Homeowner challenges excise tax on garage

December 05, 1993|By Erik Nelson | Erik Nelson,Staff Writer

Peter A. Sola's garage didn't bring any more traffic into the county or make room for more schoolchildren. So why, he asked county officials, does he have to pay $346 in excise tax to improve county roads?

Their answer: because a county law says so.

But if a pending decision by the county Board of Appeals isn't challenged in court by county lawyers, Mr. Sola will get his money back.

The two-car garage was built on Mr. Sola's one-acre lot, which is sandwiched between the Longfellow and Beaverbrook neighborhoods near Route 108.

Mr. Sola's appeal is the first challenge of the excise tax, created as part of the county's Adequate Public Facilities Ordinance -- a package of measures intended to improve the way the county copes with new development.

As new subdivisions and office parks sprung up during the 1980s, the county's roads and classrooms became overcrowded.

The adequate facilities laws attempt to restrict development that would create traffic and school problems. The laws also required developers to help pay for needed road improvements, which is how Mr. Sola's garage was taxed.

One adequate facilities law requires the excise tax be levied on new construction of "occupiable" structures.

Neither Mr. Sola nor board members believed the detached garage to be "occupiable." One board member did not consider it fair to tax any garage.

"It was totally irrational to say that my garage is occupiable," Mr. Sola said. "The moon is occupiable, but I don't think we're going to have houses built on the moon any time soon."

Also troubling to the board was that other "accessory structures" were exempt from the tax, said board Chairwoman Evelyn Tanner.

"It was really a matter of interpretation, and I think some people had some problems with viewing the garage as occupiable space," she said. "It's not livable space."

Ms. Tanner said the board wondered "how you could say that a storage shed is not occupiable space and a garage is."

The board has voted 4-0 to overturn county authorities' decision to levy the tax, but the decision will not be final until board members sign a written order, probably next month.

F. Todd Taylor, the senior assistant county solicitor who argued to uphold the tax levy, says the legal definition of "occupiable" is a place "in which individuals may live, work or congregate for amusement, educational or similar purposes."

At a minimum, Mr. Sola's garage "is designed for people to work within it," Mr. Taylor said, and therefore must be taxed.

If the board's decision stands, it would create a loophole that would allow people to build untaxed structures that could be occupied later.

But board member James Caldwell said he believes the law is not aimed at detached garages anyway because its wording mentions "attached garages" but not detached garages.

Mr. Sola added that other exemptions don't seem to make sense to him, if his garage is to be taxed.

"I could build a 2,000-square-foot sheep barn, and they wouldn't have even bothered charging me anything except the excise tax," he said.

In fact, because farm buildings don't require building permits, they don't have to pay the excise tax, which only applies to buildings that require a permit, said David Krebs, chief of plan review for the Department of Inspections, Licenses and Permits.

If a permit is required, he said, a building must be taxed unless it is not occupiable, which would be the case in buildings such as water and sewer pumping stations.

The work sheet used by county plan reviewers says the law does not apply to storage sheds and outbuildings, and does apply to garages, basements and work areas that "are equipped with means of egress, light and ventilation."

Board member George Layman said he feels the County Council should rewrite the law to exclude garages altogether. Mr. Layman is planning to run for a seat on the council next year.

"It should apply to only living space," he said, adding that other types of residential structures do not have an impact on roads or schools.

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