Can West Virginia's School Building Authority give construction grants to a charter school that doesn't own its building?

Plain-English summary

West Virginia Attorney General John B. McCuskey concluded that the School Building Authority ("SBA") may fund capital projects for public charter schools even when the school does not own the building it operates in. The opinion also concluded that if a charter school later closes, the SBA's only recourse is against the charter school itself, not against the landlord who owns the property.

The request came from the SBA's Executive Director, who asked whether West Virginia Code § 18-9D-15(o) lets the SBA give grants to charter schools that rent or lease their facilities, and if so, what happens to the SBA's investment if the school shuts down. The opinion reads the statute's text ("a public charter school may... submit an application... for costs associated with the renovating, remodeling, purchase or construction of a building") as unrestricted by ownership status, since only the "purchase" option necessarily requires ownership.

What this means for you

Charter school operators who lease their facilities

The opinion holds that a charter school does not need to own its building to qualify for an SBA capital grant under § 18-9D-15(o). Renovation, remodeling, and construction projects on leased space are eligible in the same way ownership-based projects are.

The School Building Authority

The opinion holds that Section 15(o)'s recoupment mechanism runs only against the charter school that received the grant, not against a third-party landlord: if the school owned its building, the building reverts to the SBA or the State on closure; if the school only improved a leased building, the SBA can seek only the monetary value of those improvements from the school. The opinion notes the SBA "may" be able to require a separate landlord guarantee as a grant condition, but flags that such agreements would likely be hard to secure and could face legal challenges.

Landlords who lease space to charter schools

The opinion holds that a landlord has no built-in exposure under § 18-9D-15(o) if a tenant charter school closes after receiving SBA funds; the statute's recoupment obligation runs against the school, not the property owner, absent a separate agreement the landlord voluntarily signs.

Common questions

Q: Does a West Virginia charter school have to own its building to get SBA construction funding?
A: No. The opinion concludes § 18-9D-15(o) contains no ownership requirement, so charter schools that rent or lease can still apply for renovation, remodeling, or construction funding.

Q: What happens to SBA grant money if a charter school that leases its building closes?
A: The opinion holds the school must repay the value of any improvements it made with SBA funds; the SBA has no direct recourse against the landlord under the statute as written.

Q: Can the SBA require a landlord to personally guarantee repayment as a condition of the grant?
A: The opinion says the SBA's "sole discretion" language likely gives it authority to attach that kind of condition, but cautions that such agreements would probably be difficult to obtain and could still be legally vulnerable.

Background and statutory framework

West Virginia's public charter schools have flexibility under § 18-5G-7 to acquire, own, rent, or lease their facilities. Section 18-9D-15(o) lets a charter school apply to the SBA for funding to renovate, remodel, purchase, or construct a building for charter school use, with a recoupment mechanism tied to whether the school used the money to buy a building outright or to improve an existing (possibly leased) one.

The opinion also situates its reading against West Virginia's constitutional provisions favoring education funding (Article XII, Section 1's mandate for "a thorough and efficient system of free schools") and the Credit Clause (Article X, Section 6), which bars the State from granting credit "to, or in aid of" a private person or corporation but does not bar public expenditures that serve a public purpose even where private parties incidentally benefit.

Citations and references

Statutes:
- West Virginia Code § 18-9D-15(o) (SBA charter school facility funding and recoupment)
- West Virginia Code § 5-3-1 (Attorney General opinions on request of state boards/commissions)
- W. Va. Code § 18-5G-7 (charter school facility acquisition powers)
- W. Va. Code § 18-9D-2(9) (definition of "school major improvement project")
- W. Va. Code § 18-5G-1(c) (charter schools as public schools within the state system)
- W. Va. Const. art. XII, § 1 (free schools mandate)
- W. Va. Const. art. X, § 6 (Credit Clause)

Cases:
- Maupin v. Sidiropolis, 215 W. Va. 492, 600 S.E.2d 204 (2004), on reading "an" as a general, unrestricted reference
- Perito v. Cnty. of Brooke, 215 W. Va. 178, 597 S.E.2d 311 (2004), courts should not add limits the Legislature omitted
- Bowe v. United States, 607 U.S. 13 (2026), differences in statutory language convey differences in meaning
- Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979), education funding's constitutionally preferred status
- EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), a contract cannot bind a nonparty

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/37722/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
John B. McCuskey
Attorney General

Phone: (304) 558-2021
Fax: (304) 558-0140
June 10, 2026

Andy Neptune, Executive Director
School Building Authority of West Virginia
2300 Kanawha Boulevard, East
Charleston, WV 25311
Dear Executive Director Neptune:
You have asked for an Opinion of the Attorney General concerning the School Building
Authority's ("SBA") ability to fund public charter school facilities under West Virginia Code
§ 18-9D-15(o). This Opinion is being issued under West Virginia Code § 5-3-1, which directs the
Attorney General to give written opinions on questions of law when requested by any state board
or commission. When this Opinion relies on facts, it depends solely on the factual assertions in
your correspondence and discussions with the Office of the Attorney General.
Your letter poses the following legal questions:
(1) Under West Virginia Code § 18-9D-15(o), may the SBA award
building grants to public charter schools that do not own their
school buildings?
(2) If so, under West Virginia Code § 18-9D-15(o), what recourse does
the SBA have against the property owner upon the public charter
school's closure?
We first conclude that Section 18-9D-15(o) contains no ownership requirement. The SBA
may award funding to a charter school for capital projects even if the school does not own its
school building. We also conclude Section 18-9D-15(o) contains a recoupment mechanism that
protects the SBA's investment, but it runs only against the public charter schools, not their
landlords. The SBA has no built-in recourse against landlords. The SBA might be able to require
separate agreements with landlords as a condition of a grant award. But those agreements likely
will be difficult to secure and, in any event, could still be legally unsound.

DISCUSSION
I.

The SBA may award funding to charter schools that do not own their facilities.

West Virginia's public charter schools have flexibility in selecting appropriate facilities.
A charter school can "[a]cquire real property for use as its facilities or facilities from public or
private sources," W. VA. CODE § 18-5G-7(c)(2)(F), "[o]wn, rent, or lease its space," id.
§ 18-5G-7(d)(3), and "[n]egotiate and contract with … any third party for the use, operation, and
maintenance of a building and grounds," id. § 18-5G-7(d)(1). So, some public charter schools own
their facilities; some do not.
West Virginia Code § 18-9D-15(o) authorizes the SBA to fund capital projects for public
charter school facilities. W. VA. CODE § 18-9D-15(o). It provides that "a public charter school
may, in its name and sole discretion, submit [an] application to the [SBA] for funding for costs
associated with the renovating, remodeling, purchase or construction of a building to be used for
public charter school purposes." Id. The SBA "may, in its sole discretion," award funding for
those projects in an amount "it determines appropriate." Id. If the public charter school closes,
and it "used [SBA] funding for its building, the building shall be returned" to the SBA or the State.
Id. "[I]f [SBA] funds were used to improve an existing property," the SBA may "develop a
formula to determine the monetary amount of improvements to be returned" to the SBA or the
State. Id.
Section 15(o)'s text doesn't limit grant eligibility to charter schools that own their facilities.
"[A] public charter school" can apply for SBA funding. W. VA. CODE § 18-9D-15(o). The funding
can be used in connection with "a building." Those phrases sweep broadly; they are unrestricted
in any way. Cf. Maupin v. Sidiropolis, 215 W. Va. 492, 497, 600 S.E.2d 204, 209 (2004)
("Typically … 'an' is construed as making general, rather than specific, references to its words of
modification.").
Rather than ownership status, the statute looks to a facility's use to determine fund
eligibility. Again: charter schools may apply to use SBA grants only for "renovating, remodeling,
purchase or construction of a building to be used for public charter school purposes." W. VA.
CODE § 18-9D-15(o). The funded activities don't impliedly exclude non-owning charter schools.
Just one of those projects, "purchase," requires the public charter school to take ownership of a
building. The others do not. Renovating and remodeling describe improvements to existing
structures and are routinely performed by tenants. Construction can also happen on leased
property. And the building at which these activities are undertaken is any building "used," not
necessarily owned, by a public charter school.
The Legislature could have limited eligibility to facility-owning charter schools in several
different ways. But it chose not to. And "we are obliged not to add to statutes something the
Legislature purposely omitted." Perito v. Cnty. of Brooke, 215 W. Va. 178, 184, 597 S.E.2d 311,
317 (2004) (cleaned up).
Further, Section 15(o)'s recoupment mechanism confirms funding is available to all charter
schools, regardless of ownership status. It involves two intersecting rules that, together, protect
the SBA's interests when a charter school closes.
First, the recoupment mechanism draws a line at ownership. It provides that a public
charter school that "used" SBA funds for "its building" must, upon closing, give the entire building
to the SBA or the State. W. VA. CODE § 18-9D-15(o). Only facility-owning charter schools are
subject to this rule. In contrast to the general "a building" language used earlier in the subsection,
this provision speaks to "its building." See Bowe v. United States, 607 U.S. 13, 37 (2026) ("[W]hen
we're engaged in the business of interpreting statutes, we presume differences in language like this
convey differences in meaning." (cleaned up)). And "its" is a possessive pronoun connoting an
ownership interest. Its, MERRIAM-WEBSTER, https://tinyurl.com/y8y3r8t6 (last visited June 8,
2026) (defining "its" as a "possessive form of it" meaning "relating to or belonging to a certain
thing"). That reading makes sense. After all, only schools that own their buildings can transfer
them. See W. VA. CODE § 36-1-11; Restatement (Second) of Property, Land. & Ten. § 15.1 (1977).
Second, the recoupment mechanism draws a line at use. It contemplates that charter
schools that use money to "improve … existing property" will pay the SBA back after the school
closes. W. VA. CODE § 18-9D-15(o). To "improve" property generally means "to increase the
value of (land or property) by making it more useful for humans (as by cultivation or the erection
of buildings)." Improve, MERRIAM-WEBSTER, https://tinyurl.com/yncwtuuf (last visited June 8,
2026); see Improve, BLACK'S LAW DICTIONARY (12th ed. 2024) (defining "improve" as "to
increase the value or enhance the appearance of (something)"); accord Neal v. Marion, 222 W.
Va. 380, 387, 664 S.E.2d 721, 728 (2008) (noting that an "improvement" in the statute of repose
includes items that "enhance[] the value of the real property"); Ravenna Furnace & Heating Co.
v. Cotts, 124 W. Va. 750, ____, 22 S.E.2d 371, 373 (1942) (improvements contemplate "enhanced
value thereof to the landowner"). This understanding aligns with the statutory definition of "school
major improvement project," which similarly contemplates "a project … for the renovation,
expansion, repair, and safety upgrading of existing school facilities, buildings, and structures,
including the substantial repair or upgrading of equipment, machinery, building systems, utilities
and other similar items related to the renovation, repair or upgrading." W. VA. CODE § 18-9D2(9). For purposes of Section 15(o), then, "improv[ing] an existing property" includes
"renovating" or "remodeling" "an existing property" or performing "construction" on an "existing
property" in a way that increases its value or utility. W. VA. CODE § 18-9D-15(o). The "purchase"
of a building or the "construction" of a building from the ground up would not qualify as an
improvement of an existing property. Id.; see also W. VA. CODE § 18-9D-2(3) (defining
"construction project" to be mutually exclusive of a "major improvement project").
Read together, the recoupment mechanism operates as follows: Non-owning schools return
the monetary value of their improvements; facility-owning schools return the building itself, or its
improved value if SBA funds went only toward improvements. The recoupment mechanism, thus,
touches every possible ownership status.
The constitutional backdrop also resolves in favor of broader access to funding. The
Constitution treats education funding as a top priority, second only to servicing debt. Article XII,
Section 1 directs that "[t]he Legislature shall provide, by general law, for a thorough and efficient
system of free schools." W. VA. CONST. art. XII, § 1. Article X, Section 5 authorizes the
Legislature's taxing power to extend to "the support of free schools." Id. art. X, § 5. These
provisions assign public education "a constitutionally preferred status" in this State. Syl. pt. 1,
State ex rel. Bd. of Educ., Kanawha Cnty. v. Rockefeller, 167 W. Va. 72, 281 S.E.2d 131 (1981);
accord Pauley v. Kelly, 162 W. Va. 672, 719, 255 S.E.2d 859, 884 (1979) ("Our basic law makes
education's funding second in priority only to payment of the State debt, and ahead of every other
State function."). To serve that end, the Legislature may "augment[], and mak[e] more efficient,
the general system of free schools … where it may think it wise to do so." Herold v. McQueen,
71 W. Va. 43, 49, 75 S.E. 313, 315-16 (1912). The Legislature has done so here. It defines public
charter schools as "public schools," classifies them as "part of the state's public education system,"
and subjects the schools to comprehensive state supervision. W. VA. CODE § 18-5G-1(c). Reading
Section 15(o) narrowly would be contrary to the State's goal of expanding educational
opportunities.
Article X, Section 6, West Virginia's Credit Clause, doesn't require that grant recipients
own their facilities. Article X, Section 6 provides that "[t]he credit of the State shall not be granted
to, or in aid of any county, city, township, corporation or person." W. VA. CONST. art. X, § 6. It
prohibits the State from underwriting private debt or subsidizing private undertakings. See State
ex rel. W. Va. Citizens Action Grp. v. W. Va. Econ. Dev. Grant Comm'n, 213 W. Va. 255, 278-79,
580 S.E.2d 869, 892-93 (2003). But, it does not prohibit public expenditures that serve public
purposes, even where incidental private benefit may follow. See id. (detailing public purpose
doctrine). Here, the Legislature "has provided a clear statement of the public purpose which it
seeks to serve," id. at 277, 580 S.E.2d at 891, in Section 15(o): funding "construction and major
improvement of school facilities … to meet the educational needs of the people of this state in an
efficient and economical manner," W. VA. CODE § 18-9D-15(a). Consistent with that charge, the
direct beneficiary of a Section 15(o) award is a public charter school, in service of the educational
mission Article XII, Section 1 directs the State to provide. Any benefit to a landlord on whose
property the improvements are made is incidental to the public purpose the grant serves, and may
be recouped at closure in any event.
For all these reasons, the SBA may fund capital projects for charter schools that do not own
their buildings.
II.

The SBA has no recourse against third-party property owners.

Under Section 15(o), the SBA has no recourse against the third-party property owner if a
public charter school closes after it uses the funds to improve a building it does not own.
The recoupment mechanism requires the public charter school to pay the SBA back in that
case, not the school's landlord. To obtain grant funding, the public charter school applies "in its
name and sole discretion." W. VA. CODE § 18-9D-15(o). The school receives the funds, puts them
to proper use, and reaps the benefits. See id. And presumably, any grant agreement is between
only the SBA and the charter school. See id. The SBA's policies and procedures and its
Legislative Rules contemplate as much. See W. VA. CODE R. § 164-5-2.1.a ("In order for SBA
funds to be utilized for any project, a grant agreement between the educational agency and the
SBA must be enacted."); SCH. BLDG. AUTH. OF W. VA., POLICY & PROCEDURE HANDBOOK
§§ 209.01, 209.04 (7th ed. 2021) (contemplating grant contract between SBA and public charter
school). The property owner has no role to play; it is a stranger to this transaction. See id. And
"[i]t goes without saying that a contract cannot bind a nonparty." EEOC v. Waffle House, Inc.,
534 U.S. 279, 294 (2002). So, the pay-back obligation can only run against the public charter
school. "Such obligations are the very essence of the contract." S. Erectors, Inc. v. Olga Coal
Co., 159 W. Va. 385, 395, 223 S.E.2d 46, 52 (1976) (addressing obligations, or lack thereof, of
a third party to a contract).
Too, reading the recoupment provisions to extend to a third-party property owner would
be counter to the Legislature's aim of expanding facilities options. See W. VA. CODE § 18-5G-7.
Landlords facing exposure would likely either decline to rent to charter schools or price the risk
into higher lease rates. Either outcome would shrink the pool of available and affordable properties
for charter schools.
If the SBA wants to condition an award on the landlord's guarantee of the school's
obligation, it appears to have the legal authority to make that request. The SBA "may, in its sole
discretion, approve such amount of funding as it determines appropriate, in its sole discretion, for
such project." W. VA. CODE § 18-9D-15(o). That repeated grant of "sole discretion" carries with
it the authority to attach conditions to an award, including the condition that a leased-facility
award be accompanied by an agreement binding the landlord directly to the State. The SBA's
broader authority to set conditions on its grants, see id. § 18-9D-16, and to promulgate legislative
or procedural rules, id. § 29A-3-1 et seq., confirms the same.
In practice, however, it may be difficult for the SBA to secure those agreements. And those
agreements could harm charter schools, too. A landlord will not want to guarantee repayment of
costs it did not incur, for a grant it did not apply for and is not otherwise liable for. In simple
terms, landlords have no incentive to assume their tenants' obligations. If anything, they have an
incentive not to; they might get a windfall (an improved facility) if the charter school goes under.
At this point, too, landlords have no way of knowing how much money it might cost them. Despite
having the authority "to develop a formula to determine the monetary amount of improvements to
be returned," the SBA has neglected to do so. And again, landlords might react by increasing rent
or refusing to lease property, two major problems for start-up schools on limited budgets.
The ends don't seem to justify the means, either. The extra condition imposed on
non-owning schools wouldn't meaningfully reduce the SBA's exposure, it just adds a burden that
facility-owning schools don't bear. In other words, the requirement appears arbitrary.
The closure process shows how.
A public charter school closes through an
authorizer-supervised closure process that governs the "disposition of school funds, property, and
assets," W. VA. CODE § 18-5G-10(i)(1), distributing the school's residual assets first to outstanding
payroll and retirement obligations, and then to creditors, id. § 18-5G-10(i)(2). That waterfall
undermines both recoupment mechanisms equally. The building return mechanism sounds
protective, but a returned building may carry liens, have depreciated, or require costly remediation
before it yields any value. The monetary recoupment for improvement costs fares no better. By
the time prior claims are satisfied, the SBA may have nothing left to recover. So, the SBA faces
real collection risk on both sides of the ownership line.
Considering all this, we can conceive of meritorious legal objections to the requirement of
a landlord guarantee. The SBA should tread carefully. And no matter what, the SBA should stick
to the Legislature's clear directive: expand school choice by funding public charter schools as
much as possible, as fast as possible. See W. VA. CODE §§ 18-5G-1, 18-9D-15(a); Pauley, 162 W.
Va. at 719, 255 S.E.2d at 884. After all, "education of the people is … the only exhaustless mine
which the state possesses." CHARLES H. AMBLER, A HISTORY OF EDUCATION IN WEST VIRGINIA
135 (1951).
Sincerely,

John B. McCuskey
Attorney General
Holly J. Wilson
Principal Deputy Solicitor General
Mattie F. Shuler
Assistant Solicitor General