Appeal In Unquarked Red Tag Case Denied Following Three Days Of Testimony

IMG_9903Los Alamos County Community Development Department director Paul Andrus, top left, testifies at Tuesday’s Board of Appeals hearing, accompanied by Asst. County Attorney Kevin Powers. Screenshot/Los Alamos Reporter


After more than 30 hours of testimony given during a hearing that lasted three days, the Los Alamos County Board of Appeals voted unanimously to deny an appeal by Sirphey, LLC against the issuance of a Nov. 22 red tag by the County’s chief business official Michael Arellano because Sirphey failed to show that Arellano’s issuance of the red tag was unlawful, arbitrary or capricious.

The location involved in the hearing was to be the future home of Unquarked and is located at 813 Central Avenue in the Marimac Shopping Center and the stop work order was issued because Arellano maintained that no permit had been obtained for work at premises. Sirphey and Unquarked owner Prashant Jain maintained that the referenced work has not been undertaken. Jain claimed that before the stop work order was prepared by Arellano, no inspection of the premises took place.

The board is composed of County Council Chair Sara Scott, County Manager Harry Burgess and Planning & Zoning board Chair Terry Priestley, however, prior to the first hearing day on June 11, Scott and Burgess appointed Council Vice Chair Randy Ryti and Department of Public Utilities Manager Philo Shelton to replace them on the board. Due to COVID-19, the three days of hearings were held virtually.

Arellano was represented by Asst. County Attorneys Katie Thwaits and Kevin Powers, and the Board of Appeals and County Council was represented by County Attorney Alvin Leaphart. Jain and Cortni Nucklos appeared pro se on behalf of Sirphey.

Prior to making the motion Tuesday, chair Terry Priestley said he would like the County to consider opportunities for improvement. As an example he mentioned that although the County Code allows for a valuation to be changed for a permit, it only seems reasonable that if somebody changes the valuation after the permit or application is submitted, there should be feedback provided.

“I think that added some strain and even though our code does not require that feedback, it just seems to make sense, so I’d like for the County to consider that. Another piece that I think added some stress here was the appeal process, whether or not the appeal process was timely or even followed, and at what time do we cross that line,” Priestley said. “So another recommendation is when we do order the issuance of a stop work order and the party does get back to you, I think it’s reasonable to say, ‘here’s what you can do – you fix it, just come in and address it. If you think this is wrong, we do have an appeals process’.”

He said he thinks it’s a little unreasonable to expect members of the community to know that there’s an appeal process.

“Customer service-wise, we could have done better there. Whether or not that’s a requirement to notify people, I think it just makes good community sense,” Priestley said. ”This is our first appeal process in recent memory on a stop work order and I believe Mr. Arellano said there are appeal processes in other communities, so I think it would be a good idea for the County to look back at this appeal process and also solicit some feedback from other communities to see if our process can be streamlined.”

He said he didn’t think the intent of the appeals process was to have 30 hours of testimony, I don’t think that was the intent but that both parties were given ample opportunity to present their case and nobody was cut short.

“We are going to make a decision and it’s not going to be a tie. Someone is going to walk away from here, I imagine, feeling that they were not heard appropriately and the other party will walk away with a different approach. But the fact is that both parties did have ample opportunity to present their case.” Priestley said.

He noted that the process was quasi-judicial and that the board’s ability to be flexible was exercised on all parts.

“If there’s a concern that you were not able to present your case, I just think that’s unfounded, so as we walk away from here, I’d like to keep that in mind, that this was a due process, everybody got their opportunity to make their case and everybody was heard,” Priestley said.

He said there has been what appears to have been an attempt to disparage the appeal process in the community, not necessarily during the appeals process, and that he thinks that’s inappropriate.

“We have three board members that have no involvement and no interest in any of this. All three of us listened to all the evidence that was presented and any kind of inference that this board was slanted or came in with an agenda, is just not true,” Priestley said. “I would really like to not see that presented in the community. This board came together at the request of Sirphey, LLC and it represents a cross section and I am confident that nobody came in to this hearing with an answer. They heard the evidence.”

Priestley noted that the need for a building code is important and that it is incredibly important for the safety and welfare of the community. He said he understands that most code specifics are written because of bad decisions in the past where people were killed or maimed. He noted the importance of the code especially in commercial buildings where the County has responsibility for the safety of members of the public and where if there is an incident, first responders will have to enter.

“To not follow the building code is irresponsible and that’s not a situation we don’t ever want to be in. So the building code is important and it’s there for a reason and often on the backs of people that were either killed or maimed. Because of that, the building official is a senior position. You heard testimony about the credentials required to hold that position. It’s not an entry level position and in Los Alamos County’s case, our building official is its senior person. This is not his first rodeo and I think that is reflective of the importance of his role,” Priestley said.

He mentioned a motion to dismiss the appeal that had been filed alleging that Sirphey, LLC did not have standing because Sirphey does not own the property in question.

“There was evidence presented of an affidavit that was not true as far as who the owner was. I’ll tell you, that’s a serious concern, however it doesn’t go towards my decision. In my mind it doesn’t go towards the issue of whether the red tag is unlawful or arbitrary or capricious, but having a document submitted under oath like that, that is not true, is worrisome – very worrisome for me,” Priestley said.

He also noted that there had been issues about the appeal not being handled in a timely manner and the extension of time because of COVID-19.

“It’s unfortunate but it has no bearing on the facts as presented. I do believe that the evidence presented to us does show that work was in progress and a lot of that work, not all of that work, but a lot of that work, does require a permit. And again I don’t see that the appellant (Sirphey) has made the case that the building official was arbitrary and capricious or unlawful,” Priestley said.

Board member Randall Ryti said the appeal process could be improved considerably and suggested that the County work on that.

“One of our Council goals is to improve the local business environment and I think this is an area we should be doing that in. I also want to make sure Sirphey understands that we heard their frustrations and concerns and that was significant. It’s not evidence, but it’s significant to me. I really had no preconceived idea before we had these three days about what evidence we’d be hearing and what decision we’d be making, but it needs to be a lot faster. It’s not a very timely thing. We do have COVID but it still needs to be a lot more timely process,” Ryti said.

He added that the mediation could be added as a step prior to a formal appeal process.

Board member Philo Shelton said he reaffirmed the opportunities for improvement concept.

“We as a board took every opportunity to listen to both sides over three days over the last month and a half. I hope everyone understands that we wanted to hear all the evidence that was available,” he said.

Priestley made a motion to deny Sirphey’s appeal because Sirphey failed to show that the issuance of the red tag on Nov. 22, 2019 was unlawful, arbitrary or capricious and the board voted unanimously in favor. He said within five days of the decision being rendered, either party may appeal the decision in accordance with the process detailed in the Procedural and Scheduling Order presented Feb. 21. He thanked all parties involved for their presentations and the board members for their participation and their thoughtful consideration.

To view Tuesday’s hearing, including the closing arguments by Thwaits and Nucklos summarizing their positions in the case, go to