Unquarked Hearing Continued Until July 7 Following Another Lengthy Virtual Session Monday

IMG_9689 (1)Los Alamos County Appeals Board Chair Terry Priestley presides during Monday’s lengthy virtual hearing. Screenshot/Los Alamos Reporter

IMG_9691Los Alamos County Building Official Michael Arellano, left, and Assistant Los Alamos County Attorney Kevin Powers at Monday’s virtual hearing. Screenshot/Los Alamos Reporter


A Los Alamos County Board of Appeals hearing, which began with a day-long virtual proceeding Thursday, June 11, continued Monday with a 12-hour session, is not over but will again continue July 7.

The board is meeting to decide whether the issuance of a November stop work order by County Building Official Michael Arellano to Prashant Jain, owner of Sirphey, LLC for what was to be the future home of Unquarked at 813 Central Avenue 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 allegedly issued because no permit had been received for work at the premises, however Jain maintains the referenced work has not been undertaken. Jain claims that before the stop work order was prepared by Arellano, no inspection of the premises took place.

The Board of Appeals which is composed of County Council Chair Sara Scott, County Manager Harry Burgess and Planning & Zoning board Chair Terry Priestley. Prior to the June 11 hearing, Scott and Burgess appointed Council Vice Chair Randy Ryti and Department of Public Utilities Manager Philo Shelton to replace them on the board.

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. Jain and Cortni Nucklos appeared pro se on behalf of Sirphey.

Participants chose to continue yesterday’s hearing after it became clear that the board could expect several more hours of proceedings. Monday’s proceedings began with the continuation of cross-examination for Jain by Thwaits which took several hours.

Following that, Thwaits, in a verbal motion for a directed verdict, told the board that the evidence provided by Sirphey failed to meet its burden to show that the issuance of the red tag was arbitrary, capricious or not in accordance with law.

Thwaits said the entire basis of Sirphey’s claim was based on the fact that Sirphey does not agree with Arellano’s determination. She said all of the assertions presented by Sirphey consisted only of legal conclusions and arguments with no basis in fact and not supported by the evidence they presented.

“Legal conclusions do not suffice as substantial evidence to show that the red tag was arbitrary, capricious or not in accordance with law. Mr. Jain admitted that he had no authority, licensure certification or any credentials that would grant him the authority to interpret the building code. He had only his lay opinions that Sirphey relied upon when he failed to heed Mr. Arellano’s statements that permits were needed,” she said.

Thwaits said said Sirphey had been told on six different occasions that it needed a permit prior to the issuance of the red tag and that knowing that the red tag was expected if the permit was not approved, Sirphey requested additional time to submit its permit. She said the fact that Sirphey disagreed with Arellano’s decisions did not somehow supersede  or invalidate Arellano’s decision. She maintained Arellano was entitled to judgment as a matter of law.

Thwaits said what this means is that if a party has been fully heard on an issue during a hearing with all of its witnesses and all of its evidence, the board can find that there’s no legally sufficient evidentiary basis to find for Sirphey and resolve the issue against Sirphey without having to hear the Arellano’s case. She asked that the board issue a directed verdict in favor of Arellano because of Sirphey’s failure to meet its burden.

Jain and Nucklos argued that at no point has Arellano indicated what work they had done without a permit. They noted that the board had rejected a June 11 summary of judgment motion because wanted to hear the truth and had not yet heard from the Arellano as the person that issued the stop work order. They also pointed out that both parties had agreed June 11 that they were in favor of a site visit and that if board was interested in getting to the bottom of this, a site visit would be in order.

Leaphart explained “arbitrary and capricious” saying that for Arellano’s actions to be arbitrary, there would have to be no factual basis for his decision.

“Capricious would be that there would be a lack of reason for taking the action that was taken, if it was done in a whimsical manner. If the Building Official observed facts that led him to apply those facts to a set of legal principles and reached a reasonable conclusion that’s not arbitrary and capricious,” he said. “If he had reasons to do what he did and he had facts to support those reasons then it’s not an arbitrary and capricious decision.”

Board member Randy Ryti  said he had questions that may be asked of Arellano and that members of the public would be interested in the answers. Board member Philo Shelton said he was not planning to make a motion to consider a directed verdict and Chair Priestley agreed.

“I do want to hear what is to be presented and I don’t want to give the impression to anybody that all the evidence, all the information necessary to make a decision is not heard. So we’re going to move on,” he said.

And move on they did – working through testimony by Arellano throughout most of the afternoon followed by Jain’s cross examination of Arellano. When Arellano’s co-counsel Kevin Powers indicated close to 7 p.m. that his questioning of Arellano would take a substantial amount of time and that he still needed to present Community Development Department Manager Paul Andrus as a witness, the parties agreed to continue the hearing until July 7 with another 7 a.m. start.