BY MAIRE O’NEILL
The appeal of Sirphey, LLC against a stop work “red tag” placed in 2019 by former Los Alamos County Building Official Michael Arellano is back before the Los Alamos County Board of Appeals at 1 p.m. Wednesday for members to deliberate and deliver findings of fact and conclusions of law as ordered December 1 by First Judicial District Judge Jason Lidyard in the matter.
The agenda for the closed meeting indicates that “no further argument will be heard or taken from the parties and no other matters will be entertained, this despite a motion filed January 6 by Sirphey to have the Board reopen the proceeding for the taking of new evidence and the reconstitution of the Board.
Original Board of Appeals members were former Council chair Councilor Sara Scott, former County Manager Harry Burgess and Planning & Zoning Commission Chair Terry Priestley. In June 2020, Scott and Burgess recused themselves from the Board and designated Utilities Manager Philo Shelton and then Council Vice Chair Randall Ryti to represent them.
Judge Lidyard’s order remanding the matter to the Board of Appeals states that Sirphey was denied written findings of fact when the Board of Appeals issued a decision that a red tag to stop work was not arbitrarily or capriciously placed by Arellano on a premises leased by Sirphey owner Prashant Jain in the Mari Mac Shopping Center where Jain hoped to open a new business. Sirphey filed suit against Arellano in the District Court January 6, 2021.
Judge Lidyard believes Sirphey was denied procedural due process and determined that the civil case filed against Arellano was not ripe for his consideration because the Court has no basis for the administrative agency – the Board of Appeals – decision. In his remand order, Judge Lidyard stated that it is not for the Court to guess at the Board’s reasoning and that the Board had failed to resolve the factual questions upon which their decisions was based.
Meanwhile the civil case in District Court is still underway with a hearing scheduled for Jan. 21 on a motion by Sirphey for sanctions in the case. Sirphey is represented by Los Alamos attorney Philip Dabney in that case and the County is represented by attorneys Donald DeCandia and Terra Hittson. During the initial Board of Appeals proceeding, Arellano was represented by Asst. County Attorneys Katie Thwaits and Kevin Powers, and the Board of Appeals and County Council were represented by County Attorney Alvin Leaphart
The January 6 motion filed with the Los Alamos County Clerk by Sirphey states that Sirphey has discovered that during the time frame of the Board of Appeals hearing, “Arellano was convicted of one count of aggravated DWI arising out of an incident in which he drove intoxicated and then struck another vehicle and fled the scene of the accident”. The motion states that Arellano refused to submit to sobriety testing during his arrest and that under state law, refusal to submit to sobriety testing during an arrest for DWI is cause for a revocation of one’s driver’s license. It says a conviction for aggravated DWI carries a one-year suspension of one’s driver’s license.
“Los Alamos County requires that its Chief Building Official hold a valid New Mexico driver’s license. Additionally, Los Alamos County has fired other employees for merely being charged with DWI. (Arellano) was not fired for being charged with DWI or even placed on administrative leave. (Arellano) was convicted on July 25, 2019. His conviction was entered into the court’s record on August 8, 2019. Subsequently, (Arellano) appealed his DWI to the First Judicial District Court. He was again convicted of DWI by the District Court. After his conviction, he was not fired or even placed on administrative leave. He placed the red tag on November 11 less than six months after his conviction for aggravated DWI,” the motion says. “Thus when he placed the red tag, he was not qualified to be the Chief Building Official and therefore had no authority to place the red tag. (Sirphey) could not have discovered (Arellano’s) DWI conviction before the Board of Appeals proceedings as it was concealed from the public. (Arellano’s) DWI conviction is relevant and the Board may have reached a different decision if had heard evidence of (his) DWI conviction. Therefore the Board of Appeals proceeding should be reopened for the taking of new evidence on the (Arellano’s) DWI conviction.
Sirphey also claims that additionally the Board of Appeals erred in categorically rejecting evidence which would impugn the character of any witness testifying during the underlying appeal.
“At the beginning of the Board of Appeals proceeding, the chair of the Board declared that ‘all participants are honest with high levels of integrity’ and that ‘the Board would not tolerate any attacks on a person’s character or an attempt to denigrate a person’s reputation’. A decision can be found to be arbitrary and capricious where it is unreasonable or without a rational basis,” the motion states.
It claims that evidence which tends to show that the basis for a decision is unreasonable or irrational is admissible and that such evidence can include that of a retaliatory or otherwise improper motive.
“Evidence of a retaliatory or malicious motive constitutes an attack on a person’s character for honesty and integrity, particularly where that evidence tends to show that person has made false statements. As a result of the Board of Appeals categorical exclusion, (Sirphey) could not introduce evidence of secretive communications between (Arellano) and Terry Salazar, manager of (Sirphey’s) formerly leased space. This communication raises questions about (Arellano’s) character as well as his motive for placing the red tag on (Sirphey’s) property,” the motion says. “The relevance of this communication is readily apparent but was inadmissible under the Board of Appeals categorical exclusion. This Board of Appeals categorical exclusion was improper and prevented (Sirphey) from introducing otherwise admissible evidence of the malicious motive for the red tag.”
Sirphey maintains that the Board of Appeals erred in rejecting evidence of disparate treatment of similarly situated parties and that Sirphey may show the decision is arbitrary and capricious through few avenues.
“The arbitrary and capricious standard is a high deferential one. The courts have recognized that evidence of disparate treatment of similarly situated parties is strong evidence that a decision is arbitrary and capricious. In the initial Board of Appeals review, (Sirphey) offered evidence of disparate treatment of similarly situated parties, specifically that the movable counter cited by (Arellano) as a reason for the red tag was based on two near identical designs at two other businesses in town and further that the business located in the (Sirphey’s) former space, Boese Brothers Brewing Company had been able to extensively remodel without the requisite permits. On July 8, 2019, just a few months prior to placing the red tag….(Arellano) reviewed and approved their application as compliant without issuing a permit until August 4, 2019, more than a month after they received the certificate of occupancy.”
Sirphey maintains in the motion that the Board of Appeals improperly refused to consider the evidence of disparate treatment and in doing so closed off another avenue through which (Arellano) could show (Sirphey’s) red tag was arbitrary and capricious, and therefore believes that the Board of Appeals proceeding should be reopened “for the taking of new evidence which was improperly excluded and likely would have changed the outcome of the proceedings”.
The motion says that additionally, since the hearings before the Board of Appeals and the County Council were held, there have been new developments regarding the red tag which “undermine the validity of the red tag and warrant the taking of new evidence.
“During the overarching appeal to the District Court, the County Council revealed in a motion to dismiss as moot that the red tag had been removed. In an affidavit, Paul Andrus, the Community Development Director for the County attested that the County had removed the red tag in response to a letter from Kroeger. The County received the letter April 28, 2021. On April 29, 2021, the County removed the red tag from (Sirphey’s) former leased property. Andrus in his affidavit states that the red tag was removed as a result of a letter from Kroeger. No permits were ever issued to Kroeger for remedial work on the property and no work was ever performed or alleged to have been performed by Kroeger to address the red tag,” the motion states. “Section 10.80 of the Los Alamos County Code requires that a stop work order be removed either by the Building Official or by the County Council. The red tag at issue in this case was not removed either by the decision of the Building Official or by the County Council but was removed by the order of Paul Andrus.”
Sirphey maintains this raises questions as to the validity of the red tag because Kroeger was able to have it removed in one day with one letter “through an unofficial channel”.
“The disparity between the result Kroeger was able to achieve and the result (Sirphey) was able to achieve raises questions as to the validity of the red tag and disturbing implications between the County and Kroeger. Because the validity of the red tag is suspect, the Board of Appeals should hear evidence on the circumstances surrounding the removal of the red tag at the order of Paul Andrus,” the motion states.
As part of the motion, Sirphey has asked for reconstitution of the Board of Appeals which it says categorically rejected “relevant and highly probative evidence which tends to show a malicious and retaliatory motive for the placement of the red tag”.
“Additionally during the Board of Appeals proceedings, the chair of the Board expressed frustration with the animosity towards the (Sirphey) and its representative Cortni Nucklos. After the second day of hearings, the Board of Appeals forbade Ms. Nucklos from participating further in the proceeding. This animosity towards the (Sirphey) has been growing since the initiation of the appeal. In addition to the animosity towards the (Sirphey) on behalf of the members of the Board of Appeals, the Board has mishandled (Sirphey)’s appeal,” the motion states.
It adds that the Board of Appeals also erred in allowing Councilor Sara Scott to participate in the appeal “due to her ongoing efforts to procure the sale and demolition of the subject property” and that Sirphey twice moved to have Councilor Scott recused from the appeal.
“The second was filed after Councilor Scott reported her ‘special good news’ regarding the subject property’s then imminent destruction. Councilor Scott continued to participate in the proceedings despite an obvious and flagrant conflict of interest until recusing herself shortly before the hearing before the Board of Appeals proceeding. Additionally, the proceedings before the Board of Appeals were mishandled such that the District Court described them as ‘disheartening’. The Board of Appeals handled the proceedings to such an extent that the most expedient and fair remedy would be to reconstitute the Board of Appeals for rehearing on (Sirphey)’s appeal,” the motion states.
It continues, “due to the animosity displayed towards (Sirphey) by members of the Board of Appeals, it would be inappropriate for any of the original members of the Board or their designees to participate in the proceedings. Additionally, animosity towards (Sirphey) has only grown since (Sirphey) has pursued (its) appeal before the District Court. The high-conflict nature of the overarching appeal is reflective of the animosity towards (Sirphey). It is not merely the Board of Appeals and (Arellano) who have demonstrated towards (Sirphey), but also the County government of Los Alamos”.
Section 10-84 of the Los Alamos County Code requires that the Board of Appeals consist of the Council chair, the County Manager and the Planning & Zoning Commission Chair or as an alternative, the designees of those parties, the motion states.
“Thus each member may designate a neutral uninterested party who is not connected with the County of Los Alamos to serve on the Board of Appeals in their stead. In order to ensure that (Sirphey) receives a fair and neutral proceeding, it will be necessary for each member to designate a neutral, uninterested party who is not connected to the County of Los Alamos to serve as members of the Board of Appeals,” it says.
Sirphey asked for an order reopening the Board of Appeals proceedings for the taking of new evidence on the Arellano’s DWI, new evidence that was improperly excluded by the Board, new evidence on the “suspicious circumstances surrounding the red tag’s sudden removal through improper channels”, reconstituting the Board of Appeals for the purpose of rehearing the (Sirphey)’s appeal and requiring each of the Board members to designate a neutral and uninterested party who is not connected to the County of Los Alamos to serve on the Board.