Could Allendale County stop following a solid-waste ordinance without formally repealing it?

Plain-English summary

A legislator forwarded a citizen's concern that Allendale County was not following its solid-waste ordinances even though it had not completed formal amendment or repeal. In a September 2002 informal opinion, an Assistant Attorney General said a valid county ordinance remained binding until properly changed. Repeal or amendment required a new ordinance adopted through the county's legislative procedure.

The AG did not decide whether the county had actually disregarded an ordinance. The letter said that factual question was outside the office's fact-finding authority and confined its answer to the legal rules that might apply.

Currency note

This opinion was issued in 2002. 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: Could a county repeal an ordinance by simply changing its practice? A: The AG said no. It treated repeal and amendment as legislative actions requiring a new ordinance.

Q: Did the AG find that Allendale County violated its waste rules? A: No. It declined to decide that factual issue.

Q: What adoption procedure did the opinion describe?
A: It quoted the then-existing requirement for three public readings on separate days, with an interval between the second and third readings, apart from emergency ordinances.

Background and statutory framework

The letter read §4-9-120 as governing county legislative action by ordinance. It cited Simpkins v. City of Gaffney and Lominick v. City of Aiken for the need to formally amend or repeal an ordinance. The analysis addressed ordinance validity and procedure rather than the factual operation of Allendale's landfill services.

Citations and references

• §4-9-120: county ordinance procedure discussed.
• Simpkins v. City of Gaffney and Lominick v. City of Aiken: formal amendment and repeal.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-30-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02sept-30-hosey.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
AITORNE Y GENERAL

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September 30, 2002

The Honorable Lonnie Hosey
Member, House of Representatives
P.O. Box 423
Barnwell, South Carolina 29812

Re:

Allendale County Landfill Ordinances

Dear Representative Hosey:

In a letter to this Office, you asked that we review a request for an opinion from a citizen of ' i·

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Allendale County. The request concerns the application of certain ordinances related to the collection and disposal of solid waste in Allendale County. The thrust of the citizen' s concern appears to be that the existing ordinances are not being complied with by the County despite the fact that formal procedures to amend or repeal the ordinances have not been completed. To the extent possible, I will attempt to address the aforementioned issue. First, it must be noted that the ultimate resolution of the issue raised involves a factual determination. As we have previously opined, "[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. See OPS. ATTY. GEN. DATED OCTOBER 9, 1985 & SEPTEMBER 3, 1999. Thus, this opinion amounts only to an analysis of the laws that may be applicable to the situation. S.C. Code Ann. §4-9-120 provides in pertinent part that "[county] ... council[s] shall take legislative action by ordinance which may be introduced by any member .... " Section 4-9-120 also provides that" ... [w ]ith the exception of emergency ordinances, all ordinances shall be read at three public meetings of council on three separate days with an interval of not less than seven days between the second and third readings ... " Any ordinance enacted by a county council has the same local force and effect as a state statute. See OP. ATTY . GEN. DATED APRIL 28, 1998. Once a county council passes a valid ordinance, they are bound to operate according to its provisions. See OP. ATTY. GEN. DATED NOVEMBER 28, 2000 (county council cannot violate its own ordinance in expanding number of members on parks and recreation commission); and OP. ATTY. GEN. DATED MARCH 8, 1988 (action of council in bypassing duly-adopted ordinance will be deemed void). See also Springville Citizens for a Better Community v. City of Springville, 979 P.2d 332 (Utah l 999)(City is not entitled to disregard its mandatory ordinances).

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REMBERT

c. DENN IS B UILDING

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POST OFFICE B ox 11549

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COLUM BI A, S.C. 29211-1549

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TELEPHONE: 803-734- 3970

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FACSIMILE: 803-253-6283

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The Honorable Lonnie Hosey
Page 2
September 30, 2002

Moreover, repealing or amending an existing ordinance would also be considered a "legislative action." In order for an ordinance to be properly amended or repealed, a new ordinance must be passed. Simpkins v. City of Gaffney, 315 S.C. 26, 431 S.E.2d 592 (Ct. App. 1993); Lominick v. City of Aiken, 244 S.C. 32, 135 S.E.2d 305 (1964). Accordingly, in repealing an ordinance, county councils must follow the procedures outlined in Section 4-9-120. That is, the ordinance must" ... be read at three public meetings of council on three separate days with an interval of not less than seven days between the second and third readings ... " Until and unless this procedure is followed, the repeal of an ordinance cannot be accomplished and the ordinance in question would remain in effect. This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

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David K. Avant ·
Assistant Attorney General
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