The outcome of a Texas Attorney General’s opinion sought by the Brazos County Attorney’s office could have a significant impact on some public-private partnerships in Texas.
Brazos County Attorney Rodney Anderson has asked for a legal opinion from Texas Attorney General Ken Paxton as to whether a private development built on university-owned land is subject to payment of property taxes. (Read Brazos County’s request for attorney general’s opinion here.)
Brazos County is the home county of Texas A&M University in College Station. The university recently announced plans for a 3,400-bed residential housing complex that will be built through a public-private partnership (P3). It will be the third such P3 project on the A&M campus, and officials estimate the projects will bring in more than $800 million to the university.
Anderson is seeking a legal opinion on behalf of the Brazos County Appraisal District because Texas law exempts public entities such as A&M from payment of property taxes. However, in his letter seeking the opinion, Anderson questions whether a private development (such as the housing complexes) built on university land is considered a public entity and thus exempt from property taxes.
“These projects will be in competition with private housing projects that do not enjoy tax exempt status, and when those private projects compete against tax exempt projects, they are at a competitive disadvantage,” Anderson said in his letter.
The request for the opinion specifically addresses two P3 housing projects – the newly announced 3,400-bed and another more than 1,200-bed facility.
Anderson says in his letter to the attorney general that a determination is important so that the appraisal district “can correctly administer the exemption requests” not only for the two housing projects, “but for other projects that may be constructed in the future” on lands owned by the Texas A&M University System.
In the 1,200-bed complex, the private-sector developer is charged with developing, financing, constructing, furnishing, equipping and operating the facility and ancillary buildings and facilities. The developer holds a ground lease from the TAMU System, and once the ground lease term is up, the facility and improvements will revert to TAMU System ownership. Anderson notes in his letter that the question over whether property tax must be paid by the private developer arises because the law states that for the property to be exempt from the tax, “it must be publicly owned and used for public purposes.” That project, according to Anderson, likely will meet the requirements for being exempt because the agreement between the two partners states that use of the facility is limited to “students, faculty and other persons whose presence is desirable or necessary in relation to events of Texas A&M University.” However, because during the term of the 32-year lease, ownership of the facilities will remain with the private developer, the question of whether the facilities qualify as publicly owned is not clear.
However, the newly announced 3,400-bed complex differs. The partnership between the private developer and the TAMU System is similar in that the developer was charged with developing, financing, constructing and operating the facility. It will also participate in a 40-year ground lease agreement. However, the agreement has opened the door to use of the facility by non-TAMU students, faculty and others.
“The lease contemplates that the facilities will be subleased to students, faculty and staff of Texas A&M, and also to students, faculty and staff of Blinn College, but it appears to permit subleases to persons who are not faculty, staff or students of Texas A&M or Blinn College,” writes Anderson. “In the event that any part of the property is subleased to a person other than faculty, staff or students of Texas A&M or Blinn College, then it would appear that the property would not be used exclusively for public purposes. In that event, would an otherwise eligible exemption be lost?”
Many interested parties in Texas will be monitoring the outcome of the Attorney General’s opinion. And, those who advocate for more public-private partnerships will also be extremely interested in the outcome. Be sure to subscribe to our newsletter for continual updates and valuable ‘insider information’ on contracting opportunities and trends!