ALJDEC decisions subject to certification as final
18F-H1818023-REL · Department of Real Estate - H/C · 2018-04-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michael J. Stoltenberg,
Petitioner,
vs.
Rancho Del Oro Homeowners Association,
.
No. 18F-H1818023-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 28, 2018
APPEARANCES: Petitioner Michael J. Stoltenberg appeared on his own behalf.
Lydia Linsmeier, Esq. appeared on behalf of Del Oro Homeowners Association.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On January 31, 2018, the Arizona Department of Real Estate issued a Notice of Hearing setting the above-captioned matter for hearing on March 28, 2018 at the Office of Administrative Hearings in Phoenix, Arizona.
The Notice of Hearing shows that the issue is whether Respondent violated Community Governing Document CC&Rs section 1.13, 1.19, and 2.5.
At hearing, Mr. Stoltenberg testified on behalf of himself. presented the testimony of its community manager Diana Crites and Chairman of the Board, James Van Sickle.
Through his petition, Mr. Stoltenberg alleged that Respondent violated the Community Governing Document CC&Rs by installing pipes through his lot in connection with installation of a well.
Respondent contended that Mr. Stoltenberg’s claim is barred by the statute of limitations under Ariz. Rev. Stat. section 12-550 because the well and pipes were installed in the summer of 2013.
Respondent also contended that CC&R section 2.5 does not apply because the section refers to additional easements and Respondent did not grant or convey an additional easement to a third party.
Respondent installed pipes in an easement which already existed at the time that the well and pipes were installed. See Exhibit 1.
There was no evidence presented at hearing that the well or the well pipe
were installed on Mr. Stoltenberg’s lot.
CONCLUSIONS OF LAW
The Department of Real Estate has authority over this matter. Ariz. Rev. Stat. Title 32, Ch. 20, Art. 11.
Mr. Stoltenberg bears the burden of proof to show that Respondent committed the alleged violation. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
Homeowners “may petition the department for a hearing concerning violations ... of the statutes that regulate condominiums or planned communities.” Ariz. Rev. Stat. § 32-2199.01.
If the petitioner proves the alleged violation, “The administrative law judge may order any party to abide by the statute ... and may levy a civil penalty on the basis of each violation.... If the petitioner prevails, the administrative law judge shall order the to pay to the petitioner the filing fee....” Ariz. Rev. Stat. § 32-2199.02.
Ariz. Rev. Stat. section 12-550 provides:
Actions other than for recovery of real property for which no limitation is otherwise prescribed shall be brought within four years after the cause of action accrues, and not afterward.
Community Governing Document CC&Rs section 2.5 applies to easements granted to a third party by the Respondent.
The weight of the evidence presented at hearing shows that the pipes were installed in an existing easement and that Respondent did not grant or convey an easement to a third party.
Therefore, Mr. Stoltenberg failed to establish that Respondent violated Community Governing Document CC&R section 2.5.
Furthermore, the installation occurred in 2013 and Mr. Stoltenberg filed his petition after the four year statute of limitations period in Ariz. Rev. Stat. 12-550 had expired.
Mr. Stoltenberg’s petition should be dismissed and Respondent be deemed the prevailing party in this matter.
ORDER
IT IS ORDERED that Mr. Stoltenberg’s petition is dismissed.
NOTICE
Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04. Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Done this day, April 17, 2018.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate
Transmitted U.S. Mail to:
Michael J. Stoltenberg
11777 E. Calle Gaud
Yuma, Arizona 85367
Rancho Del Oro Homeowners Association
c/o Lydia Peirce Linsmeier, Esq.
Nicole Payne, Esq.
Carpenter, Hazlewood, Delgado & Bolen, LLP
1400 E. Southern Avenue, Suite 400
Tempe, Arizona 85282