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September 1, 2009

Court Sides with City Against Concrete Crushers

Those who have followed the City's long-running battle to keep a concrete crushing plant out of the Sunnyside neighborhood will be pleased to learn that this week a state court judge agreed with the City and  ruled against the company that had challenged the ordinance which regulates such sites.

"This is a victory for Houston and particularly for the good residents of Sunnyside who have fought so long and hard to protect their neighborhood," said Mayor Bill White.

On November 17, 2008, Southern Crushed Concrete filed suit against the City of Houston to challenge Sec. 21-167 of the Code of Ordinances.  This ordinance was passed by a unanimous City Council vote on May 9, 2007.  The purpose of the ordinance is to ensure that concrete crushing facilities are not located too close to homes, schools, churches or health centers.

SCC obtained a permit from the state environmental agency, Texas Commission on Environmental Quality, to operate a concrete crushing facility in Sunnyside.  Neighborhood civic clubs, environmental groups, the City and Harris County all opposed the TCEQ's issuance of the permit.  The TCEQ issued the permit with a split vote of the commissioners.  The City and others have appealed to a court in Travis County to overturn the TCEQ's issuance; that case is still pending.

After obtaining its TCEQ permit, SCC applied for a permit from the City, as required by Sec. 21-167.  The City denied the permit because the proposed site was too close to a school, as prohibited by the ordinance.  SCC then filed a lawsuit against the City asking a judge to strike down the ordinance as illegal.  SCC argued that the City ordinance contravened the Texas Constitution and the Texas Clean Air Act, conflicted with the regulatory program through which the TCEQ regulates air polluters, and impermissibly extended the City's pollution enforcement authority.

The City asserted otherwise and on Thursday, Judge Joseph Halbach agreed with that, granting the City's Motion for Summary Judgment dismissing all of SCC's claims.  The City was ably represented by Kathy Patrick an Aundrea Frieden of the law firm of Gibbs and Bruns.

The SCC lawsuit is one of two cases filed on behalf of industrial interests who contend that the City of Houston may not regulate air polluters.  The other case challenges an ordinance through which the City requires the registration of air polluters, and is virtually identical to ordinances in many other municipalities.  That case is still pending in a Harris County court.