Even the most carefully drafted ordinance will eventually become outdated. A water rate schedule might no longer reflect the actual costs to the municipality, a zoning ordinance might become out of step with current development patterns, or the legislative priorities of a future city or town council might differ from those of its predecessors.
It might seem easy to amend an ordinance by simply tweaking a word here or there, but municipalities should remember that even the simplest ordinance amendment is a legislative act and is subject to the same legal requirements as the original enactment. Here are some things to keep in mind when amending an ordinance.
Scrivener’s errors
Generally, amending an ordinance means passing an additional ordinance. A limited exception to this rule is the correction of scrivener’s errors.
In pre-modern times, a scrivener was a professional scribe who prepared wills, deeds, contracts and other formal writings. The legal concept of a scrivener’s error recognizes the fact that sometimes, when legislative bodies are passing laws, the person writing things down will make a mistake.
For example, an adopted ordinance might inadvertently contain incorrect cross-references, misnumbered sections, or even outright typos. If these errors are truly simple transcription errors, the council may correct the ordinance administratively or through a brief clarifying resolution, depending on local procedure.
Because it’s hard to reliably distinguish between mere typographical errors and substantive changes, councils should use this tool only rarely. When a scrivener’s error is corrected, the council must document the correction clearly and ensure that the original legislative intent is indisputable from the record.
Strike-and-replace vs. amend-and-restate
Councils generally use one of two drafting methods to amend prior ordinances. The first approach is to precisely amend specific provisions of the prior ordinance.
For example, a strike-and-replace amendment might provide: “Section 3.7 of Ordinance No. 2024-29 is hereby amended by deleting the word ‘willful’ and replacing it with the word ‘intentional.’”
In contrast, an amend-and-restate amendment effectively supersedes the prior ordinance in its entirety or in part. It then provides the full text of the new, amended provision or ordinance.
Councils may use this approach to correct sections or articles within an existing ordinance, for example: “Article III of Ordinance No. 2024-29 is hereby amended and restated in its entirety to read as follows … “
They may also use this approach to correct an entire ordinance, for example: “Ordinance No. 2024-29 is hereby amended and restated in its entirety to read as follows … “
As councils draft ordinances, it’s not always apparent which drafting method will be the easiest and most straightforward to use. As a general guide, a strike-and-replace method is preferable when
- the changes are limited and easily described,
- council wants to preserve the historical context and legislative history of the original ordinance, or
- council wants to ensure that the specific changes are fully transparent.
An amend-and-restate approach may be preferable when
- the changes are extensive,
- the original ordinance is outdated or poorly organized, or
- council is consolidating multiple past amendments into one clean version.
Equal dignity rule
South Carolina courts have adopted the so-called equal dignity rule, which is referred to in other states as the legislative equivalency rule. By whatever name, the rule provides that amending a legislative act requires the same formality, or “dignity,” as the original act. In other words, if the act to be amended is an ordinance, then the amendment itself also requires an ordinance.
The equal dignity rule seems straightforward, but there are difficult applications. For example, South Carolina courts have ruled that imposing a development moratorium amends the zoning ordinance by temporarily suspending it. Therefore, council may impose a development moratorium only by ordinance. But must council also comply with the public notice and public hearing requirements applicable to amending the zoning ordinance?
Similarly, SC Code Section 6-1-80 requires a detailed notice and public hearing before adopting the annual budget. If council amends the budget during the fiscal year, is another full notice and public hearing required, or just an ordinary ordinance process? The courts have not resolved this question.
The Municipal Association thus advises that, for permanent laws or controversial matters, such as budget amendments, the safer course is to follow the full process required to originally enact the ordinance.
Choose the right method for the context
Amending an ordinance may seem like a routine task, but it’s governed by the same legal framework as passing one from scratch. Whether correcting a typo, updating a fee, or reworking an entire chapter, councils should follow proper procedures, select the right drafting method, and respect the formalities that give ordinances the force of law.