MS 2023-06-R-Barrett-June-23-2023-Facilities-as-Used-in-Mississippi-Code-Annotated-Section- June 23, 2023

Can a Mississippi community college lease its land to a solar or wind energy company for a renewable energy project?

Short answer: Yes. The word 'facilities' in Section 37-29-135 includes renewable energy facilities under the statute's plain-meaning test. A Mississippi community college's board of trustees may lease land or buildings to allow a renewable energy facility, but only if the board makes the factual finding that the facility is 'necessary and beneficial' to the college, students, faculty, or community.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Subject

"Facilities" as Used in Section 37-29-135

Recipient

Richard R. Barrett, Esq., Attorney, Holmes Community College Board of Trustees

Plain-English summary

Holmes Community College's board attorney asked the AG whether the term "facilities" in Section 37-29-135 (the statute that lets a community college's board of trustees lease land or buildings to outside parties for the construction of additional buildings or facilities) is broad enough to cover renewable energy facilities. The opinion's answer is yes, "facilities" includes renewable energy facilities, with one important guardrail: the board must still make the factual determination that the renewable energy facility is "necessary and beneficial for additional facilities, services or educational opportunities to the college, students, faculty or the community."

The AG used the plain-meaning canon. Section 1-3-65 says statutory words and phrases are used "according to their common and ordinary acceptation and meaning" unless they are technical terms. The Mississippi Supreme Court reinforced that rule in Lambert v. Ogden (1982). "Facilities" is not statutorily defined, so the AG looked at Merriam-Webster's definition: "something that makes an action, operation, or course of conduct easier" or "something that is built, installed, or established to serve a particular purpose." A solar farm, wind farm, or other renewable energy installation fits both. The opinion adds that if the board finds the project does not serve the college, students, faculty, or community in the statutory sense, the lease is unauthorized regardless of how the term "facilities" is read.

What this means for you

Community college boards of trustees

You can enter into renewable energy ground leases under Section 37-29-135, but treat the "necessary and beneficial" finding as a substantive vote, not a rubber stamp. Document on your minutes the specific benefits to the college (lease revenue, educational tie-ins, workforce training opportunities, sustainability goals, regional economic impact) and the linkage to "students, faculty or the community." A solar farm that just sits on college land with no educational connection is harder to defend than one paired with a curriculum or workforce program.

Renewable energy developers

If you are pitching a community college on a long-term ground lease, package the proposal to address the statutory criteria explicitly. Lease revenue alone may satisfy the test, but a curriculum partnership, internship pipeline, or regional grid-resilience benefit broadens the record the board can rely on.

Higher education attorneys

The opinion authorizes the lease structure under Section 37-29-135, but it does not bless every term you might want. Watch for issues that need separate authority: tax abatement (often requires legislative action), revenue sharing, security interests, and treatment of the lease at the end of the project's useful life.

Students and community members

If your community college signs a renewable energy lease, the educational and community benefits are part of the legal authority for the deal. Watch for them to be implemented (workforce program, scholarship fund, internship opportunities) and ask the board if they are not.

State legislators

The statutory test is open enough to authorize productive partnerships but constrained enough to require a benefit finding. If you want to expand or further constrain that authority for renewable energy specifically, this is the point of intervention.

Common questions

Does this opinion authorize a community college to build its own solar farm?
No. Section 37-29-135 is a leasing statute. The structure the AG addressed is the college leasing land or buildings to a third party, who then builds and operates the facility. Different authority would be needed for the college to develop and operate a renewable energy project on its own.

What is the test for "necessary and beneficial"?
The statute leaves that to the board. The AG would not give a checklist. Generally, the board should document either a direct college benefit (revenue, educational integration) or a community/regional benefit that fits within "the community" language of the statute.

Can the board use this authority to lease for non-energy projects?
Yes. Section 37-29-135 covers leases for any "buildings or facilities" the board finds necessary and beneficial. Energy is just one application.

How long can the lease run?
Section 37-29-135 itself does not specify. Long-term leases of public assets sometimes implicate other constitutional or statutory limits, so consult college counsel before signing a 30-year solar lease.

Are renewable energy facilities subject to community college property tax exemption rules?
That's outside this opinion's scope. Mississippi's tax treatment of renewable energy installations on public land is its own complicated topic; coordinate with the Mississippi Department of Revenue and county tax assessor.

Could an oil and gas facility also qualify?
The opinion's reasoning was about "facilities" as a general term, not about renewable energy specifically. Other types of facilities should similarly fall within the term, subject to the necessary-and-beneficial finding.

Background and statutory framework

Section 37-29-135 authorizes a community college's board of trustees to lease land or buildings owned by the college "to any governmental agency, political subdivision, corporation, partnership, joint venture, or individual" for the purpose of allowing the lessee to construct, repair, renovate, and rehabilitate buildings or facilities, and then lease them back to the college. The statute's central limitation is that the board must determine the facility is "necessary and beneficial for additional facilities, services or educational opportunities to the college, students, faculty or the community."

Mississippi's plain-meaning canon, codified at Section 1-3-65, requires that statutory terms be given their ordinary meaning unless they are technical. Lawson v. Honeywell Int'l, Inc., 75 So. 3d 1024, 1028 (Miss. 2011), and Lambert v. Ogden, 423 So. 2d 1319, 1321 (Miss. 1982), are the standard Mississippi Supreme Court statements of the rule. Because "facilities" is not statutorily defined for Section 37-29-135 purposes, the AG turned to Merriam-Webster.

The opinion is short but useful for community colleges considering entering the renewable energy economy. It also serves as a reminder that the board's "necessary and beneficial" finding is the legally operative step. Without that finding, the lease lacks statutory grounding regardless of how broadly "facilities" reads.

Citations

Miss. Code Ann. § 1-3-65 (statutory words used according to common and ordinary meaning)
Miss. Code Ann. § 37-29-135 (community college board authority to lease land or buildings)
Lawson v. Honeywell Int'l, Inc., 75 So. 3d 1024, 1028 (Miss. 2011) (plain-meaning canon)
Lambert v. Ogden, 423 So. 2d 1319, 1321 (Miss. 1982) (popular words used in popular sense)

Source

Original opinion text

June 23, 2023
Richard R. Barrett, Esq.
Attorney, Holmes Community College Board of Trustees
2086 Old Taylor Road, Suite 1011
Oxford, Mississippi 38655
Re:

"Facilities" as Used in Mississippi Code Annotated Section 37-29-135

Dear Mr. Barrett:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
Is the term "facilities" as used within Mississippi Code Annotated Section 37-29-135 restricted so
as not to include a renewable energy facility?
Brief Response
"Facilities" as used within Section 37-29-135 includes renewable energy facilities.
Applicable Law and Discussion
Section 37-29-135 provides:
The board of trustees is authorized to lease land and/or buildings owned by the
college to any governmental agency, political subdivision, corporation,
partnership, joint venture, or individual for the purpose of enabling such persons to
construct thereon or repair, renovate and rehabilitate any buildings or facilities the
board may determine as necessary and beneficial for additional facilities, services
or educational opportunities to the college, students, faculty or the community, and
to lease such building and facilities to the college.
You ask whether the term "facilities" as used within Section 37-29-135 includes renewable energy
facilities. "Mississippi law mandates that '[a]ll words and phrases contained in the statutes are
used according to their common and ordinary acceptation and meaning . . . .'" Lawson v.
Honeywell Int'l, Inc., 75 So. 3d 1024, 1028 (Miss. 2011) (quoting Miss. Code Ann. § 1-3-65).
"Where a popular word is used in a statute with no statutory definition, we follow the well-established rule that popular words in a statute must be accepted in their popular sense . . . ."
Lambert v. Ogden, 423 So. 2d 1319, 1321 (Miss. 1982). Although "facilities" is not statutorily
defined, Merriam-Webster defines "facilities" as "something that makes an action, operation, or
course of conduct easier" or "something . . . that is built, installed, or established to serve a
particular purpose." MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/facility (last visited June 22, 2023).
It is thus the opinion of this office that, according to its common and ordinary meaning, the term
"facilities" would include renewable energy facilities. This opinion, however, remains subject to
the board of trustees' factual determination that such facility is "necessary and beneficial for
additional facilities, services or educational opportunities to the college, students, faculty or the
community." Miss. Code Ann. § 37-29-135.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General