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City Zoning Official Prohibited from Opening Business

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Española Planning Commissioner Ed Hunter will not get to run a powder coating business out of his family shop after all. Before he was appointed to the Planning Commission, it allowed him to build the shop, but after he joined it chose not to given him an exception to local zoning code.

The Española Planning Commission denied a permit to one of its members that would have allowed him to operate a business out of a shop next to his home.

Before Edward Hunter joined the Commission, it granted him in 2018 a temporary exception to the city code, called a variance, that allowed him to build the shop on his property on North McCurdy Road.

But the Commission voted unanimously May 9 against giving Hunter a permit to operate a powder coating business out of the shop. Hunter recused himself from the matter.

In January 2018, before Hunter was appointed to the Commission, he had on his property, along with his home, a large shed and a carport, the maximum amount of accessory structures allowed in the urban residential district under city code.

The Commission voted to grant him a variance to build a shop, beyond the two-structure limit.

At the time, Hunter told the Commission the building would be for personal use but that he and his son wanted to open a business there in the future, according to the minutes from the Jan. 11, 2018 Commission meeting.

“Commissioner (Anissa) Martinez questioned if the shop was intended for personal use, or if he had plans for a business,” the minutes state. “Mr. Hunter confirmed personal; however, if it can be worked into the matrix, he and his son may open a powder coating business with a request for Special Use Permit.”

A neighbor asked during the hearing whether Hunter would be allowed to operate the business in the shop, according to the minutes, and then-Planning Director Eli Isaacson said the code allows for “home occupation” but he would have to get a special use permit to run a business.

Commission Parliamentarian Erle Wright would later say that the minutes reflect “pretty much a nonverbal understanding that it would not be put to commercial use.”

Hunter’s shop is 40 feet wide, 60 feet long and 18 feet tall at its highest point.

Later that month, on Jan. 30, 2018, Hunter registered his business with the City Clerk’s Office under the name Hunter Powdercoating, LLC.

After Mayor Javier Sanchez was elected in March 2018, he appointed Hunter to a seat on the Commission.

Hunter’s request to get a special use permit to operate the business was first scheduled to be heard by the Commission nearly a year later in February but it was delayed because not enough members of the Commission could make it to the February meeting.

While the issue of the special use permit was still pending, Hunter submitted a third request to Planning Director Alison Gillette to subdivide the property in two, one that would contain his home, shed and carport, the other that would contain the shop.

Gillette denied his request because the city code prohibits operating a business in the urban residential district where Hunter’s property is located.

“I appreciate that you are thinking long-term and in your family’s best interests,” Gillette wrote to Hunter in a March 5 letter. “But the City of Española must also view this through a long lens: not only does this proposed subdivision not conform to the City’s Municipal Code, but permitting the existence of a solely commercial activity in a residential area is not a precedent this Department is prepared to set.”

‘Appearance of cronyism’

At the May 9 meeting, Wright moved to approve the permit but then convinced the other commissioners to vote against it, arguing that they should follow city code and not allow commercial use in a residential zone.

Before Wright made the motion, he said the Commission should reverse the precedent set by previous commissioners who allowed business owners to operate in residential areas, which is unlawful under city code but was sanctioned by variances issued by the Commission.

“There is an appearance of potential impropriety that this Commission would be granting special use that is not allowed under the code to a fellow sitting commissioner,” Wright said. “I understand what Mr. Hunter is trying to do, however, I believe it puts all of us in an awkward position. It gives the appearance of cronyism, if this commission were to consider approval.”

Vice Chairman Eric Martinez voted to deny the permit but said before the vote that is a small community like Española, there is the potential for any sitting commissioner to need Commission approval for something they want to do personally.

Hunter has the ability to submit an appeal of the decision to Gillette, who would then decide whether to forward it to be heard by the Española City Council. As of press time Monday, Hunter had not filed an appeal, Gillette wrote in an email.

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