The Española Planning and Zoning Commission unanimously approved plans for a flea market May 14 without so much as a word on whether its owner violated city law when it opened last month without city approval.
The market opened for business on a vacant lot on Santa Clara Bridge Road in early April and has continued hosting vendors almost every weekend from Friday to Sunday. The city sent the market’s owner, Española businesswoman Kelly Armstrong, two letters telling her to obtain city approval for the market.
The first, sent in March, stated the City Council was considering writing an ordinance to regulate flea markets, and asked Armstrong to wait until then before opening. The second, in April, was more strongly worded, forbidding Armstrong from continuing to operate the market before the Commission approved it.
“Perhaps there has been some confusion in how you interpreted the (March) letter from this office,” Planning Director Russell Naranjo stated in the second letter. “In the last letter, we asked for your cooperation and expressed our willingness to work with you. It seems at this time you have chosen a different approach.”
Naranjo said the city has considered referring a citation against Armstrong to Española Municipal Court for violating the city’s commercial code. City ordinances allow the Court to issue fines of up to $500 and sentences of up to 90 days in jail for each day a person violates city code, Naranjo said.
The Commission did not mention that Armstrong ignored the city’s instructions except briefly, while reviewing minutes from its April meeting, when city planners said the market was operating illegally.
Behind the market’s early opening is a disagreement over whether the city even has a say in the matter.
The city has no ordinance regulating flea markets. According to Armstrong and her lawyers, that means the city has no way to regulate the business — or declare it illegal.
“They really don’t have anything on the books that governs flea markets,” Armstrong said. “When I told my lawyer they wouldn’t let me open until I got a permit, he just laughed.”
City officials, however, argue the market is a commercial development, so it requires Commission approval and a business license just like any other business.
Armstrong said she disagreed, but tried to follow the city’s process anyway. She opened the market after getting frustrated with months of red tape.
“I’ve been going in there since February,” she said. “I gave them quite a bit of time to figure it out, but I needed to get started.”
Naranjo said that despite the Commission’s approval, the market won’t be legal in the city’s eyes until it shows proof the state Highway Department has approved its driveways, submits landscaping and drainage plans, screens its portable bathroom stalls from public view and applies for a sign permit and business license. The City Council must also still approve the plan.
The Commission’s leniency with Armstrong was in contrast to how the same commissioners handled an application by Rebecca Garcia last month to demolish a building next to the old Rio Grande Café. Although the demolition was allowed by city law, the Commission berated Garcia for removing windows from a nearby building before getting a permit.
Asked about the discrepancy between the Commission’s handling of Garcia and Armstrong, Chairman Erle Wright said maybe the Commission is becoming “numb” to residents ignoring city code. He added that in Garcia’s case, the decision was a matter of preserving the historical district that surrounds the Plaza.
“The only two preservation cases we’ve heard so far have been demolitions,” he said.
Wright acknowledged approving the market plan meant making an exception to city law and went against the Planning Department’s recommendation, saying the market “doesn’t meet criteria at any level for a commercial site.” Approving the plan required two variances overlooking requirements for lighting and a paved parking lot at the market.
Commissioner Amrit Khalsa was perhaps the most eager on the Commission to approve the plan. Khalsa attempted to rush through the market’s approval process by skipping the Planning Department’s recommendation to deny the two variances.
“It’s a speculative venture,” he said at the meeting. “If we’re setting conditions that are going to be expensive, that’s a very tricky thing.”
Khalsa acknowledged at the meeting that Akal Security, his employer, rents a property from Armstrong adjacent to the market on Santa Clara Bridge Road.
“I don’t see her being my landlord and neighbor as impeding me from being as impartial as I can,” Khalsa said.
Commissioner Anissa Martinez, however, hesitated before casting her vote.
“Once granted, the approval is for life,” she said. “That’s why everything that is required, is required. I would feel more comfortable if we got that done first.”