When a South Carolina school district declares surplus and decides to sell or lease vacant land with no building on it, does the charter school right-of-first-refusal in § 59-40-170 apply?

Plain-English summary

The South Carolina State Board of Education asked whether § 59-40-170's charter-school first refusal applies when a school district wants to dispose of undeveloped property with no building. The Attorney General answered no.

Section 59-40-170 repeatedly uses "building" and "portion of buildings" and does not use "property." Other school statutes cited by the requester expressly refer to "public school buildings and property." The AG concluded that applying § 59-40-170 to land with no building would add a word the legislature omitted. The charter-school chapter's instruction to interpret it liberally does not allow that addition.

The opinion addresses property without a building. It does not decide how the first refusal works for a parcel with a shed, damaged building, foundation, or other partial structure. Nor does it decide a particular disposition procedure beyond the reach of § 59-40-170.

What this means for you

If you manage school district property

When a parcel contains no building, the AG says § 59-40-170's charter-school first refusal does not apply. The opinion does not address other laws or procedures that may govern a sale or lease. For a parcel containing a structure, this opinion gives no test for deciding whether it is a "building" under the statute.

If you represent a charter school

The statute quoted in the opinion says that if a school district declares a building surplus and chooses to sell or lease it, a charter school's board or charter committee operating or applying within the district must get first refusal under the same or better terms as the public. The AG concludes this provision does not extend to bare property without a building.

Common questions

Does § 59-40-170 cover vacant land with no building?
No. The AG says the statute does not apply to public school property without a building.

Does any structure trigger the charter-school first refusal?
The opinion does not decide that. It does not analyze small, damaged, or partial structures; it answers the no-building question presented.

What if a district demolishes a building before disposing of the land?
The opinion does not address demolition or its effect on any charter-school right. Its holding concerns property that does not contain a building.

Why does the chapter's liberal-interpretation instruction not change the answer?
The AG cites Kinard v. Moore for the rule that a court cannot add words omitted by the legislature. Reading "property" into § 59-40-170 would expand the statute beyond its repeated references to buildings and portions of buildings.

Does the statute require a district to sell a surplus building?
No. The quoted text says nothing in the section requires an owner to sell or lease a listed building. It provides first refusal if a district declares a building surplus and chooses to sell or lease it.

Background and statutory framework

The requester described an undeveloped parcel and asked whether the State Board had to account for charter-school first refusal in reviewing its disposal. The opinion compares the wording of § 59-40-170 with statutes that use the broader phrase "public school buildings and property." It applies the statutory construction rules quoted from Kiriakides and Kinard: find legislative intent in the text and do not add omitted words.

The opinion quotes § 59-40-170 in footnote 1. The provision calls for a list of vacant or unused buildings and parts of buildings suitable for charter schools. It gives a charter school or charter committee first refusal when a district declares a building surplus and chooses to sell or lease it. The AG found no text extending that procedure to land without a building.

Citations and references

• S.C. Code § 59-40-170: list and first refusal for surplus buildings.
• S.C. Code § 59-40-30: liberal interpretation instruction raised by the requester.
• S.C. Code §§ 59-23-210, -240: broader "buildings and property" wording compared by the AG.
• Kiriakides v. United Artists Commc'ns, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994): statutory purpose and wording.
• Kinard v. Moore, 220 S.C. 376, 68 S.E.2d 321 (1951): omitted words cannot be inserted.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-s-c-code-59-40-170-applies-to-public-school-property-that-does-not-contain-a-building/
• Original PDF: https://www.scag.gov/media/inhdihfk/tylerj-os-11029-final-opinion-6-11-2025-houck.pdf

Original opinion text

ALAN WILSON
ATTORNEY GENERAL

June 11, 2025

Mr. John E. Tyler
General Counsel
South Carolina Department of Education
849 Learning Lane
West Columbia, SC 29172

Dear Mr. Tyler:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter requests an opinion addressing the following:

The South Carolina State Board of Education seeks an opinion on an issue as it relates to South Carolina Code § 59-40-170 and the requirement that a charter school's board of directors or charter committee be given the first refusal to purchase or lease a building that has been declared surplus by a school district and the district has chosen to sell or lease the building. The State Board of Education recently considered a request from a school district to dispose of an undeveloped piece of property. . . .

At the State Board's meeting to consider the disposal request, questions were raised as to whether the school district was required to first provide right of refusal to any charter school board of directors or charter committee that would like to purchase or lease the property. While S.C. Code §§ 59-23-210, 220, and 240 make separate reference to, "public school buildings and property," the SCDE is not aware of any legal opinion specially interpreting the scope of the term "building" for purposes of S.C. Code § 59-40-170.

While the plain language of the statute might suggest one answer, S.C. Code § 59-40-30 instructs that Chapter 40 "be interpreted liberally to support the findings and goals of this chapter and to advance a renewed commitment by the State of South Carolina to the mission, goals, and diversity of public education." Additionally, the General Assembly has expressed a specific and significant interest in the support of public charter schools. Two examples of this include expanding the pathways by which charter schools may be authorized (S.C. Code § 59-40-40(4)) and including charter school students in interscholastic activities at traditional public schools (S.C. Code § 59-63-100).

Therefore, the State Board of Education has postponed consideration of its review and approval of this matter and seeks an opinion as to whether public school property that does not contain a building is subject to the requirements of S.C. Code § 59-40-170.

Law/Analysis

It is this Office's opinion that S.C. Code § 59-40-170 does not apply to public school properties that do not contain a building. This Opinion will interpret section 59-40-170 according to the rules of statutory construction. The primary rule of statutory construction is "that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute." Kiriakides v. United Artists Commc'ns, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994). "The court has no right to add the words [the Legislature] omitted, nor to interpolate them 'on conceits of symmetry and policy.'" Kinard v. Moore, 220 S.C. 376, 388, 68 S.E.2d 321, 325 (1951). The text of section 59-40-170 uses the term "building" and "portion of buildings" several times, but does not use the term "property."¹ As your letter notes, in other statutes applicable to the State Department of Education, the General Assembly expressly referred to "public school buildings and property." S.C. Code §§ 59-23-210, -240. Interpreting section 59-40-170 to apply to property without a building on its premises would require reading the term "property" into the statute. Even liberally interpreting a statute does not permit adding words to broaden its application. Kinard, supra.

¹ The Department of Education shall make available, upon request, a list of vacant and unused buildings and vacant and unused portions of buildings that are owned by school districts in this State and that may be suitable for the operation of a charter school. The department shall make the list available to applicants for charter schools and to existing charter schools. The list must include the address of each building, a short description of the building, and the name of the owner of the building. Nothing in this section requires the owner of a building on the list to sell or lease the building or a portion of the building to a charter school or to any other school or to any other prospective buyer or tenant. However, if a school district declares a building surplus and chooses to sell or lease the building, a charter school's board of directors or a charter committee operating or applying within the district must be given the first refusal to purchase or lease the building under the same or better terms and conditions as it would be offered to the public.

Id. (emphasis added).

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General