Texas Supreme Court Rules in Southern Crushed Concrete that Texas Clean Air Act Preempts City of Houston Land Use Ordinance

On February 15, 2013, the Texas Supreme Court reversed the rulings of both a trial court and lower appellate court and found in favor of Southern Crushed Concrete in holding that a City of Houston ordinance placing location restrictions on new concrete-crushing operations was preempted by the Texas Clean Air Act (TCAA). Specifically, the Texas Supreme Court held that "[b ecause the Ordinance makes it unlawful to build a concrete-crushing facility at a location that was specifically authorized under the [Texas Commission on Environmental Quality's] orders by virtue of the permit, we hold that the Ordinance is preempted."


In October 2003, Southern Crushed Concrete applied to the Texas Commission on Environmental Quality (TCEQ) for an air quality permit to move an already permitted concrete-crushing facility to anew location in Houston closer to a significant project – the former Astro Arena. At that time the TCAA and TCEQ rules required 1,320 feet of separation between concrete-crushing facility and a school, measured from the nearest buildings. However, before the TCEQ ruled on Southern Crushed Concrete's permit application, a school was built near the property where Southern Crushed Concrete proposed to move its facility and the City of Houston enacted an ordinance prohibiting a concrete-crushing facility to be located within 1,500 feet of a school, measured from property line to property line. The TCEQ granted Southern Crushed Concrete's request for an air quality permit because the school was built after Southern Crushed Concrete applied for its permit. But the City of Houston denied Southern Crushed Concrete's application for a municipal permit because the facility would be located within 1,500 feet of a school in violation of the City's ordinance that contained more restrictive location requirements.

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