Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The Kaufman County Development District No. 1 was created in 1996 under the County Development District Act, Local Government Code ��383.001, -.002 and -.021, which allows creation of such districts to further the public purpose of developing and diversifying the state economy by providing incentives for the location and development of certain projects in certain counties to attract visitors and tourists. The district’s creation and its sales and use tax were approved by local voters. The petition to create the district included a project that included “the enhancement of land, building, equipment, facilities and improvements . . . to promote and develop new or expanded business enterprises which will attract visitors to the District and result in employment and economic activity.” The cost of the project, which included shopping centers, schools, parks, swim center and more, was estimated at $2 million. In 1999, a petition submitted to the district by the owners of 50 percent or more of the assessed value of the property in the district asked for certain capital improvement projects at an estimated cost of $15 million. After a public notice and comment period, the district accepted the petition, though it reduced the cost of the project to $9 million. As part of the action, the district levied a special assessment against certain undeveloped property based on the value of the improvement it would receive. The assessments ranged from $9,977 to $17,940, payable immediately or in annual installments. The property subject to the levy was eventually platted and sold to various homeowners. These homeowners subsequently challenged the district’s authority to levy the assessments, in a Kaufman County court. The district, in turn, filed for declaratory and injunctive relief against the homeowners in a Travis County Court. The Travis County Court granted the district’s motion for summary judgment, which argued that the County Development District Act incorporated by reference the power to levy assessments from Local Government Code Ch. 375; that the homeowners failed to exhaust administrative remedies; and that Senate Bill 1444, passed in 2001, retroactively validated the assessments. The homeowners appeal. HOLDING:Reversed and remanded. The court finds generally that the act does incorporate the powers of Chapter 375, which apply to municipal management districts, but it does not incorporate that chapter’s procedures or remedies. The act does not incorporate the procedures in Chapter 375 relating to the challenge of an assessment or anything similar. Without a set of administrative remedies, the homeowners cannot be faulted for not exhausting them. As for the power to levy an assessment, the court acknowledges that chapter 375 allows a municipal management district to “levy and collect special assessments,” but the court agrees with the homeowners that this power does not transfer to a county development district for two reasons: 1. the levying of a special assessment is a function of the taxing power of a governmental unit, and such power must be plainly and unmistakably conferred; and 2. the power to levy special assessments is inconsistent with the act. An attorney general’s opinion has found that the act does not confer on county development districts the power to levy ad valorem taxes. The same analysis used in that opinion � that there is no inherent power to levy taxes � applies here. Additionally, the act itself expressly authorizes the use of bonds, and sales and use taxes (with voter approval), but it does not specify that special assessments are to be allowed. The court acknowledges that what is at issue here is a special assessment, which is different from a tax, in a strict sense of the word. However, special assessments have been found by other courts to be within the broad category of taxation. Regardless, this cases turns not on whether a special assessment is a strict tax or not, but on whether the special assessments are an exercise of the taxing power. The act nowhere expressly authorizes a county development district to levy assessments or ad valorem taxes. The only tax that the act expressly authorizes a district to levy is a sales and use tax, with limitations that are laid out in great detail. Additionally, the powers enumerated in Chapter 375 cannot be grafted wholesale into the act because some provisions in the act would become redundant or superfluous, and statutes should not be read to create such redundancies. “Because chapter 375 confers the power to assess for projects that are not within the scope of a county development district, that power is inconsistent with the Act. Furthermore, we agree with the Attorney General’s conclusion that the Act’s detailed provisions for sales and use taxes reveal a legislative intent that county development districts not ‘wield any other taxing authority.’ Inferring by reference a power to tax or levy assessments would interfere with the intentional and detailed taxation scheme set forth in the Act.” The court turns to the effect of Senate Bill 1444, even though the district court’s ruling was not specifically based on this argument. The bill validated assessments made by “conservation and reclamation districts” created by a particular constitutional provision. The court agrees with the homeowners that when a statute specifically designates the type of district created under a particular constitutional provision, it cannot be read to include other types of districts created under other constitutional provisions, even if the former is “created under” that provision and another “further serves the purpose” of the same provision. OPINION:Smith, J.; Law, C.J., Smith and Patterson, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.