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

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 buildings or facilities) is broad enough to cover renewable energy facilities. The opinion's answer is yes, "facilities" includes renewable energy facilities, with one guardrail: the board must still make the factual determination that the 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 applied that rule in Lawson v. Honeywell Int'l, Inc. (2011) and Lambert v. Ogden (1982). Because "facilities" is not statutorily defined, the AG looked to 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." Under that ordinary meaning, the AG concluded a renewable energy facility fits the term. The opinion adds that this conclusion remains subject to the board's factual determination that the facility is necessary and beneficial in the statutory sense.

What this means for you

Community college boards of trustees

The opinion holds that a renewable energy facility falls within "facilities" under Section 37-29-135, so the leasing authority in that section can reach a renewable energy ground lease. It also holds that the conclusion remains subject to the board's factual determination that the facility is "necessary and beneficial" to the college, students, faculty, or the community. The AG identified that finding as the operative step; it did not prescribe how the board should make it.

Renewable energy developers and public-land lessees

For a project structured as a lease of college land or buildings under Section 37-29-135, the opinion treats a renewable energy facility as a "facility" the statute can cover. Whether a particular lease is authorized still turns on the board's necessary-and-beneficial finding, which the AG left to the board.

Higher education attorneys

The opinion is narrow: it reads the single word "facilities" to include renewable energy facilities under the plain-meaning canon, subject to the board's statutory finding. It does not address lease terms, duration, tax treatment, or any authority beyond Section 37-29-135's leasing structure.

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 constructs and operates the facility. The opinion does not address the college developing and operating a renewable energy project on its own.

What is the test for "necessary and beneficial"?
The statute leaves that determination to the board, and the AG did not provide a checklist. The opinion states only that the leasing authority is subject to the board finding the facility necessary and beneficial to the college, students, faculty, or the community.

Can the board use this authority to lease for non-energy projects?
Section 37-29-135 covers leases for "buildings or facilities" the board finds necessary and beneficial. The opinion addressed renewable energy facilities specifically, reading the general term "facilities" by its ordinary meaning.

How long can the lease run?
The opinion does not address lease duration, and Section 37-29-135's text quoted in the opinion does not specify one.

Could other types of facilities also qualify?
The opinion's reasoning turned on the ordinary meaning of the general term "facilities," which it was not limited to renewable energy. The opinion did not rule on any other specific type of facility, and any lease would still depend on the board's 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" to enable the lessee to construct, repair, renovate, and rehabilitate buildings or facilities the board determines necessary and beneficial for additional facilities, services, or educational opportunities to the college, students, faculty, or the community, and to lease them back to the college. The board's "necessary and beneficial" determination is the statute's central limitation.

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's ordinary-meaning definition and concluded the term includes renewable energy facilities, subject to the board's finding.

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

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/06/R.Barrett-June-23-2023-Facilities-as-Used-in-Mississippi-Code-Annotated-Section-37-29-135.pdf

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