BY MAIRE O’NEILL
maire@losalamosreporter.com
Los Alamos County Council has set Tuesday, Mar. 22 as the date to hear Sirphey’s appeal of two documents issued January 25 by the Board of Appeals, almost two years after the Board of Appeals first met on the matter.
The first document is the Board’s decision regarding the stop work order placed by the County at Sirphey’s former leased property at 813 Central Avenue in November 2019, and the findings of fact and conclusions of law entered by the Board January 25. The second document is the Board’s order denying Sirphey’s motion to re-open the Board’s proceeding for the taking of new evidence and the reconstitution of the Board.
Council voted in a special session Friday to adopt the “Notice of Hearing and Procedural Order for Appeal”. This time, the Procedural Order includes a provision that there will be written findings of fact and conclusions of law.
Meanwhile the lawsuit filed against the County by Sirphey continues before First Judicial District Judge Jason Lidyard where Sirphey has asked for sanctions against the County. Judge Lidyard had been expected to announce his decision at a hearing Wednesday, however he said he was still not prepared to rule on the question he had taken under advisement and that there is information he would like to have before he makes a ruling.
“Specifically, I would like to know when this idea of utilizing the minutes for findings and a decision took effect, and I’m not sure if anyone has that information offhand, and if they don’t then I’m going to have to order production of records to see if I can identify when that happened,” he said.
Judge Lidyard said he wants to know when the decision was made that the minutes of the appeal would be considered the written finding.
“Yes, I want to know if this is a new practice or a practice that’s been in place for some time now – if this is a longstanding policy. I’d be curious as to whether or not this is a new thing that came about during the Sirphey litigation or if this is something that’s been going on for some time,” he said.
The County’s retained attorney Donald DeCandia noted that in the County’s response to a supplemental brief filed by Sirphey, the County talks about how there had never been a prior appeal under the ordinance, that there had never been a Board of Appeals constituted for such a proceeding and that it was the first proceeding of its type under the ordinance.
Judge Lidyard asked if no one has ever challenged a County stop work order?
“As far as the County could find, that’s correct. So under the building code, this was the first appeal and we put in a declaration from (County Community Development Department Director) Paul Andrus that talks about that,” DeCandia said.
Judge Lidyard responded that that’s helpful but that he is sure there are equivalent proceedings that have been brought before the Board of Appeals where there was a need for a finding and a decision.
“Are there other like circumstances that the Board of Appeals has addressed in the past?” he asked.
DeCandia responded that his understanding is as best as the County could find, the Board of Appeals for the Sirphey appeal is the first of its kind.
“But as far as Mr. Andrus talks about the fact that there have been appeals from for example zoning commission decisions and those are governed by the statute and require formal findings of fact and conclusions of law, to my knowledge, there was not another proceeding under this statute that requires findings and a decision,” he said.
Judge Lidyard asked if there were any other statutes that the Board of Appeals has been convened to address a challenge to an action by a governmental agency that they thereafter had to review.
“I think maybe we’re not being clear – I think this particular Board of Appeals – I think there may be other appeals to other bodies, but this particular Board of Appeals would not be the board that would hear for example a zoning appeal and so I don’t know whether there are others that would be subject to the same findings and decision language of Ordinance 10-84,” DeCandia replied.
Judge Lidyard asked DeCandia if he was saying the Board of Appeals, meaning the three individuals that constructed the Board of Appeals, was doing this for the first time, or that it was the first time any Board of Appeals had been convened.
“What I’m saying is I’m not aware of any other Board of Appeals being convened under Ordinance 10-84. Whether there are other similar ordinances out there, I don’t know, but what I do know is there have been appeals to other bodies that are subject to the statute,” DeCandia responded.
Judge Lidyard asked DeCandia if the Sirphey appeal was the first time the ordinance has ever been brought into question and DeCandia responded that that’s exactly what the County is saying, that it was “a matter of first impression below – interpretation of the ordinance as a matter of first impression”. .
“If that’s true, then that’s helpful but I need time to consider that,” Judge Lidyard said.
Sirphey’s Attorney Philip Dabney said he didn’t get a chance to read the County’s supplemental brief but that his associate summarized it for him.
“When he told me that the County took the position that this is a matter of first impression, I almost started laughing when I heard that, because it’s so ridiculously absurd that I don’t even know how to respond to it except to say that due process concepts… have been in existence for more than 50 years – that the County thinks that due process constitutes a matter of first impression is absurd. It is another aspect of the County and their lawyer’s ridiculous position that violates Rule 11,” Dabney said.
He said that in prior hearings he pointed out to the Court that the ordinance itself explicitly requires that findings and a conclusion in writing be submitted to the County Council by the Board of Appeals.
“The Procedural and Scheduling Order that was altered from the first draft of the scheduling order that required written “findings” took out the word findings and instead said a “decision in writing” should be submitted to the County Council. That was a deliberate act. These lawyers that represent the County in the proceeding in front knew or should have known that, and instead of running us through this ridiculous over one-year period of ‘who’s on first’ and what constitutes written finding, should have recommended to the County to reconvene the hearing board to issue written findings so that they could be made and an appropriate could happen, prosecuted by my client,” Dabney said. “Instead they filed motions to dismiss and another motion to dismiss and another motion to dismiss. They asked for sanctions to be awarded against me because I didn’t tell you that they were successful in destroying my client’s ability to open his business under a lease that existed in a building that the County was interested in making sure got torn down. I don’t know that what you’re looking for has any relevance at all to those issues, but if you think it does, what I would request that you do is allow me to conduct 90 days of discovery to try to get to the bottom of that issue.”
Judge Lidyard said his second thought was to allow for some discovery.
“I understand that it may not seem relevant to you all, but I’m in the position of having to make the decision and it seems relevant to me that if this is something that’s never been addressed before versus it being something that’s been in place for a long time, then that may have a different consideration to the Court and the approaches that these parties took to the litigation and I would like to know what type of practice has been put in place over the years regarding these types of proceedings regarding findings and a decision and if there’s been a practice longstanding of utilizing the minutes or if there has been a practice of preparing findings and a decision in a different manner,” he said. “I’d like to know when that began and what type of proceedings these types of findings and decisions have been made in and ones that they didn’t.”
He added that he will allow a period of 90 days for discovery regarding the issue “as to practice within the County regarding decisions and findings regarding Boards of Appeals for stop work orders or other types of proceedings of a similar nature”.
DeCandia said the County stands by the declaration of Paul Andrus.
“Secondly, this procedural and scheduling order that was utilized in the case does say that the Board shall render its decision in accordance with Chapter 10 of the Code of Ordinances. Now, whether the word ‘findings’ was removed, was not in there, they still had to comply under the scheduling order with terms of the ordinance. May I also request that the discovery be severely limited. I don’t agree that in an appellate setting such as this, discovery should be permitted but since the Court is going to permit it, I ask that it be severely limited to any ordinance – I think Mr. Dabney should make a prima facie showing of other ordinances that are out there that contain the same language as Ordinance 10-84,” DeCandia said. “I don’t think it would be appropriate to have Mr. Dabney conduct discovery on other bodies that are subject to the statute and not an ordinance that is exempted from the administrative procedures provision on findings of fact and conclusions of law. I think there ought to be a threshold showing to severely narrow this and if Mr. Dabney can’t come up with an ordinance that governs an appeal from another body that has the same language, I submit that it would just be completely irrelevant here.”
Dabney responded that it sounded like DeCandia wants himt to take the burden of proof of what the County’s ordinances say and how they’re applied by the County.
“That doesn’t seem to be a reasonable or rational method of doing what the Court is requesting. What I would request is that you issue a minute order that gives us some specifics about what you’re looking for, then I’ll fashion discovery based on your minute order and that will properly limit the discovery. But I think I should be allowed to engage in written discovery and depositions particularly since the County believes that Mr. Andrus has the be-all end -all knowledge about this issue. I want to take his deposition. I think Mr. (Alvn) Leaphart’s deposition is on order and I think perhaps Mr. Leaphart’s predecessor’s deposition may be in order if Mr. Leaphart doesn’t have any historical knowledge or experience dealing with this kind of an issue,” Dabney said.
DeCandia said he completely objects to the idea of deposing the County Attorney (Leaphart) on privileged issues.
“There’s no declaration from the County Attorney here. We have a fact witness, and the idea that we should open this to full-blown discovery just because Mr. Dabney doesn’t want to look at the ordinances to figure out if there’s another one like it that has the same language, would be completely inappropriate,” De Candia Said. “If the Court is going to allow and it should be very narrowly tailored because there’s a big risk of wandering very far afield of what the Court is here to determine. What we’re talking about is if we file procedural motions that never got to the merits of the appeal, did those have good grounds. We’re looking at the ordinance in question. It’s not zoning decisions. I believe Mr. Dabney would have the obligation to say here’s a very similar ordinance or the same ordinance or it has the same language and that’s a matter of looking at the ordinances.”
Judge Lidyard said he was not going to narrow the discovery in the way DeCandia was requesting.
“I think that we do need some broad discovery regarding this issue. It’s important for the Court to understand the history behind this practice that seems to have arisen in this case. I’m not sure if it’s been in place for a long time or if this is the first time it’s ever happened, and the people that Mr. Dabney identified that he’d like to depose seem to be particularly important to discover how long this policy has been in place, if at all, and if it’s been in place specific only to the ordinance at question here or if it’s particular to all other ordinances that come before the Board of Appeals or another County agency and what approach has been taken regarding findings and decisions,” Judge Lidyard said.
He noted that he would like to know the history, that it would reflect to the Court why it is it became an issue of the nature that it was, why the parties took the position that they did, and what reasons they had to believe that it was justified or not.
“I believe it needs to be brought and I will determine its relevance when the evidence is presented to me in the way of argument. If it’s something completely off base, then it won’t have much weight. If it is near or close to the point, then it will have weight and greater significance, but I’m not going to be narrowly tailoring the discovery on this issue that has been before this Court not only in this case but as we’ve discussed a number of times, in another case at about the same time as this matter. So the Court is curious as to when this practice came into effect, the reasons why and any type of information it can get regarding this,” he said.
Judge Lidyard told DeCandoa if he believes something should be objected to regarding the discovery, he could file a motion and that if it ends up being legitimate then he will certainly rule in DeCandia’s favor.
“If it looks as if it’s not, then we will make a decision as to what’s permitted and what is not. The idea is I want to know when this policy and approach came into effect even if it doesn’t appear to have arisen prior in the way of a stop work order or if it came up in another proceeding. I want to know the practice of the County and that’s a broad idea. I would assume that before you took any position, Mr. DeCandia, regarding what findings in a decision were, that you looked into issue as any attorney would, before they took a position. So I would assume you have some idea,” Judge Lidyard said.
DeCandia asked if the County could get a limit in terms of number of written discovery requests that might be served and the number of depositions if were to be allowed.
“It’s broad. I want to know the information and I want everybody interviewed that needs to be interviewed to get to the bottom of this. I want whatever number of questions to be asked to figure out the information and what it sounds like, if what you’re saying is accurate, is it’s going to take some number of depositions and a number of questions and a number of requests for production. I will have to limit it on a case by case basis so please file an objection if you think it’s appropriate. But in the uncertainty of what lies behind the uncertainty of this discovery that I need to make my decision, I’m not in a position to start limiting anything at this point. I want to know what the practices of the County have been regarding the idea of findings and decisions and if there was a change in policy that happened and the reasons why. I think you all know that we’re trying to get at or at least I’m trying to get at, so do whatever you need to do to get to the bottom of it so you can let me know,” Judge Lidyard said.