Councilor Randall Ryti: Unquarked Board Of Appeals Decision

20190108_Councilor Ryti Portrait_Web_LBucklin

Vice Chair
Los Alamos County Council

I was one of the three members of the Board of Appeals convened for the UnQuarked appeal of the stop work order (red tag) placed Nov. 22, 2019. UnQuarked was required to present substantial evidence that the County Chief Building Official (Michael Arellano) application of the red tag was arbitrary, capricious, or not in accordance with the law. 

The Board unanimously denied the appeal on July 14th and we had a meeting on July 27th to approve the final minutes of the hearings. UnQuarked has appealed this decision to County Council. Given that I was member of the Board of Appeals I will be recusing myself from hearing this appeal to Council.

The Board of Appeals hearings lasted about 29 hours, and while a few people may have had the time to listen to the full hearings I wanted to provide a short summary. The following are some but not all of the reasons why I voted to deny the appeal.

The work in question was a commercial remodel, and all such work requires a design professional and a licensed general contractor (GB98). Los Alamos County has a commercial permit application checklist that specifically states that a design professional is required. During the hearings it was clarified that the design professional could be a professional engineer (PE) or an architect. In most cases the design professional is an architect. The reason for requiring these types of professionals is to ensure that public health and safety is maintained while the project is underway and when the project is completed.

UnQuarked’s question has been “What work were we doing that required a permit?”  The answer is UnQuarked was doing commercial remodeling work that required a permit. 

The following is a relevant snip from the County Code regarding permits:

It is unlawful for any person to construct, alter, repair, remove, demolish or to commence the construction, alteration, removal or demolition of a building or structure without first filing with the building official an application in writing and obtaining from him a building permit authorizing such work. (Sec. 10-73.(a) – Building permit; application; deposit.)

It was clear from the evidence presented at the hearing that UnQuarked had moved beyond changing light bulbs or doing some interior painting, and had started a commercial remodel including the remodel of a commercial kitchen without the required permits. The evidence submitted to the Board indicating that UnQuarked had commenced this level of work included, but was not limited to, documents and testimony showing that UnQuarked was building a long and heavy bar-like structure that would require electrical permitting, and placement of numerous additional pieces of commercial kitchen equipment moved to the premises since the lease started.

UnQuarked appeared to miss the point that when a commercial remodel commences a permit must be obtained for the whole scope of the project.  This is not only required by applicable building codes but stands to reason—if a commercial kitchen is being remodeled with new appliances it is wholly appropriate to first determine whether they as well as other elements of the overall design will function safely within the scope of the project.  Will the addition of these appliances overwhelm the existing electrical system?  Is the gas and associated plumbing sufficient to safely operate a commercial wok in the context of the whole project?  Is the existing hood and fire suppression system sufficient for the changes being made in the kitchen?  Is the construction of lengthy and heavy bar-like structure in the premises going to cause ingress/issues under relevant fire codes? Although the whole project is included in the permit application, it was stated by the Building Official that the work could be completed in phases.

A permit application was submitted on Nov. 15, 2019. The application included a drawing of the structure being built for the front of the business and the equipment being planned for the back of the business (kitchen). The permit application followed a site visit and inspection by the Building Official on Nov. 12, 2019. When the red tag was placed on Nov. 22, 2019 work was in progress on the structure in the front of the house and no valid permit was in effect.

The purpose of the red tag is to stop work on the project and have the responsible party come to the Community Development Department and resolve the deficiencies. We were told that red tags are removed typically within 2 days to 2 weeks. UnQuarked was informed of deficiencies in their permit application on Nov. 18 and Nov. 22, 2019. A licensed general contractor was not named on the permit application. A PE stamped the drawings, but the application did not list any other design professional. The PE who stamped the drawings was not a witness for the Board of Appeals and therefore we did not know their qualifications as a design professional for commercial remodel work. 

While it was not in the Board of Appeals scope to comment on processes for applying for commercial work permits or other improvements to support our local businesses, the Board did comment on some areas that should be improved. For example, while the Building Official has the authority to modify the value of the work being planned, it should be transparent who made the change and the applicant should be made aware of the change.

However, none of these administrative issues are relevant to the issue that was before the Board which was, whether the Stop Work Order issued by the Building Official, was appropriate.  The answer to that question was an overwhelming yes, and the reason for that is because UnQuarked was doing work far beyond cosmetic work and had, in fact, started commercial remodel including the kitchen in a premises that has been vacant for several years triggering a permitting process imposed by state and local law that insures health and safety requirements are met.