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

A school district came to the State Board of Education with a request to dispose of an undeveloped piece of property (just land, no building). The question was whether the district had to first offer the property to any interested charter school before listing it for sale on the open market. The State Board of Education's general counsel asked the AG.

AG Wilson said no. Section 59-40-170 of the South Carolina Code is the charter-school first-refusal statute. It requires school districts to give a charter school's board of directors or charter committee "first refusal to purchase or lease the building under the same or better terms and conditions as it would be offered to the public" when the district declares a building surplus and chooses to sell or lease it.

The key word is "building." The statute uses "building" and "portion of buildings" several times. It never uses "property." Other South Carolina statutes about school facilities expressly say "public school buildings and property" when they mean to include both (see §§ 59-23-210, -220, -240). The legislature knows how to capture both buildings and bare land when it wants to; it did not do so in § 59-40-170.

The statute also requires the Department of Education to maintain a list of "vacant and unused buildings and vacant and unused portions of buildings" suitable for charter schools. Again, buildings and portions of buildings, not property generally.

The State Board of Education had raised § 59-40-30, which directs that Chapter 40 of Title 59 (the charter-school chapter) "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." But the AG drew on Kinard v. Moore, 220 S.C. 376, 68 S.E.2d 321 (1951), and Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994), for the well-established rule that even liberal interpretation cannot add words to a statute. "The court has no right to add the words [the Legislature] omitted, nor to interpolate them 'on conceits of symmetry and policy.'"

The bottom line: A school district that declares vacant land surplus and decides to sell or lease it has no obligation under § 59-40-170 to offer it to any charter school first. The first-refusal right kicks in only when there is a building (or a portion of a building) involved.

What this means for you

For school district superintendents and boards selling or leasing undeveloped land: You do not have to offer it to charter schools first. You can list it on the open market or through whatever procurement process your state board procedures require. Document on your minutes the determination that the property at issue contains no building.

For charter school operators looking for facility sites: Undeveloped school district land is not protected for you under § 59-40-170. If you want bare land from a school district, you have to win it on the open market like any other purchaser or lessee. The first-refusal protection is narrower than many charter operators may have assumed.

For school district attorneys advising on dispositions: Two factual questions matter. First, is there a "building" on the property? If the property is improved with any building, even a small or run-down one, the first-refusal trigger applies to the building. Second, is the district "selling or leasing" or just "abandoning" the property? Section 59-40-170's trigger language is sell or lease; other disposition methods (transfer to another government entity, demolition, etc.) may not trigger.

For municipal officials interested in former school district land: If a district is selling undeveloped surplus land, the path is the standard open-market sale. You compete with anyone else. If there is a building, charter schools get first crack at the building.

For State Board of Education staff reviewing district disposition requests: This opinion gives you the legal cover to approve sales of undeveloped property without first running it past the charter-school market. Your factual finding should be that the property does not contain a building; if it does, the disposition request needs to incorporate the first-refusal process.

Common questions

Q: What is § 59-40-170?
A: It is the South Carolina charter-school facilities statute. The Department of Education must maintain a list of vacant and unused buildings (and portions of buildings) owned by school districts that may be suitable for charter schools. Nothing in the statute forces the owner to sell or lease to a charter school. But if the owner declares a building surplus and chooses to sell or lease it, the statute gives a charter school the right of first refusal at the same or better terms as would be offered to the public.

Q: What is the difference between "building" and "property" in South Carolina school statutes?
A: A "building" is a structure with walls and a roof, generally meeting the legal and zoning definitions of an improvement on land. "Property" is broader and can include the land, any buildings on it, fixtures, easements, and other interests. The AG's opinion turns on the legislature's deliberate choice to use the narrower term in § 59-40-170.

Q: Other statutes use "buildings and property." Why is § 59-40-170 different?
A: Sections 59-23-210, -220, and -240 expressly refer to "public school buildings and property" when they apply to both. The legislature's use of the narrower "building" in § 59-40-170 is meaningful contrast. Under the rules of statutory construction, courts assume the legislature meant the narrower term where it used it.

Q: Doesn't § 59-40-30 say to interpret the charter-school chapter "liberally"?
A: Yes, but liberal interpretation has limits. The South Carolina Supreme Court has held in Kinard v. Moore (1951) that "the court has no right to add the words [the Legislature] omitted." Liberal interpretation means resolving ambiguities in favor of charter-school access; it does not mean rewriting a statute to expand its coverage to subject matter the legislature did not include.

Q: Could a school district intentionally demolish a building to avoid the first-refusal obligation?
A: That gets into bad-faith territory that the AG opinion does not address. Routine demolition of unsafe or obsolete buildings is permissible. Strategic demolition specifically to dodge charter-school first refusal would likely face challenge. Consult counsel on specific scenarios; the AG opinion does not bless or forbid this.

Q: What about a parcel with a small or partial structure?
A: This is the harder edge case. The statute applies to "buildings" and "portions of buildings." A small shed, an old foundation, or a partial structure may or may not be a "building" depending on facts. The AG opinion does not draw the exact line.

Q: Does this opinion bind the State Board of Education or the courts?
A: The State Board of Education will likely follow the AG opinion as a matter of practice. A court would treat the opinion as persuasive but not binding. A charter school that wanted to challenge a district's sale of undeveloped land would face an uphill argument under this opinion's reasoning.

Q: What is the right of first refusal in practice?
A: When triggered, the statute requires the school district to offer the building to a qualifying charter school "under the same or better terms and conditions as it would be offered to the public." So the charter school can either match the public offer or take a slightly better deal that the district is willing to offer. If the charter school declines, the district may then sell or lease to anyone.

Background and statutory framework

South Carolina's charter-school law (Title 59, Chapter 40) sits in a careful balance between encouraging charter schools and respecting school-district autonomy. The first-refusal statute is one of several access protections written into the chapter:

• § 59-40-170: First refusal on surplus buildings (this opinion).
• § 59-40-30: Direction to interpret the chapter liberally.
• § 59-40-40(4): Expanded authorizing pathways (allowing the state Public Charter School District and South Carolina institutions of higher learning to authorize charters, not just local school districts).
• § 59-63-100: Charter-school students' rights to participate in interscholastic activities at traditional public schools.

The opinion confirms that even with the liberal-construction directive in § 59-40-30, courts will not stretch the chapter's specific access protections beyond what the legislature wrote. The statutory construction rules from Kinard and Kiriakides are the controlling limits.

This opinion likely has limited downstream effects because most school district surplus dispositions involve buildings (closed schools, district offices, support facilities). Pure-land dispositions are less common but they do happen, especially for parcels held for future expansion that the district later decides not to use. This opinion clarifies that those dispositions go through normal channels without the charter-school overlay.

Citations and references

Statutes: S.C. Code § 59-40-170 (the operative statute on charter-school first refusal); § 59-40-30 (liberal interpretation directive); § 59-40-40(4) (authorizing pathways); § 59-23-210 (public school buildings and property); § 59-23-220 (public school buildings and property); § 59-23-240 (public school buildings and property); § 59-63-100 (interscholastic activities).

Cases: Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994) (primary rule of statutory construction is legislative intent from the language used); Kinard v. Moore, 220 S.C. 376, 388, 68 S.E.2d 321, 325 (1951) (court has no right to add omitted words).

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

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

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." 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.

The text of § 59-40-170 referenced in this opinion provides:

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.

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General