City of Miami Beach v. Texas Co.

• Decision Date: 23 January 1940
• Parties: CITY OF MIAMI BEACH et al. v. TEXAS CO.
• Court: Florida Supreme Court

194 So. 368

141 Fla. 616

CITY OF MIAMI BEACH et al. v. TEXAS CO.

Florida Supreme Court

January 23, 1940

Rehearing Denied March 11, 1940.

Suit by the Texas Company against the City of Miami Beach and others to enjoin the enforcement of an ordinance. From a decree for plaintiff, the defendants appeal.

Affirmed. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

J Harvey Robillard, of Miami Beach, and Loftin, Calkins & Anderson, of Miami, for appellants.

M. L. Mershon, W. O. Mehrtens, and Evans, Mershon & Sawyer, all of Miami, and Harry T. Klein and Albert E. Van Dusen, both of New York City, for appellee.

OPINION

PER CURIAM.

The record in this case discloses that during the month of June 1923, The Texas Company agreed to buy a site on 'Fisher's Island' to be used by it as a site for its bulk sales plant. The property and other real estate situated on Peninsular Island was then owned by the Peninsular Terminal Company. Fisher's Island was to be connected by a causeway to be constructed by the Peninsular Terminal Company to the County Causeway. The County Causeway connects the City of Miami with Miami Beach and was constructed in 1923, when Miami Beach had a population of approximately 6,000 people. The industrial area of Miami Beach is situated within the waters of the Port of Miami, and Fisher's Island and the island on which Miami Beach is located are within the waters of Biscayne Bay. The Peninsular Terminal Company filled in and developed the tract of land involved in the case at bar, as well as other areas, in that vicinity.

Simultaneously with the contract to purchase a bulk site on Fisher's Island, the Peninsular Terminal Company agreed to lease to The Texas Company a certain tract of land located on Peninsular Island having a frontage on the County Causeway and likewise a frontage on the main government channel, and the lease was to continue until the causeway to Fisher's Island, as contemplated, was completed, when the same was to be used as a site for the bulk plant of The Texas Company. The aforesaid plant was to distribute the products of The Texas Company from Vero Beach, South, on the lower East Coast. The products of the Texas Company are brought by boats from Texas into the Port of Miami and are stored in the large all steel tanks at the bulk plant within the city limits of the City of Miami Beach until sold and distributed over the aforesaid sales territory.

The Texas Company continued to operate its bulk plant situated on Peninsular Island from 1923 until 1930, when the City Council of Miami Beach adopted a Zoning Ordinance dividing the City of Miami Beach into areas and districts for purposes therein designated, and the entire Peninsular, inclusive of the land upon which The Texas Company's bulk plant site was situated, was controlled by the said Zoning Ordinance, the material portions of which are, viz.:

'Use Regulations--'BF' Business District. In the 'BF' business district no building or land shall be used and no building shall be hereafter erected, constructed, reconstructed or structurally altered which is designed, arranged or intended to be occupied or used for any purpose, unless otherwise provided for in this ordinance, excepting for one or more of the following uses:

'(1) Any use permitted in the 'BF' business district.

'(2) Ship yards and dry docks.

'(3) Oil and/or gasoline storage tanks.

'(4) Hazardous industries only upon approval and permit by the City council of Miami Beach.

'(5) Any other use, trade or industry which is not likely to become objectionable by reason of the emission of dangerous, unwholesome, foul, nauseous or offensive gases, odors, fumes or other discharges.'

The Peninsular Terminal Company, for some reason, failed or omitted to construct the proposed causeway from the County Causeway to Fisher's Island, and for this reason it was impossible to use the proposed site situated thereon as a bulk plant site, as it was an island with no causeway connection, which was essential to move the products of the Texas Company from its proposed plant by means of motor propelled vehicles for distribution over the sales area.

On August 27, 1932, The Texas Company, by its written agreement to reconvey to the Peninsular Terminal Company the lands situated on Fisher's Island and the Peninsular Terminal Company agreed to sell to The Texas Company the tract, then occupied by it under a lease, situated on Peninsular Island, with additional lands adjacent thereto, but the sale to The Texas Company was not to be completed until the Peninsular Terminal Company obtained the necessary permits from the proper authorities for the construction and maintenance on Peninsular Island of large above ground tanks for the storage of its products and for the operation and maintenance of a general bulk plant.

Pursuant to the agreement to purchase, The Texas Company in October, 1932, appeared before the city council of the City of Miami Beach and presented its application for a permit to build, enlarge and construct a new, complete and modern bulk plant on the site then occupied by it under a lease and situated on Peninsular Island. In support of the application for a permit The Texas Company submitted to the City Council plans and specifications for the construction of the bulk plant consisting of eight additional tanks and other improvements to be a part of the proposed bulk plant to be situated on the same lands, then occupied by it under a lease and on other lands. The application for said permit was duly considered by the City Council of Miami Beach, and upon motion was unanimously carried or granted. The Texas Company, upon the granting of the aforesaid permit by the City Council of Miami Beach, executed its written agreement with the Peninsular Terminal Company and paid to it the sum of $146,323.05, and took title to the lands now involved in this suit.

The Texas Company, after acquiring title, constructed on the aforesaid land a bulk sales plant consisting of steel storage tanks for gasoline, kerosene, and Diesel gas oil; facilities for loading tanks, ships and barges, as well as facilities for unloading tanks, ships and barges; pumping facilities and lines; facilities for loading trucks; a warehouse; an office and garage building; concrete walls around the storage tank area; foam fire protective system; improvement of the bulk head and loading platform on the government channel; and dredging and construction work along the water front to be used by tank boats for the delivery of products at the bulk plant. The property was otherwise improved, at a total expense of $132,083.27.

The storage capacity of the tanks totals 42,000 barrels and are of riveted steel, oilvapor proof construction; and the vertical tanks are equipped with Oceco pressure and vacuum relief valve. The tanks are surrounded by concrete walls of several feet in height. The Texas Company has a modern foam protective system installed about its plant, but the water pressure from the City of Miami Beach water mains is insufficient under normal conditions to operate the same.

On September 24, 1936, the City Council of the City of Miami Beach adopted Ordinance No. 446, which became effective from and after May 1, 1937, and the material portions are, viz.:

'Be It Ordained by the City Council of the City of Miami Beach, Florida:

'Section 1. That it shall be unlawful for any person firm or corporation to keep, put, place or store any petroleum, naptha, benzine, gasoline, coal oil or any of the inflammable products of petroleum or any inflammable or explosive oils at any point or points within 1000 feet distant from any dwelling house, residence or building used as such, or storeroom, building shed or other like structure within that portion of the City of Miami Beach lying North of the main Government channel, provided, however, that this ordinance shall not apply to the keeping or storing of not more than 6000 gallons of any petroleum products at a retail mercantile establishment in metal tanks or containers buried at least two feet underground, nor shall the same apply to the keeping of not more than 100 gallons of any petroleum products inside of or at a retail mercantile establishment in metal floor tanks or containers, nor shall the same apply to the keeping of any petroleum products in dwelling houses, residences or buildings used as such, for domestic or household purposes.

'Section 2. Any person, firm or corporation violating any provision of this ordinance shall, upon conviction thereof, be punished by a fine not exceeding Five Hundred Dollars ($500.00), or by imprisonment in the City Jail for a period not exceeding Thirty (30) days, or by both such fine and imprisonment, provided, however, that each day that the materials or substances set forth in Section 1 hereof are kept, put, placed or stored in any place in violation of the terms of this ordinance shall constitute a separate offense hereunder.

'Section 3. That this ordinance shall be in force and effect from and after May 1st, 1937.'

The brief of counsel for appellants recite that Ordinance No. 446, supra, was adopted by the City Council of the City of Miami Beach after several years of consideration and many public meetings where arguments were presented and briefs filed, when the Ordinance was unanimously adopted by the City Council. The ordinance prohibited the maintenance north of the channel from the Atlantic Ocean to Biscayne Bay of large tanks for the storage of petroleum products. This ordinance affected property in the prohibited area owned then by the Sun Oil Company, The Texas Company and the Gulf Oil Corporation.

The Texas Company owned several large storage tanks situated along the county...