County And Municipal Permit Fees
One of the many challenges facing the mining industry in South Carolina and nationwide is the regulation of excavations by local government via zoning ordinances. In some cases, local regulations duplicate or conflict with existing state and federal mining/environmental laws and may include unreasonable permit conditions and fees.
Pursuant to South Carolina Code § 4-9-30 (9), local governments are empowered “to provide for land use and promulgate regulations pursuant thereto …” Thus, counties and municipalities are authorized to regulate land use which presumably includes excavations. Moreover, local regulation of excavations may not run afoul of the state preemption doctrine unless the regulation is in direct conflict with state law. Section 48-20-250 of the South Carolina Mining Act makes clear that “[n]o provision of this chapter supersedes, affects, or prevents the enforcement of a zoning regulation or ordinance … [unless] the regulation or ordinance is in direct conflict with this chapter.”
Assuming local permit fees are not preempted by state law and are otherwise legal, such fees must, nevertheless, be reasonable. Accordingly, a regulatory fee set by local government may not exceed, in any appreciable degree, the sum that will be required to reimburse the municipality or county for the labor and expense in supervision, in acquiring the necessary information for issuing licenses intelligently, and in inspecting the permitee’s facility for compliance.
Likewise, the excavation permit fee may not be assessed in the form of a tax. The Home Rule Amendments to the South Carolina Constitution mandate the General Assembly provide by general law the powers of counties and municipalities. The Amendments confer no plenary powers upon local governments and any power to impose a licensing tax must, therefore, be authorized by the legislature. Local governments lack such statutory authority to tax excavations through permit fees.
Companies faced with local ordinances purporting to impose unlawful permit conditions on excavations, including unreasonable fees, should seek advice of counsel.
MARSHALL LAWSON IS AN ATTORNEY WITH TOMPKINS AND MCMASTER, LLP IN COLUMBIA, SOUTH CAROLINA (MASC Member). FIRM CLIENTS INCLUDE RINKER MATERIALS OF FLORIDA, INC. AND NORFOLK SOUTHERN RAILWAY COMPANY.