Attorney general says Dupont Sunoco station was illegally closed

Developer Marx Realty stripped out the former Sunoco's gas pumps and tanks promptly after closing the station in January. (Brian Kapur/The Current/May 2017)

The Sunoco service station at 22nd and P streets NW in Dupont Circle has been closed since January, to the chagrin of the surrounding neighborhood and officials such as Ward 2 D.C. Council member Jack Evans. New York-based developer Marx Realty announced plans in 2016 to construct a nine-story apartment building there, but the project hasn’t advanced since late last year.

All year, an unusual question has hung over the development plan: Was closing the service station legal? On Friday, D.C. Attorney General Karl Racine issued his answer: No.

In 2014, the D.C Council instituted a ban on closing and converting service stations — and according to Racine, the Sunoco station should not have been an exception. In a May 5 letter to Evans obtained by The Current, Racine wrote that the Sunoco station owner broke the law by closing, which he did when Marx unexpectedly declined to renew his lease at the end of December.

The Department of Energy & Environment can fine the station owner up to $20,000 for this violation, according to Racine. But despite the legal protections against such closures, the Department of Consumer and Regulatory Affairs does not have the authority to require the service station to reopen, Racine wrote.

“I was disappointed that there’s nothing more that we can do,” Evans told The Current on Monday.

Evans is among the stakeholders decrying the diminishing number of service stations in the city, particularly downtown. Two other nearby stations — both on M Street NW in Georgetown — are also slated for redevelopment, prompting some community concern there about the difficulty of finding a place to fuel and service vehicles locally. The closest station to Sunoco in operation and not slated for redevelopment is at 1800 18th St. NW, over half a mile away, and it’s not a full-service station offering repairs as well as gasoline.

Daniel Warwick of Advisory Neighborhood Commission 2B (Dupont Circle) plans to ask his fellow commissioners at tonight’s monthly meeting to request that the environment agency issue the $20,000 fine and/or — despite Racine’s legal opinion — force the station to reopen. He also wants to ensure any fine is levied only against property owner Marx Realty, because the community doesn’t fault the gas station operator for the forced closure.

A spokesperson for the environment department didn’t provide comment in time for publication.

After Sunoco closed, the historically landmarked service station building was left on an empty lot. Marx Realty’s original designs called for relocating the building elsewhere on the site to make room for a tall new one, but that proposal drew criticism from neighbors and the city’s Historic Preservation Office; Marx announced plans in November to revise its plans.

Representatives from Marx did not respond to multiple requests for comment in time for publication; Warwick and Evans said they haven’t heard any updates from the developer in months.

Observers of the Sunoco closure had speculated that the station owner was required by law to secure approval from the Department of Energy & Environment’s Gas Station Advisory Board before closing. The board has had no members since 2006 — but Racine says the law still applies even though the board is not populated.

The board, according to the letter, would have considered granting exceptions to the existing ban only for applications to convert an existing station to another use, such as a “gas-and-go” self-service operation. “The statute allows exemptions from the ban, but not for the purpose of shutting down a full-service station altogether,” Racine wrote.

A station could obtain permission for such a conversion only if another full-service station with equivalent services exists within a mile — which multiple do — and if the owner provided evidence of “extreme financial hardship,” according to Racine.

In the meantime, the power to revive the Gas Station Advisory Board lies with Mayor Muriel Bowser, according to Racine’s letter. Bowser has the authority to appoint four of the board’s five members herself. City law states that the council must appoint the remaining member, but according to Racine, that provision grants undue executive power to the city government’s legislative branch. To resolve this issue, the council could enact legislation to grant Bowser the authority to appoint all five board members, Racine wrote.

Bowser has no plans to appoint members to the board because it is “not structured constitutionally,” her spokesperson Susana Castillo wrote in an email yesterday. Castillo didn’t respond to requests for further explanation by The Current’s deadline.

This post has been updated to clarify that the station at 1800 18th St. NW is not a full-service station. It is a gas station only.