (annexation of county-owned adjacent land)
• S.C. Code Ann. §§ 5-3-310 to -315, 5-3-311, 5-3-312 (special purpose district annexation and service plan)
• S.C. Code Ann. § 6-29-510(B), (E) (comprehensive plan elements)
• S.C. Code Ann. § 6-29-760(C) (standing of adjoining owners to challenge zoning changes)
• S.C. Code Ann. § 6-7-10 et seq. (local planning; "individually or in concert")
• S.C. Const. art. VII, § 8 (incorporation and boundary procedures)
• Gen. Battery Corp. v. City of Greer, 263 S.C. 533, 211 S.E.2d 659 (1975)
• Vicary v. Town of Awendaw, 425 S.C. 350, 822 S.E.2d 600 (2018)
• Ex parte State ex rel. Wilson, 391 S.C. 565, 707 S.E.2d 402 (2011)
• St. Andrews Pub. Serv. Dist. v. City Council of City of Charleston, 349 S.C. 602, 564 S.E.2d 647 (2002)
• Nat'l Tr. for Historic Pres. in United States v. City of N. Charleston, 439 S.C. 222, 886 S.E.2d 487 (Ct. App. 2023)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-municipal-annexation-and-issues-related-to-comprehensive-plans-and-zoning/
• Original PDF: https://www.scag.gov/media/p2tmuugi/popet-os-10983-final-opinion-2-10-2025.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

February 10, 2025

The Honorable Thomas E. Pope
Speaker pro Tempore
South Carolina House of Representatives
P.O. Box 11867
Columbia, SC 29211

Dear Representative Pope:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter requests an opinion addressing the following:

As an elected official, I am requesting an opinion from you on a matter of great importance to many of my constituents, and certainly highly important to all South Carolinians who pay real estate and other taxes to state and local governments.

It is my understanding under existing S.C. Code Section 5-3-10, et seq., that municipalities are able to annex contiguous land into their city limits, after they follow one of several statutory procedures for doing so. Exceptions to this general authority for municipalities to so annex include prohibitions against annexing regional airport commission property and professional sports team property. Other limitations require annexation preapprovals by governing bodies of various entities, including corporations, special purpose districts, school districts, churches, and others set out in our state Code of Laws.

Nevertheless, I am being made aware that municipal governments, on their own volition, are conducting annexations without making specific findings in their annexation ordinances that the Municipality has considered its adopted Comprehensive Plan as well as the provisions of S.C. Code Section 6-29-510 (B) and (E) which specifically set out:

(B) Surveys and studies on which planning elements are based must include consideration of potential conflicts with adjacent jurisdictions and regional plans or issues.

(E) All planning elements must be an expression of the planning commission recommendations to the appropriate governing bodies 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.

In addition, S.C. Code Section 6-7-10, et seq., appears to encourage, or even require, municipalities and counties to operate in concert with one another when planning future land development.

Incredibly, it is being shared with me that municipalities may be annexing land without consulting with the county government or planning officials before doing so.

As a result, my questions are:

1. Is there any method, other than the annexation protest filing deadlines and requirements set out in S.C. Code Title 5, for a county government to stop a municipality from annexing tracts contiguous to its city limits, or take any other land use action that has a negative impact on that county?

2. In your opinion, what entity best determines when municipalities are overreaching by annexing adjacent lands or enacting municipal ordinances with negative effects on areas outside of their jurisdiction?

3. Do you agree that given the provisions of S.C. Code 6-7-10, et seq., that municipalities are best advised to work with counties in order to prevent, or minimize, future land use problems?

Law/Analysis

This Office has previously opined, "The matter of annexation in regard to municipalities in this State is a legislative function and the General Assembly has complete power with respect thereto." Op. S.C. Att'y Gen., 1960 WL 8095 (February 23, 1960).¹ The South Carolina Constitution directs the General Assembly to establish the procedures for incorporation of municipalities and for the "readjustment" of their boundaries. S.C. Const. art. VII, § 8.²

¹ See also Gen. Battery Corp. v. City of Greer, 263 S.C. 533, 541-42, 211 S.E.2d 659, 663 (1975): "[T]he following language quoted with approval from 37 Am. Jur. 639, is most applicable, 'In the absence of constitutional limitations it is generally considered that the power of a state legislature over the boundaries of the municipalities of the state is absolute and that the legislature has power to extend the boundaries of a municipal corporation, or to authorize an extension of its boundaries, without the consent of its inhabitants of the territory annexed, or the municipality to which it is annexed, or even against their expressed protest'."

² The General Assembly shall provide by general law the criteria and the procedures for the incorporation of new municipalities and for the readjustment of municipal boundaries and for the merger of incorporated municipalities provided that any city or town shall be organized with the consent of a majority of the electors voting in such election who reside in and are entitled by law to vote within the district proposed to be incorporated. ...

To that end, the General Assembly established three methods allowing a municipality to annex privately owned property. See S.C. Code §§ 5-3-150(1), -150(3), 300. Each of the three methods is initiated by filing a petition with a municipal governing body. First, section 5-3-300 authorizes annexation if a petition signed by "twenty-five percent or more of the qualified electors who are residents within the area proposed to be annexed" is filed with a municipality's council. S.C. Code § 5-3-300(A). The council then certifies that the requirements of the petition are met to the county election commission. See S.C. Code § 5-3-300(C). The county election commission then orders "an election to be held within the area proposed to be annexed to the municipality on the question" of annexation. Id. The county election commission provides "at least thirty days' notice in a newspaper of general circulation" prior to the election. S.C. Code § 5-3-300(D). After the election, additional notice is required after the election to be published in a newspaper of general circulation within the municipality.

Next, section 5-3-150(1) authorizes annexation when a "petition signed by seventy-five percent or more of the freeholders ... owning at least seventy-five percent of the assessed valuation of the real property in the area requesting annexation" is filed with a municipal governing body. If the municipal governing body agrees to accept the petition and annex the area, the annexation is completed upon the "the enactment of an ordinance declaring the area annexed to the municipality." Id. However, the property cannot be annexed without complying with six listed conditions within the subsection. Id. There are two particularly relevant conditions to the concerns listed in your letters. The first is the authorization for "the municipality or any resident of it and any person residing in the area to be annexed or owning real property of it" to file suit in the court of common pleas to "challenge and have adjudicated any issue raised in connection with the proposed or completed annexation." Id. The second is that notice of a public hearing must be published "in a newspaper of general circulation in the community" at least thirty days before acting on an annexation petition. Id. Further, written notice of the hearing must be provided "to the taxpayer of record of all properties within the area proposed to be annexed, to the chief administrative officer of the county, to all public service or special purpose districts, and all fire departments, whether volunteer or full time." Id. (emphasis added).

Finally, section 5-3-150(3) authorizes annexation when a "petition signed by all persons owning real estate in the area requesting annexation" is filed with a municipal governing body. The South Carolina Supreme Court has described this method as a "fast track" method to annexation in part because the subsection authorizing it lacks a notice requirement, and third parties generally lack standing to challenge an annexation thereunder. Vicary v. Town of Awendaw, 425 S.C. 350, 358, 822 S.E.2d 600, 604 (2018) ("Unlike the 75% method, the 100% method does not contain a notice provision or an authorization for third parties to challenge the annexation. Again, this makes sense because the 100% method is a 'fast track' scheme available 'only when all of the property owners consent.'"); see also Ex parte State ex rel. Wilson, 391 S.C. 565, 574, 707 S.E.2d 402, 407 (2011) ("[O]ur precedent states that standing to challenge annexations by 100% petition is limited. ... An annexation by 100% petition may be challenged only by a person who 'assert[s] an infringement of [his or her] own proprietary interests or statutory rights.'"); St. Andrews Pub. Serv. Dist. v. City Council of City of Charleston, 349 S.C. 602, 605, 564 S.E.2d 647, 648 (2002) ("In our view, the better policy is to limit 'outsider' annexation challenges to those brought by the State 'acting in the public interest.'").

The amount of notice a county must be given when a municipality annexes private property depends on which of the above methods are utilized. The 100% method or "fast track" method authorized in section 5-3-150(3) provides the least notice and opportunity for third-party challenges. The 75% method authorized in section 5-3-150(1) requires a public hearing and notice thereof to the county in writing to its chief administrative officer. The 25% petition and election method authorized in 5-3-300 requires publication in newspapers at set periods before and after the election in the area petitioned to be annexed and the county election commission conducts this election.

As noted in your letter there are several statutes codified within Chapter 3 of Title 5 of the South Carolina Code of Laws that prohibit the annexation of property owned by certain bodies, establish alternative methods of annexation, or allow for consolidation of municipalities. A county that owns property can agree for it to be annexed by a municipality.

When the territory proposed to be annexed to the municipality belongs entirely to the county in which the municipality is located and is adjacent thereto, it may be annexed by resolution of the governing body of the municipality and the governing body of the county. Upon the adoption of the resolutions required by this section and the passage of an ordinance to that effect by the municipality, the annexation is complete.

S.C. Code § 5-3-100. Likewise, a municipality can annex property which it owns. See Nat'l Tr. for Historic Pres. in United States v. City of N. Charleston, 439 S.C. 222, 228, 886 S.E.2d 487, 490 (Ct. App. 2023), reh'g denied (May 11, 2023), cert. granted (Sept. 16, 2024) ("Section 5-3-100 is a method for annexation when the municipality wholly owns the property to be annexed.") (emphasis in original). Where all or part of a special purpose district is sought to be annexed, sections 5-3-310 to -315 provide how the municipality and district resolve issues related to maintaining services and developing a plan. Section 5-3-311 allows the district and municipality to formulate a plan by agreement, but if they cannot agree on such a plan "within ninety days following a favorable vote at the last referendum election required to be held to authorize the annexation," they must appoint a committee to formulate a plan. S.C. Code § 5-3-311. The plan "shall seek to balance the equities and interests of the residents and taxpayers of the annexed area and of the area of the district not annexed." S.C. Code § 5-3-312. The code does not, however, contain a similar scheme requiring consultation and mutual formulation of a plan between an annexing municipality and a county.

With this framework in mind, we turn to the questions raised in your letter.

1. Is there any method, other than the annexation protest filing deadlines and requirements set out in SC Code Title 5, for a county government to stop a municipality from annexing tracts contiguous to its city limits, or take any other land use action that has a negative impact on that county?

It is unclear from the question presented what standing the county would have to challenge the annexation or what would be the potential negative impacts. If there are no substantive defects with the annexation ordinance and the municipality makes a good faith attempt to comply with applicable statutory requirements, there is a "presumption of validity bestowed on annexations." Vicary, 425 S.C. at 359, 822 S.E.2d at 604. Presumably, due to the letter's reference to comprehensive plans and land development, these would be the suggested negative impacts of an annexation. The General Assembly has established mechanisms for parties to challenge annexations and zoning regulations. However, a party with standing to challenge a zoning change may not also have standing to challenge an annexation. See Ex parte State ex rel. Wilson, 391 S.C. 565, 574, 707 S.E.2d 402, 407 (2011) ("Appellants Campbell and Kinsey have standing to challenge the annexation pursuant to a statute—South Carolina Code section 6-29-760(C) (2004)—that grants the owners of adjoining land standing to challenge zoning changes. This statute is inapplicable because this lawsuit challenges annexation, not zoning."). It would be advisable for your constituent to contact legal counsel to determine what specific negative impacts are sought to be avoided and if there are mechanisms our state courts recognize to challenge them.

2. In your opinion, what entity best determines when municipalities are overreaching by annexing adjacent lands or enacting municipal ordinances with negative effects on areas outside of their jurisdiction?

As discussed above, the General Assembly has "complete power" with respect to the adjustment of municipal boundaries. Op. S.C. Att'y Gen., 1960 WL 8095 (February 23, 1960). If the General Assembly finds the current statutory scheme results in negative effects, it is authorized to amend the annexation statutes to address those concerns.

3. Do you agree that given the provisions of S.C. Code 6-7-10, et seq., that municipalities are best advised to work with counties in order to prevent, or minimize, future land use problems?

Section 6-7-10 expressly declares the General Assembly's purpose.

The intent of this chapter is to enable municipalities and counties acting individually or in concert to preserve and enhance their present advantages, to overcome their present handicaps, and to prevent or minimize such future problems as may be foreseen. To accomplish this intent local governments are encouraged to plan for future development; to prepare, adopt, and from time to time revise, a comprehensive plan to guide future local development; and to participate in a regional planning organization to coordinate local planning and development with that of the surrounding region. As aids in the implementation of the comprehensive plan local governments are encouraged to adopt and enforce appropriate land use controls, and cooperate with other governmental authorities.

The provisions of this chapter are declared to be necessary for the promotion, protection, and improvement of the public health, safety, comfort, good order, appearance, convenience, prosperity, morals, and general welfare.

Any county or municipality may, but shall not be required to, exercise any of the powers granted by this chapter. Whenever such a governing authority shall elect to exercise any of the powers granted by this chapter, such powers shall be exercised in the manner hereinafter prescribed.

S.C. Code Ann. § 6-7-10 (emphasis added). The General Assembly expressed its intent in plain language that municipalities and counties might work together or separately to plan for future development. Local governments were additionally encouraged to "participate in a regional planning organization to coordinate local planning and development with that of the surrounding region." Id. Where the General Assembly authorized local governments to act "individually or in concert," this Office has no basis to say which is better.

Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General