02-1833

Dealer License

Signed 1/17/03

BEFORE THE UTAH STATE TAX COMMISSION

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PETITIONER, ) ORDER

)

Petitioner, ) Appeal No. 02-1833

)

v. )

)

MOTOR VEHICLE ENFORCEMENT ) Tax Type: Dealer License

DIVISION OF THE UTAH STATE TAX ) Tax Year: 2002

COMMISSION, )

)

Respondent. ) Judge: Davis

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Presiding:

G. Blaine Davis, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER REP

For Respondent: Mr. Gale Francis, Assistant Attorney General

Mr. Kip Ingersoll, from the Motor Vehicle Enforcement Division

STATEMENT OF THE CASE

This matter came before the Utah State Tax Commission for an Initial Hearing pursuant to the provisions of Utah Code Ann. '59-1-502.5, on January 13, 2003.

On or about December 6, 2002, Respondent suspended the dealer license of Petitioner, because it had received information that the property on which the business was operated did not meet the current zoning laws of CITY, the city in which the business is located.

Petitioner has appealed that suspension and represented he has been operating the business at that location for approximately 20 years. The property was located in the unincorporated portions of XXXXX County, and was later annexed by the CITY in 1984. Petitioner has continued the operation of the business at the same location in CITY since it was annexed in 1984. Petitioner presented evidence demonstrating that during that time period CITY has purchased vehicles and other equipment from Petitioner at that location, so the City has long been aware of the business operation at that location.

At the time of the annexation, Petitioner resisted being annexed into CITY, but his objections were ultimately overruled and the annexation occurred because of other surrounding properties, which were annexed at the same time.

Petitioner believes that the use of the property is legally grandfathered without regard to the zoning requirements because he was using the property for its current use at the time of the annexation and the time when the current zoning was implemented on the property. Therefore, he maintains that the current zoning laws do not apply to him.

Notwithstanding his question regarding the legal position, Petitioner has represented that if he can continue to operate at that location until June 2003, when his current dealer’s license would expire and need to be renewed, he will liquidate his current inventory and will then cease business operations at that location so that the zoning would not be at issue after June 2003, or whenever his current inventory is liquidated, whichever sooner occurs.

APPLICABLE LAW

Utah Code Ann. §41-3-210, provides in relevant part:

(1) The holder of any license issued under this chapter may not:

. . . .

(s) operate any principal place of business or additional place of business in a location that does not comply with local ordinances, including zoning ordinances;

DECISION AND ORDER

In this matter, there is a question as to whether Petitioner has a conditional use permit by operation of law because the business was operating in that location prior to being annexed into the City and prior to the adoption of the current ordinance. In view of that question, and in view of his representations that he only needs to operate through the end of June, it is hereby ordered that the suspension issued by Respondent is hereby removed, and Petitioner is authorized to operate at his existing location through and including the end of June 2003. After June 2003, his license shall not be renewed unless Petitioner presents convincing evidence that he is operating on property that complies with all local ordinances, including zoning ordinances, or that he has a conditional use permit from the relevant government agencies. It is so ordered.

This decision does not limit a party's right to a Formal Hearing. However, this Decision and Order will become the Final Decision and Order of the Commission unless any party to this case files a written request within thirty (30) days of the date of this decision to proceed to a Formal Hearing. Such a request shall be mailed to the address listed below and must include the Petitioner's name, address, and appeal number:

Utah State Tax Commission

Appeals Division

210 North 1950 West

Salt Lake City, Utah 84134

Failure to request a Formal Hearing will preclude any further appeal rights in this matter.

DATED this 17^th day of January , 2003.

________________________________

G. Blaine Davis

Administrative Law Judge

BY ORDER OF THE UTAH STATE TAX COMMISSION.

The Commission has reviewed this case and the undersigned concur in this decision.

DATED this 17^th day of January , 2003.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner