Pioneer Concrete/Hanson Aggregate in Southlake, Texas

Dateline Southlake, Texas - Sunday October 14, 2001 12:35 AM

Dispute between City of Southlake and Pioneer Concrete Continues

As of this posting, LNO had not been able to reach Pioneer Concrete for comment, however, is in the process of preparing a follow up with the principals.

The following information has been provided by the City of Southlake concerning the background and status of the current controversial issue involving Pioneer Concrete.

In January 1981, a building permit was issued to Express Concrete for a concrete batch plant. At that time, the city's zoning ordinance prohibited concrete batch plants in the "F" Light Industrial Zoning District, which was the zoning district governing land uses at the site of the batch plant. It cannot be determined why a building permit was issued when the zoning ordinance prohibited the activity, and it is currently presumed that the permit was issued in error.

The zoning ordinance has been amended three times since the building permit was issued in 1981, but at no time has a batch plant been a permitted use under the existing zoning at that site (current zoning is I-1, Light Industrial). The city has allowed the plant to continue operating as a "legal non-conforming use."

The city's zoning ordinance allows legal non-conforming uses to continue operating under certain conditions. It also defines conditions under which a non-conforming use will cease to be a permitted use, one of which is discontinuance of use.

In 1997, the state air quality permit for the concrete batch plant expired. According to Pioneer Concrete officials, the expired permit was not "discovered" until the spring of 1999. Pioneer voluntarily discontinued the concrete batch plant operation at that time without influence or pressure from the City of Southlake or the TNRCC. In the interim, Pioneer applied for a new air quality permit from the TNRCC. The city's records indicate that the batch plant has now been inoperative for more than a year.

City zoning ordinance (Section 6.9.a) places limitations on "non-conforming uses," including a provision that if such uses "cease to be used" for six consecutive months, the legal non-conforming status is lost. The city's zoning administrator is not given discretion in applying that provision of the ordinance. Therefore, because the Pioneer Concrete plant had not been operating for more than six consecutive months, it no longer qualifies as a legal non-conforming use under the ordinance.

City ordinance allows property owners to appeal the zoning administrator's decision to the Zoning Board of Adjustment.

In February 2001, the ZBA upheld the zoning administrator's ruling. In keeping with an agreement made by the city, Hanson was allowed to continue operating the plant until a ruling had been received from the District Court.

On June 27, 2001, Judge Bob McGrath of the 342nd District Court in Fort Worth issued two one-page rulings, both in favor of Hanson. One reversed the ZBA ruling and one granted partial summary judgment to allow reopening of the plant. Judge McGrath did not, however, issue a ruling on Hanson's earlier request for damages from the city. In his reversal order, Judge McGrath gave as the reason for his decision that "as a matter of law, Hanson did not abandon or discontinue the non-conforming use of its concrete batch plant."

On Oct. 2, 2001, the Southlake City Council unanimously approved a resolution directing the ZBA to conduct public hearings on possible amortization of the Pioneer Concrete batch plant. This is a legal step provided in state and local codes for dealing with a legal non-conforming use that has become a burden on the community by its impact on surrounding properties. It would allow the legal non-conforming use to be terminated if the owner recovers or has recovered the value of the property.

The City of Southlake submitted written notification of intent to appeal Judge Bob McGrath's June 27 ruling in this case. There still remains a legal question of whether the judge's ruling answered all parts of the action filed by Hanson Aggregate, so it is not yet known whether this appeal will be pursued at this time or if it will have to be refilled at a later date. The city submitted its notice of intent to appeal at this time in order to abide by a 30-day deadline, beyond which an appeal would not be possible if it were determined that the June 27 ruling is
complete and final.

As of October 8, 2001, the TNRCC issued a new air quality permit to Hanson Aggregate. However, that is a state air quality issue and does not change the basic facts of the current disagreement, which revolves around local zoning authority and regulations.

The Southlake ZBA has not yet scheduled and meetings or hearings related to amortization. For information, call Planning Director Bruce Payne at (817) 481-2036.

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