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Council Upholds Denial of Legal Exception for City Official

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hunter zoning commission appeal council hearing

Planning and Zoning Commissioner Ed Hunter and Planning and Land Use Director Alison Gillette fielded questions from city councilors. Hunter, who did not vote on the Commission’s decision, was appealing its denial of his request for a special use permit to open a powder coating business on his residential property.

In its first zoning appeal hearing since 2017, the Española City Council upheld the Planning and Zoning Commission’s denial of Commissioner Ed Hunter’s request for a special use permit to operate a powder coating business out of his property in the city’s residential zone.

Mayor Javier Sanchez broke the tie in favor of the Commission’s decision at the close of a July 9 hearing largely centered around some councilors’ opinion that different branches of the city government gave Hunter conflicting decisions.

Councilors John Ricci, Manny Martinez, Dennis Tim Salazar, and Justin Salazar-Torrez voted to uphold the Commission’s decision. Councilors Denise Benavidez, John Ramon Vigil, Robert Seeds, and Peggy Sue Martinez voted to appeal.

It was the first appeal heard by several councilors who were elected in 2018.

Planning and Land Use Director Alison Gillette began the hearing with an instructional slideshow on the appeal process and the individual history of the case. Under city ordinance, the Council does not hear appeals to rule on requests themselves, but rather vote on whether the appealing party was given a fair hearing by the Commission.

Decisions can be reversed if the Council finds they were not in line with city plans or ordinance, were not supported by the record or “the decision was arbitrary, capricious, or a manifest abuse of discretion,” city code states.

Councilors’ questions centered around Hunter’s January 2018 receipt of a business license, two weeks after the Commission approved a variance for Hunter to build the powder coating shop solely for personal use. He had not been elected to the Commission at that time.

Gillette said Hunter was advised at that approval that he would need a special use permit to operate a business there, so the requirement was clear in his mind at the time of his application for a business license. She said she was unaware of the license at the time.

When Hunter applied for a business registration, home business licenses were approved solely through the City Clerk’s Office. City Planner Richard Hubler said in an interview that when he joined the Planning and Land Use Department in November 2018, he instituted a policy requiring that all business licenses go through the Department for initial review.

Hubler said at the meeting that while the City Clerk’s Office issues registrations, it does not determine use. He said the Department determined Hunter’s proposed business did not qualify as a home business.

Gillette said city code specifies three business types always ineligible for home business licenses: salvage yards, contractor’s yards and auto body repair and paint shops.

Vigil said the disconnect between city departments rendered the Commission’s decision capricious, or inconsistent.

Ricci, who sat on the Commission at the time of Hunter’s initial request for a variance, urged the Council to vote based solely on their evaluation of the Commission’s hearing, as per city ordinance.

“Some decisions are hard but they’re done for the overall community,” he said. “We have to remember that as a Council. When these decisions and these appeals come to us, we have to look at the facts and not on emotions.”

Hunter said he wanted the shop as a business for his son, a painter by trade who took up powder coating as a hobby. He said he has joint-ownership commercial property but no sole-owner commercial property on which he could operate the business.

“The reason for that location is that’s the only option I have to open a business,” he said.

Gillette said in an interview this was the first appeal to the City Council since she began as director in late 2017.

She said from her review of prior appeals, she thought the Council used to handle appeals essentially as re-trials of the application rather than evaluations of the Commission’s hearing.

“I think it says a lot about the Commission that this is the first appeal in a while,” she said. “They’re making good rulings.”

Hubler said he felt the case gave the Council a better understanding of the Commission’s processes.

“The experience and the fact that we have so few (appeals) means that there’s not a lot of exposure or practice on their end,” he said. “We’ve got a clear process for the appeal to City Council now, and the current Council at least has had some experience with it so if we get another one it’ll be a little more familiar.”

Gillette and Hunter hugged at the end of the hearing.

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