S 0202 General Bill, By Ritchie and Richardson
 A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS
 5-3-320, 5-3-325, 5-3-330, 5-3-335, 5-3-340, 5-3-345, 5-3-350, AND 5-3-355, TO
 AUTHORIZE AN ALTERNATE METHOD OF MUNICIPAL ANNEXATION BASED ON CERTAIN
 POPULATION DENSITY AND DEVELOPMENT CRITERIA, AND TO PROVIDE PREREQUISITES AND
 PROCEDURES FOR THIS METHOD.

   12/13/06  Senate Prefiled
   12/13/06  Senate Referred to Committee on Judiciary
   01/09/07  Senate Introduced and read first time SJ-119
   01/09/07  Senate Referred to Committee on Judiciary SJ-119

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS 5-3-320, 5-3-325, 5-3-330, 5-3-335, 5-3-340, 5-3-345, 5-3-350, AND 5-3-355, TO AUTHORIZE AN ALTERNATE METHOD OF MUNICIPAL ANNEXATION BASED ON CERTAIN POPULATION DENSITY AND DEVELOPMENT CRITERIA, AND TO PROVIDE PREREQUISITES AND PROCEDURES FOR THIS METHOD.

Whereas, sound urban development is essential to the continued economic development of South Carolina; and

Whereas, municipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety and welfare in areas being intensively used for residential, commercial, industrial, institutional and government purposes or in areas undergoing the development; and

Whereas, municipal boundaries should be extended, in accordance with legislative standards applicable throughout the State, to include the areas and to provide the high quality of governmental services needed therein for the public health, safety and welfare; and

Whereas, municipalities may have a greater difficulty in expanding municipal utility systems and other service facilities to serve scattered areas of new urban development, unless legislative standards governing annexation take these facts into account; and

Whereas, areas annexed to municipalities in accordance with such uniform legislative standards should receive the services provided by the annexing municipality in accordance with established procedures. Now, therefore,

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Chapter 3 of Title 5 of the 1976 Code is amended by adding:

"Section 5-3-320.    A municipality exercising annexation authority under the alternate method established by this section through Section 5-3-327, shall make plans for the extension of services to the area proposed to be annexed and shall prepare a report setting forth the plans to provide services to the area. The report shall include:

(1)    a map or maps of the municipality and adjacent territory to show the:

(a)    present and proposed boundaries of the municipality;

(b)    present major trunk water mains and sewer interceptors and outfalls, and the proposed extensions of the mains and outfalls as required in item (3); and

(c)    general land use pattern in the area to be annexed.

(2)    a statement showing that the area to be annexed meets the requirements of Section 5-3-325;

(3)    a statement setting forth the plans and timetable of the municipality for extending to the area to be annexed each major municipal service performed within the municipality at the time of annexation. These plans specifically must:

(a)    provide for extending police protection, fire protection, solid waste collection, and street maintenance services to the area to be annexed on the date of annexation on substantially the same basis and in the same manner as these services are provided within the rest of the municipality before annexation. A contract with a rural fire department to provide fire protection is an acceptable method of providing fire protection. If a water distribution system is not available in the area to be annexed, the plans must call for reasonably effective fire protection services until a time as waterlines are made available in the area under existing municipal policies for the extension of waterlines. A contract with a private firm to provide solid waste collection services must be an acceptable method of providing solid waste collection services;

(b)    provide for extension of major trunk water mains and sewer outfall lines into the area to be annexed so that when these lines are constructed, property owners in the area to be annexed are able to secure public water and sewer service, according to the policies in effect in the municipality for extending water and sewer lines to individual lots or subdivisions. In areas where the municipality is required to extend sewer service according to its policies, but the installation of sewer is not economically feasible due to the unique topography of the area, the municipality shall provide septic system maintenance and repair service until a time as sewer service is provided to properties similarly situated;

(c)    set forth a proposed timetable for construction of these mains, outfalls, and lines as soon as possible following the effective date of annexation if extension of major trunk water mains, sewer outfall lines, sewer lines, and water lines is necessary. The plans must call for construction to be completed within two years of the effective date of annexation;

(d)    set forth the method under which the municipality plans to finance extension of services into the area to be annexed;

(4)    a statement of the impact of the annexation on any special purpose district providing service in the area to be annexed and a statement of the impact of the annexation on special purpose district rates in the area to be annexed. The special purpose district shall make available to the municipality not later than thirty days following a written request from the municipality all information in its possession or control including, but not limited to, operational, financial, and budgetary information, necessary for preparation of a statement of impact. The special purpose district forfeits its rights if it fails to make a good faith response within forty-five days following receipt of the written request for information from the municipality, provided that the municipality's written request states this by specific reference to this section;

(5)    a statement showing how the proposed annexation affects the municipality's finances and services.

Section 5-3-325.    (A)    A municipal council may extend the municipal corporate limits pursuant to Sections 5-3-320 through 5-3-325 to include any area:

(1)    which meets the general standards of subsection (B); and

(2)    each part of which meets the requirements of either subsection (C) or (D).

(B)    The area to be annexed must meet the following standards:

(1)    it must be contiguous to the municipality's boundaries at the time the annexation proceeding is begun; and

(2)    no part of the area may be included within the boundary of another incorporated municipality.

(C)    Part or all of the area to be annexed must be developed for urban purposes at the time of approval of the report provided for in Section 5-3-320. Areas of streets and street rights-of-way may not be used to determine total acreage pursuant to the provisions of this section. An area developed for urban purposes is defined as any area which meets any one of the following standards:

(1)    has a total resident population equal to at least two and three-tenths persons for each acre of land included within its boundaries;

(2)    has a total resident population equal to at least one person for each acre of land included within its boundaries, and is subdivided into lots and tracts such that at least sixty percent of the total acreage consists of lots and tracts three acres or less in size and such that at least sixty-five percent of the total number of lots and tracts are one acre or less in size;

(3)    is so developed that at least sixty percent of the total number of lots and tracts in the area at the time of annexation are used for residential, commercial, industrial, institutional, or governmental purposes, and is subdivided into lots and tracts such that at least sixty percent of the total acreage, not counting the acreage used at the time of annexation for commercial, industrial, governmental, or institutional purposes, consists of lots and tracts three acres or less in size. For purposes of this section, 'used for residential purposes' means any lot or tract five acres or less in size on which is constructed a habitable dwelling unit. For purposes of this section, a lot or tract may not be considered in use for a commercial, industrial, institutional, or governmental purpose if the lot or tract is used only temporarily, occasionally, or on an incidental or insubstantial basis in relation to the size and character of the lot or tract. For purposes of this section, acreage in use for commercial, industrial, institutional, or governmental purposes includes acreage actually occupied by buildings or other man-made structures together with all areas that are reasonably necessary and appurtenant to these facilities for purposes of parking, storage, ingress and egress, utilities, buffering, and other ancillary services and facilities; or

(4)    is so developed that, at the time of the approval of the annexation report, all tracts in the area to be annexed are used for commercial, industrial, governmental, or institutional purposes.

(D)    In addition to areas developed for urban purposes, a municipal council may include in the area to be annexed any area which does not meet the requirements of subsection (C) if the area either:

(1)    lies between the municipal boundary and an area developed for urban purposes so that the area developed for urban purposes is either not adjacent to the municipal boundary or cannot be served by the municipality without extending services and water or sewer lines, or both, through this sparsely developed area; or

(2)    is adjacent, on at least sixty percent of its external boundary, to any combination of the municipal boundary and the boundary of an area or areas developed for urban purposes as defined in subsection (C).

(E)    The purpose of subsection (D) is to permit municipal councils to extend corporate limits to include all nearby areas developed for urban purposes and where necessary to include areas which at the time of annexation are not yet developed for urban purposes but which constitute necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes. For purposes of this subsection, 'necessary land connection' means an area that does not exceed twenty-five percent of the total area to be annexed.

(F)    In fixing new municipal boundaries, a municipal council shall use recorded property lines and streets and other distinct geographical features as boundaries.

Section 5-3-330.    (A)    A municipal council desiring to annex territory pursuant to Sections 5-3-320 through 5-3-355 shall first pass a resolution stating the intent of the municipality to consider annexation. This resolution shall describe the boundaries of the area under consideration, fix a date for a public informational meeting, and fix a date for a public hearing on the question of annexation. The date for the public informational meeting may not be not less than forty-five days and not more than fifty-five days following passage of the resolution. The date for the public hearing may not be less than sixty days and not more than ninety days following passage of the resolution.

(B)(1)    The notice of public hearing must:

(a)    fix the date, hour, and place of the public informational meeting and the date, hour, and place of the public hearing;

(b)    describe clearly the boundaries of the area under consideration, and include a legible map of the area;

(c)    state that the report required in Section 5-3-320 is available at the office of the municipal clerk at least thirty days before the date of the public informational meeting;

(d)    include an explanation of a property owner's rights pursuant to items (1) and (2) of subsection (F).

(2)    The notice must be given by publication once a week for at least two successive weeks before the date of the informational meeting in a newspaper having general circulation in the municipality. The municipality shall post the notice in at least five public places within the municipality and at least five public places in the area to be annexed for thirty days before the date of public informational meeting. In addition, notice must be mailed at least four weeks before the date of the informational meeting by first class mail, postage prepaid to the owner of record as shown by the tax records of the county of real property located within the area to be annexed. The person or persons mailing the notices shall certify to the municipal council that fact, and the certificate becomes a part of the record of the annexation proceeding and is considered conclusive in the absence of fraud.

(C)    At least thirty days before the date of the public informational meeting, the municipal council shall approve the report provided for in Section 5-3-320, and shall make it available to the public at the office of the municipal clerk. In addition, the municipality may prepare a summary of the full report for public distribution. In addition, the municipality shall post in the office of the municipal clerk, at least thirty days before the public informational meeting, a legible map of the area to be annexed and a list of the owners of record as shown by the tax records of the county in the area to be annexed that it has identified.

(D)    At the public informational meeting a representative of the municipality first shall make an explanation of the report required in Section 5-3-320. Following the explanation, persons residing or owning property in the territory described in the notice of public hearing, and residents of the municipality, must be given the opportunity to ask questions and receive answers regarding the proposed annexation.

(E)    At the public hearing a representative of the municipality first shall make an explanation of the report required in Section 5-3-320. Following the explanation, persons residing or owning property in the territory described in the notice of public hearing, and residents of the municipality, must be given an opportunity to be heard.

(F)    The municipal council shall take into consideration facts presented at the public hearing and have the authority to amend the report required by Section 5-3-320 to make changes in the plans for serving the area proposed to be annexed if the changes meet the requirements of Section 5-3-320, provided that if the annexation report is amended to show additional items of Section 5-3-325(C) or (D) under which the annexation qualifies that were not listed in the original report, the municipality shall hold an additional public hearing on the annexation not less than thirty nor more than ninety days after the date the report is amended. At a regular or special meeting held no sooner than the tenth day following the public hearing and not later than ninety days following the public hearing, the municipal council shall have authority to adopt an ordinance extending the corporate limits of the municipality to include all, or such part, of the area described in the notice of public hearing which meets the requirements of Section 5-3-325 and which the municipal council has concluded should be annexed. The ordinance must contain:

(1)    specific findings showing that the area to be annexed meets the requirements of Section 5-3-325. In showing the application of Section 5-3-325(C) and (D) to the area, the municipal council may refer to boundaries set forth on a map of the area and incorporate same by reference as a part of the ordinance;

(2)    a statement of the intent of the municipality to provide services to the area being annexed as set forth in the report required by Section 5-3-320;

(3)    a specific finding that on the effective date of annexation the municipality will have funds appropriated in sufficient amount to finance construction of any major trunk water mains and sewer outfalls and the water and sewer lines as required in Section 5-3-320(3)(b) found necessary in the report required by Section 5-3-320 to extend the basic water or sewer system, or both, of the municipality into the area to be annexed, or that on the effective date of annexation the municipality will have authority to issue bonds in an amount sufficient to finance the construction. If authority to issue the bonds must be secured from the electorate of the municipality before the effective date of annexation, then the effective date of annexation must not be earlier than the day following the statement of the successful result of the bond election;

(4)    fix the effective date for annexation. The effective date of annexation may be fixed for any date not less than seventy days or more than four hundred days from the date of passage of the ordinance.

(G)    From and after the effective date of the annexation ordinance, the territory and its citizens and property are subject to all debts, laws, ordinances, and regulations in force in the municipality and are entitled to the same privileges and benefits as other parts of the municipality. Real and personal property in the newly annexed territory on the January first immediately preceding the beginning of the fiscal year in which the annexation becomes effective is subject to municipal taxes.

(H)    If a municipality is considering the annexation of two or more areas which are all adjacent to the municipal boundary but are not adjacent to one another, it may undertake simultaneous proceedings pursuant to the provisions of Sections 5-3-320 through 5-3-355 for the annexation of these areas.

(I)(1)    If, not earlier than one year from the effective date of annexation, and not later than fifteen months from the effective date of annexation, a person owning property in the annexed territory shall believe that the municipality has not substantially complied with its service plans adopted pursuant to the provisions of Section 5-3-320(3), for any required service other than water and sewer services, the person may apply for a writ of mandamus in the circuit court in which the municipality is located. Relief may be granted by the circuit court if:

(a)    the municipality has not provided the services set forth in its plan submitted pursuant to the provisions of Section 5-3-320(3)(a) on substantially the same basis and in substantially the same manner as these services were provided within the rest of the municipality before the effective date of annexation;

(b)    at the time the writ is sought these services set forth in the plan submitted pursuant to the provisions of Section 5-3-320(3)(a) are still being provided on substantially the same basis and in substantially the same manner as on the date of annexation of the municipality.

(2)    If, not earlier than twenty-four months from the effective date of the annexation, and not later than twenty-seven months from the effective date of the annexation, a person owning property in the annexed area can show that the plans submitted under the provisions of Section 5-3-320(3)(c) require the construction of major trunk water mains and sewer outfall lines and if construction has not been completed within two years of the effective date of the annexation, relief also may be granted by the circuit court by an order to the municipality to complete these lines and outfalls within a certain time. Similar relief may be granted by the circuit court to any owner of property who made a timely request for a water or sewer line, or both, pursuant to Section 5-3-320(3)(b) and these lines have not been completed within two years from the effective date of annexation in accordance with applicable municipal policies and through no fault of the owner, if the owner petitions for such relief not earlier than twenty-four months following the effective date of annexation and not later than twenty-seven months following the effective date of annexation. If a writ is issued, costs in the action, including a reasonable attorney's fee for such aggrieved person, must be charged to the municipality.

(J)(1)    If a valid request for extension of a water or sewer line has been made pursuant to the provisions of Section 5-3-320 (3)(b), and the extension is not complete at the end of two years after the effective date of the annexation ordinance, the owner of the property may petition the circuit court for abatement of taxes to be paid to the municipality which have been levied as of the expiration date of the two-year period, if the petition is filed not more than sixty days after the expiration of the two-year period. If the circuit court finds that the extension to the property was not complete by the end of the two-year period, it shall enter an order directing the municipality not to levy any further ad valorem taxes on the property until the fiscal year commencing after completion of the extension.

(2)    If a municipality fails to deliver police protection, fire protection, solid waste, or street maintenance services as provided for in Section 5-3-320(3)(a) within sixty days after the effective date of the annexation, the owner of the property may petition the circuit court for abatement of taxes to be paid to the municipality for taxes that have been levied as of the end of the sixty-day period, if the petition is filed not more than ninety days after the expiration of the sixty-day period. If the circuit court finds that services were not extended by the end of the sixty-day period, it shall enter an order directing the municipality not to levy any further ad valorem taxes on the property until the fiscal year commencing after extension of the municipal services.

Section 5-3-335.    If the area to be annexed described in a resolution of intent passed pursuant to the provisions of Section 5-3-330 includes an area of a special purpose district, as defined in Section 6-11-1610, or a special taxing district created pursuant to Chapter 9 of Title 4, or an assessment district created pursuant to Chapter 15 of Title 6, or any other special purpose district or special taxing or assessment district was on the date of adoption of the resolution of intent providing services in the area to be annexed, the procedures provided in Sections 5-3-310 through 5-3-315 must be followed.

Section 5-3-340.    (A)    Within sixty days following the passage of an annexation ordinance, pursuant to the provisions of Sections 5-3-320 through 5-3-355, a person owning property in the annexed territory who believes that he will suffer material injury by reason of the failure of the municipal council to comply with the procedure or requirements provided in Sections 5-3-320 through 5-3-355, as they apply to his property, may file a petition in the circuit court in which the municipality is located seeking review of the action of the municipal council.

(B)    The petition explicitly must state what exceptions are taken to the action of the municipal council and what relief the petitioner seeks. Within ten days after the petition is filed with the court, the person seeking review shall serve copies of the petition by registered mail, return receipt requested, upon the municipality.

(C)    Within fifteen days after receipt of the copy of the petition for review, or within such additional time as the court may allow, the municipality shall transmit to the reviewing court a:

(1)    transcript of the portions of the municipal minute book in which the procedure for annexation has been set forth; and

(2)    copy of the report setting forth the plans for extending services to the annexed area as required in Section 5-3-320.

(D)    If two or more petitions for review are submitted to the court, the court may consolidate all of these petitions for review at a single hearing, and the municipality is required to submit only one set of minutes and one report as required in subsection (C).

(E)    Before or during the review proceeding, any petitioner or petitioners may apply to the reviewing court for an order staying the operation of the annexation ordinance pending the outcome of the review. The court may grant or deny the stay in its discretion upon terms as it considers proper, and it may permit annexation of any part of the area described in the ordinance concerning which no question for review has been raised.

(F)    The court shall fix the date for review of annexation proceedings, which review date preferably must be within thirty days following the last day for receiving petitions to the end that review must be expeditious and without unnecessary delays. The review must be conducted by the court without a jury. The court may hear oral arguments and receive written briefs, and may take evidence intended to show either that the:

(1)    statutory procedure was not followed;

(2)    provisions of Section 5-3-320 were not met; or

(3)    provisions of Section 5-3-325 have not been met.

(G)    The court may affirm the action of the municipal council without change, or it may:

(1)    remand the ordinance to the municipal council for further proceedings if procedural irregularities are found to have materially prejudiced the substantive rights of any of the petitioners;

(2)    remand the ordinance to the municipal council for amendment of the boundaries to conform to the provisions of Section 5-3-325 if it finds that the provisions of Section 5-3-325 have not been met; provided, that the court cannot remand the ordinance to the municipal council with directions to add area to the municipality which was not included in the notice of public hearing and not provided for in plans for service;

(3)    remand the report to the municipal council for amendment of the plans for providing services to the end that the provisions of Section 5-3-320 are satisfied;

(4)    declare the ordinance null and void, if the court finds that the ordinance cannot be corrected by remand as provided in items (1), (2), or (3). If a municipality fails to take action in accordance with the court's instructions upon remand within ninety days following entry of the order embodying the court's instructions, the annexation proceeding is considered null and void.

(H)    A party to the review proceedings, including the municipality, may appeal from the final judgment of the circuit court under rules of procedure applicable in other civil cases. The circuit court or the appeals court, with the agreement of the municipality, may permit annexation to be effective with respect to any part of the area concerning which no appeal is being made and which can be incorporated into the municipality without regard to any part of the area concerning which an appeal is being made.

(I)    If part or all of the area annexed under the terms of an annexation ordinance is the subject of an appeal on the effective date of the ordinance, then the ordinance is deemed amended to make the effective date with respect to such area the last day of the next full calendar month following the date of the final judgment of the circuit court or appellate court, whichever is appropriate, or, if a remand, the date the municipal council completes action to make the ordinance conform to the court's instructions. For the purposes of this subsection, a denial of a petition for rehearing or for discretionary review must be treated as a final judgment.

(J)    If a petition for review is filed pursuant to the provisions of subsection (A) or an appeal is filed pursuant to the provisions of subsection (H) and a stay is granted, then the time periods of two years, twenty-four months or twenty-seven months provided in Section 5-3-320(3)(c), Section 5-3-330(I), or Section 5-3-330(J) are each extended by the lesser of the length of the stay or one year for that annexation.

(K)    In a proceeding related to an annexation ordinance appeal pursuant to the provisions of this section, a municipality may not state a claim for lost property tax revenue caused by the appeal. Nothing in this section may be construed to mean that as a result of an appeal a municipality may assert a claim for property tax revenue lost during the pendency of the appeal.

Section 5-3-345.    If the limits of a municipality are enlarged in accordance with the provisions of Sections 5-3-320 through 5-3-355, it is the duty of the mayor of the municipality to cause an accurate map of the annexed territory, together with a copy of the ordinance duly certified, to be recorded in the office of the register of deeds of the county or counties in which the territory is situated and in the office of the Secretary of State. The documents required to be filed with the Secretary of State, pursuant to the provisions of this section, must be filed not later than thirty days following the effective date of the annexation ordinance. All documents must have an identifying number affixed to them and must conform in size in accordance with rules prescribed by the Secretary of State. Failure to file within thirty days does not affect the validity of the annexation.

Section 5-3-350.    In determining population and degree of land subdivision for purposes of meeting the requirements of Section 5-3-325, the municipality shall use methods calculated to provide reasonably accurate results. The results must be certified by the Office of Research and Statistics of the Budget and Control Board. In determining on appeal whether the standards provided in Section 5-3-325 have been met, the reviewing court shall accept the estimates of the municipality unless the actual population, total area, or degree of land subdivision falls below the standards in Section 5-3-325.

(1)    As to population, if the estimate is based on the number of dwelling units in the area multiplied by the average family size in the area, as determined by the last preceding federal decennial census; or if it is based on a new enumeration carried out under reasonable rules and regulations by the annexing municipality; provided, that the court shall not accept such estimates if the petitioners demonstrate that such estimates are in error in the amount of ten percent or more.

(2)    As to total area, if the estimate is based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable map used for official purposes by a governmental agency, unless the petitioners on appeal demonstrate that the estimates are in error in the amount of five percent or more.

(3)    As to degree of land subdivision, if the estimates are based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable source, unless the petitioners, on appeal, show that the estimates are in error in the amount of five percent or more.

Section 5-3-355.    Annexations made pursuant to the provisions of Sections 5-3-320 through this section must be filed and reported in the same manner as provided by Section 5-3-90."

SECTION    2.    This act takes effect upon approval by the Governor.