If someone buys an oceanfront SC property whose existing structure violates current setback rules, tears it down, and subdivides the lot into two, do the new properties keep the old nonconforming status or have to meet current rules?

Plain-English summary

The Town of Surfside Beach asked a narrow but practically important zoning question. Suppose someone buys an oceanfront property where the existing structure does not meet the town's current setback ordinance (a "nonconformity"). The buyer tears down the old structure and subdivides the lot into two smaller lots. Do the two new lots have to comply with current setback rules when new structures are built, or can they keep using the old nonconforming setback?

The AG framed this as a question of South Carolina enabling law plus the town's own ordinance. Under S.C. Code § 6-29-730, the legislature gave local governments broad discretion to write rules about how nonconformities continue, restore, reconstruct, extend, substitute, or terminate. So the answer depends on what the local ordinance actually says.

The AG looked at Surfside Beach Chapter 17, Articles V and VIII. Section 17-503 allows nonconforming structures to be enlarged (but not in a way that increases the nonconformity) and altered to decrease nonconformity. Article VIII has restrictions for structures seaward of the shore protection line. None of these provisions expressly say that subdividing a property terminates nonconforming status.

So the AG concluded that a court is unlikely to read a subdivision-termination rule into the ordinance when the ordinance does not say so. The nonconforming status would survive the subdivision, at least until a Surfside Beach ordinance is amended to address it.

What this means for you

If you own oceanfront property in Surfside Beach with a nonconforming structure

If you are planning to tear down the existing structure, subdivide, and rebuild, this opinion is favorable. The act of subdividing alone does not terminate your nonconforming status under the current Surfside Beach Code. But two important caveats:

1. The structure rules still apply. Section 17-503(b) allows enlargement only "in a way which [does not] increase its nonconformity," and only allows alteration "to decrease its nonconformity." If you build a new structure on a subdivided lot, that new structure has to fit within the existing nonconformity envelope. You cannot use the nonconforming status to expand into a larger violation.
2. Demolition may matter. Gurganious v. City of Beaufort (cited in the opinion) acknowledges that ordinances "terminating the nonconforming use upon destruction of a specified portion of the premises, or upon failure to begin reconstruction within a specified time thereafter are proper." If the Surfside Beach Code has a destruction-and-reconstruction-time rule (the AG flagged that it might, in Article V and Article VIII), tearing down the old structure could trigger a termination clock even if the subdivision itself does not.

So before you tear down and subdivide, get a written zoning interpretation from the Town of Surfside Beach (or a SC land-use attorney) on both the destruction-and-reconstruction provisions and the seaward-of-shore-protection-line rules in Article VIII. The AG opinion tells you the subdivision act alone is not fatal; it does not tell you the rest of the path is clear.

If you are a Surfside Beach building official, planner, or council member

Two practical points. First, the AG's reasoning is that the local ordinance controls, and the local ordinance has to expressly address subdivision termination if you want subdivision to end nonconforming status. If that is the policy you want, amend the ordinance to say so explicitly. The AG opinion essentially invites that legislative move if the town considers a subdivide-then-rebuild loophole to be a real concern.

Second, if your destruction-and-time-bar provisions are written narrowly (e.g., loss of nonconforming status only on storm damage or only on involuntary destruction), a property owner can voluntarily demolish without triggering them. Consider whether you want voluntary demolition to also start the termination clock.

If you are a real estate attorney handling SC coastal properties

This opinion is now the most current AG guidance on subdivision-and-nonconformity interaction for coastal SC municipalities. The default rule from § 6-29-730 is that nonconformities continue unless the local ordinance says otherwise. Always check the local zoning code for:

• An express subdivision-termination clause (rare).
• A destruction-and-reconstruction time bar (more common).
• Special rules for shore-protection-line setbacks or beachfront-management-area properties.
• Any state-level Coastal Zone Management Act or Beachfront Management Act rules that overlay the local ordinance.

For Surfside Beach specifically, the AG flagged Articles V and VIII as the relevant chapters. Article VIII applies to structures seaward of the shore protection line and may have stricter rules than the general nonconformity provisions in Article V.

If you are a planning commissioner anywhere in South Carolina

The AG opinion confirms the broad delegation in S.C. Code § 6-29-730. Your commission, working with the governing body, can write almost any rule you want about how nonconformities work, continue, restore, reconstruct, extend, substitute, or terminate, as long as the rule is reasonable. The legislature explicitly delegated the policy choices to the local level.

If your community wants tighter rules (e.g., subdivision ends nonconformity, or voluntary demolition does), you need to write them into the ordinance.

Common questions

Q: Does subdividing a lot end the nonconforming status of structures on it under SC law?
A: Not by itself. The AG concluded that a court is unlikely to read a subdivision-termination rule into a local ordinance that does not contain one.

Q: Where is the SC enabling statute for nonconformities?
A: S.C. Code § 6-29-730, part of the Local Government Comprehensive Planning Enabling Act of 1994. It gives local governments broad discretion to write rules about continuing, restoring, reconstructing, extending, substituting, or terminating nonconformities.

Q: Can a property owner expand a nonconforming structure?
A: That depends on the local ordinance. In Surfside Beach, § 17-503(b) allows enlargement "but not in a way which increases its nonconformity." So a structure that violates the current setback can be enlarged in another direction, but cannot be expanded further into the setback area.

Q: Can a property owner rebuild a nonconforming structure after voluntarily tearing it down?
A: Probably yes, but check the local ordinance. Gurganious v. City of Beaufort says ordinances can validly terminate nonconforming use "upon destruction of a specified portion of the premises, or upon failure to begin reconstruction within a specified time thereafter." If Surfside Beach has such a clause and it covers voluntary demolition, the answer may change.

Q: Are nonconforming uses favored under SC law?
A: No. Gurganious says nonconforming uses "detract from the public purpose to be achieved by the [comprehensive zoning] plan. As such, they are not favored, and they should be made conforming as soon as reasonably possible." That said, property owners have a constitutionally protected right to continue an existing nonconforming use after a zoning change.

Q: What about the shore protection line?
A: Surfside Beach Chapter 17, Article VIII has additional rules for structures "located seaward of the shore protection line." Those rules may impose tighter restrictions than the general nonconformity provisions. The AG flagged this but did not resolve it; check the specific Article VIII text.

Q: Does subdividing affect the lot's compliance with current minimum-lot-size requirements?
A: That is a separate question the AG did not address. Subdividing may create lots that are themselves below current minimum-lot-size, which is a different kind of nonconformity (nonconforming lot, not nonconforming structure). The local subdivision ordinance and the zoning ordinance both need to be consulted.

Background and statutory framework

South Carolina's enabling statute for local zoning treatment of nonconformities is S.C. Code § 6-29-730, which the legislature wrote as a broad delegation:

The regulations may provide that land, buildings, and structures and the uses of them which are lawful at the time of the enactment or amendment of zoning regulations may be continued although not in conformity with the regulations or amendments, which is called a nonconformity. The governing authority of a municipality or county may provide in the zoning ordinance or resolution for the continuance, restoration, reconstruction, extension, or substitution of nonconformities. The governing authority also may provide for the termination of a nonconformity by specifying the period or periods in which the nonconformity is required to cease or be brought into conformance, or by providing a formula where the compulsory termination of nonconformities may be so fixed as to allow for the recovery or amortization of the investment in the nonconformity.

This statute gives local governments essentially complete flexibility to design nonconformity rules. What it does not do is impose any default rule about subdivision. The default at common law (reflected in Gurganious) is that the constitutional right to continue an existing use persists after a zoning change, and the legislature can constitutionally narrow it through local ordinance.

The Town of Surfside Beach has adopted nonconformity ordinances in Chapter 17, Articles V and VIII. Article V (§§ 17-502 and 17-503) covers general nonconformities, with § 17-503 specifically addressing nonconforming structures. Section 17-503(b) allows enlargement that does not increase nonconformity, and alteration that decreases nonconformity. Article VIII (§ 17-806) addresses structures seaward of the shore protection line, which is a separate, stricter regime.

None of these ordinances expressly say subdivision terminates nonconforming status. The AG's interpretive move was straightforward: the legislature gave the town broad authority to write any rule, and the town did not write a subdivision-termination rule. Reading one in by inference would be inconsistent with the principle that property owners have a constitutional right to continue existing nonconforming uses absent express termination.

The Gurganious case the AG cited (Court of Appeals, 1995) is the canonical SC statement on nonconforming-use principles:

Once a valid zoning ordinance is enacted based upon a comprehensive zoning plan, it is generally recognized that nonconforming uses detract from the public purpose to be achieved by the plan. As such, they are not favored, and they should be made conforming as soon as reasonably possible. While a property owner has a constitutionally protected right to continue the use following enactment of a zoning ordinance, provisions terminating the nonconforming use upon destruction of a specified portion of the premises, or upon failure to begin reconstruction within a specified time thereafter are proper, so long as the maximum amount of destruction permitted and the time allowed is reasonable.

The AG used Gurganious to support the conclusion that termination has to be express. The court explicitly described constitutionally protected continuation that the local ordinance can constrain in particular, defined ways. Subdivision is not among the defined ways unless the local ordinance puts it there.

Citations

• S.C. Code § 6-29-730 (nonconformities)
• South Carolina Local Government Comprehensive Planning Enabling Act of 1994 (Title 6, Ch. 29)
• Surfside Beach Code of Ordinances Ch. 14 (Flood Damage Prevention)
• Surfside Beach Code of Ordinances Ch. 17, Article V (general nonconformities)
• Surfside Beach Code of Ordinances § 17-502 (nonconforming uses)
• Surfside Beach Code of Ordinances § 17-503 (nonconforming structures)
• Surfside Beach Code of Ordinances Ch. 17, Article VIII (shore protections)
• Surfside Beach Code of Ordinances § 17-806 (structures seaward of shore protection line)
• Gurganious v. City of Beaufort, 317 S.C. 481, 454 S.E.2d 912 (Ct. App. 1995)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-a-nonconformity-necessarily-terminates-when-a-lot-is-subdivided/
• Original PDF: https://www.scag.gov/media/d4vhkrk5/krouser-os-11004-final-opinion-3-31-2025.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

March 31, 2025

The Honorable Robert Krouse
Mayor
Town of Surfside Beach
210 US Highway 17 South
Surfside Beach, SC 29575-6034

Dear Mr. Krouse:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter states the following:

Statement of Facts:

We, all members of the town council in Surfside Beach, would like an opinion as to what, if any, state codes or property zoning laws would apply to the following question.

If an ocean front property, which the structure is in non-conformance with the town's setback ordinance is bought, the structure is torn down then subdivided it into two separate properties, that both new structures would be need to be built in compliance with our town code? Or would the two new properties continue with the non-conformance?

We have enclosed the following documents to aid in a determination of an opinion:

Chapter 14 - Flood Damage Prevention, Surfside Beach Code of Ordinances
Chapter 17 - Zoning, Surfside Beach Code of Ordinances

Law/Analysis

The South Carolina Local Government Comprehensive Planning Enabling of 1994 is codified in the South Carolina Code of Laws at Chapter 29 of Title 6. Therein, section 6-29-730 addresses nonconformities.

The regulations may provide that land, buildings, and structures and the uses of them which are lawful at the time of the enactment or amendment of zoning regulations may be continued although not in conformity with the regulations or amendments, which is called a nonconformity. The governing authority of a municipality or county may provide in the zoning ordinance or resolution for the continuance, restoration, reconstruction, extension, or substitution of nonconformities. The governing authority also may provide for the termination of a nonconformity by specifying the period or periods in which the nonconformity is required to cease or be brought into conformance, or by providing a formula where the compulsory termination of nonconformities may be so fixed as to allow for the recovery or amortization of the investment in the nonconformity.

S.C. Code § 6-29-730. The Town of Surfside Beach adopted such ordinances in Chapter 17 of its Code of Ordinances. Reference should be made to relevant ordinances therein to determine whether the Code permits continuation of a particular nonconforming use or structure. Article V of the Code of Ordinances addresses nonconformities with sections 17-502 addressing nonconforming uses, and 17-503 addressing nonconforming structures. Section 17-503(b) allows for a nonconforming structure to be enlarged, but not in a way which increases its nonconformity. Further, a structure may also be "altered to decrease its nonconformity." Id. Article VIII, contains further restrictions related to shore protections with section 17-806 addressing nonconforming structures "located seaward of the shore protection line." These ordinances regarding alteration of property and the loss of nonconforming status do not expressly state subdividing a property terminates this status. Therefore, in light of the lack of demonstrated legislative intent, it is this Office's opinion that a court is unlikely to find subdividing a property terminates a property's nonconforming status by itself.

[Footnote: See also Gurganious v. City of Beaufort, 317 S.C. 481, 490, 454 S.E.2d 912, 917-18 (Ct. App. 1995) (citations omitted). Once a valid zoning ordinance is enacted based upon a comprehensive zoning plan, it is generally recognized that nonconforming uses detract from the public purpose to be achieved by the plan. As such, they are not favored, and they should be made conforming as soon as reasonably possible. While a property owner has a constitutionally protected right to continue the use following enactment of a zoning ordinance, provisions terminating the nonconforming use upon destruction of a specified portion of the premises, or upon failure to begin reconstruction within a specified time thereafter are proper, so long as the maximum amount of destruction permitted and the time allowed is reasonable.]

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General