BY MAIRE O’NEILL
maire@losalamosreporter.com

Los Alamos County Board of Appeals members Chair Terry Priestley, Chairman of the Planning & Zoning Commission, Council Chair Randall Ryti and County Utilities Manager Philo Shelton met Wednesday afternoon concerning the appeal filed by Sirphey, LLC owner Prashant Jain of a red tag placed on his leased property in November 2019. First Judicial District Judge Jason Lidyard remanded the appeal to the Los Alamos County Council for remand to the Board of Appeals.  

Chair Priestley started out the proceedings by saying he wanted to provide a high-level recap from a layman’s perspective of actions that had taken place in the past as well as a short description of the task before the Board, to put it into perspective.

“The scope of the Board of Appeals is very narrow. In this case the Board was tasked with determining the posting of a stop work order was arbitrary and capricious or not in accordance with the law. The Board’s decision is required to be based solely on testimony of witnesses and evidence presented during the hearing,” he said. “This is not about the potential development of the Mari Mac property or the Hilltop Hotel. It’s not about vacant storefronts, and it’s not about whether the County is doing enough to support small business. As much as some people seem to want to make this otherwise, the scope of the Board is simply to determine the validity of the stop work order – nothing more and nothing less.”

Priestley continued with a chronological account of what has happened since the placement of the stop work order in November 2019 for “ongoing work without an approved permit” and during the appeal process that ensued.

“Rather than resubmitting a valid application for a building permit (Sirphey) opted to appeal the Building Official’s decision,” he said.

Priestley outlined the details of the Scheduling Order issued by the Board of Appeals for the appeal, noting that the action of the Building Official would be affirmed unless a majority of the Board found that by substantial evidence that the action of the Building Official was arbitrary, capricious or not according to the law. He described the how the hearing date was affected by the COVID-19 health order and how the procedures for the hearing were established and implemented, as well as various stages of the hearing including its continuances to additional days to allow for testimony of witnesses and receipt of evidence.

Priestley said the Board opted to deliberate on the appeal in open session although the Open Meetings Act specifically allows for the Board’s deliberations to be held in a closed session.

“In an effort to promote transparency and to demonstrate the Board’s commitment to ensure all parties were given due process, the Board deliberated in an open session. After comments from each member of the Board of Appeals, where Board members openly summarized the testimony and evidence that influenced their decision, a motion was made stating that the appeal by the appellant was denied and that the appellant failed to show that the issuance of a red tag on November 22, 2019 was unlawful, arbitrary or capricious. The motion passed with a roll call vote of 3-0.,” he said.

Priestley said that after approximately 25 hours of public testimony from witnesses and receipt of evidence, “a board of three independent professionals with no conflict of interest and no involvement in the issuance of building permits or stop work orders, who deliberated in an open setting, came to the same conclusion, that the appellant, who had the burden of proof, failed to show that the issuance of the stop work order was arbitrary, capricious or unlawful”.

“At the conclusion of the hearing, the County Attorney’s Office determined that the deliberation in an open session followed by a motion and vote by the Board ended the case. This, along with the approved meeting minutes, constituted a written decision. All of this, along with access to the video recording of the hearing were provided to all parties,” Priestley said.

He noted that Sirphey appealed the Board of Appeals decision to the County Council who considered the appeal and sustained the Board of Appeals decision with a roll call vote of 4-0. He said the Council decision was subsequently appealed to the First Judicial District Court as provided in New Mexico law and that on December 1, Judge Jason Lidyard remanded the case to the Council for remand to the Board of Appeals for the “issuance of findings of fact and conclusions of law”.

“In effect, the judge determined that the written decision produced by the County…was insufficient and it’s as simple as that. The County believed that the written decision rendered in July 2020 was sufficient for the intent and letter of the law. First District Judge Lidyard disagreed. There has been no decision by the judge about how the hearing was conducted or the conclusions of the Board of Appeals. It’s all about documentation; this is about formally documenting a decision that was made by the Board of Appeals about 18 months ago,” Priestley said.

He said the Board of Appeals, as directed by Judge Lidyard, would deliberate and thoroughly and formally document the findings of fact and conclusion of law that were considered when the Board of Appeals made its decision to deny the original appeal of the stop work order.

“There’ll be no additional testimony or receipt of evidence and no other matters will be entertained. Using video from the hearing, along with a full written transcript of the hearing, the Board will focus solely on the testimony of witnesses and receipt of evidence from the hearing – nothing else,” Priestley said.

He continued,” As I stated at the conclusion of the hearing in 2020, I believe there has been a deliberate attempt to disparage the appeal process. Unfortunately this appears to be continuing. Filing vexatious and meritless motions and by using social media and local press, unfounded and salacious accusations regarding members of the Board of Appeals, the appeals process and the character of members of our community continue. It is not clear to me what is to be gained from this approach except to harass individuals and purposely divide our community. I personally find this frustrating and unfortunate,” Priestley said.

He noted that with that being said, he wanted to emphasize that the Board’s task was to deliberate and more thoroughly document the findings of fact and conclusions of law  that were considered when the Board made its decision to deny the original appeal of the stop work order in July 2020.

Sirphey’s attorney Philip Dabney who was participating in the meeting via Zoom requested an opportunity to be heard and Priestley responded that the Board was not hearing any other matters. Dabney again attempted to speak saying that he objected to the notes as being improper. Priestley continued to speak and Dabney again asked if he could be heard on an objection to the notes.

“No, you may not,” Priestley responded, and Dabney asked if he could be heard on any matters at all. “No, sir,” Priestley said. Dabney asked if he could inquire as to how the Board intended to write a decision in closed session. Priestley said the Board was not going to hear any other matters and that stick to the agenda as posted.

The Board then voted to go into closed session, with Dabney again interrupting to object to the motion and to the closed session on the ground that the notice is defective. At that point Priestley said he was going to ask Dabney one more time, and that if he could not comply, the Board would mute him, that the Board was not hearing any other matters.

Priestley then announced that the Board was going to move to another location for deliberation and that if there were any actions they would take place in an open session.

After more than three hours, the Board voted to exit the closed session and Priestley announced that the meeting was recessed and would reconvene at 2:30 p.m., Friday, Jan. 21.