South Carolina

Constitutional Provisions

Article VIII of the South Carolina Constitution, as amended in 1973, is the constitutional source of home rule in the state for all cities and counties. It broadly outlines the powers of the General Assembly (the state’s legislature) and municipalities in the operation of local governments. Although the constitution does not use the term “home rule,” courts understand Article VIII, taken together with the provisions of the Home Rule Act referenced below, as bestowing home rule authority upon municipalities. See, e.g., Williams v. Town of Hilton Head Island, 311 S.C. 417, 422 (S.C. 1993).

Courts also understand the delegation of home rule to be part and parcel with the delegation of police powers. Article VIII, sections 7 and 9—as implemented by S.C. Code Ann. § 5-7-30—are also cited as the basis for municipal police powers. See, e.g., City of North Charleston v. Harper, 306 S.C. 153, 156 (S.C. 1991).

S.C. Const. art. VIII, § 7: “The General Assembly shall provide by general law for the structure, organization, powers, duties, functions, and the responsibilities of counties, including the power to tax different areas at different rates of taxation related to the nature and level of governmental services provided.”

S.C. Const. art. VIII, § 9: “The structure and organization, powers, duties, functions, and responsibilities of the municipalities shall be established by general law.”

S.C. Const. art. VIII, § 10: “No laws for a specific municipality shall be enacted, and no municipality shall be exempted from the laws applicable to municipalities.”

S.C. Const. art. VIII, § 11: “The General Assembly shall provide by general law two or more optional procedures by which incorporated municipalities may select a charter commission” to adopt and amend a municipal charter. Any eligible municipality “shall have the power to frame and to amend a municipal charter setting forth its governmental structure and organization, powers, duties, functions, and responsibilities” but charters may not “contain any provision inconsistent with this Constitution or [certain] general law provisions.”

S.C. Const. art. VIII, § 15: The General Assembly cannot pass certain laws without the consent of local government. The laws, specified in the text of the constitution, pertain to the rights to construct and operate transportation and utility infrastructure on public streets or property.

S.C. Const. art. VIII, § 17: “[T]his Constitution and all laws concerning local government shall be liberally construed in their favor. Powers, duties, and responsibilities” of local governments “shall include those fairly implied and not prohibited by this Constitution.”

Statutory Provisions

The Home Rule Act of 1975 (codified in title 5 of the South Carolina Code of Laws) was passed to implement the amended Article VIII of the constitution and more clearly articulates the bounds of cities’ and counties’ home rule authority.

S.C. Code Ann. § 5-7-30: “Each municipality of the State, in addition to the powers conferred to its specific form of government, may enact regulations, resolutions, and ordinances, not inconsistent with the Constitution and general law of this State.” The section enumerates a number of specific regulatory activities included within municipal powers, such as those pertaining to public streets, law enforcement, and health, but also provides cities with the broad authority to regulate when “necessary and proper for the . . . general welfare.” This section is also considered the basis of municipal police powers.

S.C. Code Ann. § 5-5-10: This section prescribes three options for forms of municipal governments that cities may adopt, described in chapters 9, 11, and 13 of the South Carolina Code, respectively. Chapters 9, 11, and 13 indicate some powers and duties of cities that are specific to the particular form of municipal government chosen; otherwise, the powers and duties of city governments are detailed in chapter 7. See, e.g., id. § 5-9-10.S.C. Code Ann. § 5-7-10: “The provisions of [title 5, chapter 7] provide for the structure, organization, powers, duties, functions and responsibilities of municipalities under all forms of municipal government . . . The powers of a municipality shall be liberally construed in favor of the municipality and the specific mention of particular powers shall not be construed as limiting in any manner the general powers of such municipalities.”

The state constitution requires the General Assembly to “provide by general law two or more optional procedures by which incorporated municipalities may select a charter commission” to adopt and amend a charter that specifies their municipal organization and powers. S.C. Const. art. VIII, § 11. However, the General Assembly has not yet done so.¹ In the absence of such a law, cities in South Carolina currently operate under one of three forms of government prescribed by general law: (1) mayor-council form (see chapter 9); (2) council form (see chapter 11); and (3) council-manager form (see chapter 13). S.C. Code Ann. § 5-5-10. Under mayor-council form, the mayor has administrative powers and the council has legislative powers.² Under the council form, the council has all legislative and administrative powers, and the mayor votes as a council member but only has administrative duties as delegated by the council.³ Under the council-manager form, the council has all legislative powers, and employs a manager which acts as the head of the administrative branch.⁴

Further, the General Assembly provides certain requirements for local governments to pass ordinances, although it also allows local governments to adopt their own rules and procedures. S.C. Code Ann. § 5-7-270.

Local laws that are properly enacted pursuant to a municipality’s home rule authority can still be invalid if they are preempted by state law. Preemption in South Carolina occurs when a local ordinance is “inconsistent with the Constitution and general law of the state.” Williams v. Town of Hilton Head Island, 429 S.E.2d 802, 805 (S.C. 1993). In determining whether a local law is “inconsistent” with a general state law, courts look for evidence of legislative intent to preempt local law. See, e.g., S.C. State Ports Auth. v. Jasper County, 629 S.E.2d 624, 628 (S.C. 2006).

Express Preemption

Express preemption occurs when “the General Assembly declares in express terms its intention to preclude local action in a given area.” S.C. State Ports Auth., 629 S.E.2d at 628. For example, South Carolina has expressly preempted local regulation of highway traffic:

The provisions of this chapter shall be applicable and uniform throughout this State and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance, rule or regulation in conflict with the provisions of this chapter unless expressly authorized herein.

S.C. Code Ann. § 56-5-30.

Field Preemption

Field preemption occurs when “the state statutory scheme so thoroughly and pervasively covers the subject so as to occupy the field or when the subject mandates statewide uniformity.” S.C. State Ports Auth., 629 S.E.2d at 628. A finding of field preemption requires “a clear legislative intent that state law control all aspects” of a given subject. Id. at 629. For example, in Barnhill v. City of North Myrtle Beach, the Supreme Court of South Carolina held that section 50-21-30 of the South Carolina Code of Laws “has preempted the entire field of regulating watercraft on navigable waters.” 511 S.E.2d 361, 363 (S.C. 1999).

Conflict Preemption

Conflict preemption occurs when a local “ordinance hinders the accomplishment of the statute’s purpose or when the ordinance conflicts with the statute such that compliance with both is impossible.” S.C. State Ports Auth., 629 S.E.2d at 630. For a local law to be conflict preempted, both laws must contain “conditions that are inconsistent and irreconcilable with each other,” although these conditions can be express or implied. Wrenn Bail Bond Serv. v. City of Hanahan, 515 S.E.2d 521, 522 (S.C. 1999). However, “[i]f either [law] is silent where the other speaks, there is no conflict.” Id. In Wilson ex rel. State v. City of Columbia, for example, the Supreme Court of South Carolina held that a local ordinance imposing a mask mandate in public schools was in conflict with and, thus, preempted by a state law that banned mask mandates. 863 S.E.2d 456 (S.C. 2021).

South Carolina has few but significant state laws that threaten to preempt local climate action. Primarily, these are the laws requiring municipalities to adhere to statewide building and energy codes:

Building Codes. S.C. Code Ann. § 6-9-10: Requires municipalities to enforce statewide building codes. The provision states that “the municipality or county shall enforce only the national building and safety codes provided in this chapter.”

Building Codes. S.C. Code Ann. § 6-10-50: Requires municipalities to enforce statewide energy codes.

South Carolina’s General Assembly has also considered and rejected two different bills which would preempt local regulation of disposable bags and containers: S. 394, 2019-20 Gen. Assemb., 123d Sess. (S.C. 2019)and H. 3529, 2017-18 Gen. Assemb., 122 Sess. (S.C. 2018). 

The language of the state constitution suggests that municipalities enjoy broad home rule authority: “The provisions of this Constitution and all laws concerning local government shall be liberally construed in their favor.” S.C. Const. art. VIII, § 17. South Carolina courts reiterate this principle in the case law: “A municipal ordinance is . . . presumed to be constitutional.” Aakjer v. City of Myrtle Beach, 694 S.E.2d 213, 215 (S.C. 2010). However, local laws that are “inconsistent” with state law can be preempted. For example, courts have found that local laws with more stringent requirements than state law are preempted under both conflict and field preemption analysis, even when it would be possible to comply with both laws. See, e.g., City of N. Charleston v. Harper, 410 S.E.2d 569 (S.C. 1991) (discussed below); Aakjer, 694 S.E.2d at 215 (noting a concern that “local authorities might enact ordinances imposing additional . . . requirements” if not field preempted).

The cases below provide further detail on how South Carolina courts interpret the scope of municipal home rule authority under the constitution and state statutes, and the ability of state law to preempt “inconsistent” local laws.

• Williams v. Town of Hilton Head Island, 429 S.E.2d 802 (S.C. 1993): This case arose when the Town of Hilton Head Island passed an ordinance that imposed a tax on transfers of real property. The ordinance was challenged on the ground that the Town had not been delegated the statutory authority to enact it and, therefore, the law was invalid under Dillon’s Rule. The Town argued that it had home rule authority to enact the ordinance. To resolve the case, one of the issues was whether article VIII of the state constitution, which authorizes home rule, supplanted Dillon’s Rule in the state. The South Carolina Supreme Court held that it had and upheld the ordinance. It reasoned that “the legislature intended to abolish the application of Dillon’s Rule in South Carolina and restore autonomy to local governments” because “taken together, Article VII and Section 5-7-30, bestow upon municipalities the authority to enact regulations for government services deemed necessary and proper for the security, general welfare and convenience of the municipality or for preserving health, peace, order and good government.” Id. at 805.

• Wrenn Bail Bond Serv. v. City of Hanahan, 515 S.E.2d 521 (S.C. 1999): This case provides analysis of both field and conflict preemption under state law. One of the issues in the case was whether a local business license ordinance, which requires bail bondsmen to pay a licensing fee, was preempted by state law. The South Carolina Code has a chapter that regulates professional licensing of bail bondsmen and section 38-53-80 states that “[no] license may be issued to a professional bondsman or runner except as provided in this chapter.” Id. at 522. Regarding field preemption, the South Carolina Supreme Court held that, although section 38-53-80 expressly preempts the field of professional licensing for bail bondsmen, the city’s ordinance did not touch professional licensing because it “sets forth no qualifications for bail bondsmen. It simply requires payment of a fee for the privilege of doing business within City limits.” Id. Regarding conflict preemption, the court held that “[i]f either [the state or local law] is silent where the other speaks, there is no conflict” and the “City’s ordinance is silent regarding professional qualifications for bail bondsmen.” Id. Therefore, the court held that the ordinance was valid.

• S.C. State Ports Auth. v. Jasper County, 629 S.E.2d 624 (S.C. 2006): This case provides guidance on the scope of home rule authority and clear descriptions of the three types of preemption: express, field, and conflict. The issue arose over county laws establishing and delegating certain powers to a local port authority. The South Carolina Ports Authority had begun efforts to acquire a site in the county by condemnation for use as a port. Jasper County’s local laws provided a means for the county to acquire the same land, which the state agency challenged on preemption grounds. Id. at 626–27. The South Carolina Supreme Court first held that the county had the home rule authority to enact its ordinance under the article VIII constitutional home rule amendment and section 4-9-25 of the South Carolina Code (the county-level counterpart to cities’ statutory home rule authority in section 5-7-30). Id. at 631. After analyzing the ordinance under express, implied field, and implied conflict preemption, the court held that the ordinance was not “inconsistent with the Constitution and general law” of the state and was thus not preempted. However, it held that, although the ordinance was not preempted by state law, the state’s eminent domain rights are superior to the county’s rights “because condemnation by a state agency is on behalf of the state [so] a state agency’s power of eminent domain is superior to that of a political subdivision.” Id.

• Wilson ex rel. State v. City of Columbia, 863 S.E.2d 456 (S.C. 2021): The South Carolina Supreme Court invalidated multiple local ordinances that mandated wearing masks in school on the grounds that they were preempted by a state appropriations law containing a proviso regarding mask mandates in K-12 public schools. The ordinances conflicted with the proviso’s express language that stated, “No school district, or any of its schools, may use any funds appropriated or authorized pursuant to this act to require that its students and/or employees wear a facemask at any of its education facilities.” Id. at 458. The express conflict between local and state law is clear in this case because the local ordinances allowed what the proviso prohibited. Moreover, the court goes further in its discussion of conflict preemption. It notes that, “even in the absence of an express conflict, the ordinances cannot stand, for the ordinances frustrate the purpose of the proviso and are therefore preempted.” Id. at 462.

• City of N. Charleston v. Harper, 410 S.E.2d 569 (S.C. 1991): The ordinance at issue mandated a particular sentence for a criminal violation whereas a state law granted municipal judges discretion in determining the sentence for the same criminal conduct. The city argued that its ordinance was not preempted because it “merely imposed the maximum punishment allowed under state law, and thus does not usurp state law.” Id. at 570. The South Carolina Supreme Court held that the city’s imposition of a stricter punishment than the state law was preempted because it “deprives municipal judges of discretionary authority. Power granted pursuant to state law can be restricted only by state law.” Id. at 571. Although the court’s conflict preemption standard requires that the state and local law be “inconsistent or irreconcilable,” this case suggests that, in practice, courts may focus more on the “inconsistency” rather than the “irreconcilability.” Id. (emphasis added).⁵

Recent and Ongoing Litigation

There were at least two cases related to city home rule authority and preemption in South Carolina in 2024:

Schultie vs. City of Folly Beach, No. 2024-CP-10-216 (S.C. Cir. Ct. Jan 16, 2024): The plaintiff filed an amended complaint in April 2024 alleging, among other things, that an ordinance from the City of Folly Beach, which regulates boats anchoring in the Folly River and creeks, is preempted by section 50-21-30 of the South Carolina Code. The plaintiff argued that section 50-21-30 has been held to field preempt local regulation of watercraft on navigable waters under Barnhill. The case was dismissed in March 2025 without reaching the merits of the preemption issue.

Fred Holland Realty v. City of Folly Beach, 2024 WL 36068 (S.C. Ct. App. 2024): This case arose when the plaintiff challenged a City of Folly Beach emergency ordinance temporarily banning check-ins at vacation rentals in response to the COVID-19 pandemic, arguing that the law was preempted by the Governor’s Executive Order No. 2020-19, which restricted short-term rental check-ins. Fred Holland Realty, 2024 WL 36068, at *1, *3. The South Carolina Court of Appeals held that, while emergency state executive orders can preempt local law, Executive Order No. 2020-19 neither expressly nor impliedly preempted the City of Folly Beach’s ordinance. First, “[n]othing in the Ordinance is expressly or impliedly ‘inconsistent or irreconcilable’ with the Executive Order.” Id. at *4. Second, the Order has a “specific and targeted approach to preemption” which does not support a finding of field preemption. Id. at *5.

All municipalities in the state are obligated to adhere to and enforce the statewide building codes. S.C. Code Ann. § 6-9-10. State law requires the state’s Building Codes Council to adopt model codes with statewide application. S.C. Code Ann. §§ 6-9-5, 6-9-50. The Council has currently adopted the 2021 edition of the International Building Code (IBC). State law allows municipalities to opt into several International Code Council model codes not adopted statewide—codes addressing property maintenance, performance, existing buildings, and swimming pools, as well as non-mandatory appendices to the other model codes. S.C. Code Ann. § 6-9-60. Under a separate legislative provision, the 2009 version of the International Energy Conservation Code (IECC) is adopted state-wide and known as the “Energy Standard.” S.C. Code Ann. § 6-10-30.

South Carolina law allows for local amendments to the state codes provided that any such amendment is justified by “local physical or climatological conditions.” S.C. Code Ann. § 6-9-105. The law provides that the Council can approve such an amendment—and must do so before a municipality can enforce the amendment—if it finds that the amendment “provides a reasonable standard of public health, safety, and welfare.” Id.

The Council’s regulations provide further clarity on what kinds of conditions will be deemed to satisfy those statutory requirements:

(E)(1)(a) To qualify by physical basis, a jurisdiction must demonstrate that it possesses unique physical qualities, such as unusual characteristics or composition of soils, unusual geological conditions (including earthquakes), unusual geographical conditions, unusually varying or extreme ranges in the topography of the land or any other natural condition.

(E)(1)(b) To qualify by climatological basis, a jurisdiction must demonstrate that it experiences weather conditions which are unusual to, confined to, occurring on a regular or seasonal cycle or determined through research or past experiences to have a high probability of reoccurrence within its area. Climatological conditions may include the known occurrence of hurricanes, tornadoes, damaging wind, snow, flooding caused by rainfall, lightning or any other form of natural climate related phenomenon.

S.C. Admin. Regs. § 8-245. The Council’s regulations also provide for local amendments to the Energy Standard to accommodate local conditions under a similar, but somewhat less stringent standard for approval. Amendments to the Energy Standard—currently, the 2009 edition of the IECC—must be accompanied by “[s]ufficient test information, studies, data or other documentation to fully explain and justify the requested variance.” Id. § 8-250(C).

What is the relevant utility regulatory body in the state? Who and what does it regulate? The state Public Service Commission has broad regulatory authority “to supervise and regulate the rates and service of every public utility” in South Carolina. S.C. Code Ann. § 58-3-140. However, except under limited circumstances, municipal utilities are carved out of the Public Service Commission’s jurisdiction and the Commission cannot regulate or set rates for municipal utilities. S.C. Code Ann. § 58-5-30.

What authority, if any, do municipalities have over utilities? The South Carolina Constitution grants municipalities the power to “acquire by initial construction or purchase [and] operate gas, water, sewer, electric, transportation or other public utility systems and plants.” S.C. Const. art. VIII, § 16; S.C. Code Ann. § 5-31-610. Municipalities can elect a board of commissioners of public works which “have full control and management” over electric utilities, including the power to set rates. S.C. Code Ann. §§ 5-31-210, 5-31-250. Beyond municipally-owned utilities, the authority to regulate investor-owned utilities is vested in the state Public Service Commission.

Can cities enter into franchise agreements with utilities? Cities may enter franchise agreements with utilities. S.C. Code Ann. § 5-7-260. Further, the South Carolina Supreme Court has held that cities may “unilaterally impose a franchise fee on a utility provider even though no such fee has ever been imposed during the existence of a long-term franchise agreement” under section 5-7-30, which confers upon municipalities the authority to enact certain ordinances and regulations. S.C. Elec. & Gas Co. v. Town of Awendaw, 596 S.E.2d 482, 486 (S.C. 2004).

How can cities intervene in Public Service Commission proceedings? The Public Service Commission allows interested parties to petition to intervene in proceedings. The agency’s regulations do not impose any limitations on the types of parties who may intervene, so cities can petition to intervene following the agency’s procedures. S.C. Admin. Regs. § 103-825. Cities can also participate in proceedings by submitting written comments or providing testimony at hearings.⁶

Does the state have an obligation to serve statute? Yes, South Carolina law states, “[e]very electrical utility shall furnish adequate, efficient and reasonable service.” S.C. Code Ann. § 58-27-1510.

Has the state passed enabling legislation for community choice aggregation (CCA)? No, South Carolina has not passed legislation enabling community choice aggregation.⁷

Municipal Ass’n of South Carolina, Forms and Powers of Municipal Government: An Elected Official’s Guide from the Municipal Association of South Carolina (2017), https://perma.cc/V7LW-RAQN (explaining the distribution of power in different local government forms and summarizing local authority across a number of subjects).

South Carolina Ass’n of Counties, Home Rule Handbook for County Government (2013), https://perma.cc/KSC9-S4SD (republishing the provisions of the Home Rule Act in a manner that is easy for local governments to follow).

South Carolina Government: An Introduction (Charlie B. Tyer ed., 2002) (providing an overview of the structure and powers of South Carolina’s state and local governments).

In 2023, South Carolina’s General Assembly passed the ESG Pension Protection Act. This law prevents the South Carolina Retirement System Investment Commission from considering environmental, social, and corporate governance (ESG) factors when making investment decisions.