Appeals Board Virtual Hearing On Unquarked Stop Work Order Now Scheduled For June 11

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Cortni Nucklos and Prashant Jain of Unquarked at the Feb. 21 meeting of a Los Alamos Appeals Board. Photo by Maire O’Neill/losalamosreporter.com

BY MAIRE O’NEILL
maire@losalamosreporter.com

A Los Alamos County Board of Appeals originally slated to meet Mar. 30 will now meet virtually Thursday, June 11 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 County Board of Appeals convened some 69 days after the red tag was placed at the premises.

The stop work order was issued by the County’s Chief Building Official Michael Arellano for Unquarked at 813 Central Avenue and is being appealed by Prashant Jain, owner of Unquarked and a second Los Alamos business, Sirphey, and is against Arellano is his official capacity. The stop work order was allegedly issued because no permit had been received work at the premises, but Jain maintains the referenced work has not 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. Arellano is represented by Asst. County Attorneys Katie Thwaits and Kevin Powers, and the Board of Appeals and County Council is represented by County Attorney Alvin Leaphart.

During the May 26 virtual County Council meeting, Cortni Nucklos read a statement on behalf of Unquarked stating that Unquarked has pushed for a hearing for six months on what they “can prove is an invalid red tag under the County Code”, and for an investigation into  “what was alteration of our permit application in (Community Development Department) custody”.

“And yet, here we are now at six months without due process,” Nucklos said.

She expressed concern about the security of the 813 Central Avenue location noting that there had been multiple thefts at the location. She stated that the County firefighters broke the exterior doors to Unquarked despite assurances that they would wait Unquarked to show up in response to an alarm last winter. She said visible damage was done to the doors and that they can now be forced open.

Nucklos said less than 48 hours after the recent string of commercial burglaries which included break-ins in Mari Mac Village Shopping Center, Unquarked received an email from a County attorney indicating that they would not be allowed to remove items from the unsecure space “while the County indefinitely postpones these proceedings”.

“We took this to be a taunt. Not long after, we documented yet another theft from our property,” Nucklos said.  Unquarked claims County Attorney Alvin Leaphart notified them Mar. 30 that items could not be removed from the premises while the stop work order was in effect.

The Los Alamos Reporter reached out to County officials following the May 26 Council meeting but they responded that they were unable to discuss Unquarked because of their involvement in the hearings.

Prashant Jain maintains the County could have held the hearing earlier because the Supreme Court had not fully suspended civil cases. In May, Scott reached out to the parties to see if they would consider proceeding with the hearing virtually. Arellano’s wanted a site visit to the premises and maintained that one could not be properly conducted virtually. Unquarked responded that the role of the Appeals Board as set out in its own procedural and scheduling order, is to determine whether the issuance of a stop work order by Arellano was lawful and that the hearing is required by law but the site visit is “entirely discretionary”.  Jain said the Arellano’s attorneys also cited concerns regarding the ability of testimony to be heard

Scott eventually contacted the parties in the case to determine if they would via telecommunication but that they had not submitted a list of witnesses prior to the Mar. 6 deadline in the procedural and scheduling order. Jain said the attorneys also cited the need to respond to some motions but that those had been submitted more than 11 weeks earlier.

Jain maintains that the County has a legal obligation to provide an appeals process as set out in the County Code and that if that legal recourse can’t be provided, that the County can’t carry out the “aggrieving action” as the system would be left without any check to the “fallibility of an individual’s unilateral decisions” and can provide no due process.

The County through Arellano’s attorneys, sent a proposed settlement Mar. 30 to Jain indicating that it was “privileged” and could not be used “outside of these discussions” under the New Mexico Rules of Evidence. In an email from Assistant County Attorney Kevin Powers to Jain, he states that if Sirphey (Unquarked) agrees to submit a complete set of plans showing the entire scope of work planned including all necessary construction, fire, electrical, plumbing and mechanical plans, and that meets the County’s building and fire code regulations, the County will remove the red tag and Unquarked could proceed according to approved plans.

The email says that a letter received by the County indicates that Jain and the property owner have made arrangements to removed certain equipment from the premises and return it to the old Thai restaurant.

“Removal under the red tag is prohibited however removal of the equipment may resolve in part a portion of the County’s concerns,” the email states. “The County’s concerns have been and continue to be that as the County observed progress at the property, including the addition of the old Thai restaurant cooking equipment, additional future work requiring a full set of plans would be necessary for obtaining a final certificate of occupancy.

Jain maintains the settlement proposal is not privileged because it was sent to Arellano’s boss Paul Andrus, a third party, a proposed witness and a government official that is not Powers’ client on the Unquarked matter.

Jain rejected the proposed settlement agreement stating that documents referenced therein were not requested until after the stop work order so they cannot have bearing on the red tag placement or removal.

“And any settlement I consider would need to take into account that your client failed to meet the legal requirements for placement in as much as the much-needed answers about the alteration of my permit while in CDD custody,” Jain responded.

Scott notified Unquarked that all parties are prepared to proceed virtually and proceeded to set up the June 11 date.  An agenda and further information will be published prior to the hearing under the requirements of the Open Meetings Act. On Tuesday, Leaphart sent details to the parties of how the hearing will be conducted. He said the appeals board plans to convene for this hearing in the Council Chambers at the Municipal Building so that the board is present in the same physical location.  The hearing will be live streamed in the same manner as regular Council meetings to simplify access by the public and to comply with the guidance provided by the New Mexico Attorney General regarding public meetings during the current public health emergency.

Leaphart said the Council Chambers will not be open to the public.  He said the board is convening in the same physical location to allow the board, if it so chooses, to enter into closed session to deliberate on how to rule on motions, objections, and/or a final ruling in the matter as provided for in the Open Meetings Act. He said also, by meeting in the Council Chambers, should a site visit occur, the board will be in close proximity to the site location.

Leaphart noted that there are multiple pending motions that will be addressed at the beginning of the hearing and that since it isunknown how the Board will rule on these motions, “the parties need to be prepared for any outcome including trying the matter to verdict.

“Last Friday, after hearing that Chair Scott intended for the entire hearing to be resolved within one day, we were forced to file an emergency motion. One of the motions before the Board is for the removal of Chair Scott on the grounds that she has violated Los Alamos County Code in her actions as Chair of this appeals board,” Nucklos told the Los Alamos Reporter Tuesday.

She said requiring everything to be resolved in one day places immense pressure on the appeals board to retain Scott out of necessity.

“We’ve requested a decision on her involvement prior to the hearing. And this matter isn’t trivial. Chair Scott and Michael Arellano have both been represented by the same attorneys on the matter of Unquarked, none of these parties disclosed it when legally required, and Chair Scott invoked privilege on her communication with Mr. Arellano’s attorneys about UnQuarked from the same morning the red tag went up,” Nucklos said. “If someone had told me about a legal hearing in which a judge and appellee/defendant were both being represented by the same attorney, I’d think it ludicrous and impossible. But that’s our actual reality, right now. Our emergency motion has been, as of now, ignored.”