

 
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,
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 proposed 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 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 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 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
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 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.  
            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 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.  Beyond the 440-yard radius of
buildings used for residential, educational, or 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.  
            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 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
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.)
 




[1] Tex. Health & Safety Code Ann. § 382.001 et. seq.
(Vernon 2010).


[2] “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).  


[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.


[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.


[5] Southern also relies on
material outside the record, which we do not consider.  See Tex. R. Civ. P. 38.1(i).  


