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(1) The recent trend toward conversion of service stations to non-service station use has resulted in the curtailment of essential services, including automobile refueling and emergency services, and is contrary to the public health, safety, peace and general welfare.
(2) To address this problem, the Board of Supervisors adopted Resolution No. 759-89 to impose interim controls on the conversion of service stations and to create a task force to study this problem and make recommendations to this Board regarding how to address this problem.
(3) In the 17 months since Resolution 759-89, 11 more service stations have been converted to other uses. The Service Station Conversion Task Force has recommended that the Board of Supervisors adopt permanent legislation to address this problem.
(4) The Board of Supervisors recognizes that service station operators and those who own property on which such stations are located are entitled to earn a fair rate of return on their investment. Where a fair rate of return is being earned, the Board finds that service stations should be allowed to convert to other uses only where it is determined that the conversion would benefit the public.
(b) Definitions. Whenever used in this Section, unless a different meaning clearly appears from the context:
(1) "Automotive Service Station" or "service station" shall mean a retail automotive service use as defined in Section 102 of this Code.
(2) "Conversion" shall mean to change the use of a property from a service station use to a different type of use.
(3) "Return on investment" shall mean:
(A) where the property owner does not own the Automotive Service Station business, the before income tax total annual rent and other compensation received from the service station business for the lease of the land and buildings, less the expenses of the lessor, on a cash basis.
(B) where the property owner also owns the Automotive Service Station business, the before income tax profit on the sale of all goods and services at the service station, including the sale of gasoline, less the cost of goods sold and operating costs, on a cash basis.
(4) "Total investment in the property" shall mean the fair market value of the property at the time the application is filed with the Zoning Administrator.
(5) "Demolition" shall mean the physical removal of underground, and/or surface tanks used in storage and dispensing of gasoline and/or any building or canopy without the replacement of such equipment or structures to allow continued operation of the service station.
(c) Limitation on Conversions.
(1) No owner of a property used as an Automotive Service Station shall change the use of the property to a different type of use without first applying for and receiving either a Conditional Use authorization from the City Planning Commission, or a conversion determination from the Zoning Administrator. Such authorizations shall be in addition to any other permit or authorization required for a proposed service station conversion under any applicable City, State or federal law or regulation. Automotive Service Stations which front on Primary Transit Streets or Citywide Pedestrian Network Streets, as designated in the General Plan, shall be exempt from the conversion limitations of this Section. The procedures for service station conversion applications shall be as described in Sections 306 and 306.1 of this Code for conditional use and variance actions.
(2) Either the Planning Commission or the Zoning Administrator shall determine at a public hearing whether an applicant is entitled to convert the service station, depending on the grounds on which the permit is sought. The Planning Commission shall make Conditional Use authorization determinations based on the criteria set forth in Subsection (d). The Zoning Administrator shall make service station conversion determinations under the grounds set forth in Subsection (e). An applicant may, but need not, apply to the Planning Commission for a Conditional Use authorization pursuant to Subsection (d) and apply to the Zoning Administrator for a conversion authorization pursuant to Subsection (e), provided that if either one approves the application at the first hearing held on it, no hearing shall be necessary before the other. The procedures for service station conversion hearings shall be as described in Sections 306 through 306.5 and 306.8 of this Code for conditional use action (Planning Commission hearings) and variance action.
(d) Criteria for Planning Commission Conditional Use Authorization. In acting on any application for Conditional Use authorization for conversion, the Commission shall consider the following criteria in lieu of the criteria set forth in Section 303(c) of this Code.
(1) The Planning Commission shall approve the application and authorize the service station conversion if it determines from the facts presented that the reduction in availability of automotive goods and services resulting from the service station conversion would not be unduly detrimental to the public because either:
(A) Comparable automotive goods and services are available at other reasonably accessible locations; or
(B) The benefits to the public of the service station conversion would outweigh any reduction in automotive goods and services availability because the proposed new use is more necessary or desirable for the neighborhood or community than continued service station use.
(2) In making determinations under Subsection (1)(A), the Planning Commission shall consider the following factors:
(A) The types of services offered by the service station sought to be converted and the hours and days during which such goods and services are available;
(B) The volume of gasoline and other motor fuel sold and the number of vehicles serviced at such service station during each of the 24 months preceding the filing of the conditional use authorization application;
(C) Whether the volume of gasoline and other motor fuel sold and the number of vehicles serviced each month has increased or decreased during the 24-month period immediately preceding the conditional use authorization;
(D) The accessibility of comparable automotive goods and services offered by other service stations and repair garages which serve the same geographic area and population segments (e.g., neighborhood residents, in-town or out-of-town commuters, tourists) as the service station sought to be converted.
(3) In making determinations under Subsection (1)(B), the Planning Commission shall consider the following factors:
(A) If the proposed use is a Residential use, the total number of units to be provided and the number of those units that are affordable units;
(B) If the proposed new use is a Commercial use, the types of goods and services to be offered and the availability of comparable products and services in the vicinity;
(C) The importance of the street on which the service station fronts to walking, cycling, and public transit, and the impact of automobile access and egress to the service station and of the proposed new uses and structures on the safety and comfort of pedestrians, cyclists, and transit riders;
(D) The relative environmental dangers posed by the current and proposed uses, including but not limited to the quality and character of waste generated, noxious or offensive emissions, fire and explosion hazards and noise, and whether the service station conversion would facilitate the cleanup of existing contamination at the property;
(E) The relative employment opportunities offered by the service station and the proposed new use;
(F) The relative amount of taxes or other revenues to be received by the City or other governmental bodies from service station use and the proposed new use;
(G) The compatibility of the existing service station and of the proposed new use or structure with the General Plan and area plan urban design policies and the street frontage standards of this Code;
(H) Whether the service station use and the proposed use are permitted principal uses, conditional uses or nonconforming uses.
(e) Criteria for Zoning Administrator Conversion Determination. The Zoning Administrator shall approve the application and authorize the service station conversion if the Zoning Administrator determines from the facts presented that the owner of the subject property is not earning a Fair Return on Investment, as defined in Section 102. The owner shall bear the burden of proving that the owner is not earning a Fair Return on Investment.
(1) Application. A property owner's application under this Section shall be signed by the owner or an authorized representative of the owner and, under penalty of perjury, declared to contain true and correct information. The application shall be accompanied by:
(A) An independent appraisal of the property stating its value;
(B) A written statement from an independent Certified Public Accountant summarizing the applicant's financial records, including the property appraisal and stating the return on investment calculated pursuant to Section 102;
(C) A certified statement from the Certified Public Accountant identifying the owner of the property and the owner of the service station business;
(D) Such other financial information as the Zoning Administrator may reasonably determine is necessary to make the determination provided for in this Section.
(2) Rebuttable Presumption. There shall be a rebuttable presumption that the property owner is earning a Fair Return on Investment if the property owner has earned at least a 9% return on the property owner’s total investment in the property for the 24-month period immediately preceding the filing of the application, or in the case of a service station business that ceased operations after October 12, 1989, for the 24-month period immediately preceding the date the service station ceased operations. The property owner may rebut this presumption by offering evidence demonstrating that because of special facts regarding his or her property the property owner is not earning a Fair Return on Investment or that because of special demonstrated circumstances the applicant would not earn a fair return on investment from service station use during that 12-month period after the filing of the service station conversion application.
(3) Notice of Hearing. Prior to conducting the hearing required by subsection (c)(1), the Zoning Administrator shall provide public notification of the hearing pursuant to the requirements of Section 333 of this Code.
(4) Determination. The Zoning Administrator shall render written determination within 60 days of the hearing.
(5) Consultation With Other City Departments. If necessary, the Zoning Administrator shall have the authority to consult with or retain the assistance of the staffs of the Department of Public Works, Real Estate Department, and Mayor's Office of Workforce and Economic Development in the review of applications for service station conversion.
(f) Demolition and Tank Removal.
(1) No service station shall be demolished except to enable a new service station to be constructed on the property, unless:
(A) The property owner has first obtained a conditional use authorization from the Planning Commission pursuant to Subsection (d) above or a conversion determination from the Zoning Administrator pursuant to Subsection (e) above; or
(B) The Department of Building Inspection and the Bureau of Fire Prevention and Public Safety determines that the building is unsafe or dangerous and that demolition is the only feasible means to secure the public safety.
(2) Notwithstanding subsections (f)(1)(A) and (f)(1)(B) above, if a service station is owned by a lessee of the property and the property lease was signed prior to the effective date of Ordinance 288-91, which lease permits or requires the lessee to remove the service station from the property before or after the expiration or termination of the lease, and the lease has expired or terminated or will do so within 60 days, the lessee may cease operation of the service station as permitted or required in the lease. Nothing in this provision, however, shall relieve the property owner from continued use of property as an Automotive Service Station as defined by Sections 102 and 890.18 of this Code or the requirements of subsection (f)(1)(A) above.
(3) This Section shall not limit the removal of any underground storage tank at a service station where removal of the tank is required to comply with any other local, State or federal law or regulation or where the Director of Public Health or a State or federal regulatory agency with jurisdiction over underground storage tanks determines that the tank poses, or removal of the tank is necessary to mitigate, a threat to public health or safety, including but not limited to waters of the State. All appropriate permits (other than the authorizations required by this Section for conversions) shall be obtained prior to such authorized tank removals. The removal of an underground tank pursuant to this Section does not otherwise exempt a property owner from the requirement of obtaining conditional use authorization to convert an Automotive Service Station.
(Added as Sec. 228 by Ord. 288-91, App. 7/22/91; amended by Ord. 173-12, File No. 120471, App. 8/2/2012, Eff. 9/1/2012; redesignated and amended by Ord. 22-15, File No. 141253, App. 2/20/2015, Eff. 3/22/2015; amended by Ord. 129-17, File No. 170203, App. 6/30/2017, Eff. 7/30/2017; Ord. 179-18, File No. 180423, App. 7/27/2018, Eff. 8/27/2018, Oper. 1/1/2019)
Section header amended; former Secs. 228, 228.1, 228.2, 228.3, 228.4, and 228.5 redesignated as Secs. 228(a)-(f) and internal subdivisions and references adjusted accordingly; divisions (b)(1) and (c)(1) amended; division (d)(3)(C) added; divisions (e)(3), (e)(5), and (f)(2) amended; Ord. 173-12, Eff. 9/1/2012. Former Sec. 228 redesignated as Sec. 202.5; divisions (b)(1), (e), and (e)(1)(B) amended; Ord. 22-15, Eff. 3/22/2015. Division (f)(2) amended; Ord. 129-17, Eff. 7/30/2017. Divisions (e)(2) and (e)(3) amended; Ord. 179-18, Oper. 1/1/2019.