The Española City Council delayed a decision at its meeting Tuesday on whether to grant or deny a Special Use Permit to the city’s only low-barrier emergency homeless shelter.
Instead, councilors voted for an independent hearing officer to conduct the appeal hearing for Española Pathways Shelter. The shelter may continue to operate until Jan. 12, while the council waits on the independent recommendation.
Pathways needs the Special Use Permit to operate as an overnight facility. Its ability to provide case management and other support services will not be impacted by the approval or denial of the Special Use Permit.
After a more than five hour community hearing on Aug. 21, the city’s Planning and Zoning Commission voted to deny Pathways its Special Use Permit. The shelter filed its appeal on Aug. 21, just seven days after the commission’s decision.
Appeal
The appeal documents submitted by Pathways Executive Director Dena Moscola include a seven-page document from the New Mexico Center on Law and Poverty explaining why the commission’s decision was arbitrary. According to the document, commissioners failed to consider all submitted evidence at the initial hearing, unlawfully discriminated against people with disabilities and violated the city’s Special Use Permit process ordinances.
Pathways is required to obtain the Special Use Permit to operate its overnight shelter. Currently, they have beds for 10 women and 10 men and are open three nights a week. The shelter also provides case management and other support services, which do not require the special permit.
Codes and
Ordinances
According to the city’s municipal code, the commission must utilize a five-point criteria to determine whether it issues a Special Use Permit. These criteria include things like whether property has adequate parking facilities, vehicles can safely enter and exit the property and if proposed use would be detrimental to the health, safety, peace and comfort to people working and residing nearby.
The Center on Law and Poverty document states that the city’s Development Review Team, which was led by Planning Director Elias Mares, unanimously recommended the commission approve the permit. Other DRT members included Fire Chief Johnny Martinez, Police Chief Mizel Garcia and Social Services Director Michelle Fraire.
“There was no evidence presented that the special use applied for (as an overnight shelter) would be detrimental to the health, safety and general welfare of residents,” the document states. “In fact, there was substantial evidence-including testimony from the Fire Chief, the Police Chief, and the Social Services Director, as well as EPS and various public and nonprofit organizations-that the applied for special use of the property would protect the health, safety and general welfare of residents because it would provide a place for unhoused persons to stay overnight instead of these unhoused people being scattered outside and around the city.”
The document also highlights comments by a commissioner who stated the shelter was not providing enough resources to the community because it failed to provide shelter seven days a week. City code does not require a shelter to operate 365 days a year to obtain a Special Use Permit.
Discrimination
The document also states that the denial of the Special Use Permit violates the federal Fair Housing Act because it is illegal to deny access to emergency shelter to people with disabilities.
The Act’s definition of disability includes people who have substance use disorder and are in recovery, as well people who live with physical impairments, mental illnesses and other diseases.
“Federal courts have also struck down ordinances that do not make reasonable accommodations for individuals who are disabled,” the appeal documents. “For example, an ordinance preventing the expansion of a homeless shelter where seventy-five percent of the occupants were individuals with physical and mental disabilities was struck down for failing to make reasonable accommodations for individuals with disabilities to obtain access to housing.”
This section also highlighted Commission Chair JR Trujillo’s social media posts made before the Aug. 14 hearing. According to the document, Trujillo said that he believed people who are unhoused should be “forced into treatment, jailed, or given some type of rehab.”
“The fact that some Planning Commission members dislike conducting daily life in proximity to people with impairments who are unhoused does not justify illegal discrimination,” the document states.
Ordinance Violation
The Center on Law and Poverty document also states that Trujillo showed explicit prejudice against people who are unhoused, which breaks the city’s Code of Ethics.
According to the code, public officials, employees and volunteers who act in a quasi-judicial capacity on behalf of the city are prohibited from taking official action “tainted by a decisionmaker’s conflict of interest, bias and prejudice, prejudgment, or other conduct creating the actuality or the appearance of impropriety.”
“These statements show that at least some Planning and Zoning Commissioners had a
predetermined intent to deny the SUP,” the document states. “This conduct violates Española’s Municipal Code, prohibiting commission members from prejudice and prejudgment in decisions made in quasi-judicial proceedings. Further, the failure to provide a fair and impartial proceeding violates the due process rights of the shelter, guaranteed by the NM Constitution and City Code. Therefore, the denial of EPS’s SUP application should be reversed.”