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Click here for the full text of this decision FACTS:In 1998, 1999 and 2000, property owners Cordillera Ranch Ltd. and individual property owners within the ranch subdivision objected to their tax assessment by the Kendall County Appraisal District. In three separate suits, later consolidated, Cordillera argued that its property should qualify for open-space valuation, i.e., wildlife management, under Property Code �23.51(7). The appraisal district denied each request, arguing that under the statute, at least three of the seven wildlife management activities must be performed on each lot seeking the status. Cordillera argued that the three wildlife management activities could be performed as a cooperative. The appraisal district says even co-op members would have to perform three of the seven activities to qualify for the valuation. The trial court granted the appraisal district’s no evidence summary judgment motion. HOLDING:Affirmed. The court explains how �23.51(7) works. Generally, the Texas Constitution encourages the promotion of open-space lands and grants authority to the legislature to grant special tax laws for open-space lands and to fashion general laws to provide limitations for eligibility as open-space lands. Section 23.51 is the statute that defines the eligibility limitations. Section 23.51 general defines “qualified open-space land” as including agricultural use. In turn, “agricultural use” is defined to include the “use of land for wildlife management. “Wildlife management” is then defined as meaning “actively using land that at the time the wildlife-management use began was appraised as qualified open-space land under this subchapter in at least three of the following ways to propagate a sustaining breeding, migrating, or wintering population of indigenous wild animals for human use, including food, medicine, or recreation.” Seven possible activities follow: 1. habitat control; 2. erosion control; 3. predator control; 4. providing supplemental supplies of water; 5. providing supplemental supplies of food; 6. providing shelters; and 7. making of census counts to determine population. The court points out that the statute expressly requires the land to be “actively” used “in at least three of the [qualifying] ways. Though the statute does not expressly state that it applies equally to wildlife co-ops, nor does the statute expressly state that co-ops are not to be included. Since a tax exemption must affirmatively appear, the court says it has to consider whether the legislature intended “actively using the land” to encompass use across a wildlife co-op. The court finds the legislative history, including an amendment to narrow the eligibility to wildlife-management classification, indicates that passive use of a tract of land for wildlife management, such as placement in a wildlife co-op, is not a qualifying use of the land. The court concludes that the statutes require independent applications based on ownership, and they require independent assessment of each application. “The statutes do not provide for a single collective application for property within a wildlife co-op, nor do they provide for a collective assessment of individual applications from wildlife co-op members. Furthermore, the statute does not affirmatively provide for consideration of off-site wildlife management activities.” The court rejects Cordillera’s reliance on brochures from several state agencies for support of its interpretation. First, the court notes that agency interpretations are not binding on courts. More importantly, a review of the brochures leads the court to the conclusion that the only time they really allow for multiple tracts to be lumped together is where they are all owned by one owner. The rest seem to support the appraisal district’s and the court’s interpretation of the statute. The court recognizes that its interpretation does not take into account the intensity of the qualifying acts that are taking place; however, the court does find that its interpretation defeats the purpose of the open-space exemption. “Additionally, the subdivision of land for development purposes is what the statute seeks to prevent, not subsidize. The fact that this condition makes it harder to qualify for the open-space exemption when the land is subdivided is consistent with the purpose of the open-space exemption, which is the preservation of open spaces.” OPINION:Lopez, C.J.; Lopez, C.J., Green and Angelini, JJ.

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