When can a South Carolina county challenge a municipal annexation, and how do railroad tracks affect contiguity?

Plain-English summary

The Town of West Union's attorney asked about two municipal annexations, including how railroad property affected contiguity and whether a county could challenge the annexations. The Attorney General declined to decide the two annexations because an advisory opinion cannot resolve disputed facts. Any final ruling on their legality had to come from a court with jurisdiction.

On the general law, the opinion read S.C. Code Ann. § 5-3-305 to mean that unannexed railroad track cannot be used by itself to connect otherwise separate parcels. But parcels that are otherwise contiguous do not lose contiguity merely because an unannexed railroad track, road, waterway, right-of-way, easement, marshland, or utility line lies between them. Annexed land containing railroad tracks may establish contiguity.

The challenge rules depend on the annexation method and the challenger's interest. Under the 100% method, the opinion said a county generally lacks standing unless it can show infringement of its proprietary interests or statutory rights. Under the 75% method, a county may challenge if it owns property in the annexed area.

Section 5-3-270 required notice of intent to contest within 60 days after publication or declaration of the result and an action with the original summons and complaint within 90 days. The opinion stated that those deadlines also apply to the state.

What this means for you

Counties

The opinion found no general county right to challenge a 100% annexation. Standing depended on an infringement of the county's own proprietary interests or statutory rights. For a 75% annexation, county ownership of land in the annexed area could supply the statutory basis to challenge.

Municipalities and town attorneys

Railroad property does not automatically prevent annexation or contiguity. The distinction is between using an unannexed railroad strip as the sole link between separate parcels and parcels that otherwise touch across an intervening strip listed in § 5-3-305.

Property owners and other challengers

Standing depends on the method of annexation and the challenger's statutory or proprietary interest. The opinion also treated the 60-day notice and 90-day filing periods as controlling deadlines.

Common questions

Q: Can a municipality annex land containing railroad tracks? A: The AG knew of no law prohibiting it if the property otherwise met § 5-3-305.

Q: Can an unannexed railroad track create contiguity between separate parcels? A: No. The opinion read § 5-3-305 to bar use of the listed unannexed strips as the sole basis for contiguity.

Q: Does an intervening railroad track destroy contiguity between parcels that otherwise touch? A: No. The opinion concluded that parcels otherwise contiguous remain so when separated only by an unannexed railroad track or another listed strip.

Q: Can a county challenge a 100% annexation?
A: Generally not unless the county can show infringement of its own proprietary interests or statutory rights. The opinion did not decide whether the county involved in the request could make that showing.

Q: What are the filing deadlines for an annexation contest? A: Section 5-3-270 required notice to the municipal clerk and county clerk of court within 60 days, followed by an action and filing of the original summons and complaint within 90 days after publication or declaration of the result.

Background and statutory framework

The South Carolina Constitution gives the General Assembly responsibility for municipal incorporation and boundary changes. Section 5-3-305 governs contiguity. Section 5-3-120 creates the 100% method, while § 5-3-150(1) identifies challengers under the 75% method. Section 5-3-270 supplies the contest deadlines.

The case citations were verified against reported decisions because the source PDF required OCR. St. Andrews Public Service District v. City Council of Charleston addressed contiguity and challengers under the two methods. State ex rel. Condon v. City of Columbia and Ex parte State ex rel. Wilson applied the contest deadline to the state. Beaufort Cty. v. Trask and Lexington County v. City of Columbia addressed county standing.

Citations and references

Constitution and statutes:

• S.C. Const. art. VIII, § 8
• S.C. Code Ann. § 5-3-305 (2004)
• S.C. Code Ann. § 5-3-270 (2004)
• Section 5-3-120
• S.C. Code Ann. § 5-3-150(1)

Cases:

• St. Andrews Public Service District v. City Council of Charleston, 349 S.C. 602, 606, 564 S.E.2d 647, 649 (2002)
• State ex rel. Condon v. City of Columbia, 339 S.C. 8, 16, 528 S.E.2d 408, 412 (2000)
• Ex parte State ex rel. Wilson, 391 S.C. 565, 578, 707 S.E.2d 402, 409 (2011)
• Beaufort Cty. v. Trask, 349 S.C. 522, 563 S.E.2d 660 (Ct. App. 2002)
• Lexington County v. City of Columbia, 303 S.C. 300, 400 S.E.2d 146 (1991)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-county-challenges-to-municipal-annexations/
• Original PDF: https://www.scag.gov/media/v5nptu3i/mccormac-9-9.pdf

Original opinion text

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

ALAN WILSON

ATTORNEY GENERAL

September 9, 2026

Mrs. Mary C. McCormac, Esquire
Town Attorney, West Union

PO Box 1535

Clemson, SC 29633

Dear Mrs. McCormac:

Attorney General Alan Wilson referred your letter to the Opinions section for a response. You seek an opinion regarding annexations, particularly of railroads, and the process for challenging annexations.

Your request includes many details specific to two annexations by the Town of West Union. The Office has also received an opinion request from Oconee County regarding these same annexations. This Office is unable to determine facts in an advisory opinion. 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’y Gen., 2003 WL 21040130 at 1 (Feb. 19, 2003) (quoting Op. S.C. Att’y Gen., Oct. 10, 1985, at 2 and Sept. 3, 1999, at *2). Therefore, this Office cannot make factual determinations regarding these annexations and will not comment specifically on them. If disputes remain regarding these annexations, a final determination of their legality must come from a South Carolina court with jurisdiction over the matter.

Law/Analysis

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. VIII, § 8. “The matter of annexation in regard to municipalities in this State is a [l]egislative function and the General Assembly has complete power with respect thereto.” Op. S.C. Att’y Gen., 2025 WL 554376 (Feb. 10, 2025) (citing Op. S.C. Att’y Gen., 1960 WL 8095 (February 23, 1960)).

You ask about the contiguity requirements for annexations and the effect of a railroad owning property on this requirement. The contiguity requirement for annexation is laid out in South Carolina Code Section 5-3-305. S.C. Code Ann. § 5-3-305 (2004). The Office is not aware of any statute that prohibits the annexation of real property on which a railroad track is located, provided it otherwise meets the requirements of Section 5-3-305. Our understanding of Section 5- 3-305’s prohibition on contiguity being established by “a road, waterway, right-of-way, easement,

Mrs. Mary C. McCormac, Esquire
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September 9, 2026

railroad track, marshland, or utility line” is that Section 5-3-305 provides that unannexed railroad track may not be used to establish contiguity between two parcels but two parcels which are otherwise contiguous remain so when the only separation is an unannexed “road, waterway, right- of-way, easement, railroad track, marshland, or utility line.” This view is buttressed, as you describe in your letter, by the Supreme Court’s holding in St. Andrews Public Service District v. City Council of Charleston, 349 S.C. 602, 606, 564 S.E.2d 647, 649 (2002) (“Accordingly, the record establishes that all the challenged properties touch—albeit via annexed roadways in some cases—property already within the limits of the City of Charleston.”). This understanding does not mean that annexed real property on which railroad tracks sit cannot be used to establish contiguity,

Relatedly, the Office is not aware of any law which places restrictions on the size or shape of an annexed parcel or the length of border that an annexed parcel must have with the municipality.

We now turn to your questions regarding the process of challenging annexations. Section 5-3-270 provides:

[N]o 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.

S.C. Code Ann. § 5-3-270 (2004). We believe this Section adequately answers your questions regarding the timing of a challenge except to note that these deadlines also apply to the State. See State ex rel. Condon v. City of Columbia, 339 S.C. 8, 16, 528 S.E.2d 408, 412 (2000) (“The critical question in this case, however, is whether section 5-3-270 applies when the State is the party challenging an annexation proceeding. We conclude that it does . . . .”); Ex parte State rel. Wilson, 391 S.C. 565, 578, 707 S.E.2d 402, 409 (2011) (“In essence, the State requests that the Court create a ‘discovery rule’ for purposes of the section 5-3-270 limitations period. We decline to do so under the facts presented.”).

With regards to who may challenge an annexation, we have previously noted that it is unclear what standing, if any, a county would have to challenge an annexation. Op. S.C. Att’y Gen., 2025 WL 554376 (Feb. 10, 2025). However, the answer depends in part on the method of annexation. Under the 100% Method created in Section 5-3-120, “the only non-statutory party which may challenge a municipal annexation is the State.” See St. Andrews Public Service District v. City Council of Charleston, 349 S.C. 602, 605, 564 S.E.2d 647, 648 (2002); see also Ex parte State ex rel. Wilson, 391 S.C. 565, 574, 707 S.E.2d 402, 407 (2011) (noting that South Carolina precedent has held that standing to challenge annexations by the 100% Method is limited and that such annexations may only be challenged by a person who asserts an infringement of that person’s

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proprietary interests or statutory rights). Absent an infringement of a proprietary interest or statutory right of the county, South Carolina appellate courts have found a lack of standing where counties have sought to challenge annexations. See, e.g., Beaufort Cty. v. Trask, 349 S.C. 522, 563 S.E.2d 660 (Ct. App. 2002) (finding that the county lacked standing to challenge an annexation because it could not “show that there has been an infringement of its own proprietary interests or statutory rights”); see also, Lexington County v. City of Columbia, 303 S.C. 300, 400 S.E.2d 146 (1991). Thus, we do not believe a county generally has the ability to challenge an annexation under the 100% Method in Section 5-3-120, which you explain was used in both the West Union annexations at issue in your request.

Under the 75% Method created in Section 5-3-150, the annexation may be challenged by the “municipality or any resident of it and any person residing in the area to be annexed or owning real property of it” by “‘institute[ing] and maintain[ing] a suit in the court of common pleas.” S.C. Code Ann. § 5-3-150(1) (YEAR). As a result, the county could challenge an annexation under Section 5-3-150 only if the county owns property in the annexed area. See St. Andrews Public Service District v. City Council of Charleston, 349 S.C. 602, 605, 564 S.E.2d 647, 648 (2002) (“Under the 75% method, the challenger must be a municipality or one of its residents, or reside or own property in the annexed area.”’). This does not appear to be relevant since you explain that

the West Union annexations were completed under the 100% Method in Section 5-3-120.

Again, the Office cannot make factual determinations and therefore will not comment on the specific annexations your request references, but we hope this summary of the law is helpful.

David Leggett

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook

Solicitor General Emeritus