Introduction

At an increasing rate, electric vehicle (EV) charging stations are being installed at commercial spaces throughout the country, including shopping malls, parking garages and spaces and stand-alone retail stores. Retailers getting in on this market include some of the biggest chains (Walmart, Home Depot, Walgreens, Kohl’s, etc.) as well as small businesses. Retailers and other companies in the EV charging business report favorable results on the installation of EV charging stations at retail outlets, and that the benefits are worth the costs of installation, particularly that an EV driver is more likely to shop for a longer period of time while the car is charging compared to the average customer, and also that having EV stations can boost business by building the retailer’s “green” image, thereby attracting new customers and increasing customer loyalty. Indeed, EV drivers seek out locations of EV charging stations by using apps such as PlugShare for the specific purpose of identifying EV stations, and thereby learn about new retailers they otherwise would not have known about or visited. These customers may then turn into repeat, loyal customers.[1]

The U.S. Department of Energy’s 2014 Vehicle Technologies Market Report, published in March 2015, reported that there are 10,700 EV charging stations in the United States, up from 4,400 in 2011. [2] California is by far the state with the most EV charging stations, with 2,337 charging stations as of December 31, 2014, followed by Texas with 695 stations and Florida with 573 stations as of the same date.[3]

While EV charging stations can be public or private, about 85 percent are public. There are more electric charging stations than there are stations for any other type of alternative fuel. The report also states that just over 118,000 plug-in vehicles were sold in 2014, and at least 22 different models of plug-in vehicles are available or will soon be on the market. This report anticipates at least six new plug-in models for 2015 and 2016––two all-electric models with expected ranges greater than 200 miles and four hybrid-electric models with expected electric ranges of 20-32 miles. With approximately only one public EV charging station per 15 electric vehicles in the United States, demand for more public EV chargers is high, particularly in states with a high number of EV drivers, such as California. EV drivers, especially in California, have been reported to suffer from “range anxiety,” that is, anxiety over running out of battery power before finding another charger, because of the lack of a sufficient number of public EV charging stations.[4] Thus, the market is ripe for retailers and landlords who are considering providing EV charging stations to fill this supply gap and boost business.

A two-part series on electric vehicle charging stations for retail spaces (by the authors of this article) appeared in the 2012 Summer and Fall issues of Retail Law Strategist. Part I gave an overview of the emerging trend of EV charging stations and discussed considerations when a retailer decides to enter into an agreement with an EV charging station provider; outlined considerations related to costs in offering charging stations to retail customers; and gave tips for entering into a host-provider agreement. As explained in Part I of the two-part article, a retailer that contracts with a provider to offer an EV charging station, rather than purchasing a charging station from a manufacturer, is referred to as a “host.” It is more common for retailers to contract with providers for use of chargers rather than to purchase them. “Providers,” or electric vehicle supply equipment providers, are companies that install, operate and usually own the charging stations. Some providers are both a manufacturer and the installer of the charging station, while other providers purchase the charging stations from a manufacturer and then assemble and install them. In addition to the host and the provider, key players related to installation of retail EV charging stations include the landlord, tenant(s), utility and local authorities.

Part II provided practice tips on selecting locations of EV charging stations, entering into leases involving tenants that are hosting EV charging stations or landlords hosting EV charging stations, communicating and working with the utility, and obtaining local permits. Part II also discussed considerations related to compliance with the Americans with Disabilities Act and regulations pertaining to safety, lighting and signage.

In the approximately three years since the publication of those articles, EV charging stations have been installed at a growing pace, and state and local governments have been adopting new laws and policies that both regulate and encourage the installation of EV charging stations as a means to further various goals, from improving public health to reducing greenhouse gas emissions and addressing climate change. Technology has also advanced from which lessons can be gleaned to provide tips for choosing which type of EV charging station should be installed and where. Retailers are prime targets for the growth of EV charging stations. While public and employer parking lots often charge fees for use of EV charging stations, retailers may offer free charging to attract and maintain customers, deciding that the goodwill engendered is well worth the cost.[5]

This article discusses developments in state policies toward EV charging stations and the types of zoning permits that are typically required for installing EV charging stations. It also provides tips on how to navigate these regulatory requirements and to take advantage of benefits and incentives that might be offered. Last, the article discusses the importance of estimating consumer demand for EV charging stations and considerations relevant to deciding what level of charging station to provide, as the answer may not be the same for every retailer.

State Policy Initiatives

As states seek to encourage EV charging stations, there may be new state laws that are relevant to the installation or operation of EV charging stations.

California
California is at the forefront of promoting EV charging stations and passed a law that went into effect on January 1, 2015. The new statute prohibits commercial landlords from entering into leases or other occupancy agreements that include any unreasonable restriction or prohibition on the installation or use of an EV charging station in a parking space associated with the commercial property, if the lessee meets the requirements of the statute, unless the property falls within one of two explicit exceptions.[6] The statute does not apply to a commercial property with less than 50 parking spaces or to a commercial property that already has two EV stations for every 100 spaces. [7]

California’s law permits reasonable restrictions on EV charging stations, which it defines as “restrictions or standards that do not significantly increase the cost of the electric vehicle charging station or its installation or significantly decrease the charging station’s efficiency or specified performance.”[8] The statute expressly states that “(i)t is the policy of the state to promote, encourage, and remove obstacles to the use of electric vehicle charging stations.”[9] California’s new law is one of many laws that make up a broad state policy of encouraging and promoting use of electric vehicles and EV charging stations. In fact, California has declared that cost-effective installation of EV charging stations is a matter of state concern, and it prohibits local governments from adopting ordinances that create unreasonable barriers to the installation of charging stations.[10] The code states that local zoning “shall administratively approve an application to install electric vehicle charging stations through the issuance of a building permit or similar nondiscretionary permit.” Local review of EV charging stations is limited to ensuring compliance with health and safety laws.[11] If the building official determines that the proposed EV charging station could have an adverse impact on public health or safety, the local government may require the applicant to apply for a use permit, but a local government may only deny a use permit by making written findings based upon substantial evidence in the record that the charging station “would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.” [12] Given this state-based support, it is not surprising that California is leading the nation in numbers of EV charging stations installed.

Washington
As another example, the state of Washington requires that development regulations allow electric vehicle charging stations as a use in all areas except for areas zoned as residential or resource use or critical areas.[13] State law precludes local zoning from adopting regulations that preclude the siting of EV charging infrastructure in areas where it is allowed.[14]

Rebate Programs

In addition to state policies and requirements, states or utilities may offer rebates for installing EV charging stations, which may make installation of charging stations a very attractive business investment, even for small retailers who otherwise would not pay the up-front costs for a charging station—which typically costs several thousand dollars for a public station, depending on the level of charge and the complexity of the installation.[15]

Connecticut
For example, Connecticut’s Electric Vehicle Charger Incentive Program awards up to $10,000 to businesses, municipalities or other agencies for each EV charging station installed that is publicly accessible.[16] The program offers awards on two tiers. The higher-level award covers up to half of the cost of installing one dual-head or two single-head charging stations, up to a maximum of $10,000, and is available to stations that will be open to the public 24 hours a day, seven days a week, and located at a site that is considered a major traffic generator such as a downtown location.[17] The lower tier awards up to $4,000 toward installation of one dual-head or two single-head charging stations. Preferred proposals include those that are open to the public 24 hours a day, 7 days a week, that are located in areas underserved by EV charging stations, or that will be open to the public for no fee for the next 3 years.

Delaware
Delaware also offers a rebate program for the purchase of charging equipment of a Level 1 (provides charging through a 120-volt AC plug) or Level 2 (provides charging through a 240-volt AC or a 208-volt electrical service). The rebate is for up to $500 and is available to businesses as well as residents, nonprofit organizations, and state, county and local government entities. Delaware has allotted $50,000 to this rebate program.[18]

Practice Tips

  • If the local jurisdiction has a zoning regulation that is burdensome on use of EV charging stations, or precludes them altogether, determine whether such a local regulation is preempted by state law.
  • Consider what state or local (or federal) subsidies or incentives may be available for installing EV charging stations at your retail location and whether any available rebates are capped or limited to certain types of EV charging stations.

Current and Emerging Zoning/Permitting Schemes

Whether EV charging stations are permissible under the applicable zoning regulations will vary from jurisdiction to jurisdiction. EV charging stations might be allowed by right in some or all zones in a particular jurisdiction, or a discretionary approval, such as a special permit or a conditional use permit, may be required. EV charging stations may not be allowed in all zones or for all uses, or they may be allowed only in certain districts or under certain conditions. Some jurisdictions may allow by right only chargers of a certain type or strength. For example, Chelan, Washington, allows “slow” (operate on a 15–20 amp breaker on a 120-volt AC circuit) and “medium” (operate on a 40–100 amp breaker on a 208- or 240-volt AC circuit) charging stations as of right in all zoning districts.[19]

In certain zoning districts, EV charging stations, or at least fast chargers, might only be allowed by a special or conditional use permit. Fast charging normally is defined as having the capability to deliver more than 20 kW in a 30–60-minute period. Compared with Level 1 or Level 2 charging, direct current (DC) fast-charging costs much more (currently about $20,000–$50,000 plus installation costs). For example, in Chelan, Washington, fast charging is only allowed in certain zones, and certain districts require a conditional use permit. The regulations provide:

Level 3 electric vehicle charging stations are a permitted use in the Warehouse and Industrial (W-I), Highway Service Commercial (C-HS), and Public Lands and Facilities (P) zoning districts, but require a conditional use permit in Downtown Mixed Use (DMU), Tourist Accommodation (T-A), Special Use District (SUD) and Waterfront Commercial (C-W) zoning districts.[20]

Typical conditions on permits include: (a) adequate landscaping or other buffer around the charging station, (b) limitations on hours of operation, (c) charging service allowed by appointment only and (d) conditions regulating or limiting signage or on- or off-site advertising. In addition, often regulations regarding signage, lighting, accessibility, and/or equipment also apply.[21]     

As another approach, in certain districts, an EV charging station is not allowed by right as a principal use, but only as an accessory use to the principal permitted use. For example, in the city of Auburn Hills, Michigan: “Level-1 and Level-2 electric vehicle charging stations are permitted in every zoning district, when accessory to the primary permitted use. Such stations located at one-family, multiple-family, and mobile home park dwellings shall be designated as private restricted use only.”[22]

Zoning regulations increasingly provide incentives for installing EV charging stations, such as reduced parking requirements. For example, Atlanta now offers an incentive for EV parking and charging stations where off-street parking is required. The incentive program allows each EV charging station to be counted as a parking space and further reduces the minimum parking requirement by one additional space. The incentive program applies in all zoning districts and the reduction of the minimum parking requirements is limited to 10 percent of the minimum parking requirements.[23]

Aside from incentives from parking requirements, local governments may also incentivize EV charging stations by offering a more streamlined or less expensive permitting process for EV stations. For example, in 2015, Berkeley, California, offered a Non-Residential Plug-In Electric Vehicle Charging Station Pilot Program, which offered permits for EV charging stations “in a fast, coordinated, and low cost manner.”[24] The pilot program allowed the use of existing parking spaces to create EV charging station spaces. To be accepted into the program, applicants had to agree to accept feedback from customers on their use of the charging stations and to complete surveys periodically. In addition, the charging stations must meet accessibility requirements.

EV charging stations may also be a means to further local policies or plans, such as a climate action plan, by reducing vehicle miles traveled and greenhouse gas emissions, and public health by reducing pollution, which constitute additional reasons to support the approval of applicants’ permits for EV charging stations.[25]

Practice Tips

  • Understand what local permitting and other regulatory requirements apply to EV charging stations, and consult with local counsel if necessary.
  • Determine both the requirements and the estimated approval timeline and cost of obtaining local approvals. The answers to these questions may vary significantly among jurisdictions.
  • If you are proposing a new shopping center or a stand-alone retail development, consider whether any incentives, benefits or requirements apply to the inclusion of EV charging stations in the plan.

Anticipating Demand and Charging Level Needs

The cost to install EV charging infrastructure varies widely depending on a variety of factors, including charging level, type of charger, existing electrical infrastructure, facility characteristics, permitting considerations, desired location of charging stations and installation cost. Charging stations also vary with regard to the choice of features and preference for design or brand.[26] Costs are typically lower if the charging equipment can be installed close to an adequately sized electrical panel. Installations that are more complicated, such as long conduit runs, cutting into concrete or asphalt, or electrical panel upgrades, cost significantly more.

“Fast charging” may also create additional challenges, including installation of additional electrical service upgrades, and will be more expensive. In order to be able to use fast charging, the electrical supply to the site must be commercial-grade, typically 440–480-volt 3-phase AC. However, a few fast chargers are available using 208-volt AC. As technology advances, faster charging will be more widely available and attractive to customers looking to charge up more quickly. But fast charging may be more expensive and also might not be allowed under the local zoning regulations, as discussed above.

While it might be difficult to estimate customers’ demand for the EV charging station(s)—whether the owner/developer or tenant retailer is proposing the use of the EV charging station —it is important to try to estimate the demand in order to ensure that the building can handle the increased electrical loads. Estimating demand will also assist with anticipating changes in traffic patterns and access needs, if any. Understanding the estimated additional electrical loads from the charging station is also important for determining what additional wiring or electrical component would be required and whether these additional components will be allowed. Along these lines, whether the retailer host is the landlord or tenant, it should also determine whether or not common area electrical wiring or meter(s) can be used to accommodate chargers (e.g., perimeter lights).

In addition, because Level 1 and Level 2 chargers take hours to charge a car, they should be located in places where drivers are likely to park for long periods of time such as shopping centers.[27] If the retail establishment at issue is one where customers are not likely to stay for long periods of time, such as small stand-alone stores, a fast charger may be a good investment, even though the costs are significantly higher, because it may attract more customers. As discussed previously, fast chargers are not permitted everywhere and are costly, but if they are permitted in the local jurisdiction and, particularly, if rebates can be utilized to offset the costs of installation, they should be considered because the ability to charge a car in a mere half-hour will likely be a significant attraction for new and existing customers.

Practice Tips

  • The location of EV charging stations is very important. Select the site for the location of the EV charging station, particularly for fast chargers, based on available voltage, location, and ease of access and use.
  • It is wise to conduct a full building site electrical load evaluation with the potential loads first to show if demand charges are likely to be incurred at the facility.
  • If considering a fast charger, seek a well-researched estimate of the total cost to have a fast charger in the proposed location (in addition to the cost of the hardware, the cost of the installation, labor and additional equipment needed, including a 480V transformer from the utility if necessary) in order to fully understand and assess the reasonableness of the costs. Also, determine whether any rebates are available.

Conclusion

Government policies and regulations on EV charging stations are developing quickly as state and local governments enact new laws and regulations and amend existing laws and regulations to respond to the market demand to utilize this new fuel source. It is important for retailers and landlords to consider carefully the nuances of their particular state jurisdiction to ensure compliance and maximize the potential benefits available under the jurisdiction’s laws and regulations. As technology for EV charging stations advances, their cost will likely decrease further, making fast charging more feasible and prevalent. Government incentives or rebates, which may not be available forever, may make the cost of installing EV charging stations quite reasonable, which, in turn, will enable more and more retailers to take advantage of this powerful opportunity both to serve their customers and to boost business.


Published in Shopping Center Law & Strategy, a publication of the International Council of Shopping Centers (ICSC)

____________________

1] See Gina Coplon-Newfield, “Why Small Businesses Are Installing Electric Vehicle Charging Stations,” Sierra Club (April 27, 2015), http://www.sierraclub.org/compass/2015/04/why-small-businesses-are-installing-electric-vehicle-charging-stations; Matt Twomey, “Payback Is a Switch: Business Case for EV Charging,” CNBC (Feb. 6, 2014), http://www.cnbc.com/2014/02/05/siness-case-for-ev-charging.html.

[2] Cf. 2014 Vehicle Technologies Market Report “Quick Facts,” available at http://cta.ornl.gov/vtmarketreport/index.shtml, with 2011 Vehicle Technologies Market Report, “Quick Facts,” available at http://info.ornl.gov/sites/publications/files/Pub34442.pdf.

[3] 2014 Vehicle Technologies Market Report, available at http://cta.ornl.gov/vtmarketreport/index.shtml.

[4] Matt Richtel, “In California, Electric Cars Outpace Plugs, and Sparks Fly,” New York Times (Oct. 10, 2015), http://www.nytimes.com/2015/10/11/science/in-california-electric-cars-outpace-plugs-and-sparks-fly.html.

[5] Matt Twomey, “Payback Is a Switch: Business Case for EV Charging,” CNBC (Feb. 6, 2014), http://www.cnbc.com/2014/02/05/siness-case-for-ev-charging.html.

[6] Cal. Civ. Code § 1952.7.

[7] Id. § 1952.7(b).

[8] Id. § 1952.7(c)(3).

[9] Id. § 1952.7(a)(2).

[10] Cal. Govt. Code § 65850.7.

[11] Id. at § 65850.7(b).

[12] Id. at § 65850.7(b)-(c).

[13] R.C.W. 35.63.126.

[14] Id.

[15] Josh Agenbroad & Ben Holland, “RMI: What’s the True Cost of EV Charging Stations?” (May 8, 2014), http://www.greenbiz.com/blog/2014/05/07/rmi-whats-true-cost-ev-charging-stations (explaining that the average public charger installed in a parking garage is about $6,000, while a fast charger, discussed further below, costs about $50,000-$100,000 because of the need for a 480V transformer installed by the utility).

[16] EV Connecticut, Charger Incentives, http://www.ct.gov/deep/cwp/view.asp?a=2684&q=527866&deepNav_GID=1619 (last visited Jan. 5, 2016).

[17] EV Connecticut, http://www.ct.gov/deep/cwp/view.asp?a=2684&q=561884&deepNav_GID=2183 (last visited Jan. 5, 2016).

[18] Overview of the Delaware Clean Transportation Incentive Program, http://www.dnrec.delaware.gov/energy/Documents/Transportation%20Program/FINAL_Overview%20of%20the%20Delaware%20Clean%20Transportation%20Rebate%20Programs.pdf (last visited Jan. 5, 2016).

[19] Chelan, WA Mun. Code §§ 17.63.020, 17.36.030, http://www.codepublishing.com/WA/chelan/html/Chelan17/Chelan1763.html.

[20] Chelan, WA Mun. Code § 17.63, http://www.codepublishing.com/WA/chelan/html/Chelan17/Chelan1763.html.

[21] See, e.g., Brian W. Blaesser and Sorell E. Negro, “Retailer Primer on Electric Vehicle Charging Stations: Part II,” Retail Law Strategist (Fall 2012) at pp. 4-6.

[22] City of Auburn Hills, “Electric Vehicle Infrastructure: Amendment to the Zoning Ordinance” http://www.auburnhills.org/document_center/2__AH_EV_Infrastructure_Ord.pdf.

[23] Personal Electric Vehicle Charging Stations Fact Sheet (Jan. 2015), http://www.atlantaga.gov/modules/showdocument.aspx?documentid=16991.

[24] City of Berkeley, Energy & Sustainable Development, http://www.ci.berkeley.ca.us/EVchargingpilot/ (last visited Jan. 5, 2016).

[25] See, e.g., Saanich, CA, Electric Vehicle Charging Stations, http://www.saanich.ca/living/climate/action/evcs.html (“The Municipality sees the arrival of electric vehicles as the beginning of a shift in vehicle use and a key component of the Saanich Climate Action Plan”).

[26] See California Office of Planning and Research, Zero-Emission Vehicles in California: Community Readiness Guidebook, at 54 (2013), http://opr.ca.gov/docs/ZEV_Guidebook.pdf.

[27] U.S. Dept. of Energy, Alternative Fuels Data Center, http://www.afdc.energy.gov/fuels/electricity_charging_public.html (last visited Jan. 5, 2016).