The El Paso Court of Appeals has held that landowners do not have standing to sue the Comptroller for certifying a wind project under former Chapter 313, Tax Code.
Philip Alan Green and Jonathan Zackhery Wilks v. Texas Comptroller of Public Accounts and Glenn Hegar, in his Official Capacity (No. 08-23-00086-CV; filed November 21, 2023) arose from a Chapter 313 application submitted for the construction of a 150-megawatt wind farm in Callahan County to the Baird Independent School District. As Chapter 313 required, the ISD sent the application to the Comptroller for review and certification. After the Comptroller certified the project, the ISD entered into a tax limitation agreement with the wind developer.
The landowners sued the Comptroller for a declaratory judgment that the certificate was void because the Comptroller did not complete a takings impact assessment under Chapter 2007, Government Code (Private Real Property Rights Preservation Act). They alleged that the proposed wind turbines would reduce their property values and deprive them of the use and enjoyment of their land in violation of Chapter 2007. The Comptroller filed a plea to the jurisdiction. The trial court granted the Comptroller’s plea. The landowners appealed.
The court of appeals affirmed on the basis that the landowners lacked standing to sue the Comptroller. Observing that even if the landowners could demonstrate a concrete injury, the injury could not be fairly traceable to the Comptroller’s actions, as required by the standing doctrine. Because the Comptroller merely reviews a project application and issues a certificate, the ISD enters into the limitation agreement that caused the landowners’ alleged injury. The court discussed but found it unnecessary to address the landowners’ assertion that they had taxpayer standing, which does not require a showing of particularized, concrete injury, only that public funds had been illegally spent.
This is the first case of its type that we can recall. Under the new economic development incentive adopted during the 2023 session, the governor and ISD have to agree to enter into the limitation agreement, though the Comptroller still must certify the project. In any event, the wind farm scenario won’t come up under the new law, since wind farms are no longer eligible.
