Unquarked’s Red Tag Appeal Hearing Set For Mar. 30

IMG_7781An appeals board established under the Los Alamos County Code convened Friday afternoon. Board members are, from left, County Manager Harry Burgess, County Council Chair Sara Scott and Planning & Zoning Board Chair Terry Priestley. Photo by Maire O’Neill/losalamosreporter.com

IMG_7779Cortni Nicklos and Prashant Jain of Unquarked await the start of Friday’s board of appeals meeting at the Los Alamos Municipal Building. Photo by Maire O’Neill/losalamosreporter.com


A Los Alamos County Board of Appeals will meet again at 8 a.m. Monday, Mar. 30 in Council Chambers at the Municipal Building to decide whether the issuance of a November stop work order was lawful under the County Code, the state building code and the New Mexico Administrative Code.

The stop work order was issued by the County’s Chief Building Official Michael Arellano for Unquarked at 813 Central Avenue. The appeal is from Prashant Jain, owner of Unquarked and Sirphey and is against Arellano is his official capacity. Jain has stated that the stop work order said, “No permit for work” for building, plumbing, electrical, mechanical, mechanical and fire, but that no such work has been undertaken.

The Board of Appeals, which is composed of County Council Chair Sara Scott, County Manager Harry Burgess and Planning & Zoning board Chair Terry Priestley, met Friday afternoon at the Municipal Building. Jain and Cortni Nucklos represented the appellant, Sirphey, LLC. Arellano was represented by Asst. County Attorneys Katie Thwaits and Kevin Powers, and the Board of Appeals and County Council were represented by County Attorney Alvin Leaphart. The purpose of the meeting was to approve a procedural document and a date for the actual evidentiary hearing on the appeal.

Leaphart said since the proceeding was instituted, a wall has been built within the County Attorney’s office where he is representing and advising the Board of Appeals Unquaand the County Council.

“I’ve advised the Assistant County Attorneys to separate me out from any discussions they have about the substantive efforts they are making on behalf of the building official,” he said. ““That wall has been maintained and will continue to be maintained through these proceedings.”

Chair Scott asked that before proceeding, members of the board disclose for the record any ex parte communications they have received in the matter. She said prior to the proceeding being announced, she as well as others had received numerous communications from Nucklos and Jain and that they are well documented. She said she has also participated in internal conversations about the matter with County staff.

“Subsequent to the announcement of this proceeding, I received an email yesterday from Miss Nucklos presenting certain information. I’ve also received limited communications from the public regarding this matter,” she said.

Burgess said he too has been involved in conversations with Nucklos and Jain as well as County staff as there have been many communications preceding the establishment of the board. Since the establishment of this board, he said there was one email which informed Nucklos about the meeting. Since that time, he said he received an email but “did not read it due to the hearing”.

Priestley said he had no communications regarding the matter.

Scott asked Burgess and Priestley if given the disclosures they had made, they believed that could set that information aside and decide the matter solely based on the evidence and arguments that will be presented in the appeal proceedings. All three board members answered in the affirmative.

Scott then asked if based on the ex parte disclosures, either party had objections to the board hearing the matter. Nucklos asked that Burgess recuse himself and offered to read the reasons she had for the request and present them to the board. Scott said the objection was overruled but would be entered into the record.

Asst. County Attorney Katie Thwaits said she had presented a motion to dismiss the appeal based on lack of standing to bring it.

“At no time during this matter when the application was filed or when the appeal was filed, did Sirphey show that they were the owner of 813 Central Avenue or did they establish that they have the owner’s approval to apply for the permit or do the proposed work,” she said.

Thwaits said the County code requires that every permit application requires a verified affidavit of the owner or permission from the owner and that because Sirphey has not submitted that, they had not provided standing that they have been aggrieved by Arellano. She also said she was submitting a motion for a site visit to 813 Central Avenue as part of the hearing.

Nucklos responded that the County was suggesting that Sirphey had not shown sufficient evidence that  are the owner or have the ability to act on behalf of the owner.

“This is not true and the County’s own actions on this matter show that is the case, because the County has actually accepted permits other than the one at issue submitted by Prashant (Jain) and myself and we were able to act on behalf of the owner. The County accepted it, the work was done, the work was approved and the County finalized the permit. The official stance of the County is that we are able to act on behalf of the owner,” she said.

Nucklos said Sirphey is more than amenable to a site visit.

“We brought Ms Scott to the space about 36 hours prior to the red tag being placed. Ms Scott was allowed to look around for about an hour and a half. We are not at all against that but we do also have some requests to make at this time,” she said.

Jain also responded that neither Arellano or anybody from the Community Development Department has raised a concern that they were not the owners of the building or that they did not have official standing.

County Attorney Leaphart advised the board that a robust motion for dismissal had been filed by Arellano’s counsel and that Sirphey should be provided be allowed additional time to file a response. He advised that the board take the motion under advisement and rule on it at the next meeting.

The board then moved on to approve the procedural document for the appeal, denying an opportunity for Nucklos or Jain to make a comment. Nucklos noted that the March 6 deadline for briefing under the procedural document is not amenable because she said that date is the County’s deadline to respond to the 33 alleged Inspection of Public Records Act violations reported to the Attorney General’s office which she said are directly related to the situation.

Scott responded that the procedural order had been approved and entered into the record. Nuckos asked when Sirphey was allowed to give comment on the procedural document and Scott replied that the procedure is “the same as generally used for other matters in the County”.

“These are determined and under the jurisdiction of the board. The board has inherent authority to establish the procedures and we have done so through this order,” she said. She and Jain asked that the appeal hearing be scheduled in the evening or on the weekend. Leaphart responded that when the hearing is scheduled is really up to the board as the party that instituted the appeal hearing. He said he didn’t think the hearing would lend itself to be held in the evening.

“I don’t think it would lend itself to be held in the evening. This is a robust evidentiary hearing that requires the presentation and cross examination of witnesses and it is a legal proceeding. If they wish to proceed with this they should give due consideration to their schedules and accommodating whatever this board requires of them,” he said.

Nucklos pointed out that by the March 6 deadline for briefs, only one party will have access to the County’s response to the Attorney General’s questions about the alleged IPRA violations. She asked for five additional days to submit the brief.

Leaphart said he did not see how the IPRA complaints were relevant to the appeal hearing. He said the County is responding to a complaint filed by Nucklos alleging violation of IPRA and that he didn’t see how that was relevant to the appeal hearing which is governed by the building code.

“The parties will be allowed to present whatever evidence they want to present and the board can consider whether or not what they present from the IPRA investigation is relevant or not. It’s really not for me to decide. They’re separate and not contingent on one another,” Leaphart said.

As noted above, the hearing will take place at 8 a.m., Monday, March 30 in Council Chambers at the Municipal Building, 1000 Central Avenue.