BY MAIRE O’NEILL
maire@losalamosreporter.com

It has been more than two years since the Los Alamos County Board of Appeals first held 20 hours of hearings on the issuance of a stop work order to Sirphey LLC owner Prashant Jain at the 813 Central Avenue property he formerly leased from Kroger. Council Chair Randall Ryti and Councilor Sara Scott will not be present. Thousands of pages of documents later, the situation seems to be no closer to being resolved now than it was two years ago.

On Tuesday evening, fiour Los Alamos County Councilors will review a second appeal by Sirphey, this time of the findings of fact and conclusions of law issued during the second Board of Appeals session on the issue which was held after First Judicial District Judge Jason Lidyard remanded the matter to Council. Judge Lidyard found that the Board of Appeals did not issue findings of fact and conclusions of law to Sirphey following its first session in 2020. Judge Lidyard also determined that Sirphey’s due process rights were violated. Council sent the issue back to the Board of Appeals which met on several days before issuing the court-mandated document.

The County’s position has been that the minutes of the Board of Appeals meeting where the decision to deny the appeal was sufficient. Sirphey’s position has been that under the County Code and state law, findings of fact and conclusions of law should have been given to them. Two years later the issue remains in District Court with another hearing this Friday before Judge Lidyard in connection with his order giving Sirphey 90 days of discovery order on a motion for sanctions against Los Alamos County and its attornerys . The County has appealed that discovery order.

County Attorney Alvin Leaphart has represented the Board of Appeals so far, while his colleagues Kevin Powers and Katie Thwaits have represented former County building official Michael Arellano. In the District Court cases, the County retained attorneys Donald DeCandia and Terra Hittson. During the first appeal and the first District Court case, Sirphey did not have legal counsel, however since the second case was initiated, the law firm of local attorney Philip Dabney has been retained.

With the approval  February 11 of the Notice of Hearing and Procedural Order for Tuesday night’s hearing, Council designated another retained attorney, Tony Ortiz, as to serve as the Hearing Facilitator. The notice says Council has designated to authority to review and decide preliminary matters of procedure and evidence to Ortiz and that he has the authority to review and decide those issues as the designee of Council.    

“Mr. Ortiz is not a decision-maker but will instead be managing preliminary guidance to the parties so that Council may focus on their review and decision,” the notice states. It notes that where Ortiz provides preliminary decisions, the Council retains the right to review, sustain, overrule or amend them.

‘The Council seeks to ensure fair and thorough review for the parties and believes the designation of a third party facilitator and legal advisor will further that aim… Mr. Ortiz is an attorney for the Council and as such his communications are subject to all applicable privilege,” the notice says.

In contrast, County Attorney Alvin Leaphart provided legal advice to Council as well as the Board of Appeals throughout the first appeal process.

This evening’s appeal hearing will be conducted in a hybrid manner, according to the agenda, with County Council convening in chambers at 6 p.m. “with an invitation to the parties and counsel to be present in Council chambers to present their case”. Members of the public can join are not allowed to attend in person by can join the hearing via Zoom at the following link once the session has started.:
https://us02web.zoom.us/j/88141665074

The public can also join by telephone:
US: +1 346 248 7799 or +1 669 900 6833 or +1 253 215 8782 or +1 312 626 6799 or +1 929 205 6099 or +1 301 715 8592
Webinar ID: 881 4166 5074

The agenda states that as this is a quasi-judicial proceeding considering an appeal of administrative decision no public comment will be allowed.