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DEPARTMENT OF REGULATORY AGENCIES
DIVISION OF REAL ESTATE
SUBDIVISIONS
4 CCR 725-6

NOTICE OF PROPOSED PERMANENT RULEMAKING HEARING
December 2, 2014

                CHAPTER 5:  DECLARATORY ORDERS PURSUANT TO § 24-4-105(11), C.R.S.

Pursuant to and in compliance with Title 12, Article 61 and Title 24, Article 4, C.R.S. as amended, notice of proposed rulemaking is hereby given, including notice to the Attorney General of the State of Colorado and to all persons who have requested to be advised of the intention of the Colorado Real Estate Commission (the “Commission”) to promulgate rules, or to amend, repeal or repeal and re-enact the present rules of the Commission.

STATEMENT OF BASIS

The statutory basis for the rules titled Rules and Regulations for Subdivision Developers is Part 4 of Title 12, Article 61, Colorado Revised Statutes, as amended.  

STATEMENT OF PURPOSE

The purpose of this rule is to effectuate the legislative directive to promulgate necessary and appropriate rules in conformity with the state statutes concerning Subdivisions.

SPECIFIC PURPOSE OF THIS RULEMAKING

The purpose of this rule is to amend or repeal existing rules with respect to declaratory orders concerning subdivisions and to ensure that subdivision developers are familiar with all current regulations.

Proposed New, Amended and Repealed Rules

[Deleted material is shown struck through; new material is shown ALL CAPS.] Rules, or portions of rules, which are unaffected are reproduced.  Readers are advised to obtain a copy of the complete rules of the Commission at www.dora.state.co.us/real-estate/.

Chapter 5:	Declaratory Orders Pursuant to §24-4-105(11), C.R.S.
5.1 	Any person may petition the Commission for a declaratory order to terminate controversies or to remove uncertainties as to the applicability to the petitioner of any statutory provisions or of any rule or order of the Commission.

5.2 	The Commission will determine, in its discretion and without prior notice to petitioner, whether to entertain any such petition. If the Commission decides that it will not entertain such a petition, the Commission will promptly notify the petitioner in writing of its decision and the reasons for that decision. A copy of the order will be provided to the petitioner.

5.3 	In determining whether to entertain a petition filed pursuant to this rule, the Commission may consider the following matters, among others:
a.	Whether a ruling on the petition will terminate a controversy or remove uncertainties as to the applicability to petitioner of any statutory provision or rule or order of the Commission. 
b.	Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Commission or a court involving any petitioner.
c.	Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Commission or a court but not involving any petitioner.
d.	Whether the petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or opinion.
e.	Whether the petitioner has some other adequate legal remedy, other than an action for declaratory relief pursuant to Rule 57, Colo. R. Civ. P., which will terminate the controversy or remove any uncertainty as to the applicability to the petitioner of the statute, rule or order in question.

5.4 		Any petition filed pursuant to this rule must set forth the following:

a. The name and address of the petitioner and whether the petitioner holds a license or registration issued pursuant to section §12-61-401, et seq., C.R.S. (as amended).
b.	The statute, rule or order to which the petition relates.
c.	A concise statement of all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner.
d.	A concise statement of the legal authorities if any, and such other reasons upon which the petitioner relies.
e.	A concise statement of the declaratory order sought by the petitioner. 

5.5 	If the Commission determines that it will rule on the petition, the following procedures will apply:

a.	The Commission may rule upon the petition without a hearing. In such case:

1.	The Commission may dispose of the petition on the sole basis of the matters set forth in the petition.
2.	The Commission may request the petitioner to submit additional facts in writing. In such event, such additional facts will be considered as an amendment to the petition.
3.	Any ruling of the Commission will apply only to the extent of the facts presented in the petition and any amendment to the petition.
4.	The Commission may order the petitioner to file a written brief, memorandum or statement of position based on the facts set forth in the petition and any amendment to the petition.
5.	The Commission may take administrative notice of facts pursuant to the Administrative Procedures Act, (§24-4-105(8), C.R.S., (as amended)), and may utilize its experience, technical competence and specialized knowledge in the disposition of the petition.
6.	If the Commission rules upon the petition without hearing, it will promptly notify the petitioner in writing of its decision.

b.  The Commission may, in its discretion, set the petition for hearing, upon due notice to petitioner, for the purpose of obtaining additional facts or information or to determine the truth of any facts set forth in the petition or to hear oral argument on the petition. The notice to the petitioner setting such hearing will set forth, to the extent known, the factual or other matters into which the Commission intends to inquire and whether the hearing will be evidentiary or non-evidentiary in nature. For the purpose of such a hearing, to the extent necessary, the petitioner will have the burden of proving all of the facts stated in the petition, all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner and any other facts the petitioner desires the Commission to consider.

5.6 	The parties to any proceeding pursuant to this rule will be the Commission and the petitioner. Any other person may seek leave of the Commission to intervene in such a proceeding, and leave to intervene will be granted at the sole discretion of the Commission. A petition to intervene must set forth the same matters as required by Rule 5.4. Any reference to a “petitioner” in this rule also refers to any person who has been granted leave to intervene by the Commission.

5.7     Any declaratory order or other order disposing of a petition pursuant to this rule will constitute agency action subject to judicial review pursuant to §24-4-106, C.R.S., (as amended).