ALJDEC decisions subject to certification as final

20F-H2019005-REL-RHG · Department of Real Estate - H/C · 2020-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael J Stoltenberg,

Petitioner,

Rancho Del Oro Homeowners Association,

Respondent

No. 20F-H2019005-REL-RHG

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 5, 2020

APPEARANCES: Petitioner Michael J. Stoltenberg appeared on his own behalf. Respondent Rancho Del Oro Homeowners Association was represented by Nicole Payne.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

Petitioner filed the instant petition asserting that Respondent had failed to comply with the decision in a prior proceeding before the Office of Administrative Hearings in which the Administrative Law Judge concluded that Respondent was required to provide landscaping maintenance.

Petitioner acknowledged that in 2013, he notified Respondent that it was not allowed to enter his property. Following the prior ruling, Petitioner provided Respondent notice in April 2019 that he expected it to start maintaining his property in January 2020.

At the time of the initial hearing, Petitioner acknowledged that Respondent did not have his permission to enter his property and would not be allowed to start providing maintenance until January 2020.

Given Petitioner’s admission that Respondent was not allowed to enter his property at the time he filed the instant petition, Petitioner’s allegation that Respondent was in violation of the governing documents was not ripe for determination by this tribunal. Accordingly, the Administrative Law Judge dismissed Petitioner’s petition.

Petitioner subsequently submitted a request for rehearing claiming newly discovered material evidence; error in the admission or rejection evidence or other errors of law; that the findings of fact or decision was arbitrary, capricious, or an abuse of discretion; and that the findings of fact or decision was not supported by the evidence or was contrary to law. In the request, Petitioner asserted that he was “being proactive in getting resolution to the dispute before the first of the year” and that “[b]y the time that the rehearing is schedule[d] or allowed the HOA will be in violation.” Emphasis added. The Commissioner of the Department of Real Estate issued an Order Granting Rehearing “for the reasons outlined in the Rehearing Petition” without further explanation.

The rehearing was held on May 5, 2020. At that time, Petitioner again acknowledged that in 2013, he notified Respondent that it was not allowed to enter his property and that Petitioner provided Respondent notice in April 2019 that he expected it to start maintaining his property in January 2020. Again, Petitioner acknowledged that Respondent did not have his permission to enter his property and would not be allowed to start providing maintenance until January 2020.

During the discussion, Petitioner attempted to reframe his issue presented to include Respondent’s alleged failure to maintain his neighbors’ properties. Whether Petitioner had standing to bring such a complaint was irrelevant given Petitioner did not allege this purported failure in his original petition and raised it only during the rehearing. Petitioner also argued that Respondent’s ongoing failure, since January 2020, to maintain his landscaping created a present controversy.

IT IS ORDERED dismissing Petitioner’s petition.

NOTICE

This administrative law judge order, having been issued as a result of a rehearing, is binding on the parties. A.R.S. § 32-2199.02(B). A party wishing to appeal this order must seek judicial review as prescribed by A.R.S. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties. A.R.S. § 12-904(A).

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-137160-45720000Done this day, May 5, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Copy mailed/e-mailed/faxed May 5, 2020 to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Lydia A. Peirce Linsmeier

CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

1400 E. Southern Ave., Suite 400

Tempe, Arizona 85282

[email redacted]

Michael J. Stoltenberg

11777 E Calle Gaud

Yuma, AZ 85367

[email redacted]

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-137160-45720000