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19F-H1919055-REL · Department of Real Estate - H/C · 2019-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pending before the Office of Administrative Hearings is Respondent Trilogy at Power Ranch Community Association’s Motion to Dismiss (Motion). Petitioner Pius J. Lacher filed a response to the Motion (Response). Respondent filed a Reply in Support of the Motion (Reply). Petitioner filed a response to the Reply (Second Response). At issue in the filings is whether the Petition alleged a dispute between a homeowners association and its member that falls within the jurisdiction of the Arizona Department of Real Estate, and thereby, the Office of Administrative Hearings. Arizona statute establishes the jurisdiction of the Office of Administrative Hearings to hear disputes between owners and planned community associations as follows:

For a dispute between an owner and a . . . planned community association that is regulated pursuant to title 33, chapter 9 or 16, the owner or association may petition the department for a hearing concerning violations of . . . planned community documents or violations of the statutes that regulate . . . planned communities. The petitioner shall file a petition with the department and pay a filing fee in an amount to be established by the commissioner. The filing fee shall be deposited in the condominium and planned community hearing office fund established by section 32-2199.05. On dismissal of a petition at the request of the petitioner before a hearing is scheduled or by stipulation of the parties before a hearing is scheduled, the filing fee shall be refunded to the petitioner. . . .

A.R.S. § 32-2199.01(A) (emphasis added). The relevant entities at issue in this matter are Respondent Trilogy at Power Ranch Community Association (Respondent or Association) and the Trilogy Golf Club at Power Ranch (Golf Course). In his Petition, Petitioner alleged a violation of “CC&R 6.3.2”, which is part of the Amended and Restated Declaration of Covenants, Conditions, Restrictions and Easements for Golf Course Use for Trilogy Golf Club (Golf Course Declaration), recorded at Maricopa County Instrument No. 2006-0834770. Petitioner alleged that Respondent failed to fulfill its obligations under the Golf Course Declaration. Petitioner did not allege that Respondent failed to comply with any provision of Respondent’s Declaration of Covenants, Conditions and Restrictions for Meadowbrook Village at Power Ranch Community Association (Association Declaration), which is recorded at Maricopa County Instrument No. 1999-0581325. Petitioner attempted to explain the interconnected history of the Golf Course and Respondent to establish that, somehow, the Golf Course Declaration should be considered as the planned community document that would give the Office of Administrative Hearings jurisdiction to hear this matter. In fact, the documents make clear that the Golf Course and the Association are two separate entities. While the Association may have certain obligations under the Golf Course Declaration, that does not bring the failure to meet that obligation into the jurisdiction of the Office of Administrative Hearings. Because Petitioner has not provided any provisions of the Association Declaration or applicable statutes that would allow him to pursue an enforcement action in this venue, this matter must be dismissed. This is not to say that Petitioner may not have the right to seek resolution of this matter in another venue, but only that the Office of Administrative Hearings does not have the statutory authority to hear this dispute. Accordingly, IT IS ORDERED dismissing the Petition. Done this day, September 20, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

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.

Transmitted by either mail, e-mail, or facsimile September 20, 2019 to:

Judy Lowe, Commissioner Arizona Department of Real Estate 100 N. 15th Avenue, Suite 201 Phoenix, Arizona 85007 Attn: [email redacted] [email redacted] [email redacted] [email redacted] [email redacted] [email redacted]

Pius J Lacher 1049 Timber Dr. Detroit Lakes, Minnesota 56501 [email redacted]

Josh Bolen, Esq. Carpenter Hazlewood Delgado & Bolen, PLC 1400 East Southern Avenue, Suite 400 Tempe, AZ 85282 [email redacted]

By c. serrano -----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826