For a South Carolina city annexation, are the 75% petition thresholds measured across the whole proposed area?

Plain-English summary

A constituent questioned Spartanburg’s proposed annexation of his subdivision under Section 5-3-150. The Attorney General explained that this method required a petition signed by at least 75 percent of freeholders who owned at least 75 percent of the assessed value in the entire area proposed for annexation. The city’s proposal included other areas besides the constituent’s subdivision, so the office said the threshold should be assessed over all of them together.

The office did not decide whether Spartanburg had met the requirements. That would have required factual determinations outside the scope of an Attorney General opinion. It also cited Bryant v. City of Charleston for the point that “contiguous” meant touching: a shared common boundary was sufficient.

Currency note

This opinion was issued in 2009. 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: Do the 75% annexation signatures have to come from one subdivision alone? A: The Attorney General said the thresholds for this proposed annexation applied to the entire area to be annexed, not just the constituent’s subdivision.

Q: Does the 75% test count owners or property value? A: Both. Under the method the opinion discussed, at least 75 percent of the freeholders had to sign, and those signers had to own at least 75 percent of the assessed value of property in the proposed area.

Q: Did the opinion find Spartanburg’s proposed annexation valid? A: No. The office said it could not determine whether the area qualified because that required factual findings beyond an Attorney General opinion.

Q: What did “contiguous” mean in the opinion?
A: The opinion cited the South Carolina Supreme Court’s reading of the term as “touching”; land sharing a common boundary with the municipality was sufficiently contiguous.

Background and statutory framework

The senator forwarded concerns from a constituent about a proposed annexation using Section 5-3-150. The opinion reproduced that statute’s petition method, including the 75 percent freeholder and assessed-value requirements for contiguous property. It also quoted procedural conditions, such as a dated petition, public inspection, notice of a hearing, and a description and plat of the proposed area.

The Attorney General focused on the area used as the denominator for the petition thresholds. Because the proposed annexation covered the constituent’s subdivision and other land, the office said to examine the entire proposed area. It expressly declined to decide whether the actual land or petition qualified, since the office could not investigate factual questions.

Citations and references

Statute: Section 5-3-150 of the South Carolina Code (2004), the petition annexation method discussed in the opinion.

Case: Bryant v. City of Charleston, 295 S.C. 408, 411, 368 S.E.2d 899, 900 (1988), on the meaning of “contiguous.”

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-17-2009/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/bright-l-os-8841-9-17-09-city-of-spartanburg-annexation.pdf

Original opinion text

H ENRY M CMASTER
A TTORNEY G ENERAL

September 17, 2009

The Honorable Lee Bright
Member, South Carolina Senate
Post Office Box l 079
Roebuck, South Carolina 29376
Dear Senator Bright:
We understand you have a constituent who is expressing concerns regarding the annexation ofhis subdivision by the City of Spartanburg. After reviewing several emails from this constituent, we understand the City ofSpartanburg (the "City'') plans to annex this subdivision using section 5-3150 of the South Carolina Code and your constituent is concerned with the requirements under this provision. Law/Analysis

Section 5-3-150 of the South Carolina Code (2004) provides as follows: (1) 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 seventy-five percent or more of the freeholders, as defined in Section 5-3-240, owning at least seventy-five percent of the assessed valuation of the real property in the area requesting annexation. Upon the agreement ofthe 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; however, this property may not be annexed unless the following has been complied with: (I) the petition must be dated

R EMBERTC. DENNJS B UILDING

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PosrOPACE B ox 11549 •

COLUMBIA, SC 292 ll-! 549

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T ELEPHONE 803-734-3970

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FACSIMILE 803-253-6283

The Honorable Lee Bright
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September 17, 2009

before the first signature is affixed to it and all necessary signatures must be obtained within six months from the date of the petition; (2) the petition and all signatures to it are open for public inspection at any time on demand of any resident of the municipality or area affected by the proposed annexation or by anyone owning property in the area to be annexed; (3) the petition must state the act or code section pursuant to which the proposed annexation is to be accomplished; (4) the petition must contain a description of the area to be annexed and there must be attached to the petition a plat of the area to be annexed; (5) the municipality or any resident of it and any person residing in the area to be annexed or owning real property of it may institute and maintain a suit in the court of common pleas, and in that suit the person may challenge and have adjudicated any issue raised in connection with the proposed or completed annexation; (6) not less than thirty days before acting on an annexation petition, the annexing municipality must give notice of a public hearing by publication in a newspaper of general circulation in the community, by posting the notice of the public hearing on the municipal bulletin board, and by written notification 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. This public hearing must include a map of the proposed annexation area, a complete legal description of the proposed annexation area, a statement as to what public services are to be assumed or provided by the municipality, and the taxes and fees required for these services. The notice must include a projected timetable for the provision or assumption of these services. (2) The conditions relating to petitions set forth in this section apply only to the alternate method of annexation as defined in subsection (1) of this section. (3) 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

The Honorable Lee Bright
Page 3
September 17, 2009

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 bylaw. (4) For purposes of this section any real property owned by a governmental entity and leased to any other entity pursuant to a fee in lieu of taxes transaction under Section 4-29-67 or 4-29-69 is considered to have an assessed valuation equal to the original cost of the real property as determined under Section 4-29-67(D). For purposes of this section, the lessee of real property pursuant to a fee in lieu of taxes transaction under Section 4-29-67 or 4-29-69 is the freeholder with respect to the property. (5) For purposes of this section, any real property included within a multicounty park under Section 4-1-170 is considered to have the same assessed valuation that it would have if the multicounty park did not exist. Notwithstanding any other provision of law, any real property which is or has been included within a multicounty park under Section 4-1-170 and title to which is held by the State of South Carolina, only maybe annexed with prior written consent of the State of South Carolina, and when title to real property in the park is held by a political subdivision of the State, the property may be annexed only with prior written consent of the governing body of the political subdivision holding title. According to this provision, a municipality may annex contiguous property if at least 75% of the freeholders owning at least 75% of the assessed value of the property to be annexed sign a petition. Our Supreme Court has interpreted the word "contiguous" as used in this provision to mean "touching" and further stated that so long as the area to be annexed shares a common boundary with the annexing municipality, it is sufficiently contiguous. Bryant v. City of Charleston, 295 S.C. 408, 411, 368 S.E.2d 899, 900 (1988). We cannot opine as to whether or not the area referred to in your constituent's emails qualifies for annexation pursuant to section 5-3-150 as this would require us to make factual determinations, which are beyond the scope of an opinion of this Office. Op. S.C. Atty. Gen., August 4, 2009 ("[T]his Office does not have the authority to investigate and determine factual

The Honorable Lee Bright
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September 17, 2009

issues."). However, we understand that the area to be annexed not only includes your constituent's subdivision, but also other areas. Thus, in determining whether the requirements under section 5-3150 are satisfied, one should look to whether at least 75% of the freeholders holding at least 75% of the assessed value of property in the entire area to be annexed signed the petition. We hope this information proves useful to you and your constituent. Very truly yours, Henry McMaster Attorney General

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By:

REVIEWED AND APPROVED BY:

d:~D~Cook p, ~
Deputy Attorney General

Cydney M. Milling
Assistant Attorney General