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Title 5 - Municipal Corporations
Certificated municipalities and established township governments declared perpetual bodies politic and corporate.
All municipalities which have a certificate of incorporation issued by the Secretary of State and all township governments which have heretofore been established by act of the General Assembly are hereby declared to be perpetual bodies, politic and corporate and are entitled to exercise all the powers and privileges and are subject to all the limitations and liabilities provided for municipal corporations in this State.
The incorporation or corporate capacity of any municipality or township government established heretofore by act of the General Assembly shall not be attacked in any court in this State except as hereinafter provided by statute.
The term "municipality" where used in Chapters 1 to 17 means any city or town which has been issued a certificate of incorporation or township which has heretofore been created by act of the General Assembly.
Prerequisites to issuance of corporate certificate to proposed municipality.
(A) Before issuing a corporate certificate to a proposed municipality, the Secretary of State shall first determine:
(1) that the area seeking to be incorporated has a population density of at least three hundred persons a square mile according to the latest official United States Census;
(2) that no part of the area is within five miles of the boundary of an active incorporated municipality;
(3) that an approved service feasibility study for the proposed municipality has been filed with and approved by the Secretary of State; and
(4) that the area proposed to be incorporated is contiguous. Contiguity is not destroyed by an intervening marshland located in the tidal flow or an intervening publicly-owned waterway, whether or not the marshland located in the tidal flow or the publicly-owned waterway has been previously incorporated or annexed by another municipality. The incorporation of a marshland located in the tidal flow or a publicly-owned waterway does not preclude the marshland located in the tidal flow or the publicly-owned waterway from subsequently being used by any other municipality to establish contiguity for purposes of an incorporation if the distance from highland to highland of the area being incorporated is not greater than three-fourths of a mile.
(B) When an area seeking incorporation has petitioned pursuant to Chapter 17 the nearest incorporated municipality to be annexed to the municipality, and has been refused annexation by the municipality for six months, or when the population of the area seeking incorporation exceeds fifteen thousand persons, then the provision of the five-mile limitation of this section does not apply to the area.
(C) The five-mile limit does not apply when the boundaries of the area seeking incorporation are within five miles of the boundaries of two different incorporated municipalities in two separate counties other than the county within which the area seeking incorporation lies, and when the boundaries of the proposed municipality are more than five miles from the boundaries of the nearest incorporated municipality that lies within the same county within which the proposed municipality lies, and when the land area of the territory seeking incorporation exceeds one-fourth of the land area of the nearest incorporated municipality.
(D) The population requirements do not apply to areas bordering on and being within two miles of the Atlantic Ocean and to all sea islands bounded on at least one side by the Atlantic Ocean, both of which have a minimum of one hundred fifty dwelling units and at least an average of one dwelling unit for each three acres of land within the area and for which petitions for incorporation contain the signatures of at least fifteen percent of the qualified electors of the respective areas seeking incorporation.
(E) This section does not apply to those areas which have petitioned to the Secretary of State before June 25, 1975, or which may be under adjudication in the courts of this State. The five-mile limit does not apply to counties with a population according to the latest official United States Census of less than fifty-one thousand.
Petition by citizens of proposed municipality desiring to incorporate.
Except as otherwise provided by law, the citizens of any proposed municipality in this State, desiring to be incorporated, shall file with the Secretary of State their petition for that purpose, setting out the corporate limits proposed for the municipality and the number of inhabitants therein and signed by fifteen percent of the qualified electors who reside within the proposed municipality.
Election following receipt of petition by Secretary of State.
After receipt of such a petition, the Secretary of State shall then issue to three or more persons residing in the area of such proposed municipality, a commission empowering them to (a) hold an election not less than twenty days nor more than ninety days after the issuance of the commission, and (b) appoint three managers of election who shall conduct such election. Notice of the election shall be published in a newspaper of general circulation in the community [or] by posting in three public places within the area sought to be incorporated which shall contain detailed information concerning the election. The notice shall be published or posted not less than five nor more than fifteen days before the date of the election.
At such election, all registered electors living in the area sought to be incorporated shall be allowed to vote on the following questions: (a) incorporation; (b) name of the municipality; (c) the form of government; (d) method of election as prescribed in Section 5-15-20; (e) whether the election shall be partisan or nonpartisan; and (f) the terms of the mayor and council members. When any of the above questions proposed in an election contain more than two options, the option receiving the highest number of votes will prevail.
Provided, however, that when any community votes in favor of incorporation pursuant to this section and selects a form of government in such election, notwithstanding the results of the selections made by the voters as to questions (d), (e) and (f) above, the initial governing body of the incorporated municipality shall consist of four council members and a mayor, all elected at large in a nonpartisan election for terms of two years.
The managers of election shall conduct the election, unless otherwise provided for in this chapter, according to the general law governing the conduct of special elections mutatis mutandi .
Election managers' sworn returns of election results.
The managers of such election shall make their sworn returns of the result of the election to the commissioners. The returns shall show the total number of those voting in the election, together with the number of those voting on each question proposed.
Certification of results by commissioners; issuance of certificate of incorporation by Secretary of State.
The commissioners shall certify the result of such election under oath to the Secretary of State, and if the result is in favor of incorporation, the Secretary of State shall issue a certificate of incorporation of such municipality and the municipality shall have all the privileges, powers and immunities and shall be subject to the limitations provided by law.
Before any certificate of incorporation is delivered by the Secretary of State, he shall require the production of a receipt from the State Treasurer for the payment of the incorporation fees as follows: (a) for municipalities with a population of one thousand or less, one hundred dollars; (b) for municipalities with a population between one thousand and five thousand, three hundred dollars; (c) for municipalities with a population over five thousand, six hundred dollars.
Certificate of incorporation effective upon election of municipal officers.
The certificate of incorporation shall be issued to the commissioners who shall immediately provide for the election of municipal officers pursuant to Chapter 15 and in accordance with such certificate as to form of government. Until such municipal officers are elected and qualify the certificate of incorporation shall not become effective and the powers of the municipality shall be exercised only by the municipal council when such body is created by election.
Forfeiture, surrender or cancellation of certificate.
Whenever it shall appear that a municipality has decreased in population since its incorporation to less than fifty inhabitants, the certificate of such municipality shall be automatically forfeited and void. Whenever a majority of the registered electors of any municipality shall file with the municipal council of such municipality a petition requesting the municipal certificate be surrendered, the council shall order an election to determine the question, at which election all qualified electors of the municipality shall be permitted to vote, and if two-thirds of those voting shall vote in favor of surrendering the certificate, the council shall certify the result to the Secretary of State, who shall thereupon cancel the certificate theretofore issued to such municipality.
If the Secretary of State shall determine that any previously incorporated municipality is neither performing municipal services nor collecting taxes or other revenues and has not held an election during the past four years, he shall cancel the certificate of such municipality.
Time limit for bringing suit challenging incorporation procedures of municipal corporation.
Any suit to challenge the incorporation procedures of any municipal corporation under Chapters 1 to 17 shall be brought within sixty days after the issuance of the certificate of incorporation.