City of Colorado Springs v. Grueskin

422 P.2d 384, 161 Colo. 281, 1966 Colo. LEXIS 568

• Court: Supreme Court of Colorado
• Decided: December 19, 1966
• Docket: 21669
• Status: Published

Opinions

Mr. Justice Moore

delivered the opinion of the Court.

Two cases are here consolidated. The issues are the same in each case. The plaintiff in error will be referred to as the City and the defendants in error will be mentioned as defendants.

The City accused the defendants of violating Sections 16-92 and 16-98 of the Code of the City of Colorado Springs on January 18, 1964, by making delivery of a flammable liquid, to-wit: gasoline, from a tank transport truck having a capacity in excess of 2,200 gallons. The delivery was made at a retail service station located at 824 West Colorado avenue, Colorado Springs, Colorado. Section 16-98 of the code of the City provides as follows:

“With Capacity in Excess of Two Thousand Gallons Prohibited From Delivering To Stations, Etc. No tank truck, tank trailer or tank semi-trailer having a total capacity in excess of two thousand gallons, including tolerances of ten per cent, shall be used for making regular deliveries to filling stations or to tank trucks or trailers within the City, except as provided in the following Section.”

Defendants admit that delivery was made from a tank transport truck having a capacity of 8,800 gallons, compartmented in compliance with National Board of Fire Underwriters Bulletin 385, Section 2231, which Bulletin is expressly adopted by Section 16-82 of the code of the City.

The principal issue in this case is whether Sections 92 and 98 of Chapter 16 of the code of the City of 1958 constitute a -valid exercise of the police powers of the City. Dividend Automotive Equipment Company takes the position that the aforementioned sections do not have a substantial and real relation to the promotion of the public health, welfare and safety, but in fact are detrimental to the public health, welfare and safety.

Defendants further contend that the subject ordinances violate Article I of the Fourteenth Amendment to the Constitution of the United States and Section 25 of Article II of the Constitution of the State of Colorado in that they deprive the defendants of their property without due process of law; that they deny them equal protection of the laws; and that the ordinances are discriminatory and create classifications which have no real basis in fact. Defendants further contend that the ordinances violate Paragraph 3 of Section 8, Article I of the Constitution of the United States of America, commonly called the Commerce Clause, in that they impose an unreasonable restraint and burden upon commerce between the states. The pertinent evidence is as follows:

Dividend Automotive Equipment Company and Dividend Bonded Gas Company, corporations primarily owned by Harold R. Grueskin, operate four retail gasoline service stations in Colorado Springs, Colorado. One of these stations is outside the city limits by the distance of half the width of the street marking the boundary. Operated in connection with it is a bulk plant and storage facilities where gasoline is kept for redelivery to the other locations in the City by means of a tank truck having a capacity of one thousand five hundred gallons.

Approximately four to five million gallons of gasoline are retailed at the four locations during the average year. Each of the locations has underground storage facilities and tanks for the storage of 24,000 gallons or more of gasoline. Each location is physically arranged and laid out in a manner which would make it relatively easy to unload a tank semi-trailer or tank trailer having a capacity of eight or nine thousand gallons in a short period of time in areas upon the premises which are apart from the area in which retail sales are made. With the exception of the North Union Boulevard location, all of the locations are relatively close to Interstate No. 25 which is the north-south freeway running through the City.

At the present time Dividend Automotive Equipment Company owns and operates a 1,500 gallon tank truck for the purpose of delivery of gasoline from the storage facilities located at 333 North Union Boulevard to the other three retail outlets located in Colorado Springs. The gasoline is normally unloaded at the North Union Boulevard facility from large tank trailers or semitrailers for redistribution by means of the tank truck described. The redelivery of gasoline by use of the 1,500 gallon tank truck costs Dividend Automotive Equipment Company approximately one-quarter cent per gallon for delivery, or about $8,145 per year. This is a minimum figure and is calculated without taking into account special labor requirements which might be necessary to operate delivery facilities on a full time basis. A time study discloses that this method of operation substantially increases the exposure of the public to situations which could result in accident as a result of human error. Such exposure is summarized by the following table:

EXPOSURE TO THE PUBLIC — WEEKLY

EXPOSURE ON CITY STREETS Using Present Using 9,000 Tank Wagon Gallon System Transport

Miles Travelled 376 31

Hours 25% 3

Number of Trips 58 11

EXPOSURE IN STATIONS

Hours to Unload 15 4%

Number of Connections (on and off) 116 22

Rate of Unloading (all with fastest devices) 100 gal. 350-400 gal. per min. per. min.

Hours to Load 9 0

Number of Connections (on and off) 56 0

The “Tank Vehicles for Flammable Liquids” standard of the National Board of Fire Underwriters, which standard is set forth in National Board of Fire Underwriters Pamphlet 385, was introduced in evidence. In addition, Section 16-99 of the Code of the City permits the making of deliveries by transports with capacities up to 10,000 gallons at certain areas within the City. It is admitted that no truck routes for carriers of flammable liquids have been established by the City.

Testimony by Messrs. George F. Prussing, John Ainlay, Joseph Antonio and Harry W. Martin conclusively established that the danger is in the handling of gasoline and that the danger to the public increases almost in direct proportion to the number of times gasoline is handled or the frequency with which trucks carry gasoline over the city streets. All witnesses who testified, including Fire Chief Lausch and Battalion Chief Nice, agreed that there is no greater hazard in unloading a tank semi-trailer carrying 8,800 gallons of gasoline at a retail service station once the tanker is located upon the premises, than there is in unloading from a tank wagon having a capacity of 2,200 gallons or less.

Expert witnesses testified on behalf of the defendants that under the ordinance in question the handling of gasoline was increased; the exposure time to the public was increased; the use of above ground bulk tank storage is more dangerous than underground storage; the safety devices available upon, and in fact in use on, the tank semi-trailers are much superior to those in use upon tank wagons. The tank wagon presented as an exhibit by the City contained none of the safety devices required by the ordinances of the City or by the National Board of Fire Underwriters Flammable Liquid Pamphlet No. 385. There was also testimony, which we deem logically true, that the existence of the present ordinance does not reduce the number of tank semi-trailers on the streets of the City because the City has a need and requirement for a minimum amount of gasoline to be used as fuel and energy each year, and that gasoline must be brought into the City either by tank truck, semi-trailers or railroad tank cars for delivery to the bulk plant which in turn redelivers it to retail service stations.

The defendants purchase gasoline which is refined in the State of Texas and then transport it into the State of Colorado by means of an interstate pipeline which is a common carrier. It is then delivered to a pipeline terminal in Denver at which time it is loaded into interstate truck carriers and delivered to the defendants in Colorado Springs, Colorado. The defendants then sell it to consumers, many of whom are involved in interstate travel.

Fire Chief Lausch’s testimony indicates that the regulation of the capacity of trucks handling flammable liquids involves the possibility of spillage and its resultant problems of cleaning up the streets and washing the spillage into the sewer, which problems are particularly difficult in freezing weather; and that the ordinance resulted from a desire to limit the total quantity of gasoline which might be spilled in any one incident.

Section 16-94 of the Code of the City requires all unloading of gasoline to be conducted in accordance with the then existing regulations of the Interstate Commerce Commission. This Commission has not promulgated any rules or regulations limiting the size of compartmented tanks when making deliveries at retail stations; it has, however, adopted regulations which provide that uncompartmented trucks of a capacity of up to 10,000 gallons must be completely unloaded at one stop. Section 16-98 of the Code of the City authorizes uncompartmented vehicles with a capacity of up to 10,000 gallons to traverse the city streets without limitation for the purpose of making deliveries at bulk plants or other approved installations, except where sales are made at retail. Regulations have been promulgated by the Interstate Commerce Commission, the National Board of Fire Underwriters, and the National Fire Prevention Association to control and regulate the capacity, safety equipment and methods of loading and unloading of tank vehicles delivering gasoline. The regulations of the Interstate Commerce Commission have been adopted by the Public Utilities Commission of the State of Colorado and have further been adopted in part by the City of Colorado Springs. The City has inherent power to establish reasonable regulations which tend to promote the public health, welfare and safety.

It was clearly demonstrated by the evidence that the danger of unloading gasoline from a vehicle having a capacity in excess of 2,200 gallons (for example, the 8,800 gallon vehicle used by defendants in this case), is not greater than the danger encountered in unloading gasoline from a vehicle having a capacity of less than 2,200 gallons.

Local ordinances should have some reasonable resemblance to recognized national standards established by qualified organizations or otherwise the regulated industry would be at the mercy of every whim and caprice of the many different communities. The cases cited by counsel in the briefs filed with the court indicate a wide variation of standards adopted by various cities in an effort to determine the safe capacity of a vehicle which may make a delivery of gasoline at a retail service station. It is not for the court to substitute its notions as to what is fair and reasonable, but to ascertain under all existing circumstances whether the standard established by the plaintiff, the City of Colorado Springs, is in fact reasonable and bears a reasonable relation to the public health, welfare and safety of the City and its inhabitants. While it might be desirable to classify service stations as to the capacity of the truck which may make delivery there, or to promulgate some other reasonable regulations applying to retail service stations based on their specific location in certain fire zones, we hold that the subject ordinance which requires the tank vehicles to pass through the city to a bulk plant, unload at the bulk plant, and then reload vehicles of a capacity of less than 2,200 gallons for redelivery to retail filling stations throughout the city, necessarily involves a greater exposure to hazard and accident, and therefore a greater danger to the public health, welfare, and safety of the city and its populace.

We are not impressed with the argument that the regulation does in fact tend to promote the public health, welfare and safety. When the particular ordinance is examined under the evidence here, we hold that it does not in fact promote the health, welfare and safety but on the contrary is detrimental thereto.

[B] The purpose of this ordinance as testified to by Fire Chief Lausch is to prevent a large spillage of gasoline upon city streets; yet its effect is to require an 8,800 gallon compartmented tank vehicle to pass by defendants’ Nevada Avenue station for which its cargo was eventually destined and traverse 2.4 miles of city streets, 25 intersections, discharge its cargo at a bulk station at which it is later to be reloaded into four smaller loads; and, with these four smaller loads retrace the 2.4 miles of city streets and cross the same 25 intersections. Chief Lausch’s further testimony was that there was no greater danger from unloading a vehicle of a capacity of more than 2,200 gallons than in unloading a vehicle with a lesser capacity. When applied to defendants’ Colorado Avenue station, at which the alleged violation occurred, we find that the station is located 5/10 of a mile from Interstate Highway 25 and involves the crossing of four intersections in making a direct delivery. However, if delivery is made under the existing ordinance, the large tank vehicle must travel 3.1 miles of city streets through thirty intersections to a bulk plant where it discharges its cargo, which is then reloaded into four smaller tank trucks, and proceeds to retrace the 3.1 miles of city streets and then pass through the same thirty intersections in order to discharge the cargo at this location. In addition, the number of connections which must be made at both the bulk plant and at the retail station are multiplied by four so that the opportunity for accident or mishandling is enhanced 400 per cent.

The pertinent legal principles involved are thoroughly discussed in Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919. We particularly call attention to the following apt statements of the law:

“* * * If a restriction upon the use of property is to be upheld as a valid exercise of the police power it must bear, ‘a fair relation to the public health, safety, morals, or welfare,’ and have ‘a definite -tendency to promote or protect the same.’ In determining the validity of restraints upon freedom imposed by statute or ordinance, ‘The determination we are called upon to make is whether the ordinance has a real and substantial relation to the accomplishment of those objectives which form the basis of police regulation.’ Denver v. Thrailkill, supra. (Emphasis supplied). Bohn v. Board of Adjustment of Denver, 129 Colo. 539, 271 P. (2d) 1051.

“(3) Any legislative action which takes away any of the essential attributes of property, or imposes unreasonable restrictions thereon, violates the due process clause of the Constitutions of the United States and the State of Colorado.”

After extensive hearings the trial court found that the ordinance in question does not in fact tend to promote the public health, welfare and safety but accomplishes just the opposite result, namely, that it is in fact detrimental to the public health, welfare and safety, and that the City actually exceeded its authority in passing the ordinance. We concur in this conclusion.

The judgment accordingly is affinned.

On petition for rehearing Mr. Justice McWilliams formerly concurring now dissents and Mr. Justice, Kelley concurs in his dissent.