ALJDEC decisions subject to certification as final

11F-H1112001-BFS · Department of Fire Building and Life Safety - H/C · 2011-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On October 19, 2011, oral argument was held to address Respondent’s First Amended Motion to Dismiss. Based on the information presented by the parties, it is undisputed that at the time when Petitioner filed the Petition with the Arizona Department of Fire Building and Life Safety, she did not own Lot 20 within the North Slopes subdivision and was therefore not an owner within the meaning of A.R.S. § 41-2198.01(B) . Consequently, Petitioner does not have standing to be a party to an administrative hearing held pursuant to A.R.S. § 41-2198 et seq. Additionally, Petitioner did not identify either in the Petition or during oral argument any statute or provision within the community documents that has been violated by Respondent. Although Petitioner claims that the Respondent did not enforce the Covenants, Conditions and Restrictions (“CC& Rs”), Petitioner articulated that her cause of action has to do with the fact that the CC& Rs in existence when she purchased Lot provided that the minimum size of a home that could be constructed within the subdivision was 2,500 square feet, and that subsequently, the CC& Rs were amended to increase the minimum home size to 3,500 square feet. However, Petitioner did not allege that Respondent, by amending the CC& Rs, violated any law or provision within any community document. Instead, Petitioner maintained that she had a contract with Respondent that was not adhered to, and that Respondent did not act in good faith. Petitioner’s gravamen is one that is contractual in nature and does not fall within the jurisdiction of this Tribunal with respect to administrative hearings to be held pursuant to A.R.S. § 41- 2198(3), which requires the Administrative Law Judge to adjudicate complaints and ensure compliance with Title 33, Chapter 16, and planned community documents. In light of the fact that Petitioner lacks standing and did not present an identifiable issue that falls within this Tribunal's jurisdiction under A.R.S. § 41-2198 et seq., Respondent’s First Amended Motion to Dismiss is granted. THEREFORE, IT IS ORDERED dismissing this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 5 days from the date of that certification. Done this day, October 28, 2011.

/s/ Lewis D. Kowal Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Department of Fire Building and Life Safety

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826