Southern Crushed Concrete, LLC v. City of Houston ( 2010 )

Affirmed Majority and Dissenting Opinions filed November 17, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-09-00873-CV

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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

DISSENTING  OPINION

As a home-rule municipality, the City of Houston has broad powers of self-government.  But the constitutional provision that confers those powers also prohibits the city from passing ordinances that “contain any provision inconsistent with” acts of the Texas Legislature.  Tex. Const. art. XI, § 5. Under our state constitution, not surprisingly, statutes are superior to ordinances.  Because I believe the Texas Clean Air Act preempts the ordinance in question, I respectfully dissent.

            In considering the preemption question, the majority reaches two broad conclusions.  First, because the Act and the ordinance supposedly each address a different governmental purpose, the majority has determined that “the ordinance is consistent with the Act and with the Commission’s rules and orders.”  Second, and also related to the alleged distinction of purpose, the majority concludes that “the ordinance does not make unlawful an act or condition authorized or approved under the Act or the Commission’s rules or orders.”  I disagree on both counts.

I

            Whether the city’s purpose for enacting the ordinance is different from the legislature’s purpose in passing the Act is irrelevant.  The question in a state-law preemption case is whether the municipal ordinance and the state statute actually regulate the same activity; it is not an inquiry into what distinct purpose the municipality has articulated in passing an ordinance which conflicts with a statute.  See City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982); Robinson v. City of Longview, 936 S.W.2d 413, 416 (Tex. App.—Tyler 1996, no writ); Banknote Club & Stan’s Boilermaker v. City of Dallas, 608 S.W.2d 716, 718 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.). 

            Neither the constitution nor any preemption case the majority relies on plainly allows an ordinance to run afoul of a legislative act merely because the ordinance purportedly aspires to a different purpose.  An ordinance survives a preemption challenge not because its purpose differs from the statute’s, but because the activity it regulates is at best only ancillary to the activity the statute concerns.  This is true for all the instances in which the majority maintains courts have upheld ordinances because of their disparate purposes.  See Comeau, 633 S.W.2d at 796 (state regulates mobile-home construction safety and installation; city regulates location and density of mobile homes in city limits); City of Weslaco v. Melton, 151 Tex. 61, 308 S.W.2d 18, 19–20 (1958) (state prescribes how milk will be graded and labeled; city prohibits sale of unpasteurized milk); Robinson, 936 S.W.2d at 417 (state regulates sale of alcoholic beverages; city regulates sexually oriented businesses); Oniyide v. State, 756 S.W.2d 370, 372 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (state regulates coin-operated amusement machines; municipality regulates structural configuration and operation of adult arcades).

            Texas courts define as “inconsistent” or “conflicting”—and therefore preempted—any local enactment that attempts to regulate in a more or less restrictive way the same activity a statute already directly regulates.  City of Santa Fe v. Young, 949 S.W.2d 559, 561 (Tex. App.—Houston [14th Dist.] 1997, no writ); Comeau, 633 S.W.2d at 796; City of Wichita Falls v. Abell, 566 S.W.2d 336, 338–39 (Tex. Civ. App.—Fort Worth 1978, writ ref’d n.r.e.); City of Fort Worth v. McDonald, 293 S.W.2d 256, 258 (Tex. Civ. App.—Fort Worth 1956, writ ref’d n.r.e.); Prescott v. City of Borger, 158 S.W.2d 578, 581 (Tex. Civ. App.—Amarillo 1942, writ ref’d).  That is what has happened in this case.  The city has established location and distance requirements that are flatly inconsistent with—and more restrictive than—those prescribed in the Act and the Commission’s rules; the distance setbacks are greater and the method of measurement is more expansive.  The city’s more restrictive requirements impermissibly encroach upon the narrow field of regulation that the Act carves out and reserves to the state:  location requirements for concrete-crushing operations.  Because of this encroachment, the Act preempts the ordinance. 

            Allowing municipalities to draft ordinances that conflict with statutes on the pretense that the purpose of the local regulation differs from that of the statute would largely put an end to state-law preemption.  Cities could essentially nullify state regulations by simply stating a justification for the ordinance that differs from the purpose the legislature had for passing the statute.  And thus home-rule ordinances would become constitutionally superior to acts of the legislature.

II

            The majority also concludes that “the ordinance does not make unlawful an act or condition authorized or approved under the Act or the Commission’s rules or orders.”  The rationale is that the permit the Commission issued to Southern Crushed Concrete “authorizing the construction and operation of” a concrete-crushing facility is not actually that.  Instead, according to the majority, the permit represents the Commission’s “determination that the proposed facility will not have an unacceptably adverse effect on air quality.”  And because the ordinance purports to regulate land use rather than air quality, the rationale goes, that means the ordinance does not actually override the permit.

            The majority also maintains that the ordinance does not render unlawful a state-authorized act because the Act’s location restrictions “are effectively a subset of the universe of locations at which such operations are prohibited” by the ordinance.  Here, the majority relies on City of Santa Fe v. Young, 949 S.W.2d 559 (Tex. App.—Houston [14th Dist.] 1997, no writ). 

Young concerns the Texas Aggregate Quarry and Pit Safety Act, which prohibits sandpits within twenty-five feet of a roadway and requires certain safety devices for quarries and pits located within 200 feet of a roadway.  See Tex. Nat. Res. Code § 133.001–.093.  The City of Santa Fe passed an ordinance that prohibits sandpits within 200 feet of a roadway and requires a permit before any quarry or pit may be dug within the city limits. This court held that the statute in Young did not wholly preempt the ordinance, and that the city was free to regulate the digging of pits and quarries beyond the zone the statute specifically addressed.  949 S.W.2d at 560–61.

The majority cites Young when it concludes that the City of Houston may prohibit concrete-crushing facilities beyond the restrictions prescribed by the Act, even if the Commission has issued a permit for such a facility.  But unlike this case, the ordinance in Young does not purport to override a permit a state agency has actually issued to one of the litigants.  Moreover, in Young we held that “the only legislative intention that [was] unmistakably clear in this statutory language [was] the intention to preclude other entities from regulating safety devices for the quarries and pits govered by the Act.”  Id. at 560 (emphasis in original).  In this case, however, it is the very location of concrete-crushing facilities that is preempted.

            Under the majority’s reading of Young, municipalities are always free to expand the limitations state law places on regulated behavior.  Whenever a city believes a state-imposed distance requirement is too lenient, it can lengthen it with constitutional impunity.  State-law preemption under the Texas Constitution is simply not that weak.

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            The ordinance in this case is unconstitutional.  It accomplishes nothing that state law doesn’t already accomplish except when it varies from state law.  And when it does that, it’s preempted.  I respectfully dissent.

                                                                                                                                                                                                                                    /s/        Justice

Jeffrey V. Brown

Panel consists of Justices Brown, Sullivan and Christopher. (Christopher, J., majority.)