Ord. 0611 04-22-91ORDINANCE NNO , 611
AN ORDINANCE AUTHORIZING THE EXECUTION OF A STIPULATION
OF PARTIES, A FACSIMILE OF SAME BEING ANNEXED HERETO,
INCORPORATED HEREIN FOR ALL PURPOSES DESIGNATED EXHIBIT
"A" IN CONNECTION WITH CIVIL ACTION NO. H-90-0205 HILL
SAND COMPANY, INC. DBA DIXIE FARM ROAD LANDFILL COMPANY
VS CITY OF PEARLAND.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND:
SECTION 1. That certain stipulation of parties, a facsimile
of which is annexed hereto, incorporated herein for all purposes,
designated Exhibit "A", by and between the City of Pearland,
Texas and Hill Sand Company, Inc. dba Dixie Farm Road landfill,
is hereby authorized and approved.
SECTION 2. J. Mark Breeding, attorney at law, is hereby
authorized and directed to execute for and on behalf of the City
the annexed stipulation of parties, and counterparts thereof.
PASSED on First Reading this day of
A. D., 1991.
C.4V.COP4ER
MAYOR
ATTEST:
PAT JONES
CITY SECRE ARY
PASSED and APPROVED on the Second and Final Reading this
2..;Ld day of
ATTEST:
PAT JONES
CITY SECREI`ARY
APPROVED AS TO FORM:
LESTER G. RORICK
CITY ATTORNEY
, A. D., 1991.
C.V
MAYOR
. COPPIN
EXHIBIT "A"
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HILL SAND COMPANY, D d/b/a §
DIXIE FARM ROAD LANDFILL g
COMPANY, 4
Plaintiff
f
VS. §
CITY OF PEARLAND, §
0
Defendant
CIVIL ACTION NO. H-90-0205
STIPULATION OF FARMS
Pursuant to Rule 16, Fed. R. Civ. P., Plaintiff Hill Sand Company dlb/a Dixie Farm
Road Landfill. and Defendant City of Pearland enter into the following stipulation in order to
expedite the disposition of this action, to formulate and simplify the issues before the court, and
•
to eliminate the necessity of protracted litigation concerning issues not before the court.
RECITALS
On April 9, 1986, the Texas Department of Health issued a permit fora Type IV
Municipal Solid Waste Facility to Plaintiff. The site consists of 99.46 acres of land and is
located partly within the corporate limits of Defendant City and the remaining part within the
extraterritorial jurisdiction of the City. At this time, the actual landfill operations of Plaintiff
are conducted wholly within the portion of the site located in the extraterritorial jurisdiction of
. the city. The only operations of Plaintiff at this time which may be within the corporate limits
of Defendant City are a ticket booth and access roads for entry into the landfill area.
On January 23,1990, Plaintiff filed its Application for Declaratory Judgment, Temporary
Restraining Order, Preliminary Injunction, and Permanent Injunction in the above -referenced
cause. Specifically, Plaintiff sought a declaration that Ordinance No. 215 of Defendant City of
Pearland was unconstitutional and void. Ordinance No. 215, attached as Exhibit "G" to
Plaintiffs complaint, purported to require written consent from the City Council of Defendant
City prior to the operation of a sanitary landfill within the corporate limits or extraterritorial
jurisdiction of Defendant City.
On March 24, 1986, City Ordinance No. 509, a comprehensive zoning ordinance
applicable to all land within the corporate limits of Defendant City, became effective. Ordinance
No. 509 purports to provide that all parties wishing to conduct landfill operations within the
corporate limits of Defendant City must first obtain a special use permit from the City Council
prior to commencement of actual landfill operations. At this time, Plaintiff has neither applied
for nor obtained a special use permit from Defendant City for landfill operations within the
corporate limits of Defendant City.
5T1PULATIONS
In accordance with Rule 16, Fed. R. Civ. P., Plaintiff and Defendant do hereby stipulate
and agree as follows:
1. The subject litigation in the above -referenced cause is limited to the applicability,
constitutionality and validity of Defendant City of Pearland's Ordinance No. 215 only. This
cause does not involve the applicability, constitutionality or validity of Ordinance No. 509.
2. The applicability of Ordinance No. 509, to Plaintiff, if applicable at all, is only
triggered by the actual deposit of waste into landfill cells located within the corporate limits of
Defendant City. The parties hereby expressly agree that the use of the ticket booth and access
2
roads which may lie within the corporate limits of Defendant City do not require Plaintiff to seek
a special use permit under Ordinance No. 509.
3. By entering into this stipulation, Defendant City has not waived its right to the
lawful enforcement of Ordinance No. 509, and Plaintiff does not waive any claim that it may
now or hereafter have that Ordinance No. 509 is unenforceable against it except that Plaintiff
may not claim that the City's execution of this instrument and the forbearance contemplated
hereunder constitutes a waiver of any right the City may have to seek enforcement of Ordinance
No. 509 against Plaintiff.
4. Plaintiff and Defendant acknowledge that their authorized representatives have
discussed the contents of this stipulation with their respective legal counsel and that they fully
understand the legal effect of this agreement. Counsel for Defendant City represents that it is
fully authorized to execute this agreement on behalf of Defendant City and that the City Council
of Defendant City of Pearland has be resolution authorized the execution of this stipulation.
EXECUTED this day of , 1991.
Respectfully submitted,
MAYOR, DAY, CALDWELL & KEETON
By:
J. MARK BREEDING, TBA #02942500
1900 NCNB Center
700 Louisiana
Houston, Texas 77002
Tel. (713) 225-7000
Fax (713) 225-7047
ATTORNEYS FOR DEFENDANT,
CITY OP PEARLAND
3
nKa7.05
SULLINS, JOHNSTON, ROHRBACH & MAGERS
By:
TOM AUBRY, TBA #01428550
3701 Kirby Drive, Suite 1200
Houston, Texas 77098
Tel. (713) 521-0221
Fax (713) S21-3242
ATTORNEYS FOR PLAINTIFF,
HILL SAND COMPANY, INC.
APPROVED this day of 1991.
NORMAN W.BLACK
UNITED STATES DISTRICT JUDGE
4
OFFICE OF THE CITY SECRETARY
CITY OF PEARLAND, TEXAS
TO: LESTER RORICK DATE: APRIL 25, 1991
City Attorney
At the April 22, 1991 meeting of the
City Council of the City of Pearland, Texas, the following matter
was referred to you for appropriate disposal or for specific
action as indicated:
Passage on second and final reading of
Ordinance No. 611 - Hill Sand Company.
As yet, I have no hard copy of the exhibit.
Documents Attached:
Ord. 611
cc:
City S -,S etary
off.cs