It’s easier to close a service station in DC now, but you still need permission to “structurally alter” one

If you operate a service station in DC, there's no workable way to close it or replace it with something else due to an outdated city law—but that's about to change.

Right now station owners need approval from the Gas Station Advisory Board (GSAB) to close. However, there's one small problem. The GSAB hasn't had members since 2008, so there's no one to get approval from. Earlier this week the DC Council voted to abolish the GSAB and transfer its authority to another agency.

At a meeting on December 18, the Council unanimously voted for the Gas Station Advisory Board Amendment Act of 2017, which transfers the authority of the Gas Station Advisory Board (GSAB) from five members appointed by the Mayor and the Council to the head of the District Department of Energy and the Environment (DOEE). The bill also amends the purview of the Retail Service Station Act of 1976, which prohibited service stations from closing in the District, by abolishing that ban.

Why should I care about the Gas Station Advisory Board?

As I explained in January, the GSAB advises the mayor on whether to exempt a service station from a 1979 ban on closing or converting service stations in the District. The law was first put into place to “protect the needs of the driving public.” The 1979 bill reconstituted the GSAB (it used to be about gas stations only) to make a recommendation to the mayor on whether a service station can close. However, without any members on the GSAB, there is no process for that to actually happen.

Some residents, including a service station property owner in Petworth, argue that a government ban on closing violates the Fifth and Thirteenth Amendments of the United States Constitution. In April, a District judge granted that a challenge to the ban on closing service stations may be considered under the Fifth Amendment. Others argue it's silly policy to protect service stations and not other important neighborhood-serving amenities such as hospitals, grocery stores, and pharmacies.

While one service station’s closure was forced in defiance of the GSAB process, another landowner sued, and other service stations received special Council legislation to be exempted from the GSAB process, it is generally not good policy to have a board without members. DC Mayor Muriel Bowser, along with former Mayor Vincent Gray, refused to appoint members to the board.

But is the law really going away?

In July, Councilmember Mary Cheh held a hearing on a previous incarnation of the bill which would have changed the composition of the GSAB to include the director of the DOEE, two members appointed by the council, and two members appointed by the mayor.

Crucially, a quorum of the board would be two members (40%) rather than a majority, meaning the Board could still make recommendations without mayoral appointees. Rather than proceed with that approach, in November the bill was changed to abolish the GSAB and to delegate power to the head of DOEE instead. It was unanimously passed by the Council.

So the board is going away, but what about the ban on service station conversions and closures?

That’s a little more tricky. A service station can now close without permission. However, the Gas Station Advisory Board Abolishment Act of 2018 will still apply the Retail Service Station Act of 1976 to the structural alteration of a service station, and just transfers responsibility to the director of DOEE. The current bill requires the director of DOEE to grant an exemption to the law to allow structural altering only if the following two conditions are met:

• (i) The operator of the full service retail service station is experiencing extreme financial hardship; and
• (ii) Another full service retail service station exists within one mile of the station which provides equivalent service facilities.

There is no guidance on what the director of DOEE should do with a petition for structurally altering a current or former service station that doesn't meet those two criteria. While this gets rid of much of the uncertainty of the GSAB process, there is still uncertainty on whether a service station located more than one mile from another service station, or one that is not experiencing extreme financial hardship, can be structurally altered.

The GSAB will be abolished—and with it, an obscure, largely impotent, and potentially unconstitutional land use regulation will be mostly gone as well. However, it will not be fully gone. The Retail Service Station Act of 1976 will stay a DC law and the director of DOEE will have a little bit more work to do as they consider exemptions to the act.