Marty’s loses appeal over home car sales

Posted: November 15, 2012

The Winchester Star

The Winchester Board of Zoning Appeals denied a request by Martin Gavis to overturn a decision that Marty’s Used Cars was improperly operating as a vehicle wholesaler from this property on South Braddock Street. (Photo by Scott Mason/The Winchester Star)

WINCHESTER — A city man might have to close his home-based vehicle-sales business if a decision by the Winchester Board of Zoning Appeals (BZA) stands.

By a 5-0 vote Wednesday afternoon, the BZA denied a request by Martin Gavis to overturn a decision that Marty’s Used Cars was improperly operating as a vehicle wholesaler. The dealership is at the corner of Braddock and Leicester streets, with its business address listed as 14 W. Leicester St.

City Attorney Tony Williams said after the public hearing that Gavis can appeal the decision to the Winchester Circuit Court.

Gavis declined comment following the decision.

In his testimony, Gavis said that he’s seeking an injunction against the city for violating a 1990 court order that allows him to sell vehicles at the property.

The action was sparked by a decision by Aaron Grisdale, the city’s director of zoning and inspections, that Marty’s Used Cars was a wholesale operation, not a retailer. The retail sales use was grandfathered in the Residential Business zoning district, but wholesale use is not allowed.

Grisdale said he made the determination after receiving data from the Virginia Motor Vehicle Dealer Board indicating that 47 of the 54 sales Gavis reported in the last calendar year (87 percent) were wholesale transactions, making that the predominant use.

Gavis argued that he’s operated a car lot on the property since he bought it more than 40 years ago, and wholesaling always has been a component of his business. He said that a 1990 court ruling affirmed his right to sell vehicles there.

“I haven’t broken the law,” he told board members. “I’m doing exactly what I was doing in the ’60s, ’70s and ’80s.”

Gavis also said he was never told he had to be licensed as a wholesaler.

Board member Jason Ransom, a lawyer, read a copy of the 1990 court order that Gavis provided and stated that it “has nothing to do with wholesale sales.”

Williams, who represented the city, said Gavis should have known that a wholesale license was required. The business license application he fills out every year delineates between retail and wholesale businesses, and he is licensed as a wholesaler in Frederick County.

“The preponderance of the evidence,” Williams said, “shows that Mr. Gavis knows the difference between a wholesale and a retail license.”

Furthermore, Williams said the primary purchaser of vehicles from Marty’s Used Cars was Marty’s Used Cars No. 2, which he operates in Frederick County.

“He’s selling vehicles to himself to avoid paying taxes in the City of Winchester,” the city attorney said. “He’s turned [the property] into a wholesale storage lot.”

Board members deliberated only a few minutes before affirming Grisdale’s decision.

“I feel the city and Mr. Grisdale have made a valid point,” Chairman Brian Hester said, “and I would have a hard time going against their decision.”

Board member Brandon Pifer noted that “Wholesale Merchants” is plainly listed as a business type on the city’s business license application. It’s one of six business types listed and is only three lines down from “Retail Sales” and two lines down from “Repair, Personal and Business Services,” types for which Gavis reported previous year sales.

“It’s right there in front of you,” he said.

The board members also voted 5-0 to approve a variance request by Mayflower Apple Blossom LP (Simon Property Group), the owner of Apple Blossom Mall, to install a new 290-square-foot sign on the southwest corner of the intersection of Jubal Early and Apple Blossom drives.

The motion to approve also stated that the company must remove its sign at the intersection of Jubal Early and Millwood Avenue if the new sign is installed.

If the variance had not been granted, the mall owners would have been able to install a sign no larger than 200 square feet.

Attending the meeting at Rouss City Hall were Chairman Brian Hester, Vice-Chairman Jack Phillips and board members Donald Crawford, Brandon Pifer and Jason Ransom.

— Contact Vic Bradshaw at vbradshaw@winchesterstar.com