Gasoline station: where it may be sited and why no variance is possible

It is Rule 8.8.1 of Joint Regulation No. 9473, "General Provisions on Gasoline Stations", inside Chapter 8.8. OGPe or the hierarchy I-III Autonomous Municipality shall hear, subject to that rule, every application for a new gasoline station in the districts the Regulation permits. The rule is not about what may be sold or how tall the building is — that is in the following rules and in our companion guide: it is about siting, notification, public hearings, the viability study, separations, residential abutments, the district area cap, pump islands, access, projections, variances and expansions.

The rule applies to every application for a new gasoline station in the permitted districts. Two requirements — the notification certification and the viability study — are triggered both for a new station and for the expansion of an existing one increasing the existing number of dispensers by more than fifty per cent. Alterations, reconstructions, expansions or added facilities have their own regime: one for ordinary property, provided dispensers are not increased above fifty per cent of the existing number, and another for property carrying a legal non-conformity, where the number of dispensers may not be increased at all and a public hearing must be held.

• For a new station or an expansion increasing existing dispensers by more than fifty per cent: certification that the intention was notified to all distributors, wholesalers, owners or lessees of stations within the viability-study perimeter, with each notified person’s name and address.Verified against the official source
• A viability study showing the need and convenience of the establishment, considering the aspects the rule lists within a perimeter of one thousand six hundred radial metres.Verified against the official source
• Holding public hearings and a prior DDEC recommendation before OGPe or the municipality approves the new station’s establishment.Verified against the official source
• Meeting the minimum separations from other gasoline stations and from the other uses the rule lists, measured taking the nearest points between both lots.Verified against the official source
• Not using lots laterally abutting lots in a residential district, save the corner-lot case with the two-metre reinforced concrete fence the rule allows.Verified against the official source
• Meeting the fire safety conditions the NCBPR requires and obtaining DTOP or the concerned municipality’s approval for road accesses.Verified against the official source
• For alterations or expansions: demonstrating compliance with applicable DRNA regulation on used water, oil, grease and lubricant waste, waste handling and disposal, emission source control and underground tank storage, and having OGPe’s Health and Safety Permits Manager accept the fire safety measures.Verified against the official source

• Certification of notice to distributors, wholesalers, owners or lessees of stations within the perimeter, with the notified persons’ names and addresses.
• The viability study with its nine aspects: population concentration; concentration of vehicular traffic of the residents in the market area; intensity of commercial, industrial and institutional uses; similar existing businesses in the sector; anticipated impact on similar ones within the perimeter; the new station’s form of operation — conventional or self-service; a traffic analysis; proximity to protected natural areas and surface and underground water bodies; and any other relevant factors.
• In the case of alterations where a legal non-conformity exists: evidence of the legal non-conformity and of the continuity in operation of the existing non-conforming uses.
• Evidence of compliance with DRNA regulation applicable to used-water disposal systems, oil, grease and lubricant waste, waste handling and disposal, emission source control and underground tanks.

1. 1

   Step 1: Who has to find out before anyone else

   Every application for a new gasoline station, or for an expansion of an existing one increasing the existing number of dispensers by more than fifty per cent, must be accompanied by a certification that all distributors, wholesalers, owners or lessees of gasoline stations located within the perimeter the regulation sets for the viability study have been notified of the intention to establish that station. That certification includes the name and address of each person notified. In other words: the competition finds out by rule, not by courtesy.

2. 2

   Step 2: Public hearings and the DDEC recommendation

   OGPe or the hierarchy I-III Autonomous Municipality may approve the establishment of new gasoline stations after holding public hearings and after a DDEC recommendation. For those hearings, notice and a request to participate go to the DDEC, DACO, the Justice Department, the wholesale distributors, owners or lessees of the stations within the viability-study perimeter, the retailers operating those stations, the existing gasoline retailers’ associations and any other affected or interested party appearing from the record. If you live nearby and want to be heard, this is the door.

3. 3

   Step 3: The viability study and its 1,600-metre radius

   The study must show the establishment’s need and convenience and consider, for the sector within the perimeter of one thousand six hundred radial metres, nine aspects: population concentration; the concentration of vehicular traffic of the residents in the market area; the intensity of commercial, industrial and institutional uses; similar existing businesses in the sector; the anticipated impact of the new establishment on similar ones within that perimeter; the new station’s form of operation, that is, whether conventional or self-service; a traffic analysis considering the demand to be met from residents in the market area, expected traffic and the impact on existing roads; proximity to protected natural areas and to surface and underground water bodies; and any other relevant factors deserving consideration.

4. 4

   Step 4: How far apart two stations must be

   In commercial and industrial districts, the minimum separation between stations is eight hundred linear metres measured along the route when they sit on either margin of the same road, and four hundred radial metres when they are on different roads. In R-G and ARD districts and non-qualified areas: two thousand two hundred linear metres on the same road and one thousand two hundred linear metres on different roads. There are two carve-outs by road type. On one-direction roads of three or more lanes, the radial distances apply separately for each margin and the linear ones only where both stations are on the same margin. And on roads with a section greater than eighteen metres provided with a turning lane, separation strips between opposing lanes or a central safety island, the radial and linear distances apply independently for each margin; where that turning lane, strip or island is interrupted, a single station may be sited on one of the lots forming corners or directly opposite each other at the point of interruption, provided it keeps the required separation from other stations on its own margin. Not taken into account: existing stations whose dispensers sit on public sidewalks, and those lacking space within their lot to serve two cars per dispenser without using the public road.

5. 5

   Step 5: The fifty metres and the thousand feet

   Any lot where a gasoline station is to be built or expanded must keep a minimum separation of fifty radial metres from any natural area or water body, or from another lot where there exists or is projected the construction of a library, tribunal, court, hospital, church, specialised lodging, health house, museum, park, public plaza, town hall and armoury. And a separation of a radius of one thousand feet — three hundred and five metres — is kept, as provided in Act 169-2003, in the case of public or private schools or post-secondary educational institutions, childcare or elder-care centres, universities, academies, reformatories, penal institutions, rehabilitation centres, diagnostic and treatment centres, medical dispensaries or ambulatory surgery centres. A use counts as "projected" once its consulta de ubicación was approved, where a government body submits it, or once its construction plans were approved, where private citizens submit it. The required minimum separation is measured taking the nearest points between both lots.

6. 6

   Step 6: Residential abutment, fences and vents

   Lots or parcels laterally abutting lots or parcels within a residential district may not be used for gasoline stations or expansions. For corner lots abutting a residential district on one of their sides, that restriction may be waived by building a reinforced concrete fence, or reinforced concrete and concrete block, two metres high along that abutting line; except that the section of the fence on the lot’s lateral line corresponding to the front yard required for the adjacent residential district has a maximum height of one metre. Where the proposed lot abuts a residential district at its rear, a reinforced concrete and block fence two metres high is built along that line. And vents are sited no less than six metres from any residential boundary.

7. 7

   Step 7: The fifty-per-cent district cap

   There is a limit almost nobody knows about that can shut the door even when every distance checks out: the sum of the areas of lots occupied or used for gasoline stations shall not exceed fifty per cent of the total area of all lots within the district considered. In districts split by public roads with a section greater than eighteen metres, that fifty per cent is computed separately for each portion of the district so divided.

8. 8

   Step 8: Islands, fire, access and projections

   The minimum distance between a road’s right of way and the island holding the dispensers is four and fifty-seven hundredths linear metres when the island is parallel to the road; when it is at an angle to the right-of-way line, the minimum is six metres nine centimetres — as the regulation writes it, 6.09 — or the distances the ACT determines. Stations meet the safety conditions the NCBPR requires. DTOP or the concerned municipality’s approval is required for road accesses. Non-combustible cantilevered structures over the islands are allowed to protect the attendant or motorist from the weather: where the lot is on the same block facing the same side of the road as lots in an adjacent residential district, the projection toward the front shall not exceed one metre of the front yard measure required for that district; where there are no such residential lots, the structure may extend up to, but not project beyond, the property boundaries. And cornices, eaves, roofs and other architectural features may extend into required yards up to one metre.

9. 9

   Step 9: No variance is possible

   This is the provision worth being clear about before spending money on a project. Section 8.8.1.16 says two things. First: OGPe, its Adjudicative Board and the hierarchy I-III Autonomous Municipality shall have no power to grant variances to the provisions of Rule 8.8.1. Second: nor may they grant Use Variances to establish new gasoline (or diesel) stations. It is not that it is hard: the agency has no power to do it. If a distance does not work out, it does not work out.

10. 10

    Step 10: Alterations and expansions: two regimes

    The first, Section 8.8.1.17, covers alterations, reconstructions, expansions or added facilities to structures or buildings used as a gasoline station provided dispensers are not increased above fifty per cent of the existing number — we reproduce the sentence as printed, broken grammar and all — and the following are met: existing washing, greasing and other facilities at no less than four and twenty-five metres from any boundary line; proposed or existing ones failing that, at no less than six metres; existing dispensers at no less than four and twenty-five metres from any front boundary line; fire safety measures accepted by OGPe’s Health and Safety Permits Manager; and compliance with applicable DRNA regulation. Then comes the benefit: projected expansions meeting that section do not have to meet Rule 8.8.1’s requirements within a period of five years. The second regime, Section 8.8.1.18, is for where a legal non-conformity exists in the property: there the number of dispensers may not be increased, the legal non-conformity and the continuity in operation of the non-conforming uses must be demonstrated, a public hearing is held under Rule 2.1.2, and horizontal expansions may be used only to expand the existing facilities and shall not exceed fifty per cent of the existing premises’ gross floor area.

Before OGPe or the hierarchy I-III Autonomous Municipality, as applicable, which hears every application for a new gasoline station in the permitted districts. The prior recommendation comes from the DDEC. For the public hearings, notice and a request to participate go to the DDEC, DACO, the Justice Department, the wholesale distributors, owners or lessees of the stations within the perimeter, the retailers operating them, the gasoline retailers’ associations and any other affected or interested party. Approval of road accesses falls to DTOP or the concerned municipality.

• Paying for the viability study before checking the separations, which admit no variance.
• Confusing linear metres with radial metres: on the same road it is measured along the route.
• Measuring from the building instead of between the nearest points of both lots.
• Ignoring "projected" uses with an approved consulta de ubicación or approved plans, even if not yet built.
• Forgetting the notification certification to distributors, wholesalers, owners and lessees within the perimeter.
• Using a parcel that laterally abuts a residential district without being a corner lot.
• Overlooking the fifty-per-cent cap on the district’s lot area.
• Believing OGPe can grant a variance to this rule or a Use Variance for a new station.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov