Southern Crushed Concrete LLC v. City Of Houston
| Decision Date | 17 November 2010 |
| Docket Number | NO. 14-09-00873-CV,14-09-00873-CV |
| Parties | SOUTHERN CRUSHED CONCRETE, LLC, Appellant v. CITY OF HOUSTON, Appellee |
| Court | Texas Court of Appeals |
In this land-use dispute, a concrete-crushing company asserts that a local ordinance is preempted by the Texas Clean Air Act, and thus, its enforcement violates the state constitution. The company additionally argues that in evaluating its application for a permit to operate a concrete-crushing facility, the city was statutorily required to limit its consideration to those laws and regulations in effect at the time the company applied for a permit from the Texas Commission on Environmental Quality. The parties filed cross-motions for summary judgment, and the trial court granted judgment in the city's favor. We affirm.
Appellant Southern Crushed Concrete, LLC, f/k/a Southern Crushed Concrete, Inc. ("Southern"), operates a number of concrete-crushing facilities. Such facilities were not specifically addressed in the Texas Clean Air Act ("the Act")1 or in the corresponding regulations of the Texas Commission on Environmental Quality ("the Commission")2 before 2001. That year, the legislature directed the Commission to "prohibit the location of or operation of a concrete crushing facility within 440 yards of a building used as a single or multifamily residence, school, or place of worship." 3 Act of May 28, 2001, 77th Leg., R.S., ch. 965, § 5.07, 2001 Tex. Gen. Laws 1933, 1961-62. The Commission responded by amending title 30, section 116.112 of the Texas Administrative Code to provide that, effective January 2003, "a concrete crushing facility must not be located or operated within 440 yards of any building used as a single or multi-family residence, school or place of worship." 28 Tex. Reg. 240 (2003) (Tex. Comm'n on Envtl. Quality, Distance Limitations). At that time, neither the Act nor the Commission's regulations regarding the location and operation of concrete-crushing facilities included specifications as to how the distance was to be measured, or the effect that construction of a home, school, or place of worship within 440 yards of a proposed concrete-crushing facility would have on a pending application for a permit. The legislature subsequently directed the Commission to fill that gap by adopting rules prohibiting the operation of a concrete-crushing facility within 440 yards of a home, school, or place or worship as measured "from the point on the concrete crushing facility that is nearest to the residence, school or place of worship toward the point on the residence, school, or place of worship that is nearest the concrete crushing facility." TEX. HEALTH & SAFETY CODE ANN. § 382.065 (Vernon 2010). As directed, the Commission amended the regulation, adopting the "facility-to-building" method of measurement prescribed by the legislature and specifying that "the measurement of distances to determine compliance with any location or distance limitation requirement in Texas Health and Safety Code, Chapter 382, shall be taken toward structures that are in use at the time the permit application is filed with the commission." 30 TEX. ADMIN. CODE ANN. § 116.112(a) (2004).
In October 2003, Southern applied to the Commission for a permit to move a portable concrete-crushing facility to property located on State Highway 288 in Houston. But before the Commission ruled on the permit application, two key events happened. First, the Presbyterian School Outdoor Education Center became located near the property where Southern proposed to move its concrete-crushing facility. Second, on May 9, 2007, the City of Houston enacted an ordinance prohibiting concrete-crushing operations at a site on which the property line is within 1500 feet of a residential area or a tract on which "a child care facility, hospital, nursing home, place of worship, public park, school" or another concrete-crushing site is located. CITY OF HOUSTON, TEX., CODE OF ORDINANCES § 21-167 to-170 (2007). The proposed location of Southern's concrete-crushing facility is more than 440 yards from the school building; however, a property line of the land on which the school is located is within 1500 feet of the property line of the land on which the proposed concrete-crushing facility would be located.
Because the school had not been built at the time Southern applied for a permit (and is in any event more than 440 yards from the location of the proposed facility), the Commission granted Southern's requested Air Quality Permit on August 4, 2008. But because the property lines of the respective tracts on which the school and the proposedconcrete-crushing facility are located are within 1500 feet of one another, the City denied Southern's application for a municipal permit.
Southern sued the City, seeking (a) a declaration that the ordinance is preempted by the Act and its enforcement would violate the Texas Constitution, and (b) injunctive relief prohibiting the City from enforcing the ordinance and directing it to issue Southern a permit to operate the facility at the proposed location. The parties filed cross-motions for traditional summary judgment, and the trial court granted the City's motion, denied Southern's motion, and dismissed Southern's claims with prejudice.
In its first issue, Southern argues that the ordinance is preempted by the Act and therefore is unconstitutional, either on its face or as applied. In its second issue, Southern argues that the City was required by section 245.002(b) of the Local Government Code to consider Southern's permit application based solely on the regulations and ordinances in place when Southern applied to the Commission for a permit in October 2003.
Traditional summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). When we review cross-motions for summary judgment, we consider both motions de novo and render the judgment that the trial court should have rendered. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007).
To prevail on a claim that a provision is unconstitutional on its face, the complaining party must establish that the ordinance, "by its terms, always operates unconstitutionally." See City of Corpus Christi v. Pub. Util. Comm'n of Tex., 51 S.W.3d 231, 240-41 (Tex. 2001) (per curiam). In an "as applied" constitutional challenge, the complaining party concedes that an ordinance generally is constitutional but contends it is unconstitutional when applied to a particular person or set of facts. Id. at 240.
On appeal, Southern argues that the local ordinance is unconstitutional, first, because it is preempted, and second, because the method it prescribes for measuring distances between concrete-crushing facilities and other land uses is arbitrary and unreasonable. In the trial court, however, Southern moved for summary judgment only on the ground that the ordinance was preempted. Because the argument that the ordinance is arbitrary and unreasonable has not been preserved for our review, we resolve Southern's first issue considering only the constitutional challenge based on preemption. See Tex. R. App. P. 33.1(a).
According to Southern, the City's ordinance is preempted by a state statute and the state constitution. Specifically, Southern contends the ordinance violates the Texas Clean Air Act's provision that "[a]n ordinance enacted by a municipality must be consistent with this [Act] and the commission's rules and orders and may not make unlawful a condition or act approved or authorized under this [Act] or the commission's rules or orders." Tex. Health & Safety Code Ann. § 382.113(b). This provision echoes the state constitutional requirement that no ordinance of a home-rule city "shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." Tex. Const. art. XI, § 5.
Southern argues that the ordinance is inconsistent with the Act—and thus, with the state constitution—in that the City (1) requires a larger buffer zone between concrete-crushing facilities and other preferred property uses, (2) requires concrete-crushing facilities to be separated from more types of property, and (3) measuresthe buffer zone using the distance between property lines rather than the "facility-to-building" method described in the Texas Clean Air Act. To evaluate these arguments, however, we first must clarify the test for preemption.
As Southern describes the applicable test, an ordinance is preempted if it represents a municipality's attempt to regulate an activity already regulated by the State. According to Southern, "in a specific area in which the State does act, municipalities may not." Southern contends that by passing the Texas Clean Air Act and delegating regulatory authority to the Commission, the legislature eliminated the City's authority to regulate the location of concrete-crushing facilities and granted that power exclusively to the Commission.
But as the Texas Supreme Court stated twenty years ago, "the mere fact that the legislature has enacted a law addressing a subject does not mean that the subject matter is completely preempted." City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990); see also City of Beaumont v. Jones, 560 S.W.2d 710, 711 (Tex. Civ. App.—Beaumont 1977, writ refd n.r.e.) (). To the...
To continue reading
Request your trial