BY MAIRE O’NEILL
maire@losalamosreporter.com

Los Alamos County responded late Tuesday afternoon to Sirphey, LLC’s January 6 motion in its appeal before the County’s Board of Appeals to reopen the Board’s proceedings for the taking of new evidence on a DWI conviction of former Chief Building Official Michael Arellano, new evidence that Sirphey alleges was improperly excluded by the Board, and new evidence on the “suspicious circumstances surrounding the red tag’s sudden removal through improper channels”.

Sirphey also asked for the reconstitution of the Board of Appeals for the purpose of rehearing its appeal and requiring each of the current Board members to designate a neutral and uninterested party who is not connected to the County of Los Alamos to serve on the Board.

See: https://losalamosreporter.com/2022/01/18/sirphey-case-back-before-board-of-appeals-wednesday/

The Board of Appeals is slated to meet at 1 p.m. today, Wednesday in closed session and make any decision or announcement in open session thereafter.

The County’s motion, filed by Assistant County Attorneys Katie Thwaits and Kevin Powers, on behalf of Arellano, states that Sirphey’s motion is “impermissible and improper” and should be denied by Council and the Board of Appeals. Council and the Board of Appeals are represented by County Attorney Alvin Leaphart in the Board of Appeals proceedings.

Current Board members are Planning & Zoning Commission Chair Terry Priestley, Council Chair Randall Ryti and County Utilities Manager Philo Shelton. Ryti and Shelton were designated by Councilor Sara Scott and former County Manager Harry Burgess who both recused themselves from the initial Board of Appeals hearing.

The County attorneys’ response on behalf of Arellano states that Sirphey has failed to present any legal authority to support its request to reopen the Board of Appeals proceeding, present new evidence to the Board, reconstitute the Board for the purpose of rehearing its appeal, or require the Council Chair, Chair of the Planning & Zoning Commission and County Manager to designate a neutral and uninterested party who is not connected with the County as members of the Board of Appeals.  

“In the absence of any cited rule, case, or applicable directive, the Court, or in this case, County Council and the Board of Appeals should assume no legal authority exists…Accordingly, the Council and Board of Appeals should reject (Sirphey’s) request and deny its motion in its entirety,” the County attorneys’ response states.

The County’s motion also maintains that Sirphey’s motion is outside the scope of First Judicial District Court Judge Jason Lidyard’s remand order issued December 1, which remanded the appeal to Council for remand to the Board of appeals “for the issuance of findings of face and conclusions of law within 60 days of remand and for further proceedings consistent with Section 10-84 of the Los Alamos County Code of Ordinances”.

“The Court, through the remand order, provided very specific instructions for the County and Board of Appeals, none of which include what (Sirphey) has requested in its motion: the opportunity for a new hearing/rehearing, the ability to present new evidence, and replacement of Board of Appeals members,” the County’s motion states. “Accordingly, on January 4, 2022, pursuant to the Court’s remand order, Council unanimously remanded (Sirphey’s) appeal back to the Board of Appeals for issuance of findings of fact and  conclusions of law within 60 days of remand, and for proceedings consistent with Section 10-84  of the Los Alamos County Code of Ordinances as ordered by the First Judicial District Court.”

The County’s motion notes that pursuant to Council’s action on January 4, the Board of Appeals is scheduled to meet today, Wednesday, January 19, to deliberate and issue findings of fact and conclusions of law as ordered by the District Court.

The motion states that the Board of Appeals agenda for today’s hearing has already, in line with Judge Lidyard’s remand order, provided clear notice that “[n]o further argument or evidence will be heard or taken from the parties, and no other matters will be entertained”. That agenda was released by the County January 7, a day after the Sirphey motion had been received by the County Clerk’s office. Sirphey’s motion was not included in that agenda or in a subsequent revised agenda posted January 14.

The County maintains that contrary to Sirphey’s request, nothing in Section 10-84 of the County Code creates any “right, obligation, entitlement, or opportunity for  any party to present new evidence, have a new hearing or rehearing, or replace the Board of  Appeals members with uninterested parties who are not connected with the County of Los Alamos  to serve as members of the Board of Appeals”.

An agenda for a continuation of today’s hearing if necessary has been posted for Jan. 26.