Southern Crushed Concrete, LLC v. City of Houston--Appeal from 333rd District Court of Harris County
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Affirmed and Majority and Dissenting Opinions filed November 17, 2010.
In The
Fourteenth Court of Appeals
___________________
NO. 14-09-00873-CV
___________________
SOUTHERN CRUSHED CONCRETE, LLC, Appellant
V.
CITY OF HOUSTON, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2008-68402
MAJORITY
OPINION
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.
I. BACKGROUND
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,
1
TEX. HEALTH & SAFETY CODE ANN. § 382.001 et. seq. (Vernon 2010).
―The commission‖ is statutorily defined as the Texas Natural Resource Conservation
Commission, TEX. HEALTH & SAFETY CODE ANN. § 382.003(4) (Vernon 2010), but the Legislature later
changed the agency’s name to the Texas Commission on Environmental Quality. Act of May 28, 2001,
77th Leg., R.S., ch. 965, 2001 Tex. Gen. Laws 1933, 1985 (eff. Jan. 1, 2004).
2
3
Although there is no hyphen between concrete and crushing in the Act, we believe it is
grammatically correct to hyphenate the phrase. See BRYAN A. GARNER, A DICTIONARY OF MODERN
LEGAL USAGE, 657–58 (Oxford University Press 2d ed. 1995). We therefore refer to concrete-crushing
facilities except when quoting the Act and the corresponding regulations.
2
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
The proposed location of Southern’s
ORDINANCES § 21-167 to -170 (2007).
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 proposed
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concrete-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.
II. ISSUES PRESENTED
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.
III. STANDARD OF REVIEW
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
4
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.
IV. ANALYSIS
A.
The Clean Air Act Does Not Preempt the City Ordinance.
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) measures
5
the 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.
1.
State statutes do not necessarily preempt local ordinances affecting the
same subject.
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 ref’d n.r.e.) (―The State’s entry into a field of legislation does
not automatically preempt that field from city regulation.‖). To the contrary, the powers
of a home-rule city such as Houston may be limited by the constitution, the general law, or
by the city’s charter, but any such limitation must be either express or implied with
―unmistakable clarity‖ from the provisions of the law, charter, or statute. Lower Colo.
River Auth. v. City of San Marcos, 523 S.W.2d 641, 645 (Tex. 1975) (sub. op.).
In contrast, the powers of a state agency such as the Commission are limited to those
expressly conferred by the legislature, together with such implied powers as are reasonably
necessary to carry out the express responsibilities given to it by the legislature. Pub. Util.
Comm’n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 315 (Tex. 2001).
Thus, an agency has only the powers that the legislature has granted, while a home-rule city
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has all those powers not otherwise limited by the constitution, state law, or its own charter.
In evaluating the implications of the Act, we bear in mind that ―a general law and a city
ordinance will not be held repugnant to each other if any other reasonable construction
leaving both in effect can be reached. In other words, both will be enforced if that be
possible under any reasonable construction.‖ City of Beaumont v. Fall, 116 Tex. 314,
324, 291 S.W. 202, 206 (1927).
We therefore evaluate whether the Act expressly or impliedly preempted the City’s
authority to enact the ordinance or if instead there is a reasonable construction under which
both the Act and the ordinance remain enforceable. We begin by examining the Act’s text
to determine whether the legislature expressly granted exclusive regulatory authority to the
Commission or expressly withdrew the authority of a home-rule city to regulate the
location of concrete-crushing facilities in the manner seen here. If there are no such
express provisions, we then must determine whether preemption is implied with
unmistakable clarity.
2.
The Act does not expressly preempt the City’s authority to regulate the
location of concrete-crushing facilities.
Neither the Act nor the state constitution contains language expressly withdrawing a
home-rule city’s power—or granting the Commission exclusive authority—to enact the
three types of regulations at issue here, i.e., specifying land uses that must be separated
from a concrete-crushing facility by a buffer zone, determining the size of that buffer zone,
and prescribing the method for measuring it. To the contrary, the legislature expressly
stated that ―a municipality has the powers and rights as are otherwise vested by law in the
municipality to . . . abate a nuisance; and . . . enact and enforce an ordinance for the control
and abatement of air pollution, or any other ordinance, not inconsistent with [the Act] or
the commission’s rules or orders.‖ TEX. HEALTH & SAFETY CODE ANN. § 382.113(a).
The legislature imposed only the two restrictions previously mentioned: an ordinance must
be consistent with the Act and the commission’s rules and orders and may not make
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unlawful a condition or act approved or authorized under the Act or the commission’s rules
or orders. Id. § 382.113(b). If the ordinance violates one of these restrictions, however,
then its preemption is implied with unmistakable clarity.
We therefore turn next to the first of these restrictions and address the question of
whether the Act and the ordinance are consistent.
3.
The Clean Air Act and the City ordinance are consistent.
When the legislature has stated the purpose of a state law and specified the criteria
for evaluating compliance with it, then a local ordinance imposing different requirements
is inconsistent with the state statute. See City of Wichita Falls v. Abell, 566 S.W.2d 336,
338–39 (Tex. 1978) (where alcohol sales within 300 feet of a school were prohibited, a
local ordinance requiring the distance to be measured building-to-building was
inconsistent with state law requiring the distance to be measured along property lines).
But if the state and local provisions serve different purposes, then different methods of
determining compliance do not render the two provisions inconsistent. See Robinson v.
City of Longview, 936 S.W.2d 413, 417 (Tex. App.—Tyler 1996, no writ) (holding that
ordinance prohibiting topless dancing at locations where alcoholic beverages are served
was not inconsistent with state law prohibiting municipalities from imposing stricter
standards on premises where a liquor license is required). Thus, to determine if the
ordinance is inconsistent with state legislation, we begin by comparing the purpose of each.
See City of Weslaco v. Melton, 151 Tex. 61, 63–64, 308 S.W.2d 18, 19–20 (1958) (holding
that an ordinance banning the sale of grade A raw milk was not inconsistent with a state
statute for grading and labeling milk because the two provisions served different
purposes); see also City of Brookside Vill. v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982)
(―[L]ocal regulation, ancillary to and in harmony with the general scope and purpose of the
state enactment, is acceptable.‖).
In ascertaining these purposes, we rely on the
statements of the body that enacted the provision. See, e.g., Melton, 151 Tex. at 63, 308
8
S.W.2d at 19; Robinson, 936 S.W.2d at 415; Oniyide v. State, 756 S.W.2d 370, 372 (Tex.
App.—Houston [14th Dist.] 1988, pet. ref’d).
The stated purpose of the Texas Clean Air Act is ―to safeguard the state’s air
resources from pollution by controlling or abating air pollution and emissions of air
contaminants, consistent with the protection of public health, general welfare, and physical
property, including the esthetic enjoyment of air resources by the public and the
maintenance of adequate visibility.‖ TEX. HEALTH & SAFETY CODE ANN. § 382.002(a).
The Commission is to accomplish the Act’s purpose ―through the control of air
contaminants by all practical and economically feasible methods.‖ Id. § 382.011(b). To
this end, the Commission ―may issue orders and make determinations as necessary to carry
out the purposes of [the Act].‖ Id. § 382.023(a) (emphasis added). In doing so, the
Commission ―shall consider the facts and circumstances bearing on the reasonableness of
emissions.‖ Id. § 382.024. Thus, a permit from the Commission to construct and operate
a concrete-crushing facility at a given location signifies the Commission’s determination
that the facility is not expected to have an unacceptably adverse effect on air quality or the
public’s enjoyment of air resources, because among other things, the facility would be
located not less than 440 yards from a building used as a home, school, or place of worship.
The city ordinance serves a different purpose. In the ordinance’s preamble, the
City reports the findings on which the ordinance is based, but it contains no mention of air
quality, pollution, emissions, or contaminants.
Rather, the City states that
concrete-crushing sites are ―reasonably expected to have a negative effect on residential
property values and can affect other forms of land use, such as public parks, schools, child
care facilities, hospitals, nursing homes and places of worship.‖ HOUSTON, TEX., CODE
OF ORDINANCES ch. 21, art. VI, div. 3, pmbl.
The City’s broad protection of such land use
differs from the Act’s narrower purpose of controlling and abating air pollution, but these
goals are not inconsistent.
9
Understandably, the provisions employ different methods because they serve
different ends. For example, Southern points out that the City’s method for measuring the
buffer zone required under the terms of its ordinance differs from the Commission’s
method for measuring the buffer zone required under the Act. But the Commission
expressly provided that the facility-to-building measurement is used ―to determine
compliance with any location or distance limitation requirement in [the Texas Clean Air
Act].‖ 30 TEX. ADMIN. CODE ANN. § 116.112(a).4 By its terms, this provision has no
application outside of the Act. Similarly, the ordinance’s terms do not apply when
determining compliance with the Act’s requirements. Cf. Abell, 566 S.W.2d at 339
(where state law prescribed method to measure the required distance between a school and
a ―wet‖ area, municipality could not prescribe a different method for measuring the same
thing). The methods for determining compliance with the ordinance and with the Act are
different, but because they serve different purposes, they are not inconsistent.
We conclude that the ordinance is consistent with the Act and with the
Commission’s rules and orders. See TEX. HEALTH & SAFETY CODE ANN. § 382.113(b).
We therefore turn to the remaining requirement of this provision of the Act, and once
again, compare the language of the statute with that of the ordinance.
4.
The ordinance does not make unlawful a condition or act approved or
authorized under the Act or the Commission’s rules or orders.
It is significant that the provisions drafted respectively by the state legislature, the
Commission, and the Houston City Council each employ the language of prohibition.
The state legislature directed the Commission ―to prohibit‖ concrete-crushing operations in
certain areas, see id. § 382.065(a), and the Commission drafted its regulation to specify
4
We note that this regulation was not adopted until after Southern filed its permit application with
the Commission in October 2003. If, as Southern contends in its second issue, the only laws and
regulations relevant to the proposed concrete-crushing facility are those that were in effect when Southern
initially applied for a permit, then the measurement methods prescribed respectively by the Commission
and by the City would be equally irrelevant, because neither was in effect at that time.
10
that such facilities ―must not be operated‖ in these areas. 30 TEX. ADMIN. CODE ANN.
§ 116.112 (2004). The Houston City Council similarly stated that the director of the
health department ―shall not issue a permit‖ for concrete-crushing operations in designated
areas. HOUSTON, TEX., CODE OF ORDINANCES ch. 21, art. VI, § 21-170 (2007).
These prohibitions imply nothing about activities that may be permitted—or
prohibited—outside the geographical zones to which each applies. See City of Santa Fe v.
Young, 949 S.W.2d 559, 560 (Tex. App.—Houston [14th Dist.] 1997, no writ) (city
ordinance prohibiting sandpits within 200 feet of a road was not preempted by a state
statute prohibiting sandpits within twenty-five feet of a roadway). Within a 440-yard
radius of certain buildings, both the statewide regulation and the City ordinance prohibit
concrete-crushing operations.
residential,
educational,
or
Beyond the 440-yard radius of buildings used for
religious
purposes,
the
City
ordinance
prohibits
concrete-crushing operations at some locations, but the state prohibition does not apply at
all. Thus, in Houston, the locations at which concrete-crushing operations are barred by
the Texas Clean Air Act are effectively a subset of the universe of locations at which such
operations are prohibited: everywhere that both provisions apply, both provisions
effectively prohibit the same activity. And in the areas where only one provision applies,
there can be no conflict. See id. at 560–61.
This analysis is not changed simply because the Commission has issued a permit for
Southern to construct and operate a proposed concrete-crushing facility in an area where
the City will not issue a permit. A permit from the Commission represents that body’s
determination that the proposed facility will not have an unacceptably adverse effect on air
quality, either because it complies with Act’s requirements—including distance
limitations—or because the proposed facility falls within an exemption to the Act’s
requirements. See TEX. HEALTH & SAFETY CODE ANN. § 382.065. The permit is not an
exemption from the requirements of a local ordinance designed to prevent such operations
from adversely affecting other land uses and residential property values.
11
We conclude that the ordinance does not make unlawful an act or condition
authorized or approved under the Act or the Commission’s rules or orders.
We
accordingly overrule Southern’s first issue and hold that the ordinance does not violate the
Act or the state constitution and is not preempted.
B.
The City Ordinance Does Not Violate the Uniformity-of-Requirements
Provision.
In its second issue, Southern contends that the ordinance violates the
uniformity-of-requirements provision of the Texas Local Government Code. See TEX.
LOC. GOV’T CODE ANN. § 245.002 (Vernon 2005). Under this statute, an agency must
consider the approval or disapproval of a permit application ―solely on the basis of any
orders, regulations, ordinances, rules, expiration dates, or other properly adopted
requirements in effect at the time‖ the original permit application was filed.
Id.
§ 245.002(a)(1). The statute further provides,
If a series of permits is required for a project, the orders, regulations,
ordinances, rules, expiration dates, or other properly adopted requirements in
effect at the time the original application for the first permit in that series is
filed shall be the sole basis for consideration of all subsequent permits
required for the completion of the project.
Id. § 245.002(b).
Southern argues that under the terms of this statute, the City was required to
evaluate its permit application considering only those requirements in effect in October
2003. Because the City denied the application based on the local ordinance enacted in
2007, Southern reasons that the City violated the statute.
But the statute has an exception: it does not apply to ―regulations that specifically
control only the use of land in a municipality that does not have zoning and that do not
affect landscaping or tree preservation, open space or park dedication, lot size, lot
12
dimensions, lot coverage, or building size.‖
Id. § 245.004(3).
And as previously
discussed, the stated purpose of the City ordinance is to regulate land use.
Southern asks us to ignore this language. According to Southern, the ordinance is
an ―air pollution‖ regulation because it provides that ―the director [of the health
department] may develop rules to ensure that particulate matter originating on a site or as a
result of the operations on the site do not create a nuisance.‖ HOUSTON, TEX., CODE OF
ORDINANCES ch. 21, art. VI, § 21-173. It further provides that ―[a]n application shall not
be considered complete unless accompanied by any drawings, descriptive data, emissions
information, permit fees, ownership information, contact information, and other pertinent
data that may be required by the director.‖ Id. § 21-171(b). These provisions permit but
do not require the director to develop rules concerning air pollution, and significantly,
Southern does not contend that the director of the health department has developed such
rules. Thus, regardless of whether the ordinance’s scope is expanded in the future, it is at
present a land-use regulation.
Southern also points out that the ordinance is located in the Code of Ordinances
within an article entitled ―Air Pollution.‖ Further, Southern directs our attention to an
earlier draft of the ordinance in which the preamble focused on the City’s air quality.5 But
land-use regulations may be found scattered throughout the City’s Code of Ordinances.
Cf. Purdy v. State, 261 S.W.2d 850, 851 (Tex. Crim. App. 1953) (explaining that the title of
a municipal ordinance is not required to embrace its subject, and the ordinance’s purpose
need not be stated in its caption). Moreover, the preamble language to which Southern
refers is not found in the final version of the ordinance, and we must presume the deletion
was intentional. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex.
2009) (―It is, of course, axiomatic that the deletion of language better indicates the
5
Southern also relies on material outside the record, which we do not consider. See TEX. R. CIV.
P. 38.1(i).
13
Legislature’s intent to remove its effect, rather than to preserve it.‖). Regardless of
whether other purposes were considered in the past, the ordinance as enacted regulates
only the use of land.
Because the City’s ordinance is a land-use regulation, it is not subject to and does
not violate the uniformity-of-requirements provision. We therefore overrule Southern’s
second issue.
V. CONCLUSION
We conclude that the City’s ordinance governing the location of concrete-crushing
sites is neither preempted nor unconstitutional, but is instead a land-use regulation that is
exempt from the uniformity-of-requirements provision of the Local Government Code.
We therefore affirm the trial court’s judgment.
/s/
Tracy Christopher
Justice
Panel consists of Justices Brown, Sullivan, and Christopher. (Brown, J., dissent.)
14
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