Prashant Jain
By KIRSTEN LASKEY
Los Alamos Daily Post
kirsten@ladailypost.com
Sirphey, LLC Owner Prashant Jain intends to take his case against Los Alamos County to First Judicial District Court.
The County placed a stop work order on Jain’s business, UnQuarked, in November at 813 Central Ave.
The decision to take the case to court was made after Los Alamos County Council voted 4-0 Sept. 8 to sustain the Board of Appeals motion that Sirphey representatives, Jain and his Communication Director Cortni Nucklos, failed to prove that the stop work order was “unlawful, arbitrary and capricious”. The Board of Appeals made the motion after conducting appeal hearings June 29, July 7 and July 14.
“Our next step is to appeal to District Court, and we’re very excited to have this case heard by an entity that isn’t party to it,” Nucklos wrote in an email to the Los Alamos Daily Post. “Unfortunately, when it isn’t clear what would happen if the Council voted in our favor or whether it would need to be a unanimous vote, I’m not sure the Council was left with much choice. Had we been able to appeal directly to district court, we would have. That said, I do think the actions of the original Board to deny rebuttal evidence full-stop and to interfere in our cross-examination of Mr. Arellano (Chief Building Official) did warrant remanding the case to gain more evidence.”
Several County Councilors recused themselves from the discussion regarding UnQuarked including Council Chair Sara Scott, Vice Chair Randall Ryti and Councilor Antonio Maggiore.
Early in the appeal process Scott recused herself. Ryti did not take part in the discussion Sept. 8 because he served on the Board of Appeals.
Maggiore said he would not participate because as a business owner himself, he interacts and works with the County Community Development Department, which issued the stop work order.
During the discussion on whether to uphold the Board of Appeal’s decision, both sides were able to present their cases.
Nucklos argued several points, including that because the Board of Appeals’ decision has not been put in writing, the Council was without jurisdiction to hear the case. She added that to not have a written decision is against state law. Therefore, Nucklos said the Council could not uphold the board’s decision.
“How really can we be asked to appeal what does not exist,” she said. “Hence it stands as a decision without cause. How can a decision without cause be anything but arbitrary?”
Nucklos said a written decision should be distributed to all parties and then Council revisit the issue.
County Assistant Attorney Katie Thwaits said the board’s decision should be upheld. This, she argued, is because Sirphey’s appeal is based on mootness.
“The doctrine of mootness is limitation upon jurisdiction in cases where there is no actual controversy that exists,” Thwaits said. “An action should be dismissed if the issue before it becomes moot. This action is now moot because, based on the information and belief provided to the appellee from the appellant, Sirphey LLC, no longer occupies the property in question, 813 Central Ave., legally.”
As a result, Thwaits said Sirphey can’t proceed with removing the red tag because it does not legally occupy the building.
Council agreed that the Board of Appeal’s decision should be sustained; however, Councilors Katrina Martin and James Robinson said the County needs to review and modify its appeal process.
“I voice my sadness to see how all this all transpired,” Robinson said. “I am deeply discouraged by this whole process. I appreciate our code allows for citizens or entities to appeal the decision of the building official; however, I believe it is really hard for someone not versed in legal proceedings and practice to understand all of the stuff they need to do … I would hope that if it is the goal of the governing board to support our small business, we need to take a look at this system and see if it is an appropriate method for appealing decisions by the county official or if there is a better way.”
Councilor Pete Sheehey agreed.
“There are improvements we can make to our permitting process and the appeal process,” he said.