University of Texas School of Law 19 th Annual 2015 Land Use Planning Conference March 25-27, 2015 Austin, Texas GROUND LEASING OF PUBLIC LAND FOR PRIVATE SECTOR DEVELOPMENT PETER G. SMITH Peter G. Smith psmith@njdhs.com Kevin B. Laughlin klaughlin@njdhs.com NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P. 1800 Ross Tower 500 N. Akard Dallas, Texas 75201 214.965.9900
PETER G. SMITH NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P. 1800 Ross Tower 500 N. Akard Dallas, Texas 75201 Phone: (214) 965-9900 Fax: (214) 965-0010 E-Mail: psmith@njdhs.com Peter G. Smith was born on September 4, 1952, in Providence, Rhode Island. He pursued his preparatory and legal education at Texas Tech University obtaining his B.A. in 1974 and J.D. in 1976. He is a member of Delta Theta Phi, Pi Sigma Alpha (Political Science Honorary), and the State Bar of Texas, State Bar of Texas Property Tax Committee. Mr. Smith also served in the United States Army in the Judge Advocate General Corp and retired as a Lieutenant Colonel. Mr. Smith holds memberships in various professional associations, including Texas Municipal League; Texas City Attorneys Association; Texas Association of Assessing Officers; and Texas Association of Appraisal District. He is a former member of the Advisory Board of Municipal Legal Studies Center, Center for American and International Law, and frequently lectures and authors articles on ad valorem taxation, municipal law, zoning and economic development. Mr. Smith is the managing partner of Nichols, Jackson, Dillard, Hager & Smith, L.L.P., Dallas, Texas, with areas of expertise in economic development, land use, ad valorem taxation, and municipal law. His practice is devoted almost entirely to the representation of political subdivisions, including trial and appellate litigation on behalf of appraisal districts, and governmental agencies throughout the State. The firm serves as counsel for appraisal districts, municipalities, and political subdivisions throughout the State. Currently, Mr. Smith is City Attorney for the Cities of Richardson, DeSoto, Allen, Farmers Branch and Sachse. He is also general counsel for the Denton County Transportation Authority; the Atascosa, Camp, Dallas, Denton, Ellis, Erath, Hunt, Kaufman, Parker, Red River, Tarrant, Upshur and Williamson Central Appraisal Districts.
Overview Municipalities, universities, and Type A and B sales tax corporations are increasingly deciding to ground lease available sites to the private sector for economic development projects and for projects consistent with the needs and demands of the institutions and government. Key to the success of such projects is an understanding of the application of zoning and other land use regulations to the leased site, the real estate transaction, and the property tax treatment of the project. This paper will briefly address the application of zoning, the real estate transaction, and the property tax treatment in ground lease situations with brief examples of actual projects. Ground Lease Terms Purpose: The purpose of a project may be two-fold: promotion of economic development and the provision of services and/or facilities for the proprietary and governmental functions of the public entity. Term: The term varies and may include an option to purchase. The decision to lease rather than sell the property for a project may be based on statutory, public policy, or political reasons, or the site may be subject to a deed restriction and right of reversion or some condition of the property, which makes the sale of the property difficult without expending an unreasonable amount of additional time and money to resolve the issue. 1 Economic development is fleeting, and projects often do not last longer than twenty years without revitalization. A long term lease is not tantamount to ownership. Concerns of such treatment or perception of such treatment are usually resolved with a shorter term (e.g. 20 years) with successive renewal terms. Authorization: The parties must have the authority to enter into the ground lease and the project (contemplated use and any improvements). While typically not an issue for the private sector developer, the public entity must have the authority to enter in the ground lease, the contemplated use must be allowed on the identified site, and all statutory or local charter and ordinance prerequisites must be satisfied. In the case of a state or private university, the institutions must have the authority to enter into the ground lease for the contemplated project and, where the local campus is part of a university system, the approval of the board of regents/trustees of the college or university system may be required, in addition to the governing board of the local campus. In the case of a municipality, there may be bond or financing constraints or local charter/ordinance requirements that prohibit or restrict the lease transaction in some manner, such as limiting the length of lease term, requiring certain amounts of 1 The Trammel Crow mixed use project at the City DeSoto City Hall complex contemplated a sale of a portion of the city hall parking lot (using the DeSoto Economic development corporation as an independent foundation to facilitate the sale under Texas Local Government Code 272.001(b)(4)) to Trammel Crow. In the process of closing the sale an environmental site condition was discovered which would require extensive time to resolve with TCEQ prior to the transfer of title. Not wanting to delay commencement of the project the parties converted the deal to a ground lease. 1
compensation, or requiring approval of the lease by ordinance of the governing body. 2 It is important to note that Texas Local Government Code Chapter 380, while a tremendous and very flexible economic development tool, does not authorize the ground lease of municipal land if otherwise prohibited. As a reminder, any public debt that is going to be issued for an economic development project will require voter approval. The funding or source of funding used for the original acquisition of the municipal owned land to be ground leased must also be investigated to determine whether there are any bond covenants or restrictions which preclude the ground lease or have federal income tax consequences. Particularly, with respect to the leasing of airport property, it is critical to review the source of the original property grant and any applicable grant assurances and restrictions contained in any prior airport development grants obtained from the FAA or the TxDOT Aviation Department. The municipal bond counsel should always be consulted to determine if any restrictions apply. In the case of a sales tax corporation, the transaction must be an authorized project under the applicable statute and the sponsoring municipality may have to approve the project. Type A and Type B sales tax corporations have all the powers, privileges and functions of a Texas non-profit corporation except to the extent limited by the Development Corporation Act, now codified at Chapters 501-505, Texas Local Government Code. (See Texas Local Government Code section 501.054; City of Leon Valley Economic Development Corp. v. Little, 422 S.W.3d 37 (Tex. App. San Antonio December 31, 2013)). The projects that each corporation may undertake vary. Type A projects promote industrial, manufacturing and limited infrastructure. Type B projects promote community development projects. Type B corporations have broader authority; and may undertake any Type A corporation project. A Type A and Type B corporation may sell or lease any part of a project. See Texas Local Government Code, Section 501.054 and Section 501.153. 3 Permitted Use: The permitted use under the ground lease may be either an economic development purpose or one which fully or partially provides a need or function of the public entity (e.g. mixed use project to stimulate growth in the community versus providing student and faculty housing and the retail amenities to support the campus). Ownership of Improvements: Ownership of the improvements constructed on the site during the lease term and upon lease termination/expiration may dictate the property tax treatment. The parties need to determine the desired property tax treatment of the project (or recognize the property tax liability of the project) prior to execution of the lease and, in particular, prior to construction of any improvements, and structure the deal accordingly. The property tax responsibility should be properly addressed in the ground lease to ensure that no matter how the 2 Texas Local Government Code 253.001 may apply to prohibit the lease of park land unless the use being made is arguably a park and recreational use, albeit privately operated for a fee. One example includes the ground lease of City of Allen park property for the Hydrous Wakeboard Park Blue Sky Indoor Sports Center and other recreational facilities such as water parks, batting cages, golf courses, etc. constructed by a private entity on city owned land and privately operated. 3 Except for military installation or facilities, Type A and B corporations may not own or operate a project as a business other than as a landlord, seller or lender. See Texas Local Government Code 501.160. 2
Find the full text of this and thousands of other resources from leading experts in dozens of legal practice areas in the UT Law CLE elibrary (utcle.org/elibrary) Title search: Ground Leasing of Public Land for Private Sector Development Also available as part of the ecourse Land Use Development Issues: Sustainable Development Policy; the Impact of Social Media; Leasing of Public Land for Private Sector Development; plus RLUIPA and Religious Land Uses First appeared as part of the conference materials for the 19 th Annual The Land Use Conference session "Ground Leasing of Public Land for Private Sector Development"