DEPARTMENT OF REGULATORY AGENCIES
DIVISION OF REAL ESTATE
BOARD OF REAL ESTATE APPRAISERS
4 CCR 725-2

NOTICE OF PROPOSED PERMANENT RULEMAKING HEARING
November 3, 2016

CHAPTER 14: DECLARATORY ORDERS PURSUANT TO SECTION 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 Board of Real Estate Appraisers (the “Board”) to promulgate rules, or to amend, repeal or repeal and re-enact the present rules of the Board.

STATEMENT OF BASIS

The statutory basis for the rules titled the Board of Real Estate Appraisers is Chapter 7 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 statute and the provisions of the federal Financial Institutions Reform, Recovery and Enforcement Act of 1989 as amended.

SPECIFIC PURPOSE OF THIS RULEMAKING

The purpose of this rule is to modify the requirements and procedures to petition for a declaratory order.

Proposed New, Amended and Repealed Rules

Deleted material is showed by struck through; new material is indicated by Small Caps or underline. Rules, or portions of rules, which are unaffected are reproduced.  Readers are advised to obtain a copy of the complete rules of the Board at www.dora.colorado.gov/dre.

CHAPTER 14:	DECLARATORY ORDERS PURSUANT TO SECTION 24-4-105(11), C.R.S.

14.2	The Board will determine, in its discretion and without prior notice to petitioner, whether to rule upon any such petition. If the Board determines that it will not rule upon such a petition, the Board shall will issue its written order disposing of the same stating the reason for its action. A copy of the order shall will be provided to the petitioner.

14.3	In determining whether to rule upon a petition filed pursuant to this rule Rule, the Board will 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 Board.

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 Board or a court involving one or more of the petitioners.

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 Board 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, C.R.C.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.

14.4	Any petition filed pursuant to this rule Rule shall must set forth the following:
 
A.	The name and address of the petitioner and whether the petitioner holds a registration, license or certificate issued pursuant to Section the Colorado Real Estate Appraiser Licensing Act 12-61-701 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.

14.5	If the Board determines that it will rule on the petition, the following procedures shall will apply: 

A.	The Board may rule upon the petition based solely upon the facts presented in the petition. In such a case:

1.	Any ruling of the Board will apply only to the extent of the facts presented in the petition and any amendment to the petition.

2.	The Board may order the petitioner to file a written brief, memorandum, or statement of position.

3.	The Board may set the petition, upon due notice to the petitioner, for a non- evidentiary hearing.

4.	The Board may dispose of the petition on the sole basis of the matters set forth in the petition.

5.	The Board 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.

6.	The Board may take administrative notice of facts pursuant to the Administrative Procedures Act, Section section 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.

7.	If the Board rules upon the petition without a hearing, it shall will promptly notify the petitioner of its decision.

B.	The Board 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 shall will set forth, to the extent known, the factual or other matters into which the Board intends to inquire. For the purpose of such a hearing, to the extent necessary, the petitioner shall 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 Board to consider.

14.6	The parties to any proceeding pursuant to this rule Rule shall will be the Board and the petitioner. Any other person may seek leave of the Board to intervene in such a proceeding, and leave to intervene will be granted at the sole discretion of the Board. A petition to intervene shall will set forth the same matters as required by section Board Rule 14.4 of this Rule. Any reference to a “petitioner” in this Rule also refers to any person who has been granted leave to intervene by the Board.

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

A hearing on the above subject matter will be held on Thursday, November 3, 2016, at the Colorado Division of Real Estate, 1560 Broadway, Suite 1250-C, Denver, Colorado 80202 beginning at 9:00 a.m. 

Any interested person may participate in the rule making through submission of written data, views and arguments to the Division of Real Estate.  Persons are requested to submit data, views and arguments to the Division of Real Estate in writing no less than ten (10) days prior to the hearing date and time set forth above. However, all data, views and arguments submitted prior to or at the rulemaking hearing or prior to the closure of the rulemaking record (if different from the date and time of hearing), shall be considered.

Please be advised that the rule being considered is subject to further changes and modifications after public comment and formal hearing.