The city of McKinney is facing challenges with its efforts to close two concrete batch plants as a lawsuit from one of the plant’s owners claims the city’s methods are illegal.

In the summer of 2020, the McKinney Board of Adjustments agreed that one of the plants, Martin Marietta Materials Inc., had until April 29, 2021, either to close or to come into compliance with the zoning ordinance for that area. In September 2020, the board approved a compliance date of Aug. 26, 2027, for the CowTown Redi-Mix plant.

The two plants, CowTown Redi-Mix and Martin Marietta produce ready-mix concrete and operate on about 10 acres along SH 5, also known as McDonald Street.

The city has been trying to close the plants and said in court documents that it is doing so legally. The process—known as amortization—began earlier in 2020 with the identification of land uses that are not allowed under the current zoning, after which landowners are given a certain amount of time to shut down.

However, TXI Operations, the owner of the Martin Marietta plant, is challenging the rulings from the McKinney Board of Adjustment.

“The city is actively litigating and negotiating to uphold the city’s desire of relocating these plants from [SH] 5,” a city web page said about the status of the concrete plants.

While court proceedings progress, the city is working to gain voluntary compliance from the plants, the city web page states.

In November, TXI submitted an amended complaint to the court. In this amended lawsuit against the city and the McKinney Board of Adjustment, TXI states the city “illegally downzoned TXI’s property without providing the constitutionally and statutorily required notice.” The city then began the amortization process to force TXI to stop operating, which TXI states in its lawsuit violates its “constitutional and property rights.”

While TXI was able to set up its plant about two decades ago on its property that was zoned as a Heavy Manufacturing District, it was rezoned in 2019 to a Regional Office District, documents provided in the lawsuit show.

TXI alleges that in order to lawfully change the zoning of its property, the city had to provide TXI written notice of each hearing before the planning and zoning commission, but that the city “failed to provide TXI with that requisite notice.” Additionally, when the city scheduled public hearings with the board of adjustment on whether or not to initiate the amortization process, it again “failed to notify TXI of the hearings,” TXI said in the lawsuit.

TXI’s claims include that since it did not receive notice of the rezoning, the city’s actions to rezone the property were rendered null and void. For that reason, TXI did not respond to a March 2020 subpoena that required TXI to produce financial documents, it said in its lawsuit.

For this reason, TXI is seeking that the court find the city’s actions null and void; reverse the city’s order affecting the plant; and award damages, the cost of the lawsuit, attorneys’ fees, and prejudgment and post-judgment interest, as well as any other relief to which TXI might be entitled, the complaint states.

In November, the city of McKinney responded to the lawsuit with partial opposition to TXI’s amendment of its original complaint, since it contained additional information about a development agreement. The agreement discusses property TXI purchased in the city’s extraterritorial jurisdiction, which is land that the city has a right to annex, but has not yet done so.

On the city’s web page about the concrete plants, it states that TXI purchased about 39 acres in early 2021 east of FM 546 and north of CR 317. City staff has notified TXI that before any subdivision or development activity occurs on this property, it must be annexed into McKinney city limits, the site states.

The city asked the court to deny TXI’s motion or to alternatively sever the claims pertaining to the development agreement. However, in December the court chose to grant TXI’s motion for an amended complaint, case documents show.

CowTown Redi-Mix Inc. has also filed a lawsuit against the city, which is pending in Collin County District Court.

McKinney residents have filed complaints over the years about noise, light and dust coming from the batch plants, documents show. Both plants are located within 500 feet of the nearest homes. In 2018, citations were issued to Martin Marietta for violating the city’s noise ordinance. CowTown also has violated the city’s stormwater runoff ordinances, according to city staff, and in July 2019, an estimated 8,000 pounds of cement dust were released, covering a nearby neighborhood. Martin Marietta told state regulators that its equipment had malfunctioned.