The Law

Rework Won’t Work by Ron Davis An attempt to upgrade property at a California shopping center has met with rejection of the property owner’s plans. That property, located in Carson, has since the 1970s housed a traditional gasoline station that is owned separately from the adjoining shopping center. But recently the tenant who operated the gas station terminated the lease and moved out. The property owner eventually found another tenant–also a service station owner–and the two parties agreed on the terms of a long-term lease. That lease, however, was subject to approval by local city authorities. And following public hearings, the Carson Planning Commission refused to approve the change in tenants. The reasons for the rejection were many. Most importantly, the new tenant planned to demolish the existing buildings at the site and construct a kiosk with an additional fuel pump, while reorienting the pumps to channel vehicles through the station. Planning commission members were therefore concerned about the expected increased volume of customers entering and leaving the property and also the addition of diesel fuel sales. The Carson City Council further determined that increased fuel delivery traffic could cause traffic congestion while big trucks unloaded fuel. Council members were also concerned about the fact that the new station, by offering diesel fuel, would attract large commercial vehicles. The property owner responded that he has a “vested right” to use his land for the building and operation of the new service station. That right, he argued, allows him the use of his property as he deems necessary. California’s courts disagreed with that argument. Explained the judges, “Because the property owner has not shown that the proposed station merely continues the preexisting lawful or permitted use, his contention fails.... Assuming that he had the right to the continued operation of the preexisting station on his property, the decision at issue did not disturb such right. Whatever his right to operate the previous gas station, he had no vested fundamental right to operate a differently configured station intended to sell discounted gasoline and diesel fuel to large numbers of customers, with anticipated increased sales and the reasonable prospect of additional traffic congestion.” (Avalon Center Investment Co. v. City of Carson, 2006 WL 2391069 [Cal.App. 2 Dist.]) Decision: September 2006 Published: September 2006