BY MAIRE O’NEILL
Three Los Alamos County Councilors, David Izraelevitz, Denise Derkacs and Melanee Hand, voted Tuesday to sustain the findings and conclusions of the Board of Appeals decision on the stop work order placed in November 2019 on space leased by Sirphey, LLC owner Prashant Jain from Kroger. The Board of Appeals has now twice found that the stop work order was not arbitrary or capricious and was supported by law. Councilor David Reagor voted in opposition. Councilors Sara Scott and Randall Ryti recused themselves. Scott is on the Board of Appeals but recused herself after the Board first convened and appointed Ryti to replace her on the Board.
Izraelevitz said he believes that the record shows that the Board of Appeals decision was not capricious or arbitrary. Derkacs, who chaired the meeting, said that based on the criteria for evaluating the decision of the Board of Appeals, she concluded that the Board’s decision “was fully supported by substantial evidence, is not arbitrary or capricious and is supported by law”. She said because the four councilors were not unanimous in their decision, the motion failed and the Board of Appeals decision stands.
Councilor Reagor told the Los Alamos Reporter the reason why he did not support the motion was that he felt that Sirphey had demonstrated intent to use the permitting system by obtaining a permit for a concrete project outside the building.
Council also voted 3-1 to deny a motion by Sirphey to reopen the Board of Appeals proceedings for the taking of new evidence and reconstituting the Board so that motion also failed and the Board’s decision stands. Councilor Reagor abstained saying that essentially this was a vote to reconsider what was determined by the previous vote. “I don’t know how we should be participating in this so I will abstain from any vote on this topic,” he said.
During his opening remarks, Sirphey’s attorney Philip Dabney indicated that there were constitutional issues with the procedural order for the Board of Appeals hearings.
“What’s missing that creates the constitutional problem is any language that says who bears the burden of proof and what that is, and telling the Board of Appeals what their standard of review is. It’s not in the ordinance and that makes the ordinance constitutionally defective because your appeals board has no basis on which to do anything. They can review the evidence but they don’t know what to do with it,” Dabney said. “The appeals board with your legal counsel met together in a closed session and wrote a procedural order. Not only did they take out the paragraph about findings, but they added two or three paragraphs that gave my client the burden of proof when it didn’t exist in the ordinance, by substantial evidence, whatever that means and that gave the hearing board the authority to determine whether the Building Official acted in an arbitrary and capricious manner in actions.”
He said that is basically a rewriting or revision of the ordinance without the proper process Council goes through when it passes or revises ordinances or revise them. He said that applied to his client without notice to him.
“He didn’t participate in that process and when the Board of Appeals met in February 2020 to pass that procedural order, my client tried to raise their hand to talk about it and was told no questions. There was a motion and a second to approve the order and it passed 3-0. After it was passed he again asked and was told that he can’t talk about it because it has already been passed,” Dabney said. “Your lawyer rewrote the ordinance that applies to them and then shoved it down their throat in this hearing process in such a manner that he couldn’t possibly win. How is that fair? How is that constitutional and how can you sit here and let it happen?”
Dabney said the said that language is nowhere in 10-84 (a) or (b), It’s in (c) and that’s the County Council’s obligation. He said the issue of the majority of the board having to vote in favor is also not in the ordinance but is in the procedural order.
“That’s a substantive provision that belongs in the ordinance and my clients were trying to object to that and they were shut down. I’m here to tell you that everything this appeals board is void and should be set aside by the County Council,” he said.
Dabney also addressed the notion that the Board of Appeals is a “technical board” saying that language appears for the first time in the Board decision written after the remand and that the term is not mentioned in the ordinance or the procedural order.
“A technical board that’s reviewing the actions of a building official would normally consist of an architect, a general contractor, a structural engineer – somebody with structural experience because they want to see what Michael Arellano, who is a construction professional is doing and whether he did it correctly – that’s a technical board. Your board is not a technical board. The ordinance was not written in a way that those types of people end up on the board. That was a concept that showed up a couple of months ago in the closed session that I believe should be set aside because of the violation of the Open Meetings Act,” Dabney said.
Dabney said during the Board of Appeals hearing, on the last day there was a question of a site visit.
“One thing the ordinance does say is the board can conduct a site visit. The County had requested a site visit and the appellant had not disagreed and actually had asked for it on the last day of the hearing. There was a discussion before closing arguments on whether or not the visit would occur, and in the transcript, (Board chair Terry) Priestley said, ‘My opinion is we’ve had over 20 hours of testimony and if there’s a thought that any of the three of us on the board would be able to go into a location and all of a sudden be able to interpret the code that we have no knowledge of, I’m not sure what the value of the site visit would be’,” Dabney said. “That’s your chairman, the technical board chairman. They’re not a technical board and they overreached in their order. (They were) trying to avoid Council’s scrutiny and avoid Council overturning their decision.”
Dabney said the evidence submitted showed there was no construction going on other than a counter that had been approved but then overturned. He referred to an email sent by his client’s former landlord Terry Salazar to Building Official Michael Arellano. He said Salazar did not have good relations with his client because he kept bringing in prospective tenants to look at the space while he was open for business without any kind of notice and going in after hours. He said after that the relationship between his client and Arellano went downhill. He noted that evidence that another business in town had constructed furniture with no permit required was not allowed to be put into evidence.
Dabney said there was also evidence that Councilors were negotiating with the owner of the shopping center where Sirphey was renting for the purpose of selling it and tearing it down, which created an “adverse interest of the objective County in the proceeding against the party that’s trying to get a fair hearing”.
Dabney also cited evidence that Michael Arellano had been charged with driving under the influence 10 days before the email that he received from Terry Salazar and eventually was terminated after he did all the damage to Dabney’s client. Dabney said based on the evidence that was not heard, the unconstitutional rewriting of the ordinance and the procedural order, Council should not uphold the Board of Appeals decision.
Los Alamos County Associate Attorney Kevin Powers in his opening statement said much of what Council had heard from Dabney was legal argument.
“It’s not fact, it’s not the law, it’s the appellant’s argument,” he said. The Board’s order it clear, it’s concise by its length and the detail provided therein. It cites every specific time of the record statement and exhibits that the Board relied on while reaching its decision. That’s what were really here to decide on is the Board’s decision. The Council here tonight is not to look backwards all the way to the beginning of the proceedings except in certain situations,” Powers said. “This is really a simple matter for you here tonight. The sole issue was whether there was construction occurring at 813 Central Avenue. If that construction occurred did it require a permit. If it did, was one obtained and as you’ll see from the facts in the Board’s order, there was actual construction being conducted at that location.”
He said that as testimony at the hearing clearly provides, both the appellant and the appellee were given numerous opportunities to present evidence and that there was sufficient evidence in the record for the Board to reach its decision.
“Was construction occurring? It’s pretty clear that the Board believes it was. It reached a decision after outlining the permitting process and explaining how things worked with the County in evaluating whether work is being done or not,” Powers said. He said it’s very clear that construction was occurring. He said the appellant applied for a permit.
“When he got a response saying we needed additional information, the appellant came in, withdrew his permit and took it home. That’s it. That’s the end of the discussion. Nothing more can change that. It was clear that because he knew and admitted that he needed to turn in a permit and did so. It was only when he disagreed and for 2 ½ years he has disagreed,” Powers said. “Let me remind you how important this is and why it’s important. This is a commercial remodel of a restaurant that was closed for two years. It had lost its certificate of occupancy and had some problems noted before. There wasn’t even a sprinkler system in the building. That’s important because we as government have a substantial interest in protecting the public. This is a public place where people will go. There are workers in the kitchen. There are buildings surrounding this. The importance of making sure a commercial kitchen remodel is done correctly is because of the danger of fire.”
He said that’s why Arellano and that what happened was the appellant said he didn’t have to, that it was not important for the appellant to give Arellano the information.
Powers told Council their decision was very clear, that the Board’s order is supported.
“Its citations to the record is extended, probably the most I’ve ever seen in a written board order of that type,” he said.
Meanwhile, the Reporter has discovered that Dabney’s law firm and Bullock Law, LLC have notified the County February 27 that Prashant Jain, Cortni Nucklos and Sirphey, LLC expect to file multiple claims against the County under the Tort Claims Act. Also listed as defendants are former County Manager Harry Burgess, former County Human Resource Director Denise Cassell, the Community Development Department (CDD), Board of Appeals Board chair Terry Priestley, Sara Scott individually and as a County Councilor and chair of the Board of Appeals, Randall Ryti individually and as a County Councilor and later as Council chair and Board of Appeals member, Michael Arellano individually and in his capacity as Chief Building Official, Paul Andrus, Director of the CDD, the County Records Information Management Office, Barbara Ricci in her official capacity as director of the RIM Office, Larry Valdez as an official in the CDD and Adrienne Lovato as an agent of Michael Arellano and employee of the County.
The notification to the County includes multiple charges such as malicious abuse of power, false representation, violation of open records request, Open Meetings Act violations; respondent superior, vicarious liability, several liability; negligent hiring, supervision and retention; ratification, interference with contractual relationship, principal and agent, civil conspiracy, civil invasion by privacy of intrusion, illegal search, deprivation of federal and state civil rights, unconstitutional taking, and violation of due process.
Sirphey and the County also faced off Friday afternoon in a virtual hearing before First Judicial District Judge Jason Lidyard. Watch for story on this hearing.