BY MAIRE O’NEILL
maire@losalamosreporter.com
First Judicial District Judge Jason Lidyard late Tuesday afternoon ordered that Sirphey, LLC’s appeal of a red tag placed September 9, 2019, be remanded to the Los Alamos County Board of Appeals.
Sirphey filed suit against Los Alamos County Council and former County Building Official Michael Arellano. Sirphey owner Prashant Jain had planned to reopen his former wine bar, Unquarked, at a new location on a Mari Mac Village Shopping Center property.
Judge Lidyard included in his order, instructions that require the Board of Appeals to render findings in the matter as as required by the County Ordinance 10-84 (b). That section reads as follows:
“Upon receipt of a written appeal, a board of appeals is constituted and shall consist of the council chair, the county manager, and the planning and zoning chair, or their designees. The board shall conduct a hearing, which may include a site visit, and render its decision in accordance with relevant provisions in the New Mexico Building Code. The board may interpret provisions of the New Mexico Building Code and decide on applicability in a particular instance, but shall not waive or alter any requirement of the New Mexico Building Code. The board’s findings and decision shall be forwarded in writing to the council, with copies to the appellant and the building official.”
Tuesday’s hearing was a continuation of a prior virtual hearing that was interrupted due to a power outage at Judge Lidyard’s location.
Tuesday’s hearing was a continuation of a prior virtual hearing that was interrupted due to a power outage at Judge Lidyard’s location. See report:
The County’s retained attorney Terra Hittson said the County’s would like the matter to be remanded to the County Council with instructions to remand to the appropriate fact-finding body, which she said in this case would be the Board of Appeals.
Judge Lidyard said he didn’t find that sending the matter back to the Board of Appeals is an issue as that is the procedural history by which it came before the Court. He noted that it was undisputed that on November 22, 2019, the stop work order was appealed by Sirphey to the Board of Appeals which did not issue a decision and that it was undisputed that Sirphey filed a notice of appeal with the County Clerk on July 21, 2020.
“On September 8, 2020, Los Alamos County Council considered the appellant’s appeal of the stop work order and the County Council in this Court’s opinion did not issue a final written order regarding the appeal,” Judge Lidyard said.
In making his ruling, Judge Lidyard referred to Rule 1-075 of New Mexico Rules for Civil Procedure in District Court, which he said in his mind is written with the idea that there is a procedural due process referring to findings to be made by an administrative body and that with that it is with that backdrop that Rule 1-075 is written.
“It doesn’t create an obligation in itself to make findings of fact; that is an obligation that is underlined via administrative processes through the procedural due process rights of individuals that go in front of such bodies to have the reasons for the decisions against them informed to them so that they can understand why it is that the ruling is such, and so that they know that the administrative body is making a decision that is based in evidence and specifically the evidence that’s presented to it and not some other reason.” Judge Lidyard said.
Lidyard asked Sirphey’s attorney Phillip Dabney to add language to the draft order Dabney proposed referring to the Court’s finding that there’s procedural due process rights to the findings of fact announced by an administrative body in making a ruling.
The County’s attorney, Terra Hittson withdrew any other motions and requests for relief the County had made to the Court.
The original Board of Appeals was comprised of then County Council Chair Sara Scott, then County Manager Harry Burgess and Planning & Zoning Commission Chair Terry Priestley. Scott and Burgess recused themselves from the Board and appointed then Council Vice Chair Randall Ryti and Public Utilities Manager Philo Shelton to the Board.